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,"

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,"
 

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.




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