(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.”[1109]

 

                United States Supreme Court.  In Gonzales v. Duenas-Alvarez,[1110] the Court held that the term “theft offense” in the aggravated felony definition,[1111] includes the crime of “aiding and abetting” a theft offense.  The nearly unanimous court reasoned that when Congress used the term “theft offense,” it meant it in “the generic sense in which the term is now used in the criminal codes of most States.”[1112]  The court found that that every “American jurisdiction [has] eliminated the distinction” between aiders and abettors and those who commit the substantive offense.[1113]  The court did not say any more regarding the generic definition of “theft offense,” remanding the case to the Ninth Circuit to answer the questions of whether that definition includes accessories after the fact, and whether the offense of joyriding “involves so limited a deprivation of the use of a car that it falls outside the generic ‘theft’ definition.”[1114]

 

Board of Immigration Appeals.  The BIA has adopted a generic definition of “theft offense” for purposes of the aggravated felony definition.[1115]  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.”[1116]  The court therefore found that a conviction of taking another’s vehicle with the intent to deprive the person of it permanently (auto theft) or temporarily (often referred to as “joyriding”)[1117], 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.[1118]

 

Third Circuit.  The Third Circuit has also held that theft of services constitutes an aggravated felony theft offense.[1119]  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 [the $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.”[1120]

 

Fourth Circuit.  In Soliman v. Gonzalez,[1121] 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.”[1122]

 

Fifth Circuit.  In United States v. Dabeit,[1123] the court held that a conviction for a check kiting conspiracy[1124] was a “theft offense,” relying on the definition found in Black’s Law Dictionary, that “theft” is “the act of stealing.”[1125]  In Lopez-Elias v. Reno,[1126] the Fifth Circuit held that a petitioner’s conviction for burglary of a vehicle with the intent to commit theft therein[1127] 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,[1128] 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.”[1129]  The court arrived at this definition by merging the Black’s Law Dictionary definition with that of the Model Penal Code, coming to essentially the same conclusion as the BIA did in Matter of VZS, that a temporary taking may be 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[1130] constitutes an aggravated felony “theft offense.”[1131]  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.”  This violates the normal rule that a state label is irrelevant to this question of federal law.[1132]  Although recognizing that the offense involved fraud[1133] (and “misappropriation” as opposed to “deprivation”[1134]), 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,[1135] holding that a defendant’s conviction for “petit larceny with a prior”[1136] was an aggravated felony “theft offense.”  The court specifically rejected adopting the Model Penal Code definition of theft.[1137]

 

Applying the definition of “theft offense” adopted in Corona-Sanchez, the court, in Huerta-Guevara v. Ashcroft,[1138] found that an Arizona conviction of possession of a stolen vehicle[1139] 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;[1140] and (2) four sections of the Arizona statute could be committed without any intent to commit theft.[1141]

 

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.[1142]  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.[1143] 

 

The Ninth Circuit has, however, agreed with the BIA that a violation of California Penal Code § 10851, unlawful driving or taking of a vehicle, is an aggravated felony “theft offense,” even though the statute does not require an intent permanently to deprive the owner of the property.[1144]  After holding that aiding and abetting was included in this offense, the Supreme Court remanded a case under this statute to the Ninth Circuit.  The court did not say any more regarding the generic definition of “theft offense,” remanding the case to the Ninth Circuit to answer the questions of whether that definition includes accessories after the fact, and whether the offense of joyriding “involves so limited a deprivation of the use of a care that if falls outside the generic ‘theft’ definition.”[1145]  The Ninth Circuit has granted rehearing en banc in the prior decision,[1146] and stayed proceedings in Duenas on remand until the en banc decision in the other case has been handed down.

 

Tenth Circuit.  The Tenth Circuit adopted the definition of theft applied in the Seventh Circuit.[1147]

 

Eleventh Circuit.  In Jaggernauth v. United States Attorney Gen.,[1148] 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. 

 

[1109] 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).

