Aggravated Felonies

 

(A)  Definition of a “Theft Offense.”  The BIA and various circuits have adopted more or less consistent definitions of the term “theft offense,” although there are some differences.  The courts have noted that “Congress used the words ‘theft offense’ rather than just ‘theft,’ thus indicating that the phrase ought to be read to incorporate different but closely related constructions in modern state statutes.”[721]

 

Board of Immigration Appeals.  The BIA has adopted a generic definition of “theft offense” for purposes of the aggravated felony definition.[722]  For this purpose, “a taking of property is a ‘theft’ whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.”[723]  The court therefore found that a conviction under Calif. Penal Code § 10851, prohibiting taking another’s vehicle with the intent to deprive the person of it permanently (auto theft) or temporarily (often referred to as “joyriding”), was an aggravated felony “theft offense.”

 

Second Circuit.  Deferring to the BIA definition of theft, the Second Circuit has held that theft includes theft of services or labor.[724]

 

Third Circuit.  The Third Circuit has also held that theft of services constitutes an aggravated felony theft offense.[725]  The court specifically found that taking emergency calls not directed to the defendant constituted “theft” because the noncitizen “was aware of the practical certainty that his acceptance of the ambulance call would result in diversion of its benefits [$300-500 charge of transporting someone to a hospital] to someone not entitled to them.  Thus, we conclude that the modern sense of the term ‘theft offense’ under 8 U.S.C. § 1101(a)(43)(G) includes [theft of services] because it requires the taking or exercise of control over something of value knowing that its owner has not consented.”[726]

 

Fourth Circuit.  In Soliman v. Gonzalez,[727] the court found that the offense of fraudulent use of a credit card, committed by falsely representing a credit card belonging to another as one’s own, with an intent to obtain property, was not an aggravated felony theft offense.  The court rejected the conclusion of the BIA, in that case, that the term “theft offense” included all fraud offenses as well.  The court distinguished between fraud, involving a taking where the owner’s consent was obtained through deceit, and theft, where the taking is done without the owner’s consent.  The court defined theft, for aggravated felony purposes, as “a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.”[728]

 

Fifth Circuit.  In United States v. Dabeit[729] the court held that a conviction under 18 U.S.C. § § 1014 and 2113(b) for a check kiting conspiracy was a “theft offense,” relying on the definition found in Black’s Law Dictionary, that “theft” is “the act of stealing.”[730]  In Lopez-Elias v. Reno,[731] the Fifth Circuit held that a petitioner’s conviction under Texas Penal Code Ann. § 30.04(a) for burglary of a vehicle with the intent to commit theft therein did not constitute a “theft offense” because the petitioner was only convicted of having the intent to commit theft rather than for actually having committed theft.  The court noted that an aggravated felony charge of attempted theft, under INA § 101(a)(43)(U),[732] would likely have been upheld by the court.

Seventh Circuit.  In finding that a conviction for possession of a stolen motor vehicle was an aggravated felony, the Seventh Circuit crafted a generic definition of “theft” that is consistent with the BIA interpretation.  Theft, according to the court, is “the taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.”[733]  The court arrived at this definition by merging the Black’s Law Dictionary definition with that under the Model Penal Code, coming to essentially the same conclusion as the BIA in Matter of VZS, that a temporary taking is sufficient to constitute theft.

 

            Eighth Circuit.  The Eighth Circuit, refusing to adopt the Seventh Circuit’s definition of “theft offense,” held that an Iowa conviction of identity theft[734] constitutes an aggravated felony “theft offense.”[735]  Rather than looking to the language of the statute itself, the court determined that the Iowa legislature intended the offense to be considered “theft” simply because it was placed in the general area of theft offenses, and was labeled “identity theft.”[736]  Although recognizing that the offense involved fraud[737] (and “misappropriation” as opposed to “deprivation”[738]), the court found that the offense was also “theft.”  This decision is very poorly reasoned, and should not be followed.

 

Ninth Circuit.  The Ninth Circuit adopted the Seventh Circuit’s definition of theft in United States v. Corona-Sanchez,[739] holding that a defendant’s conviction under California Penal Code § § 488 and 666 for “petit larceny with a prior” was an aggravated felony “theft offense.”  The court specifically rejected adopting the Model Penal Code definition of theft.[740]

 

Applying the definition of “theft offense” adopted in Corona-Sanchez, the court, in Huerta-Guevara v. Ashcroft,[741] found that an Arizona conviction of possession of a stolen vehicle[742] was divisible on the basis that (1) the Arizona statute prohibited “theft of services,” which are not considered property and therefore fall outside the generic definition of theft;[743] (2) the statute prohibits aiding and abetting, which also falls outside the generic definition of theft,[744] and (3) four sections of the Arizona statute could be committed without any intent to commit theft.[745]

 

