Aggravated Felonies

The aggravated felony definition includes a “theft offense (including receipt of stolen property) . . . for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least one year . . . .”[536]

            To trigger removal under this category, the requirements of the generic definition of “theft” must be met.[537]  Therefore receipt of stolen services, for example, should not qualify as an aggravated felony under this ground.[538]  At least one case has held that there must also be an intent to permanently deprive the owner of the property.[539]

The property in question must also have been obtained by theft.  Property obtained by extortion should not meet this requirement.

            The BIA had found that a conviction of attempted possession (as opposed to receipt) of stolen property is an aggravated felony theft offense, despite the lack of any “related to” language in the definition.[540]  The Seventh Circuit agrees.[541]  The Fourth Circuit has found that “concealment of merchandise” is likewise an aggravated felony.[542]

A conviction of receiving stolen property should not be considered to be an offense involving fraud, so as to trigger deportation as an aggravated felony, regardless of the length of the sentence, if the loss to the victim(s) was in excess of $10,000.  Under Federal Rule of Evidence 609(a)(2), a conviction of receiving stolen property has been held not to be per se one of dishonesty or involving a false statement, for impeachment purposes, because it can be committed without misrepresentation or deceit.[543] 

[536] INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[537] See § 5.78, infra.

[538] Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (Arizona conviction of possession of a stolen vehicle, in violation of A.R.S. § 13-1802, did not fall within the generic definition of “theft offense” necessary to constitute an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), since the Arizona statute was overbroad, with respect to the generic definition, because (a) it prohibited “theft of services,” which are not considered property and therefore fall outside the generic definition of theft, (b) it prohibited aiding and abetting, and (c) it “is a divisible statute, four subparts of which do not require intent.”).

[539] Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. Apr. 16, 2003) (Arizona conviction of failure to return lost means of transportation, in violation of Arizona Revised Statute § 13-1814(A)(4), did not constitute a theft offense aggravated felony, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), since the statute did not require intent to deprive the owner of the property) (alternative holding).

[540] Matter of Bahta, 22 I. & N. Dec. 1381 (BIA 2000).  See dissent arguing that because possession of stolen property is a different offense from receipt of stolen property, the former should not be held an aggravated felony.

[541] Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. Apr. 11, 2001) (Illinois conviction for possession of a stolen motor vehicle, in violation of 625 ILCS § 5/4-103(a)(1) a “theft offense,” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), and therefore constituted an “aggravated felony” rendering noncitizen deportable).

[542] Ramtulla v. Ashcroft, 301 F.3d 202 (4th Cir. Aug. 22, 2002) (Virginia conviction of concealment of merchandise, in violation of Va.Code Ann. § 18.2-103, constitutes a “theft offense” and with a two-year suspended sentence therefore constitutes an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) for deportation purposes).

[543] United States v. Foster, 227 F.3d 1096 (9th Cir. 2000).