[1110] Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127 S.Ct. 815, 820  (Jan. 17, 2007).

[1111] INA § 101(a)(43)(G); 8 U.S.C. § 1101(a)(43)(G).

[1112] Gonzales v. Duenas-Alvarez, 127 S.Ct. at 818 (emphasis deleted), citing Taylor v. United States,  495 U.S. 575, 598 (1990).  See § 19.9, supra.

[1113] Id. at 820. See Appendix A to the opinion, citing the 50 state aiding and abetting statutes.

[1114] Id. at 822.  But see United States v. Vidal, 426 F.3d at 1015 (9th Cir. Oct. 24, 2005) (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code § 10851, constitutes an aggravated felony; “the intent to make a less than permanent, i.e., temporary, deprivation of a vehicle falls within the intent requirement of a theft offense.”).

[1115] See § 19.9, supra.

[1116] Matter of VZS, 22 I. & N. Dec. 1338, 1346 (BIA 2000).

[1117] Calif. Penal Code § 10851.

[1118] Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. Aug. 5, 2004) (definition of “theft” for purposes of INA § 101(a)(43)(G); 8 U.S.C. § 1101(a)(43)(G)) includes theft of services).  But see United States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. 2002) (en banc).

[1119] Ilchuk v. Att’y Gen. United States, 434 F.3d 618 (3d Cir. Jan 17, 2006).

[1120] Id. at 623.

[1121] Soliman v. Gonzalez, 419 F.3d 276 (4th Cir. Aug. 22, 2005).

[1122] Id. at 283, quoting Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir. 2001).

[1123] United States v. Dabeit, 231 F.3d 979, 983-84 (5th Cir. 2000).

[1124] 18 U.S.C. § § 1014 and 2113(b).

[1125] See id. at 983.

[1126] Lopez-Elias v. Reno, 209 F.3d 788, 792 (5th Cir. 2000).

[1127] Texas Penal Code Ann. § 30.04(a).

[1128] INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U).

[1129] Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. 2001).

[1130] 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).

[1131] United States v. Mejia-Barba, 327 F.3d 678 (8th Cir. May 5, 2003).

[1132] See § See § 16.35, supra.

[1133] See Soliman v. Gonzalez, 419 F.3d 276 (4th Cir. Aug. 22, 2005) (distinguishing between fraud and theft).

[1134] 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).

[1135] United States v. Corona-Sanchez, 29 F.3d 1201, 1205 (9th Cir. 2002) (en banc).

[1136] California Penal Code § § 488 and 666.

[1137] Ibid.

[1138] Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003).

[1139] A.R.S. § 13-1802(A).

[1140] Id. at 887, citing Corona-Sanchez, 291 F.3d at 1208 (9th Cir. 2002) (en banc).

[1141] Id. at 887.

[1142] 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).

[1143] Id. at 1055.

[1144] United States v. Vidal, 426 F.3d 1011 (9th Cir. Oct. 24, 2005), rehearing en banc granted, 453 F.3d 1114 (9th Cir. June 29, 2006).

[1145] Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127 S.Ct. 815, 822 (Jan. 17, 2007).

[1146] United States v. Vidal, 453 F.3d 1114 (9th Cir. June 29, 2006).

[1147] 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).

[1148] Jaggernauth v. United States Att’y Gen., 432 F.3d 1346 (11th Cir. Dec. 19, 2005).

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.

AGGRAVATED FELONY - THEFT - WELFARE FRAUD
Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA Jan. 17, 2008) (Rhode Island conviction of welfare fraud, in violation of R.I. 40-6-15, is not an aggravated felony theft offense, because a "theft" offense, for aggravated felony purposes, requires "the taking of, or exercise of control over, property without consent, and with the criminal intent to deprive the ownership of the rights and benefits of ownership, even if such deprivation is less than total or permanent" (emphasis added); welfare fraud is a fraud offense, in that it requires a taking with consent, obtained by fraud).

