Ottey v. Barr ( 2020 )

18-834 (L)
Ottey v. Barr
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
------
August Term, 2019
(Argued: April 1, 2020 Decided: July 7, 2020)
Docket Nos. 18-834(L), 19-737(CON)
_________________________________________________________
DWAYNE ANTHONY OTTEY, aka Dwayne Ottey,
Petitioner,
- v. -
WILLIAM P. BARR, United States Attorney General,
Respondent.
_________________________________________________________
Before: KEARSE, WALKER, and CABRANES, Circuit Judges.
Petitions by Jamaican citizen for review of orders of the Board of
Immigration Appeals (1) dismissing his appeal from an Immigration Judge's
decision that he is a noncitizen who is removable both by reason of being "present
in the United States without being admitted or paroled," 8 U.S.C. ' 1182(a)(6)(A)(i),
and by reason of having been convicted of "a crime involving moral turpitude," id.
' 1182(a)(2)(A)(i)(I), to wit, criminal possession of stolen property in the third
degree in violation of New York Penal Law ' 165.50; and (2) denying his motion to
reopen the proceedings. Petitioner contends principally (1) that the Immigration
Judge's evidentiary rulings denied him a proper opportunity to prove his
procedurally regular admission to the United States, and that the Board misapplied
the standard for establishing procedurally regular admission; and (2) that the Board
should have granted his motion to reopen on the ground that, in light of intervening
case law in Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2018), and Mellouli v. Lynch, 575
U.S. 798 (2015), criminal possession of stolen property was not a crime involving
moral turpitude at the time of his conviction. We conclude that we lack jurisdiction
to review the discretionary and factual determinations leading to the removal order,
and that petitioner's remaining contentions are without merit.
Petition in No. 18-834 dismissed in part and denied in part; petition in
No. 19-737 denied.
AMER S. AHMED, New York, New York, (Richard W.
Mark, Timothy Sun, Gibson Dunn & Crutcher, New
York, New York; Sophie Dalsimer, Andrea Saenz,
2
Brooklyn Defender Services, Brooklyn, New York,
on the brief), for Petitioner.
DAVID WETMORE, Associate Deputy Attorney
General, Washington, D.C. (Joseph H. Hunt,
Assistant Attorney General, Greg D. Mack, Leslie
McKay, Senior Litigation Counsel, Office of
Immigration Litigation, United States Department
of Justice, Civil Division, Washington, D.C., on the
brief), for Respondent.
KEARSE, Circuit Judge:
Petitioner Dwayne Anthony Ottey ("Ottey"), a citizen of Jamaica, seeks
review of two orders of the Board of Immigration Appeals ("BIA" or "Board"). In
No. 18-834, he challenges an order dismissing his appeal from the decision of an
Immigration Judge ("IJ") that he is a noncitizen who is removable both by reason of
being "present in the United States without being admitted or paroled," 8 U.S.C.
' 1182(a)(6)(A)(i), and by reason of having been convicted of "a crime involving
moral turpitude," id. ' 1182(a)(2)(A)(i)(I), to wit, criminal possession of stolen
property in the third degree in violation of New York Penal Law ' 165.50. He
contends principally that the IJ erroneously ruled that he did not establish that he
was "admitted" to the United States within the meaning of 8 U.S.C. ' 1101(a)(13)(A);
3
that the IJ's evidentiary rulings denied him a proper opportunity to prove he was
admitted; and that the IJ erred in denying his motion to reopen the proceeding to
present newly discovered evidence on the issue of his admission. In No. 19-737,
Ottey contends that the Board erred in denying his motion to reopen the proceeding
on the basis of intervening legal authorities that he views as requiring the
conclusion that criminal possession of stolen property was not a crime involving
moral turpitude at the time of his conviction. For the reasons that follow, we lack
jurisdiction to review the discretionary and factual determinations leading to the
removal order; we conclude that Ottey's other contentions--that the agency's rulings
denied him due process and constituted errors of law--are without merit.
