12-3276
    Obeya v. Holder
                                                                                  BIA
                                                                           Connelly, IJ
                                                                          A055 579 757
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 10th day of July, two thousand fourteen.

    PRESENT:
             Rosemary S. Pooler,
             Peter W. Hall,
             Susan L. Carney,
                  Circuit Judges.
    _____________________________________

    CLEMENT OBEYA,
             Petitioner,

                      v.                                   12-3276


    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                 Richard Mark, Samantha Hong, Gibson,
                                    Dunn & Crutcher LLP, New York, New
                                    York.
FOR RESPONDENT:        Stuart F. Delery, Assistant Attorney
                       General, Eric W. Marsteller, Senior
                       Litigation Counsel, Elizabeth D.
                       Kurlan, Trial Attorney, Office of
                       Immigration Litigation, United
                       States Department of Justice,
                       Washington, DC.

    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is GRANTED.

    Clement Obeya, a native and citizen of Nigeria, seeks

review of an August 7, 2012 decision of the BIA affirming

the March 13, 2012 decision of Immigration Judge (“IJ”)

Steven J. Connelly, finding him removable under 8 U.S.C.

§ 1227(a)(2)(A)(i) based on his conviction for a crime

involving moral turpitude (“CIMT”) within five years of his

admission into the United States.     In re Clement Obeya, No.

A055 579 757 (B.I.A. Aug. 7, 2012), aff’g No. A055 579 757

(Immig. Ct. Batavia Mar. 13, 2012).    We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Obeya argues that his conviction under New York’s petit

larceny statute, New York Penal Law (“NYPL”) § 155.25, does

not constitute a crime involving moral turpitude.    Although


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Obeya did not expressly challenge the IJ’s ruling on this

issue below, the BIA, in broad language, “f[ound] no clear

error in the [IJ’s] determination that the Department of

Homeland Security . . . established the respondent’s

removability by clear and convincing evidence.”     App’x at 3.

Where, as here, the BIA’s sweeping language affirms an IJ’s

misstatement of law, and a petitioner seeks to challenge

that misstatement, we deem the issue exhausted.     See

Ruiz-Martinez v. Mukasey, 

, 112 n.7 (2d Cir.

2008) (explaining that an argument not otherwise raised

below may be considered exhausted if addressed by the BIA);

Waldron v. INS, 

, 515 n.7 (2d Cir. 1994).

    Although precedent allows counsel to stipulate or

concede facts, see Hoodho v. Holder, 

, 188, 190-

92 (2d Cir. 2009), we have never held that an IJ may rely on

an erroneous concession of law.     In finding Obeya removable,

the IJ held that “any type of larceny or theft offense under

the [i]mmigration laws constitutes a crime involving moral

turpitude.”   App’x at 25-26.   The IJ erred in so holding

because, as we have observed, under BIA precedent larceny

constitutes a CIMT “‘only when a permanent taking is

intended.’”   Wala v. Mukasey, 

, 106 (2d Cir.


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2007) (quoting Matter of Grazley, 14 I. & N. Dec. 330, 333

(B.I.A. 1973)).   Therefore, we remand for the BIA to

determine in the first instance whether Obeya’s conviction

under NYPL § 155.25 constitutes a CIMT.   See James v.

Mukasey, 

, 256 (2d Cir. 2008) (remanding for the

BIA to determine the divisibility of a statute of

conviction, even though the Court was not “clearly required”

to do so, as the “wiser and more prudent course”).

    For the foregoing reasons, the petition for review is

GRANTED, and the case REMANDED to the BIA for further

proceedings.   As we have completed our review, the stay of

removal that the Court previously granted in this petition

is VACATED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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