NOTE: When faced with a plea to a fraud offense involving a loss of over $10,000, counsel may wish instead to plea to a "theft" offense with a sentence imposed of 364 days or less. This may avoid issues regarding a finding of loss and "extra element" analysis under Matter of Babiaskov.

Second Circuit

AGGRAVATED FELONY - THEFT
Almeida v. Holder, 588 F.3d 778 (2d Cir. Dec. 8, 2009) (Connecticut conviction for larceny, in violation of Conn. Gen. Stat. 53a-48 and 53a-123 was a "theft offense" for aggravated felony purposes; although the statute of conviction may be committed with intent to "deprive" or "appropriate," the court found that both terms meet the generic definition of theft: "criminal intent to deprive the owner [of property] of the rights and benefits of ownership, even if such deprivation is less than total or permanent."), citing Matter of V-Z-S-, 22 I. & N. Dec. 1338, 1346 (BIA 2000).

AGGRAVATED FELONY - THEFT - CONNECTICUT LARCENY IN SECOND DEGREE
Plummer v. Ashcroft, 258 F.Supp.2d 43 (D.Conn. 2003) (Connecticut conviction of larceny in the second degree, in violation of CGSA 53a-123(a)(3), with a sentence imposed of one year or more, constitutes an aggravated felony under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G)).

Fourth Circuit

AGGRAVATED FELONY " THEFT OFFENSE " RECEIVING STOLEN OR EMBEZZLED PROPERTY
This file summarizes developments occurring from Apr. 1-30, 2016. Mena v. Lynch, ___ F.3d ___, 2016 WL 1660166 (4th Cir. Apr. 27, 2016) (federal conviction of violating 18 U.S.C. 659, second paragraph (purchase, receipt, or possession of property that has moved in interstate or foreign commerce knowing the same to have been embezzled or stolen), was not categorically an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for immigration purposes, because the crime of embezzlement necessarily involves a taking of property with the owner's consent, and a taking of property without consent is an essential element of aggravated felony theft); see Soliman v. Gonzales, 419 F.3d 276, 282 (4th Cir. 2005) ([w]hen a theft offense has occurred, property has been obtained from its owner without consent; but in a fraud scheme, the owner has voluntarily surrendered his property, because of an intentional perversion of truth, or otherwise act [ed] upon a false representation to his injury. . . . [The] key and controlling distinction between these two crimes is ... the consent element"theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained.); accord, Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014).

AGGRAVATED FELONY " THEFT OFFENSES " UNAUTHORIZED USE OF A MOTOR VEHICLE " DEFINITION OF THEFT
Castillo v. Holder, ___ F.3d ___, ___, 2015 WL 161952 (4th Cir. Jan. 14, 2015) (Virginia conviction of unauthorized use of a motor vehicle, in violation of Virginia Code 18.2"102 [take, drive or use any ... vehicle ... not his own, without the consent of the owner [ ] and in the absence of the owner, and with intent temporarily to deprive the owner [ ] of his possession [ ], without intent to steal the same, shall be guilty], did not categorically qualify as an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because the full range of conduct covered by the Virginia crime of unauthorized use can and do arise based on circumstances in which the defendant's use of property deviates only slightly from the specific scope of consensual use, resulting in an insignificant effect on ownership interests. [Footnote omitted] These circumstances stand in stark contrast to crimes involving the intentional, nonconsensual takings that typically involve significant impairment of ownership rights and damage to the property as described by the BIA in its elaboration of the term theft offense. See VZS, 22 I. & N. Dec. at 1349.); quoting Overstreet v. Commonwealth, 17 Va.App. 234, 435 S.E.2d 906, 908 (Va.Ct.App.1993).

