Safe Havens

 

(B)  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.  In finding that a conviction for possession of a stolen motor vehicle was an aggravated felony, the Seventh Circuit created 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.”[874]  The court arrived at this definition by combining the approaches of the Fifth and Ninth Circuits, merging the Black’s Law Dictionary definition with that under the Model Penal Code, and coming to essentially the same conclusion as the BIA in the VZS case that a temporary taking is sufficient (although those were not the facts of the case at hand and thus this portion of the opinion could be dismissed as dictum). 

Board of Immigration Appeals.  In a controversial decision, a divided BIA held that even a temporary taking of property, such as temporarily stealing a car to go “joyriding,” can constitute theft for purposes of the aggravated felony definition.[875]  The respondent had been convicted under Calif. Penal Code § 10851, a provision that prohibits taking another’s vehicle with the intent to deprive the person of it permanently (which is auto theft) or temporarily (often referred to as “joyriding”).  The Board held that a conviction under either subsection was “theft” within the meaning of the aggravated felony definition.

 

Second Circuit.  The Second Circuit held — contrary to the Ninth Circuit — that theft of services fell within the aggravated felony definition of a theft offense.[876]  The Second Circuit also held that a misdemeanor crime of violence or theft offense can constitute an aggravated felony, for purposes of triggering the 16-level sentence enhancement for illegal re-entry, so long as the offense meets the statutory definition of theft.[877] 

 

Fifth Circuit.  The federal circuit courts are beginning to adopt the BIA interpretation of the generic meaning of “theft.”  In Lopez-Elias v. Reno,[878] 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 Fifth Circuit in United States v. Dabeit[879] 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.”[880] 

Seventh Circuit.  In United States v. Martinez-Garcia,[881] the Seventh Circuit found that a defendant’s plea to an information charging an intent to commit a theft and the taking of a substantial step toward the commission of the theft (unlawfully entering a motor vehicle without the owner’s consent), met the generic federal definition of attempt,[882] and therefore qualified as an aggravated felony theft conviction.  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.”[883]  The court arrived at this definition by combining the approaches of the Fifth and Ninth Circuits, merging the Black’s Law Dictionary definition with that under the Model Penal Code, and coming to essentially the same conclusion as the BIA in the VZS case that a temporary taking is sufficient (although those were not the facts of the case at hand and thus this portion of the opinion could be dismissed as dictum). 

            Eighth Circuit.  The Eighth Circuit held that an Iowa conviction of identity theft[884] constitutes aggravated felony as a “theft offense” for purposes of eight-level sentence enhancement[885] for an illegal re-entry conviction.[886]  This decision is very poorly reasoned, and should not be followed.  It contradicts authority holding that the state label of an offense (e.g., as identity “theft”) is not determinative of whether the conviction falls within an aggravated felony category.  For example, auto “burglary” does not constitute “burglary” for aggravated felony purposes.  See § 7.37(c), supra.  It also ignores the traditional boundaries of the offense of theft that should be applied in this context.  See § 7.103(A), supra.

 

Ninth Circuit.  The Ninth Circuit in United States v. Corona-Sanchez[887] held that a defendant’s conviction under California Penal Code § § 488 and 666 for “petit larceny with a prior” was a “theft offense” because it fit the definition under the Model Penal Code.  The court noted that the Fifth Circuit in Dabeit adopted the Black’s Law Dictionary definition,[888] and concluded that the Model Penal Code definition[889] was consistent with that definition.[890]

In Huerta-Guevara v. Ashcroft,[891] the Ninth Circuit granted a petition for review and vacated a removal order predicated on an Arizona conviction of possession of a stolen vehicle,[892] holding the conviction did not fall within the generic definition of “theft offense” necessary to constitute an aggravated felony[893] adopted by the circuit en banc in Corona-Sanchez v. INS.[894]  The court held under the categorical approach, that the Arizona statute was overbroad, with respect to the generic definition of “theft offense,” in three respects.  The Arizona statute prohibited “theft of services,” which are not considered property and therefore fall outside the generic definition of theft.[895]  The statute prohibited aiding and abetting, which also falls outside the generic definition of theft.[896]  Third, the Arizona statute “is a divisible statute, four subparts of which do not require intent.”[897]  Therefore, “the conduct proscribed by § 13-1802 extends beyond the term ‘theft offense.’  Accordingly, a conviction under A.R.S. § 13-1802 does not facially qualify as a theft offense that is an aggravated felony under the INA.”[898]

 

Similarly, the Ninth Circuit held that an Arizona conviction of “theft of a means of transportation” did not constitute an aggravated felony, since the record of conviction did not specify which of five subdivisions of the statute constituted the offense of conviction, and three of the five did not require, as an essential element, the intent to deprive the owner that is required to constitute an aggravated felony theft offense.  Where the statute of conviction has distinct, numbered subdivisions, and the record of conviction does not establish which subdivision constitutes the statute of conviction, the conviction will not be considered deportable unless each of the subdivisions triggers deportation.[899]  The court stated:

On examination, it is evident that neither section (2) nor section (4) nor section (5) constitutes theft in the generic sense of “a 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.” United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc).

