Safe Havens

(F)  Relationship Between Different Grounds.  The BIA found that a conviction of attempted possession of stolen property is an aggravated felony as theft and receipt of stolen property.[720]  The Tenth Circuit agreed.[721]

            If a sentence of less than one year can be achieved, it is important to make sure the conviction does not fall within a different category of aggravated felony.  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, even 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.[722]  This strengthens the argument that this offense should not be held to involve fraud or deceit.

[720] 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.

[721] United States v. Vasquez-Flores, 265 F.3d 1122 (10th Cir. Sept. 13, 2001), cert. denied, 122 S.Ct. 1180 (2002) (conviction for attempting to knowingly receive or transfer a stolen motor vehicle, in violation of Utah Code § 41-1a-1316 (1953), was an “aggravated felony” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) for enhancement purposes under U.S.S.G. § 2L1.2(b)(2) of an illegal re-entry sentence).

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