AGGRAVATED FELONY " THEFT OFFENSE " FRAUD LACKS THE WITHOUT CONSENT ELEMENT OF THEFT OFFENSE
Salem v. Holder, ___ F.3d ___, 2011 WL 1998330 (4th Cir. May 24, 2011) (Virginia conviction for petit larceny under Va.Code Ann. 18.2"96, did not categorically qualify as a an aggravated felony theft offense, because the statute might encompass either fraud or theft, and fraud did not constitute a theft offense); Soliman v. Gonzales, 419 F.3d 276, 282-83 (4th Cir.2005) (theft for purposes of the INA does not include fraud, because fraud lacks the without consent element of the taking that is essential to a finding of theft).

Fifth Circuit

AGGRAVATED FELONY " THEFT OFFENSES " THEFT WITHOUT EFFECTIVE CONSENT
United States v. Rodriguez-Salazar, 768 F.3d 437 (5th Cir. Sept. 30, 2014) (Texas conviction of theft [appropriation of property without effective consent of the owner, where consent to temporary possession is not effective if it was induced by deception or coercion], under Penal Code 31.03(b)(1), is categorically an aggravated felony theft offense under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G) for immigration purposes). NOTE: The analysis presented in this decision is short and not very clear.

AGGRAVATED FELONY " THEFT OFFENSE " THEFT
Nolos v. Holder, 611 F.3d 279 (5th Cir. Jul. 9, 2010) (Nevada conviction for violation of Nevada Statute 205.0832, theft, is a divisible statute; looking to the record of conviction, the portion of the statute violated, 205.0832(1)(b), is an aggravated felony theft offense for immigration purposes).

AGGRAVATED FELONY - FRAUD OFFENSE - THEFT OFFENSE -- FRAUD AND THEFT HAVE DIFFERENT DEFINITIONS, SUGGESTING CONGRESS DID NOT INTEND ANY OVERLAP
Martinez v. Mukasey, 519 F.3d 532 (5th Cir. Mar. 11, 2008) ("We must assume that, by giving separate definitions to offenses "involving fraud and deceit" and "theft", Congress intended them to be different. See, e.g., United States v. Nordic Village, 503 U.S. 30, 36, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). In this regard, we are mindful not to construe a definition within 101(a)(43) to be "so broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the [INA]". Gustafson, 513 U.S. at 575, 115 S.Ct. 1061 (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961)) (internal quotation marks omitted).").

AGGRAVATED FELONY - THEFT - UNAUTHORIZED USE OF A VEHICLE
Serna-Guerra v. Mukasey, ___ F.3d ___, 2008 WL 2228868 (5th Cir. 2008) (Texas conviction for the unauthorized use of a vehicle, in violation of Tex. Pen. Code 31.07,constitutes an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for removal purposes, but "we urge and recommend that that precedent should be reconsidered and overruled by our en banc court."), reluctantly following Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007); United States v. Galvan- Rodriguez, 169 F.3d 217 (5th Cir. 1999). http://www.ca5.uscourts.gov/opinions%5Cunpub%5C07/07-60634.0.wpd.pdf

AGGRAVATED FELONY - THEFT OFFENSE - RECEIVING STOLEN PROPERTY
Burke v. Mukasey, 511 F.3d 102 (5th Cir. Dec. 10, 2007) (New York conviction of criminal possession of stolen property in the third degree, in violation of N.Y. Penal Law 165.50 ["knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds three thousand dollars."], qualifies as a "theft offense" within the meaning of INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G)).

AGGRAVATED FELONY - THEFT OFFENSE - GENERIC DEFINITION
Burke v. Mukasey, 509 F.3d 695, ___ (5th Cir. Dec. 10, 2007) (under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), "the modern, generic, and broad definition of the entire phrase "theft offense (including receipt of stolen property)" is 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. Hernandez-Mancilla v. I.N.S., 246 F.3d 1002, 1009 (7th Cir.2001). See also United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc); United States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir. 2001). Our own circuit has applied this definition. See Ibrahim v. Aschroft, 74 Fed.Appx. 426, 430 (5th Cir.2003); Adenodi v. Gonzales, No. 05-60459, 2007 WL 2597620, at *2 (5th Cir. Sept.6, 2007).").