I. BACKGROUND
Ottey, now some 30 years of age, has lived in the United States since he
was brought here from Jamaica at about the age of two. In early 2016, he pleaded
guilty to criminal possession of stolen property in the third degree, in violation of
New York Penal Law ' 165.50; he was sentenced principally to five years' probation.
4
In late 2016, Ottey married the mother of his two children, his longtime girlfriend
who is a United States citizen.
In the meantime, in mid-2016, the Department of Homeland Security
("DHS") served Ottey with a notice to appear for removal proceedings, charging
him, to the extent relevant here, with being removable (1) as a non-citizen present
in the United States without having been admitted or paroled, and (2) as a non-
citizen who has been convicted of a crime involving moral turpitude. Ottey,
represented by counsel, conceded that he is not lawfully present in the United
States; but he moved to terminate the proceeding on the ground that he had in fact
been "admitted" to the United States within the meaning of 8 U.S.C. ' 1101(a)(13)(A)
("'admission' and 'admitted' mean, with respect to an alien, the lawful entry of the
alien into the United States after inspection and authorization by an immigration
officer"). Establishing that he had been so admitted--an issue on which he had the
burden of proof, see 8 U.S.C. ' 1361--would render him eligible to seek an
adjustment of status through his United States citizen wife, and allow him an
opportunity to show that he is deserving of discretionary relief from deportation.
5
A. Ottey's Evidentiary Proffers in Support of Admission
In order for an alien to establish that he has been "admitted" to the
United States within the meaning of 8 U.S.C. ' 1101(a)(13)(A) and seek adjustment
of immigration status, he need not show that he complied with the substantive legal
requirements for admission but "need only show procedural regularity in h[is]
entry." Matter of Graciela Quilantan, 25 I. & N. Dec. 285, 287 (BIA 2010) ("Quilantan").
An alien satisfies that requirement for procedural regularity if he presented himself
for inspection and did not make any fraudulent claim of United States citizenship.
See id. at 293 ("an alien who physically presents herself for questioning and makes
no knowing false claim to citizenship is 'inspected,' even though she volunteers no
information and is asked no questions by the immigration authorities"; "such an
alien has satisfied the 'inspected and admitted' requirement").
Within this framework, Ottey sought to show that he had been
inspected and admitted to the United States in 1991, principally by proffering
declarations from his parents, with whom he lived for more than a decade in
Brooklyn, New York. However, those declarations state that Ottey was brought to
the United States by a third person, not by either his father or his mother.
6
Ottey's father, Mark Ottey ("Ottey Sr."), who stated that he lived in the
United States from 1989 until sometime in 2008 (see Declaration of Mark Ottey dated
November 20, 2016 ("Ottey Sr. Decl."), && 2, 8), now lives in Jamaica and provided
a sworn declaration stating as follows. Ottey Sr. moved to the United States in 1989
shortly before Ottey was born and began dating a Jamaican woman named "Janet,"
a permanent resident of the United States who had a son about the same age as
Ottey. In 1991, when Janet was planning a trip to Jamaica, Ottey Sr. arranged for
her to bring Ottey back to the United States. Accordingly, during her trip to
Jamaica, Janet picked up the then-22-month-old Ottey from his mother and took
him to the U.S. Embassy where she claimed that she had lost her son's green card.
Instructed to provide a photograph of her son, she had Ottey photographed, and
she was given a replacement document for her son, bearing Ottey's picture. Janet
then entered the United States with Ottey at John F. Kennedy Airport ("JFK"),
presenting the document she had obtained from the embassy and passing Ottey off
as her son. After arriving, Janet took Ottey to Ottey Sr. in Brooklyn. (See Ottey Sr.
Decl. && 2-4.)
Ottey Sr. stated that he had never actually seen the document issued
for Janet's son with Ottey's picture. He said he and Janet had parted ways a few
7
months after she brought Ottey to the United States, and he does not remember
Janet's last name or her son's name. (See id. && 3, 6.)
