(A)  Aggravated Felonies.[153]  See § 7.93, supra.

 

The aggravated felony definition includes “receipt of stolen property . . . for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least one year . . . .”[154]  The techniques for avoiding a sentence imposed of one year or more described in § 7.24, supra, apply here.

 

            The BIA found that a conviction of attempted possession of stolen property is also an aggravated felony as theft and receipt of stolen property.[155]  The Tenth Circuit agreed.[156]

 

            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.[157]  This strengthens the argument that this offense should not be held to involve fraud or deceit.

 

Ninth Circuit:

Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. March 4, 2003) (Arizona conviction for possession of a stolen vehicle, in violation of A.R.S. 13-1802, did not qualify as a theft offense conviction under the generic definition of “theft offense” adopted in United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc), or an offense of receipt of stolen property, and was thus not an aggravated felony, since it is a divisible statute, four parts of which do not require intent and which criminalizes theft of services and aiding and abetting theft of services and the record of conviction does not establish that respondent knew the vehicle was stolen or possessed it with criminal intent).

 

[153] See N. Tooby, Aggravated Felonies § 5.42 (2003).

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

[155] 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.

[156] United States v. Vasquez-Flores, 265 F.3d 1122 (10th Cir. Sep. 13, 2001), cert. denied, 122 S.Ct. 1180, 152 L.Ed.2d 123 (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).

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

BIA

AGGRAVATED FELONY " THEFT " RECEIPT OF STOLEN PROPERTY
Matter of Sierra, 26 I&N Dec. 288 (BIA 2014) (Nevada conviction for violation of NRS 193.330, 205.273, possession of a stolen vehicle, is not a categorical aggravated felony theft offense under INA 101(a)(43)(G), for immigration purposes, since the statute only requires reason to believe that the property received was stolen, but the generic definition of receipt of stolen property applicable to the aggravated felony definition requires knowledge).

AGGRAVATED FELONY " RECEIPT OF STOLEN PROPERTY
Matter of Sierra, 26 I & N Dec. 288, 292 (BIA 2014) (Nevada conviction of attempted possession of a stolen vehicle, in violation of Nevada Revised Statute 193.330 and 205.273, was not categorically an aggravated felony as an attempted theft offense, because Nevada law does not require actual knowledge that the property had been stolen, but only reason to believe; aggravated felony theft ground requires intent to deprive, which can be inferred from actual knowledge, but not from reason to believe); citing Matter of Garcia-Madruga, 24 I & N Dec. 436 (BIA 2008). NOTE: For any theft offense in which the mental state can be either knowledge or reason to know or believe, if the record shows that the defendant pled to the latter element, the defendant may be protected against the conviction being considered an aggravated felony. E.g., Massachusetts offense receiving a stolen motor vehicle, under M.G.L. ch. 266 28, only requires a reason to believe mental state.

AGGRAVATED FELONY " RECEIPT OF STOLEN PROPERTY
Matter of Sierra, 26 I & N Dec. 288, 292 (BIA 2014) (Nevada conviction of attempted possession of a stolen vehicle, in violation of Nevada Revised Statute 193.330 and 205.273, was not categorically an aggravated felony as an attempted theft offense, because Nevada law does not require actual knowledge that the property had been stolen, but only reason to believe; aggravated felony theft ground requires intent to deprive, which can be inferred from actual knowledge, but not from reason to believe); citing Matter of Garcia-Madruga, 24 I & N Dec. 436 (BIA 2008). NOTE: For any theft offense in which the mental state can be either knowledge or reason to know or believe, if the record shows that the defendant pled to the latter element, the defendant may be protected against the conviction being considered an aggravated felony. E.g., Massachusetts offense receiving a stolen motor vehicle, under M.G.L. ch. 266 28, only requires a reason to believe mental state.