Ninth Circuit

AGGRAVATED FELONY " THEFT OFFENSE
Lopez-Valencia v. Lynch, ___ F.3d ___ (9th Cir. Aug. 17, 2015) (California theft conviction, including any offense for which the underlying substantive offense charged was a violation of Penal Code 484, is not aggravated felony theft, since because the California definition of theft includes theft of labor, false credit reporting, and theft by false pretenses, which do not fall within the definition of aggravated felony theft).

AGGRAVATED FELONY " THEFT OFFENSE " THEFT
Garcia v. Lynch, ___ F.3d ___, ___, 2015 WL 2385402 (9th Cir. May 20, 2015) (California conviction of theft, under Penal Code 487(a), is not categorically a theft aggravated felony because the California offense includes theft of labor, and because the California statute may be violated even if the victim consented to transfer his property by false pretenses), citing Carrillo"Jaime v. Holder, 572 F.3d 747, 751"53 (9th Cir. 2009).

AGGRAVATED FELONY " FELONY PETTY THEFT " THEFT OFFENSE
United States v. Rivera, 658 F.3d 1073 (9th Cir. Sept. 23, 2011) (California felony petty theft convictions under Penal Code 484(a) and 666 constituted aggravated felony theft offenses, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for illegal re-entry sentencing purposes); declining to follow United States v. Corona"Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc); following United States v. Rodriquez, 553 U.S. 377, 382-386 (2008) (an increased, recidivist sentence is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one so the sentence imposed for the sentence enhancement does relate to the commission of the repeat offense and is clearly part of the sentence prescribed by law; therefore a recidivist sentence constitutes a sentence imposed for determining whether a prior conviction qualifies as a predicate offense).

AGGRAVATED FELONY " THEFT OFFENSE " DEFINITION
United States v. Rivera, 658 F.3d 1073 (9th Cir. Sept. 23, 2011)(California conviction of theft, in violation of Penal Code 484(a), does not categorically constitute an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because it penalizes additional conduct that is not encompassed within the aggravated felony theft definition, such as theft of labor, false credit reporting, and theft by false pretenses); citing Carrillo"Jaime v. Holder, 572 F.3d 747, 751, 753 (9th Cir.2009) (California conviction of theft, under Penal Code 484(a), is not a categorical match to theft as defined in INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because the state statute also expressly criminalizes certain conduct"such as theft of labor, false credit reporting, and theft by false pretenses-that do not satisfy the generic definition); see United States v. Corona"Sanchez, 291 F.3d 1201, 1208 (9th Cir.2002) (en banc) (California conviction of petty theft conviction, under Penal Code 484(a), cannot qualify as an aggravated felony because it prohibits a broader range of conduct than is prohibited by the generic theft offense referred to in INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G)).

AGGRAVATED FELONY " THEFT OFFENSE " GENERIC DEFINITION
United States v. Rivera, 658 F.3d 1073 (9th Cir. Sept. 23, 2011) (the generic definition an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), is [1] a taking of property or an exercise of control over property [2] without consent [3] with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent. ); quoting Carrillo"Jaime v. Holder, 572 F.3d 747, 750 (9th Cir.2009) (quoting United States v. Corona"Sanchez, 291 F.3d 1201, 1205 (9th Cir.2002) (en banc).

AGGRAVATED FELONY " THEFT OFFENSE " COMMERCIAL BURGLARY
Hernandez-Cruz v. Holder, ___ F.3d ___ (9th Cir. Jul. 7, 2011) (California conviction of second-degree commercial burglary, in violation of Penal Code 459, did not categorically constitute an attempted theft aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because 459 criminalizes conduct beyond generic attempted theft offenses"for example, entering a locked vehicle with the intent to commit not theft, but arson or vandalism. . . . Because one can be convicted under 459 for a crime that does not qualify as generic attempted theft, the statute is not a categorical match for the generic aggravated felony offense.); Ngaeth v. Mukasey, 545 F.3d 796, 800, 801 (9th Cir. 2008) (per curiam).

