In a Rare Occurrence, the Court of Appeals Declines to Review a Certified Question from the Second Circuit

Chalk this up to something you don’t see every day. The Court of Appeals yesterday declined to accept a certified question from the Second Circuit in Andy Pabel Ferreiras Veloz v. Merrick B. Garland. In this immigration appeal from a final order of removal, the Second Circuit asked the Court of Appeals to review whether the intent element of New York crime of petit larceny “requires an intent to deprive the owner of his or her property either permanently or under circumstances where the owner’s property rights are substantially eroded, which . . . is how the [Board of Immigration Appeals] defines a theft involving moral turpitude” (Second Circuit Certification Order, at 5).

The Second Circuit’s opinion, however, was less than convincing that it actually wanted the Court of Appeals’ answer. In discussing how the BIA has defined theft crimes as crimes of moral turpitude for removal purposes, the Second Circuit all but rejected the petitioner’s arguments that the intent required for New York’s crime of petit larceny did not qualify (id. at 9-10). The Second Circuit reviewed the Court of Appeals’ prior precedent on larceny and basically decided, without deciding, that New York law aligns with the BIA’s standard for crimes of moral turpitude (id. at 10-11). Indeed, it can’t be put more bluntly than this:

Given these New York cases, if certification were not available, we would likely hold that NYPL § 155.00 conforms to the BIA’s definition of a CIMT, and does require an intent to deprive owners of their property permanently, or in such a way that their property rights are “substantially eroded.” In other words, we would read Jennings as applying to both sub-sections (a) and (b) of NYPL § 155.00(4). As a result, if the NYCA declines certification we would most probably agree with the government that petit larceny in New York constitutes a CIMT

(id. at 13-14).

And for the cherry on top, Judge Sullivan dissented from the certification order because he felt the certification was unnecessary and an imposition on the Court of Appeals:

I disagree with the majority’s decision to certify a question concerning New York Penal Law § 155.00(4)(b) to the New York Court of Appeals. In my view, the majority opinion takes a straightforward statutory provision that New York’s highest court has repeatedly interpreted and asks it to consider the statute again. Because such a certification is unnecessary and, worse, an imposition on the New York Court of Appeals, I respectfully dissent.

Taking the Second Circuit’s clue, the Court of Appeals declined to accept the certified question.

Although the Court of Appeals routinely accepts certified questions from the United States Courts of Appeals, and decides those cases quickly, this was not a routine case. Indeed, the Court retains discretion to review the proposed certified question and to decide whether to accept it (see 22 NYCRR 500.27 [d] [“The Court, on its own motion, shall examine the merits presented by the certified question, to determine, first, whether to accept the certification and, second, the review procedure to be followed in determining the merits.”]).

And the Court has occasionally in the past declined to accept questions that have been certified to it. In fact, the Court has declined a certified question five times before this, and each time has explained why it was refusing to consider the questions.

In the latest example, one of parties refused to participate in the certification to the Court of Appeals, forcing its counsel to move to withdraw from its representation. Seeing that, the Court, on its own motion, reconsidered its prior order accepting the certified question and then declined them (see Joseph v Athanasopoulos, 18 NY3d 946, 947 [2012]).

Before that, in 2000, the Court of Appeals refused to accept certified questions that arose in the context of a preliminary injunction order in a First Amendment prior restraint case. The Court reasoned that hearing the case would only further delay the resolution of the constitutional rights at issue, and it wouldn’t address a state constitutional issue that the Second Circuit had certified, but the parties had never raised (see Tunick v Safir, 94 NY2d 709, 711 [2000]).

In another, the Court of Appeals declined a certified question in an ERISA case because it was not likely to recur, and the parties weren’t likely to be much help in deciding it (one was pro se, another didn’t submit a brief, and the third didn’t have an interest at stake in the question) (see Grabois v Jones, 88 NY2d 254, 255 [1996]).

In the fourth, the Court of Appeals decided against taking certified questions from the Second Circuit that were already pending on appeal before the Appellate Division, because it would upset the normal procedure for state court proceedings (see Rufino v United States, 69 NY2d 310, 311-312 [1987]).

And most relevant here, the Court of Appeals’ decision not to take up the Second Circuit’s certified question is consistent with the Court’s past treatment of certified questions in immigration cases. Because immigration is exclusively a matter for the federal courts, and not likely to arise in any state court case, the Court has been reluctant to get involved in those cases, even when they present a novel or unsettled issue of New York law. As the Court previously explained:

Additionally, this exclusive Federal matter—Immigration and Naturalization—presents a fact pattern that would most likely not arise in any State court proceeding. Indeed, the Federal courts—the unique forums to handle litigation involving the INS—are in the best position to assess and rule with respect to that Agency’s agents and activities in New York for jurisdictional purposes. Thus, the tendered issues are better left for definitive resolution by the Federal courts themselves

(Yesil v Reno, 92 NY2d 455, 457 [1998]).

That seems to explain the Court’s decision to decline the certified question in Ferreiras Veloz. The Court has already interpreted New York’s larceny statute, and how that interpretation plays in immigration matters is a matter exclusively for the federal courts. So there was no need for the Court of Appeals to get involved.

To ensure that the Second Circuit won’t be discouraged from certifying open questions of New York law, however, the Court of Appeals has, repeatedly in the past, made sure to explain how valuable it feels certification can be:

We take this opportunity to underscore the great value in New York’s certification procedure where Federal appellate courts or high courts of other States are faced with determinative questions of New York law on which this Court has not previously spoken. Indeed, the certification procedure can provide the requesting court with timely, authoritative answers to open questions of New York law, facilitating the orderly development and fair application of the law and preventing the need for speculation. As shown by actual experience, and by this Court’s acceptance of all but a very few of the questions that have been certified to us by the Circuit Court, inter-jurisdictional certification is an effective device that can benefit Federal and State courts as well as litigants

(Tunick, 94 NY2d at 711-712).

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