Ottey submitted a series of statements from his mother, Pansy Cohen.
Cohen stated that she came to the United States about a year after Ottey arrived,
and said she had not known in advance about Ottey Sr.'s plan to get Ottey to the
United States. She stated that when Ottey was nearly two years old, Janet, who
Cohen did not know was dating Ottey Sr., had come to her home in Jamaica on
successive days to pick up Ottey, the first day to take him to have his picture taken,
and the second--Cohen had believed--to take him to visit Ottey Sr.'s family. But
later on the second day, she received a call from Ottey Sr. saying that Ottey was
with him in Brooklyn. Cohen said she heard that Janet and Ottey had flown in to
JFK.
Cohen's statement as originally submitted was undated and unsigned;
it was later resubmitted with date and signature, accompanied by a photocopy of
her New York City identification card; and it was thereafter re-signed and
submitted with a notarization. The text of all three of these Cohen declarations was
identical.
8
These early Cohen declarations were eventually withdrawn by Ottey,
following considerable procedural wrangling between himself and DHS. Among
other things, in light of Cohen's statements and DHS's inability to verify her
identity, DHS sought leave to subpoena Cohen to testify at a hearing. DHS
suspected that Cohen herself had entered the United States without being admitted
or paroled and that Ottey had entered with her. With Cohen apprehensive about
testifying in person because of her immigrant status, when Ottey was unable to
secure DHS's assurance that Cohen would not face immigration consequences by
testifying, he withdrew those declarations, and DHS withdrew its subpoena
request. Thereafter, Ottey presented a fourth Cohen declaration, which provided
additional information as to her apprehensions and ongoing obligations, and
repeated the statements made in her earlier declarations; Ottey requested that
Cohen be allowed to testify only by telephone. DHS then again moved to have
Cohen subpoenaed. When the IJ indicated that she would grant DHS's motion,
Ottey withdrew Cohen's fourth declaration, and DHS withdrew its subpoena
request.
As to Ottey Sr., Ottey sought to have him testify from the U.S.
Consulate in Kingston, Jamaica--which would have permitted verification of
9
Ottey Sr.'s identity. However, that process would have required Ottey to pay a fee
of some $1,800 unless the government served a subpoena and requested that the fee
be waived; DHS initially agreed to make such a request, but then it refused to do so
once Cohen refused to appear at the hearing. Eventually, the IJ agreed to receive
testimony from Ottey Sr. by means of his personal telephone.
In the ensuing call--a patchy cellphone communication from the start,
which had required two attempts to achieve and maintain connection--Ottey Sr. on
direct examination reiterated the substance of his written declaration. He again said
he did not remember Janet's last name, and said he had no way to reach her.
On cross-examination, Ottey Sr. said that Cohen had come to Brooklyn
to live with him "sometime after [Ottey arrived], either 1992 or 1993" (No. 19-737,
Certified Administrative Record ("CAR") 417), and that the family lived together
until 2007. However, after DHS began to ask whether Ottey Sr. had not in fact been
removed from the United States in 1995, the call was dropped. The IJ's attempt to
renew the call with Ottey Sr. failed to achieve a sustainable connection.
DHS opted to proceed without further cross-examination, and the IJ
stated that if Ottey Sr. was not available for cross-examination, she would not
consider his direct examination. DHS presented evidence that Ottey Sr. had been
10
removed from the United States in 1997 and had reentered in 2001, contradicting
his testimony that the family had been together in Brooklyn from 1992 or 1993 until
2007.
The IJ granted a continuance to allow Ottey to obtain additional
evidence of his entry into the United States in 1991. She also asked Ottey to provide
records of the immunizations that he would have needed to have received in order
to begin kindergarten.