AGGRAVATED FELONY " THEFT OFFENSE " ATTEMPTED THEFT OFFENSE " DEFINITION
Hernandez-Cruz v. Holder, ___ F.3d ___, ___ (9th Cir. Jul.7, 2011) (Ngaeth defined a generic attempted theft offense as having two elements: [1] an intent to commit a theft offense, of the sort generically defined by [our precedent], coupled with [2] an overt act constituting a substantial step towards the commission of the offense.); quoting Ngaeth v. Mukasey, 545 F.3d 796, 800, 801 (9th Cir. 2008) (per curiam). The Ninth Circuit described the test for determining when conduct crosses the line between mere preparation to commit a crime, and a substantial step towards its commission: Mere preparation to commit a crime does not constitute a substantial step. United States v. Buffington, 815 F.2d 1292, 1301 (9th Cir. 1987); see also United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010), cert. denied, 131 S. Ct. 364 (2010); Walters v. Maass, 45 F.3d 1355, 1359 (9th Cir. 1995); Ninth Circuit Model Criminal Instruction 5.3 (2010) (Mere preparation is not a substantial step toward committing the crime.). The difference between making preparations and taking a substantial step toward the commission of a crime is one of degree. Walters, 45 F.3d at 1359. [I]dentifying the point at which the defendants activities ripen into an attempt can be difficult, and is rarely an analytically satisfying enterprise. United States v. Harper, 33 F.3d 1143, 1148 (9th Cir. 1994). What is clear, however, is that it is not enough that the defendant have intended to commit a crime. There must also be an act, and not any act will suffice. Wayne R. LaFave, 2 Subst. Crim. L. 11.4 (2d ed. 2003); see also United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192-93 (9th Cir. 2000) (en banc) (explaining the common law of attempt liability). We have explained that a suspect crosses the line separating preparation from attempt when his actions unequivocally demonstrat[e] that the crime will take place unless interrupted by independent circumstances. United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995) (internal quotation marks omitted)); see also United States v. Saavedra-Velazquez, 578 F.3d 1103, 1107 (9th Cir. 2009) ([W]e have held that the step toward commission of the crime must be of such substantiality that, unless frustrated, the crime would have occurred. (citation omitted)); Ninth Circuit Model Criminal Instruction 5.3 (2010) (To constitute a substantial step, a defendants act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.). Although the suspects conduct need not be incompatible with innocence to be punishable as an attempt, it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context, could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to commit the [substantive offense]. Walters, 45 F.3d at 1359 (citation, alteration, and quotation marks omitted). To put it in slightly different terms, to constitute a substantial step, the action in question must be strongly corroborative of the firmness of a defendants criminal intent. United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir. 2006) (citation and quotation marks omitted); see also Model Penal Code 5.01(2) (Conduct shall not be held to constitute a substantial step . . . unless it is strongly corroborative of the actors criminal purpose.). Hernandez-Cruz v. Holder, ___ F.3d ___, ___ (9th Cir. Jul.7, 2011).

AGGRAVATED FELONY " THEFT OFFENSE " DEFINITION
Hernandez-Cruz v. Holder, ___ F.3d ___, ___ (9th Cir. Jul. 7, 2011) (A generic theft offense, in turn, is defined as: [1] a taking of property or an exercise of control over property [2] without consent [3] with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.); quoting Carrillo-Jaime v. Holder, 572 F.3d 747, 750 (9th Cir. 2009) (citation and quotation marks omitted, alterations in original).

