IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________

August Term, 2022 Argued: September 28, 2022 Decided: September 13, 2023

No. 21-6380 ____________________ JOSE RAMON PEGUERO VASQUEZ,

Petitioner,

v.

MERRICK B. GARLAND,

United States Attorney General,

Respondent.

____________________ Before: JACOBS, CHIN, and ROBINSON, Circuit Judges.

Jose Ramon Peguero Vasquez petitions for review of a decision of the Board of Immigration Appeals affirming the finding that he is removable on the ground that he committed a crime involving moral turpitude for which “a sentence of one year or longer may be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i). The predicate offense, a 2017 conviction for possession of a forged instrument, is a Class A misdemeanor under New York law. In 2019, after his conviction, New York enacted Penal Law Section 70.15(1-a), which lowered the maximum possible sentence for Class A misdemeanors from one year to 364 days. Peguero Vasquez asserts that, because the statute is retroactive for state law purposes, his prior conviction no longer constitutes a basis for removal because it is not a crime for which “a sentence of one year or longer may be imposed,” as required by the removal statute. 8 U.S.C. § 1227(a)(2)(A)(i).

We decline to give retroactive effect to New York’s modification of its sentencing scheme for purposes of federal immigration law. The removal statute focuses on the historical fact of an alien’s prior conviction, and thereby consults the state law applicable at the time of the criminal proceedings, not at the time of the removal proceedings. Peguero Vasquez’s petition is therefore DENIED.

Judge Robinson dissents in a separate opinion.

____________________

TIFFANY J. LIEU (Philip L. Torrey, on the brief), Crimmigration Clinic, Harvard Law School, Cambridge, MA, for Petitioner. Rohmah A. Javed, John H. Peng, Laura A. Rion, Prisoners’ Legal Services of New York, Albany, NY, for Petitioner.

2 ERICA B. MILES, Senior Litigation Counsel, Office of Immigration Litigation (Craig A. Newell, Jr., Senior Litigation Counsel, on the brief), for Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent. Mauricio E. Noroña, The Kathryn O. Greenberg Immigration Justice Clinic, Benjamin N. Cardozo School of Law, New York, NY for Amici Curiae Brooklyn Defender Services; The Kathryn O. Greenberg Immigration Justice Clinic, Benjamin N. Cardozo School of Law; The Bronx Defenders; and The Legal Aid Society. Andrew Wachtenheim, Nabilah Siddiquee, Immigrant Defense Project, New York, NY, for Amicus Curiae Immigrant Defense Project.

DENNIS JACOBS, Circuit Judge:

The Department of Homeland Security placed Jose Ramon Peguero Vasquez in removal proceedings on account of prior convictions for, among other things, criminal pos