In all, there were three evidentiary hearings with regard to Ottey's
claim that he had been admitted to the United States. In the first, in March 2017,
Ottey had been the only witness. He testified that he first learned that he was not
born in the United States around the age of 12, but "wasn't really told how [he] got
here" (CAR.355). Ottey had no recollection of arriving as a two-year old, and his
parents told him only that he arrived at JFK. The second hearing, in April, was the
truncated telephone call with Ottey Sr. At the third hearing, in June, Ottey
submitted records of immunizations he received as a young child. DHS argued that
although those records dated back to September 1991, they did not demonstrate that
Ottey received any vaccinations in the United States before September 1992. As the
entries with respect to pre-1992 vaccines appeared to be based on reports by Cohen,
11
rather than first-hand entries by medical personnel, DHS argued that that fact
suggested that Ottey had arrived in the United States in 1992 or 1993 with Cohen
and without inspection, rather than having been brought in and inspected, as
Ottey Sr. alleged, by Janet.
At the end of the third hearing, when the IJ asked Ottey to specify
clearly the evidence on which he was relying to prove the time, place, and manner
of his entry, Ottey responded that Ottey Sr.'s testimony was the only available
evidence; he argued that the immunization records provided circumstantial
corroboration.
B. The IJ's Decision
In an oral decision on June 6, 2017, the IJ denied Ottey's motion to
terminate the removal proceeding; she granted Ottey a continuance to allow him to
pursue any available forms of relief. Thereafter, in addition to applying for
withholding of removal and relief under the Convention Against Torture, Ottey
moved for reopening and reconsideration of the denial of his termination motion.
He argued principally that the IJ should have given full weight to the statements of
Ottey Sr. and should permit Cohen to give testimony by telephone. He also stated
12
that on June 7, Cohen informed him that she knows the last name and birth date of
Janet, whom Ottey now hoped to find. He moved to subpoena immigration
authorities to "produce any and all records pertaining to the entry or arrival of Janet
Thompson." (CAR.785.)
In a written final decision dated September 28, 2017 ("IJ Decision" or
"Written Decision"), the IJ denied all of Ottey's requests for relief and ordered his
removal to Jamaica based on his presence without being admitted and his
conviction of a crime involving moral turpitude. As to Ottey's motion to reopen,
the IJ rejected his arguments as to the value of testimony by Ottey Sr. and Cohen,
and she found that Ottey had not shown that his purported new evidence was not
previously available for discovery or for presentation at a prior hearing.
In the Written Decision, the IJ memorialized her June 6 oral decision
rejecting Ottey's motion to terminate the removal proceeding, noting, inter alia, that
the only purportedly direct evidence Ottey had adduced to support his contention
that he had been admitted to the United States in a procedurally regular manner
was the declaration and direct telephonic testimony of Ottey Sr. The IJ stated that
Ottey Sr.'s statements were accorded minimal weight in part because he had
become unavailable for cross-examination, and in part because according to his own
13
statement, Ottey Sr. was not present at Ottey's alleged arrival in the United States
with Janet. The IJ also found Ottey's immunization records insufficient to show the
timing of Ottey's arrival in the United States. She concluded that Ottey had failed
to carry his burden of showing that he had been presented for inspection and had
been admitted. See IJ Decision at 5.
Ottey appealed to the BIA, contending principally that the IJ committed
legal error in concluding that Ottey failed to carry his burden of proving a
procedurally valid entry to the United States, and that the failure to continue to
pursue Ottey Sr.'s telephonic testimony and refusal to allow Cohen to testify by
telephone violated his due process rights. In a decision dated March 12, 2018 ("2018
BIA Decision"), the Board dismissed the appeal. It found no clear error in the IJ's
factual findings and concluded that Ottey had been provided with "appropriate
opportunities to submit evidence and introduce witnesses." 2018 BIA Decision at 3.
The BIA also affirmed the denial of Ottey's request for additional time and
opportunity to gather more information about the woman who allegedly brought
him to the United States. Id.
Ottey timely petitioned this Court to review the 2018 BIA Decision.