AGGRAVATED FELONY " THEFT OFFENSE " DEFINITION
Hernandez-Cruz v. Holder, ___ F.3d ___, ___n.16 (9th Cir. Jul. 7, 2011) (There was also no dispute in Ngaeth that the immigrants intent in breaking into the locked vehicle was to commit a generic theft offense, as opposed to some other kind of theft offense included in Californias larceny statute, Cal. Penal Code 484, which criminalizes some conduct, such as theft of labor and false credit reporting, that do not meet the generic definition. See United States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. 2002) (en banc), superseded on other grounds by U.S.S.G. 2L1.2, cmt. n.4 (2002); see also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189-90 (2007).).

CRIMES OF MORAL TURPITUDE " THEFT OFFENSES " REQUIREMENT OF INTENT TO PERMANENTLY DEPRIVE THE OWNER AS DISTINGUISHED FROM DEFINITION OF AGGRAVATED FELONY THEFT OFFENSE
Hernandez-Cruz v. Holder, ___ F.3d ___, ___n.20 (9th Cir. Jul. 7, 2011) (A generic attempted theft offense for CIMT purposes is defined slightly differently than in the aggravated felony context. Whereas the latter, as we noted earlier, requires the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent, Carrillo-Jaime, 572 F.3d at 750 (citation and quotation marks omitted), a permanent taking [must be] intended for a conviction to qualify as a CIMT.); quoting Castillo-Cruz v. Holder, 581 F.3d 1154, 1160 n.8 (9th Cir. 2009) (citation, quotation marks, and emphasis omitted).

AGGRAVATED FELONY - THEFT
Ramirez-Villalpando v. Holder, 601 F.3d 891 (9th Cir. April 9, 2010) (California conviction for violation of Penal Code 487(a), grand theft, is an aggravated felony theft offense for immigration purposes where abstract of judgment and complaint indicated noncitizen was convicted of stealing personal property).

AGGRAVATED FELONY - THEFT OFFENSE - RECEIVING STOLEN PROPERTY CRIME OF MORAL TURPITUDE - RECEIVING STOLEN PROPERTY
Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. Sept. 17, 2009)

There is no inconsistency between Castillo-Cruz v. Holder, 581 F.3d 1154 9th Cir. Sept. 17, 2009), holding a California conviction of receiving stolen property, under Penal Code 496(a), is not categorically a crime of moral turpitude, and Verdugo-Gonzalez v. Holder, 581 F.3d 1059 (9th Cir. Sept. 14, 2009), holding that a California conviction for receiving stolen property, under Penal Code 496(a), does qualify as a categorical match as a theft offense aggravated felony under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G)):

In this respect, there is a clear distinction between the standard applied to determine whether a theft offense is an "aggravated felony" and the standard applied to determine whether a theft offense is a "crime of moral turpitude." As we recently held in Verdugo-Gonzalez v. Holder, 06-73733, there is a categorical match between the full range of conduct proscribed by section 496(a) of the California Penal Code and the generic definition of a theft offense aggravated felony. See Gonzalez v. Duenas-Alvarez, 549 U.S. at 189 (defining a generic theft offense as "the taking of property or an exercise of control over property ... even if such deprivation is less than total or permanent.") (emphasis added). There cannot however, be a categorical match between the full range of conduct proscribed by section 496(a) of the California Penal Code and the generic definition of a theft offense crime of moral turpitude. See Matter of Grazley, 14 I. & N. Dec. at 333 ("a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended.") (emphasis added). Thus, there is no inconsistency between Verdugo-Gonzalez and our present decision.

AGGRAVATED FELONY - FRAUD OFFENSE - AGGRAVATED FELONY FRAUD IS COMMITTED WITH THE CONSENT OF THE VICTIM
Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. Jul.15, 2009) (California conviction of owning and operating a chop shop, in violation of Vehicle Code 10801 ("premises where any person has been engaged in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud"), did not constitute a theft aggravated felony within the meaning of INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), under the categorical approach, since the offense permits exercising control over property obtained by fraud, which is necessarily committed with the consent of the owner, and the conviction therefore does not require that the exercise of control over the property be "without consent" as required by the generic definition of theft aggravated felony).