 

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.[900]

 

The court therefore granted the petition for review. 

The Ninth Circuit held a federal conviction for possession of stolen mail, in violation of 18 U.S.C. § 1708, constitutes a theft offense and is therefore an aggravated felony for purposes of triggering deportation.[901]

 

Tenth Circuit.  The Tenth Circuit has reached the same result as the Seventh Circuit.[902]

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

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

[876] 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).

[877] United States v. Pacheco, 225 F.3d 148 (2d Cir. 2000).

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

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

[880] See id. at 983.

[881] United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001).

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

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

[884] Iowa Code § 715A.8.

[885] United States Sentencing Guideline § 2L1.2(b)(1)(C).

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

[887] United States v. Corona-Sanchez, 234 F.3d 449, 455 (9th Cir. 2000).

[888] Black’s Law Dictionary defines “theft” as:  “A popular name for larceny. The act of stealing. The taking of property without the owner’s consent. The fraudulent taking of personal property belonging to another, from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.  [Para.]  It is also said that theft is a wider term than larceny and that it includes swindling and embezzlement and that generally, one who obtains possession of property by lawful means and thereafter appropriates the property to the taker’s own use is guilty of a ‘theft’.  Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property: (a) Obtaining or exerting unauthorized control over property; or (b) Obtaining by deception control over property; or (c) Obtaining by threat control over property; or (d) Obtaining control over stolen property knowing the property to have been stolen by another.” Black’s Law Dictionary 1477 (6th ed. 1990) (citations omitted).  “Larceny” is defined as: “Felonious stealing, taking and carrying, leading, riding, or driving away another’s personal property, with intent to convert it or to deprive owner thereof. . . . The essential elements of a ‘larceny’ are an actual or constructive taking away of the goods or property of another without the consent and against the will of the owner or possessor and with a felonious intent to convert the property to the use of someone other than the owner.” Id. at 881.  “Possession” entails “[h]aving control over a thing with the intent to have and to exercise such control.” Id. at 1163. “Receiving stolen goods or property” means acquiring “physical dominion or apparent legal power to dispose of property and envisages possession or control as an essential element.” Id. at 1269.

[889] The Model Penal Code sets forth a “[c]onsolidation of theft offenses.” Model Penal Code sec. 223.1; see Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § § 8.1, 8.8 (West 1986 & 1999). The consolidation subsumes eight offenses, namely: (1) theft by unlawful taking or disposition; (2) theft by deception; (3) theft by extortion; (4) theft of property lost, mislaid, or delivered by mistake; (5) receiving stolen property; (6) theft of services; (7) theft by failure to make required disposition of funds received; and (8) unauthorized use of automobiles and other vehicles.  See Model Penal Code § § 223.2-223.9. 

[890] United States v. Corona-Sanchez, 234 F.3d 449, 455 n.4 (9th Cir. 2000).  See also Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. March 4, 2003).

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

[892] A.R.S. § 13-1802(A) provides:  “A person commits theft if, without lawful authority, the person knowingly:

            1. Controls property of another with the intent to deprive the other person of such property; or

            2. Converts for an unauthorized term or use services or property of another entrusted to the defendant or placed in the defendant’s possession for a limited, authorized term or use; or

            3. Obtains services or property of another by means of any material misrepresentation with intent to deprive the other person of such property or services; or

            4. Comes into control of lost, mislaid or misdelivered property of another under circumstances providing means of inquiry as to the true owner and appropriates such property to the person’s own or another’s use without reasonable efforts to notify the true owner; or

            5. Controls property of another knowing or having reason to know that the property was stolen; or

            6. Obtains services known to the defendant to be available only for compensation without paying or an agreement to pay the compensation or diverts another’s services to the person’s own or another’s benefit without authority to do so.”

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

[894] Corona-Sanchez v. INS, 3079-291 F.3d 1201, 1205 (9th Cir. 2002) (en banc).

[895] Id. at 887, citing Corona-Sanchez, 291 F.3d at 1208.

[896] Id., citing Corona-Sanchez, 291 F.3d at 1208.

[897] Id. at 887.

[898] Id. at 887.

[899] Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. April 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 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).

[900] Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. April 16, 2003).

[901] Randhawa v. Ashcroft, 298 F.3d 1148 (9th Cir. Aug. 13, 2002).

[902] 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).