While that petition was pending, Ottey filed motions with the BIA to, inter alia,
14
reopen his removal proceedings on the ground that "intervening" case law in Obeya
v. Sessions, 884 F.3d 442 (2d Cir. 2018), and Mellouli v. Lynch, 575 U.S. 798 (2015),
required the conclusion that possession of stolen property was not a crime involving
moral turpitude at the time of Ottey's conviction. The Board denied the motions.
A petition for review of that denial was filed, and the proceedings for
review were consolidated.
II. DISCUSSION
In petition No. 18-834, Ottey contends principally that the BIA erred (a)
in rejecting his challenge to the IJ's ruling that he failed to carry his burden of
showing his procedurally regular admission to the United States, (b) in rejecting his
contention that he was denied due process by the IJ's evidentiary rulings
minimizing or curtailing evidence from Ottey Sr. and Cohen to show his
procedurally regular admission, and (c) in denying his motion to reopen the
proceeding to present newly discovered evidence as to the identity of Janet. In
petition No. 19-737, Ottey contends that the Board erred in rejecting his contention
that intervening legal authority requires the conclusion that criminal possession of
15
stolen property was not a crime involving moral turpitude at the time of his
conviction.
Where, as here, the BIA approved the IJ's decisions without formally
adopting them, we review both decisions "for the sake of completeness," Wangchuck
v. Department of Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006), to the extent that
such decisions are reviewable. For the reasons below, we deny No. 18-834 in part
and dismiss it in part for lack of jurisdiction; we deny No. 19-737.
A. Petition No. 18-834: Challenges to the Inadmissibility Ruling
Under the Immigration and Nationality Act ("INA") as amended,
judicial review of removal "[o]rders against criminal aliens" is limited to
consideration of "constitutional claims or questions of law." 8 U.S.C.
'' 1252(a)(2)(C)-(D). Regardless of the rhetoric and labels used in the petition for
review, a challenge that "merely quarrels over the correctness of the factual findings
or justification for the discretionary choices" is not reviewable. Xiao Ji Chen v. U.S.
Dep't of Justice, 471 F.3d 315, 329 (2d Cir. 2006).
Only one of Ottey's contentions--the claim that he was denied a fair
opportunity to prove his procedurally-regular-entry defense--at all implicates
16
constitutional principles. But that contention is squarely belied by the record. As
described in Part I.A. above, Ottey had several evidentiary hearings before the IJ,
with repeated continuances and other indulgences to permit him to determine
whether there was additional evidence he wished to present. For example, although
agency policy disfavors receipt of testimony by cellular telephone, the IJ agreed to
hear Ottey Sr. through his cell phone in light of the high fee for having such a call
made at the consulate, Ottey's indigence, and his representation by a public interest
organization with limited resources (see CAR.399). That procedure was begun only
after some difficulty in achieving a connection, was continued until the connection
was broken early in the course of cross-examination, and was attempted anew in
vain. (See CAR.435 ("[IJ:] . . . . We tried multiple times to call him. He wasn't
available.").)
The IJ stated that Ottey Sr.'s testimony would be accorded minimal
weight because he had become unavailable for cross-examination. But she
proceeded to consider that testimony and Ottey Sr.'s written statements--which
were not materially different from his uncross-examined testimony. The IJ
discounted Ottey Sr.'s statements as to the manner of Ottey's actual entry to the
United States not only because DHS had been unable to cross-examine him, but also
17
because he had no first-hand knowledge as to whether Ottey was presented for
inspection. By his own admission, Ottey Sr. had neither seen the immigration
document he described, bearing the name of Janet's son but the picture of Ottey, nor
been present at the airport at which Ottey allegedly entered the United States.
According minimal weight to such evidence does not implicate constitutional
principles.
