Safe Havens

 

(A)  Aggravated Felonies.  See § 7.103, supra.

 

            An aggravated felony 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.”[162] 

 

Theft has been defined differently, for aggravated felony purposes, in different jurisdictions.  One definition, adopted by the Seventh Circuit defines theft as “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.”[163]  For more on this topic, see N. Tooby, Aggravated Felonies § 5.52, Theft (2003).  See also Burglary, §   8.35, supra.

 

            Definition of Theft

 

Ninth Circuit:

 

Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005) (California conviction of unlawful driving or taking a vehicle, in violation of Vehicle Code § 10851(a), was not a theft offense, within the meaning of INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), because the statute and charge of conviction were both over-broad with respect to the definition of a theft offense by encompassing not only substantive theft offenses but aiding and abetting them as well).

United States v. Rodriguez-Lopez, 51 Fed. Appx. 664 (9th Cir. Nov. 19, 2002) (California conviction of grand theft auto, in violation of Penal Code § 487(b)(3), did not constitute an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), since the underlying theft offense, Penal Code § 484(a), was broader than generic aggravated felony theft, because it included the offense of aiding and abetting a theft and permitted conviction where the defendant neither took nor exercised control over property, and the record of conviction in this case did not establish the defendant was convicted of the narrower offense of generic theft, for purposes of a sentence enhancement for illegal re-entry after deportation), following United States v. Corona-Sanchez, 291 F.3d 1201, 1207-1208 (9th Cir. 2002) (en banc).

 

District Courts:

 

United States v. Esparza-Ponce, 7 F.Supp.2d 1084 (S.D.Cal. May 18, 1998) (California conviction of theft, in violation of California Penal Code § 484, could constitute an “aggravated felony” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for purposes of the illegal re-entry sentence enhancement, even though the California statute is overbroad with respect to the common-law definition of theft since the statute includes theft of services), affirmed, 193 F.3d 1133 (9th Cir. Oct. 19, 1999), cert. denied, 531 U.S. 842, 121 S.Ct. 107 (2000).

 

            (1)  Intent to Commit Theft.

 

Fifth Circuit:

 

            Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. May 1, 2000), cert. denied, 531 U.S. 1069, 121 S.Ct. 757 (2001) (Texas conviction of burglary of vehicle with intent to commit theft, in violation of Tex. Penal Code Ann. § 30.04(a) (West 1987), with suspended sentence of four years imprisonment, was not a theft offense under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), sufficient to render noncitizen deportable and to deprive Court of Appeals of jurisdiction to review removal order of the BIA).

 

Seventh Circuit:

United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. Sept. 28, 2001), cert. denied, 122 S.Ct. 1111, 151 L.Ed.2d 1006 (2002) (Illinois conviction was not “theft offense,” within meaning of aggravated felony definition contained in INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for purposes of illegal re-entry sentence enhancement, where defendant admitted he unlawfully entered motor vehicle with intent to commit theft, but neither plea nor charging document encompassed an admission or charge that he completed act of taking property from vehicle).

 

Ninth Circuit:

 

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 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).

 

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).

This decision stands for a number of important propositions:

 

            (a)  A concession before the immigration court does not obviate the right to challenge or obtain a ruling on whether a conviction constitutes an aggravated felony when it is a pure matter of law on which the appellate court can rule.

            (b) The Arizona theft statute prohibits theft of services as well as property, and is thus overbroad and divisible with respect to the aggravated felony definition of a theft offense.

            (c) The label placed upon an offense by the state statutory scheme is not controlling, for purposes of determining whether the offense triggers removal.
            (d) The intervening en banc decision in United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc), establishes the definition of a theft-related offense for purposes of determining whether a conviction constitutes an aggravated felony conviction.

 

            (e) The record of conviction does not indicate that the defendant was convicted of possessing the essential intent element as required by Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. 2001) (merging the dictionary and model penal code definitions).

            (f) A statement in an appellate brief suggesting that taking employer’s car with intent to return it is an insufficient basis from which to infer intent cannot be taken as a factual concession of the conduct of which the noncitizen had been convicted; as with a statement underlying the facts recounted in the presentence report, it is not clear that these facts are those to which s/he pleaded guilty.  It is not what s/he did but the crime of which s/he was convicted that is decisive for immigration purposes.

 

United States v. Perez-Corona, 295 F.3d 996 (9th Cir. July 8, 2002) (Arizona conviction for unlawful use of a means of transportation, or joyriding, in violation of A.R.S. § 13-1803, did not constitute a “theft offense,” since there was no element of any intent to deprive the owner of his or her property (even if the deprivation was less than permanent), and the conviction was thus not an “aggravated felony” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for purposes of enhancing a sentence under U.S.S.G. § 2L1.2(b)(1)(A) for a conviction of illegal re-entry after deportation).

 

            (2) Term of Imprisonment.

 

Third Circuit:

 

Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. May 7, 2004) (Pennsylvania conviction of theft by deception, in violation of 18 Pa. Cons. Stat. Ann. § 3922(a) (West 1983 & Supp. 2000), with an indeterminate sentence from a minimum of six months to a maximum of 23 months, does not trigger removal as an aggravated felony fraud conviction under INA § 101(a)(43)(M)(I), 8 U.S.C. § 1101(a)(43)(M)(i), since the loss to the victim was under $10,000, and because it is a hybrid offense, as a theft offense as well as a fraud offense, it must qualify as an aggravated felony under both categories or it does not trigger removal).

When an offense is both an aggravated felony theft offense and an offense involving fraud or deceit (“a hybrid offense”), the term “theft offense” in INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), becomes a sub-class of the term any “offense” in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).  Imagine a diagram with (M)(i) (any offense) as the outer circle and (G) (any offense that involves theft) as the inner circle.  Since everything in the inner circle must have all the characteristics of the outer circle, all such hybrid offenses must meet both requirements (1) that a sentence of one year or more has been imposed, and (2) that the victim must have suffered a loss in excess of $10,000.  Where the $10,000 loss requirement (part of the bigger circle) is not met, the offense cannot be an aggravated felony.

 

Ninth Circuit:

 

United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona Revised Statute 13-1805(I), a class 4 felony punishing anyone “who commits shoplifting and has previously committed or been convicted within the past five years of two or more offenses involving burglary, shoplifting, robbery, [etc.],” may not be an aggravated felony offense under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), in light of United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc). The offense is a felony only on the basis of a prior conviction-based sentence).

 

United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. June 6, 2002) (en banc) (California felony conviction of petty theft with a prior conviction, under California Penal Code § § 484(a), 666, is a divisible statute with respect to the aggravated felony generic definition of theft offense, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), as adopted by the Seventh and Tenth Circuits, since it includes conduct such as theft of labor and solicitation of a false credit report that is not included within the federal definition).

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

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