Francisco-Lopez v. Attorney General United States, No. 19-2700 (3d Cir. 2020)Annotate this Case
Francisco, a citizen of Guatemala, obtained lawful U.S. permanent resident status in 1989. In 2012, Francisco pleaded guilty to attempted grand larceny in the second degree in New York; Francisco had obtained a stolen laptop and contacted the laptop’s owner and demanded money. During this exchange, Francisco sent the laptop’s owner sexually explicit pictures that Francisco had found on the laptop. The owner contacted the police. Francisco was sentenced to five years of probation. In 2018, Francisco returned from a trip abroad and sought admission as a returning lawful permanent resident. Instead, Francisco was classified as an arriving alien and was deemed inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(I) as an alien convicted of a crime involving moral turpitude (CIMT). Francisco filed an unsuccessful application for discretionary relief of cancellation of removal. The BIA dismissed Francisco’s appeal, citing Matter of Diaz-Lizarraga (2016), in which the BIA promulgated a broader standard for determining whether a larceny offense constituted a categorical CIMT and holding that New York’s second-degree grand larceny statute defines a categorical CIMT because it requires the accused to take or withhold property with the intent to permanently or virtually permanently appropriate it or deprive the rightful owner of its use.
The Third Circuit vacated, joining other circuits in ruling that the BIA should not have retroactively applied Diaz-Lizarraga. An alien defendant’s decision about whether to plead guilty, implicate distinctively weighty reliance interests; there is no discernable BIA uniformity interest in retroactively applying Diaz-Lizarraga. The BIA uniformly applied the prior standard for more than seven decades before changing course.