We likewise see no merit in the contention that Ottey was denied due
process with respect to testimony from Cohen. Ottey submitted--and withdrew--a
total of four declarations from her, each of which included her statement as to how
Ottey was taken to the United States. He has pointed to no constitutional principle
that required the IJ, at Ottey's request, to adopt a procedure that could reduce DHS's
opportunity to conduct effective cross-examination--and would diminish the IJ's
opportunity to observe Cohen's demeanor in order to assess her credibility. In any
event, it was Ottey's own choice to withdraw all of those declarations rather than to
have Cohen appear at a hearing.
Nor has Ottey pointed to any way in which the absence of testimony
from Cohen caused him prejudice. Cohen was in no position to present competent
evidence that Ottey entered the United States at JFK and was presented for
18
inspection. Her declarations stated unequivocally that she had no advance
knowledge of Ottey Sr.'s plan to have Janet bring Ottey to the United States; she
merely stated that she had "heard"--likely via hearsay from Ottey Sr.--that Janet and
Ottey arrived at JFK. No aspect of anything Cohen said--or could say--about Ottey's
alleged entry to the United States with Janet was based on Cohen's personal
knowledge.
Ottey also contends that the agency erred as a matter of law in failing
to conclude that Ottey Sr.'s declaration and telephonic testimony--with or without
Ottey's hospital and immunization records--were sufficient to show that Ottey's
entry to the United States was procedurally regular under the standard established
in Quilantan. But neither that contention nor the contention that the IJ erred in
according minimal weight to the sworn statements of Ottey Sr. raises issues of law.
While we have jurisdiction to review such legal questions as which party bears the
burden of proof and what considerations are permissible or impermissible, "[t]he
amount of weight to be accorded any particular fact raises no question of law and
is accordingly not within this Court's jurisdiction," Boluk v. Holder, 642 F.3d 297, 304
(2d Cir. 2011); see id. ("we do not reevaluate the relative strength of the evidence
presented to the immigration judge" (internal quotation marks omitted)). A
19
petitioner's "assert[ion] that he met his burden of proof" under the legal standard
applied "constitutes a mere[] quarrel[] over the correctness of the factual findings."
Barco-Sandoval v. Gonzales, 516 F.3d 35, 42 (2d Cir. 2008) (internal quotation marks
omitted); see id. at 39 ("we remain deprived of jurisdiction to review decisions under
the INA when the petition for review essentially disputes the correctness of an IJ's
factfinding" (internal quotation marks omitted)).
In Quilantan, the BIA concluded that a procedurally regular entry had
been sufficiently established by testimony of the alien herself that she had been
waved through the port of entry without being asked any questions. See 25 I. & N.
Dec. at 293. There is no such factual predicate here. Ottey--the only witness who
was present at his alleged entry with Janet--acknowledged that he could not testify
about his entry because he had been a toddler and had no recollection. Ottey's
father and mother were not present for his alleged entry with Janet. Neither
Quilantan nor any principle of law required the IJ to give credence--much less to
give conclusive weight--to their hearsay, or double hearsay, evidence. We lack
jurisdiction to review the IJ's factual determinations or the weight given to the
various declarations.
20
Similarly, Ottey's final motion, seeking additional time to conduct a
search for Janet after his mother disclosed to him--some 10 months into the removal
proceeding--that she knew Janet's last name and birth date, was denied on the
ground that Ottey had not shown that this purported new evidence was not
previously available for discovery or for presentation at a prior hearing. Whether
that final motion is construed as a motion for a continuance in the ongoing removal
proceeding or as a motion to reopen the denial of the termination-motion phase of
the proceeding, Ottey has not raised any legal challenge to its denial. And if we had
jurisdiction to review it, we would surely find no abuse of discretion.
In sum, we deny so much of Petition No. 18-834 as contends that Ottey
was denied due process; we dismiss the remainder of that petition for lack of
jurisdiction.
B. No. 19-737: Crimes Involving Moral Turpitude
Ottey's challenge in No. 19-737 to the Board's denial of his motion to
reopen makes the legal argument that at the time of his conviction, criminal
possession of stolen property was not a crime involving moral turpitude. We see
no error.