Similarly, the Ninth Circuit held that an Arizona conviction of “theft of a means of transportation” was not categorically an aggravated felony theft offense, since the statute of conviction was divisible and included sections that could be violated without any intent to commit theft.[746]  The court stated:

 

What is critical in the generic definition is the criminal intent to deprive the owner. The Arizona statute requires knowledge, but the statute does not require intent for violation of (2), (4) or (5). Section (2), for example, could be violated by the renter of a rental car keeping the car beyond the date of return specified in the contract or by returning the car to an airport not identified in the contract. The section could also be violated by a college student driving his dad’s car to a destination other than that for which his dad had given permission. Section 4 could be violated by a person at a hotel taking delivery from a valet of a rental car, not the one that he had parked, and keeping the car for the evening on the theory that rental cars are fungible (a case familiar to the author of this opinion). The examples could be multiplied. Three sections of the statute cover more than generic theft.[747] 

 

The Ninth Circuit has, however, agreed with the BIA that a violation of California Penal Code § 10851 is an aggravated “theft offense,” even though the statute does not require an intent permanently to deprive the owner of the property.[748]

Tenth Circuit.  The Tenth Circuit adopted the definition of theft applied in the Seventh Circuit.[749]

 

Eleventh Circuit.  In Jaggernauth v. United States Attorney Gen.,[750] the court found that a violation of Florida Statutes § 812.014(1) was a divisible statute, since the statute punished taking with intent to “appropriate the property to his or her own use or to the use of any person not entitled to the use of the property,” as well as intent to deprive another person of the right to the property.  Adopting the BIA definition of “theft offense,” the court recognized that an intent to “appropriate” was not the same the intent to “deprive” required to constitute an aggravated felony theft offense. 

[721] United States v. Vidal, 426 F.3d 1011, 1014 (9th Cir. Oct. 24, 2005), quoting Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. 2001).  See also Matter of VZS, 22 I. & N. Dec. 1338, 1345-1346 (BIA 2000).

[722] See § 4.36, supra.

[723] Matter of VZS, 22 I. & N. Dec. 1338, 1346 (BIA 2000).

[724] Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. Aug. 5, 2004) (definition of the “theft” for purposes of INA § 101(a)(43)(G) includes theft of services).  But see United States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. 2002) (en banc).

[725] Ilchuk v. Att’y Gen. United States, 434 F.3d 618 (3d Cir. Jan 17, 2006).

[726] Id. at 623.

[727] Soliman v. Gonzalez, 419 F.3d 276 (4th Cir. Aug. 22, 2005).

[728] Id. at 283, quoting Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir. 2001).

[729] United States v. Dabeit, 231 F.3d 979, 983-84 (5th Cir. 2000).

[730] See id. at 983.

[731] Lopez-Elias v. Reno, 209 F.3d 788, 792 (5th Cir. 2000).

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

[733] Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. 2001).

[734] Iowa Code § 715A.8. (“with the intent to obtain a benefit fraudulently obtains identification information of another person and uses or attempts to use that information to obtain credit, property or services without the authorization of that other person.”) (emphasis added).

[735] United States v. Mejia-Barba, 327 F.3d 678 (8th Cir. May 5, 2003).

[736] See § 4.39, supra.

[737] See Soliman v. Gonzalez, 419 F.3d 276 (4th Cir. Aug. 22, 2005) (distinguishing between fraud and theft).

[738] Compare with Jaggernauth v. United States Att’y Gen., 432 F.3d 1346 (11th Cir. Dec. 19, 2005) (appropriation of property is not an aggravated felony theft offense).

[739] United States v. Corona-Sanchez, 29 F.3d 1201, 1205 (9th Cir. 2002) (en banc).

[740] Ibid.

[741] Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003).

[742] A.R.S. § 13-1802(A).

[743] Id. at 887, citing Corona-Sanchez, 291 F.3d at 1208 (9th Cir. 2002) (en banc).

[744] Ibid.  See § 3.50, supra.

[745] Id. at 887.

[746] Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. Apr. 16, 2003) (Arizona conviction of “theft of a means of transportation,” in violation of Arizona Revised Statute § 13-1814, did not constitute a theft offense aggravated felony, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), where the record of conviction did not establish that the noncitizen had been convicted of violating a portion of the statute of conviction that required intent).

[747] Id. at 1055.

[748] United States v. Vidal, 426 F.3d 1011 (9th Cir. Oct. 24, 2005).

[749] United States v. Vasquez-Flores, 265 F.3d 1122 (10th Cir. 2001) (Utah conviction of attempted receiving or transferring a stolen motor vehicle in violation of U.C.A. § 41-1a-1316 falls within a generic aggravated-felony definition of “theft offense” and thus merits a 16-level increase in sentence for illegal re-entry).

[750] Jaggernauth v. United States Att’y Gen., 432 F.3d 1346 (11th Cir. Dec. 19, 2005).