By Katie Tinto, Assistant Clinical Professor of Law, Cardozo School of Law
On February 2, 2015, an immigration judge in New York City terminated removal proceedings after finding that the government failed to meet its burden of proof that a lawful permanent resident (hereinafter, “Mr. P”) was removable on the grounds of either an aggravated felony theft offense or an aggravated felony fraud offense. Matter of P-F-M- (NYC Immigr. Ct. Feb. 2, 2015). The Kathryn O. Greenberg Immigration Justice Clinic of Cardozo School of Law (IJC) represented Mr. P for over three years, but for Mr. P, a long-time permanent resident with a five year old U.S. citizen daughter, his fight to remain in this country began long before, while in ICE detention and without the benefit of counsel.
After pleading guilty to a violation of New York Penal Law (NYPL) § 155.40(1), larceny in the second degree, Mr. P served approximately 13 months in prison. This was his only criminal arrest and conviction. After finishing his sentence, Mr. P was transferred to immigration detention and, appearing without counsel before the immigration judge, was ordered removed from the United States on the basis that he has committed an aggravated felony theft offense. While remaining detained, Mr. P appealed pro se to the BIA, but his removal order was affirmed. Mr. P did not give up, and again appealed pro se to the U.S. Court of Appeals for the Second Circuit. He also filed a motion for the appointment of pro bono counsel. IJC was appointed, and Mr. P was released from detention.
IJC’s student and faculty attorneys pieced together a creative defense built around existing BIA precedent and a careful reading of New York’s larceny statute. In an earlier case, the BIA clarified that under federal law, a “theft offense” under INA section 101(a)(43)(G) is defined as the “taking of, or exercise of control over, property without consent….” Matter of Garcia-Madruga, 24 I&N Dec. 436, 440 (BIA 2008). In addition, there was BIA caselaw following Garcia-Madruga that held that larceny in the third degree (an offense identical to Mr. P.’s statute of conviction for all material purposes) was not categorically an aggravated felony. After the submission of briefing on this caselaw by IJC before the Second Circuit, the Government moved to remand back to the BIA. The Second Circuit granted the Government’s request, and remanded Mr. P’s case without decision. Upon remand, the BIA held that Mr. P’s offense of conviction was not categorically an aggravated felony theft offense. The BIA held that NYPL § 155.40(1) is not categorically a match to the definition of the federal theft offense because the state statute encompasses takings with and without consent. Accordingly, the BIA remanded the case with instructions to apply the modified categorical approach.
IJC argued before the immigration judge that, upon application of the modified categorical approach, there was insufficient evidence that Mr. P was necessarily convicted of the elements of an offense that require a taking without consent, as defined under federal law. Neither Mr. P’s Uniform Sentence Report nor the plea minutes shed light on the type of larceny of which he was necessarily convicted. Therefore, IJC argued that DHS had failed to meet its burden of proof under the modified categorical approach.
IJC also advanced the alternative argument that, in light of Descamps v. United States, 133 S. Ct. 2276 (2013), a case decided after the remand from the BIA, NYPL § 155.40(1) is not in fact a divisible statute and therefore the modified categorical analysis should not be applied. Although NYPL § 155.40(1) does define larceny in a variety of ways, an analysis of each alternative definition of larceny demonstrates that none of the definitions categorically match the federal definition of a taking without consent. Because there is no single set of alternative elements that require a taking without consent, IJC argued that NYPL § 155.40(1) is not a divisible statute under Descamps.
After IJC submitted its Memorandum of Law supporting its Motion to Terminate Removal Proceedings, the Government, instead of filing a reply, filed an additional charge, alleging that Mr. P was removable on the grounds that he committed an aggravated felony fraud offense. Under current federal and BIA precedent, in order to sustain a fraud aggravated felony charge, a conviction must categorically require fraudulent or deceitful conduct as an element of the offense. Knowing that divisibility turns on the relationship between the statute of conviction and the particular removal category alleged, IJC argued that because Mr. P.’s statute of conviction, NYPL § 155.40(1), has alternative elements, some of which categorically involve fraud and some which do not, the statute is a divisible statute and the modified categorical approach must be applied. Therefore, as in the application of the modified categorical approach with respect to the theft offense, in this case, the record of conviction failed to demonstrate that Mr. P. was necessarily convicted of a type of larceny that categorically includes the element of fraudulent or deceitful conduct.
After four years of litigation, Immigration Judge Balasquide granted IJC’s Motion to Terminate, finding that DHS had not met its burden of establishing either aggravated felony charge. A victory for Mr. P, his family, and the IJC law students, Mr. P’s story also demonstrates the strength and perseverance of our clients, the importance of counsel, and the power of creative legal arguments.
Katie Tinto teaches in the Kathryn O. Greenberg Immigration Justice Clinic at Cardozo School of Law. This clinic focuses on direct representation and larger social impact projects at the intersection of immigration and criminal law. Prior to entering academia, Katie was a public defender for many years in Los Angeles County.