21
The INA provides, with exceptions not relevant here, that certain aliens
are ineligible for visas or admission into the United States, including
any alien convicted of, or who admits having committed, or who
admits committing acts which constitute the essential elements
of--
(I) a crime involving moral turpitude . . . .
8 U.S.C. ' 1182(a)(2)(A)(i)(I) (emphasis added).
The INA does not define the term "moral turpitude." The BIA
interprets that term to focus not on the seriousness of the offense or the severity
with which it is punishable, but rather on "'the offender's evil intent or corruption
of the mind.'" Mendez v. Mukasey, 547 F.3d 345, 347 (2d Cir. 2008) ("Mendez") (quoting
Matter of Serna, 20 I. & N. Dec. 579, 581 (BIA 1992)). "We afford Chevron deference
to the BIA's interpretation of th[at] undefined statutory term," Mendez, 547 F.3d
at 346, and we conduct de novo review of the BIA's determination that a particular
state crime is one involving moral turpitude, as that term is thus interpreted, see id.
at 346-47.
22
1. Criminal Possession of Stolen Property
In considering whether a conviction is for a crime involving moral
turpitude, the agency and the courts apply a "categorical approach," under which
the focus is "on the intrinsic nature of the offense rather than on the factual
circumstances surrounding any particular violation." Gill v. INS, 420 F.3d 82, 89 (2d
Cir. 2005) (internal quotation marks omitted). Thus, "we look only to the minimum
criminal conduct necessary to satisfy the essential elements of the crime, not the
particular circumstances of the defendant's conduct." Mendez, 547 F.3d at 348.
Under New York law, a person is guilty of criminal possession of stolen
property in the third degree if he
knowingly possesses stolen property, with the intent to benefit
himself or a person other than an owner thereof or to impede the
recovery by an owner thereof, and when the value of the
property exceeds three thousand dollars.
N.Y. Penal Law ' 165.50. In Michel v. INS, 206 F.3d 253 (2d Cir. 2000) ("Michel"), with
regard to a removal order under 8 U.S.C. ' 1227(a)(2)(A)(ii) for an alien who had
been convicted of "two or more crimes involving moral turpitude," we considered
the New York crime of fifth-degree criminal possession of stolen property. That
23
crime is committed, without regard to the value of the stolen property, by a person
who
knowingly possesses stolen property, with intent to benefit
himself or a person other than an owner thereof or to impede the
recovery by an owner thereof,
New York Penal Law ' 165.40. We concluded that fifth-degree criminal possession
of stolen property constitutes a crime involving moral turpitude because
"knowledge is a requisite element of ['] 165.40 and corrupt scienter is the touchstone
of moral turpitude." Michel, 206 F.3d at 263.
The substance of fifth-degree criminal possession of stolen property is
identical to that of third-degree criminal possession of stolen property, with the
latter adding only a value element--that the property be worth at least $3,000. Given
that both of these New York statutory sections require the same degree of mental
culpability, and that in Michel we determined that fifth-degree criminal possession
of stolen property with no property value minimum is a crime involving moral
turpitude, a fortiori third-degree criminal possession of stolen property requiring the
identical mens rea--but requiring that the property be worth at least $3,000--is a crime
involving moral turpitude.
24
2. Ottey's Proffer of "Intervening" Authority
Ottey contends that the Board should have granted his motion to
reopen the proceedings on the ground that "intervening" decisions in Obeya v.
Sessions, 884 F.3d 442 (2d Cir. 2018) ("Obeya"), and Mellouli v. Lynch, 575 U.S. 798
(2015), require the conclusion that possession of stolen property was not a crime
involving moral turpitude at the time of his conviction. We disagree.
We do not see that Obeya has any bearing on the nature of the crime of
possession of stolen property. Obeya involved a crime of larceny. Until 2016, the
BIA had held that "larceny constitutes a [crime involving moral turpitude] only
when a permanent taking is intended." Obeya, 884 F.3d at 444 (internal quotation
marks and emphasis omitted). In 2016, however, the Board decided that a larceny
crime should also be considered to involve moral turpitude "under circumstances
where the owner's property rights are substantially eroded." Matter of
Diaz-Lizarraga, 26 I. & N. Dec. 847, 854 (BIA 2016) ("Diaz-Lizarraga"). Given that
"Diaz-Lizarraga expressly effected a clear departure from longstanding BIA
precedent," Obeya, 884 F.3d at 448--and that in "conducting retroactivity analysis in
the immigration context, we look to whether it would have been reasonable for a criminal
defendant to rely on the immigration rules in effect at the time that he or she entered a guilty
25
plea," id. (emphasis added)--we held that the rule of Diaz-Lizarraga could not be
applied retroactively to larceny crimes that had been committed prior to that
decision.
The decision in Diaz-Lizarraga did not deal with offenses of possession
of stolen property; the BIA viewed receipt of stolen property as "a distinct and
separate offense" from theft, Matter of Cardiel-Guerrero, 25 I. & N. Dec. 12, 14 (BIA
2009). The BIA had long held that criminal possession of stolen property is a crime
involving moral turpitude, see, e.g., Matter of Salvail, 17 I. & N. Dec. 19 (BIA 1979);
and we had affirmed that principle in Michel, see 206 F.3d at 262-265. Nothing in
Diaz-Lizarraga indicated any change in the BIA's view of criminal possession of
stolen property; and nothing in Obeya's ruling--that Diaz-Lizarraga could not be
applied retroactively to crimes of larceny--affected either the BIA's consistent view
of criminal possession of stolen property as a crime involving moral turpitude or
Michel's affirmance of that view. The state of the law when Ottey pleaded guilty
could not have given Ottey reason to believe that the BIA would treat his possession
crime other than as a crime involving moral turpitude within the meaning of
8 U.S.C. ' 1182(a)(2)(A)(i)(I).
26
Nor was the Board required to grant Ottey's motion to reopen based on
his invocation of the Supreme Court's decision in Mellouli. Mellouli did not address
either property crimes or crimes involving moral turpitude. It dealt with an
interplay between state and federal laws governing narcotics trafficking, and it
expressed concern that a lesser drug offense resulted in harsher immigration
consequences than would more serious drug offenses. Although Ottey seeks relief
through Mellouli because he views criminal possession of stolen property as a less
serious crime than larceny, as discussed in Part II.B.1. above the concept of moral
turpitude focuses neither on the seriousness of the offense nor on the severity with
which it is punishable. Rather, the focus is on whether the offender had an "'evil'"
or "'corrupt[]'" state of mind. Mendez, 547 F.3d at 347 (quoting Matter of Serna, 20 I.
& N. Dec. at 581).
Further, Mellouli was not an "intervening" decision; it was decided in
2015, the year before Ottey pleaded guilty to criminal possession of stolen property.
Any argument that the underlying concern expressed in Mellouli prevents Ottey's
crime from being considered a crime involving moral turpitude could have been
raised during his removal proceeding before the IJ.
27
We conclude that there was no error in the BIA's rejection of Ottey's
motion to reopen the removal proceedings based on his claim of an intervening
change in the law.
CONCLUSION
Ottey also argues that because the Notice to Appear served on him in
August 2016 did not specify the time and place for his hearing, it deprived the BIA
of jurisdiction over his removal proceedings. This argument is foreclosed by our
decision in Banegas Gomez v. Barr, 922 F.3d 101, 112 (2d Cir. 2019). Ottey so
acknowledges, and states that he has made the argument here simply to preserve it
for further appeal.
We have considered all of Ottey's arguments that are properly before
us and have found them to be without merit. For the reasons stated above, the
petition in No. 18-834 is denied in part, and is dismissed in part for lack of
jurisdiction; the petition in No. 19-737 is denied.
28