AGGRAVATED FELONY - THEFT - THEFT BY FALSE PRETENSES
Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. Jul. 15, 2009) ("theft by false pretenses may be accomplished with the owner's consent. Theft by false pretenses has three elements: "(1) a false pretense or representation, (2) the intent to defraud the owner of his or her property, and (3) the false pretense or representation materially influenced the owner to part with the property." People v. Levine, 2007 WL 4248775 at *10 (Cal.Ct.App. Dec. 5, 2007) (citing People v. Ashley, 42 Cal.2d 246, 267 P.2d 271, 279 (1954)). "Theft by false pretenses does not require that the defendant take the property; it requires that the defendant use false pretenses to induce the other to give the property to him." Shannon, 78 Cal.Rptr.2d at 179. . . . Under California law, a person's false pretenses do not necessarily vitiate the owner's consent.").

Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. Jul. 15, 2009) (California conviction of owning and operating a chop shop, in violation of Vehicle Code 10801 ("premises where any person has been engaged in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud"), did not constitute a theft aggravated felony within the meaning of INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), under the categorical approach, since the offense permits exercising control over property obtained by fraud, which is necessarily committed with the consent of the owner, and the conviction therefore does not require that the exercise of control over the property be "without consent" as required by the generic definition of theft aggravated felony).

AGGRAVATED FELONY - THEFT OFFENSE - AUTO BURGLARY CONSTITUTES ATTEMPTED THEFT
Ngaeth v. Mukasey, 545 F.3d 796 (9th Cir. Sept. 24, 2008) (California conviction for entering locked vehicle with intent to commit theft, in violation of California Penal Code 459 is an aggravated felony for immigration purposes as attempted theft).

AGGRAVATED FELONY - THEFT - JOYRIDING
Penuliar v. Ashcroft, 528 F.3d 603 (9th Cir. Jun. 10, 2008) (California conviction for violation of California Vehicle Code 10851, unlawful driving of a motor vehicle, is not categorically an aggravated felony "theft" offense for immigration purposes, since that statutes includes accessories after the fact), following United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007)

AGGRAVATED FELONY - THEFT OFFENSE - IDENTITY THEFT
Mandujano-Real v. Mukasey, 526 F.3d 585 (9th Cir. May 22, 2008) (Oregon conviction of identity theft, under Oregon Revised Statute 165.800, did not categorically qualify as an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for purposes of removal, because use of a false identity does not deprive anyone of "ownership" and the statute punishes use of another persons identity even if that the use was with consent).

AGGRAVATED FELONY - THEFT OFFENSE - UNAUTHORIZED DRIVING OF A MOTOR VEHICLE
Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. Dec. 27, 2007) (California conviction of unauthorized driving of a vehicle, in violation of Vehicle Code 10851(a), constitutes an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G); rejecting an argument that the statute does not define a categorical theft offense because it prohibits aiding and abetting as well as direct commission of the act, and rejecting respondent's argument that applying the modified categorical approach, there is no evidence in the record of conviction showing he committed a theft offense), following Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 818, 823 (2007) (holding the generic term "theft offense" in INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), includes the crime of aiding and abetting, and vacating a Ninth Circuit decision holding that 10851(a) was not a categorical theft offense).

AGGRAVATED FELONY - THEFT OFFENSE - UNAUTHORIZED DRIVING OF A MOTOR VEHICLE - INTENT TO DEPRIVE TEMPORARILY HELD SUFFICIENT
Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. Dec. 27, 2007) (California conviction of unauthorized driving of a vehicle, in violation of Vehicle Code 10851(a), constitutes an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G); rejecting an argument that this statute cannot constitute a theft offense because it can be committed with intent temporarily to deprive the owner of the property, since the courts have defined aggravated felony theft offense as: "[T]he 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."), quoting Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 820 (2007); and citing In re VZS, 22 I. & N. Dec. 1338, 1346 (2000) (defining "theft offense" using the same language), and distinguishing United States v. Perez-Corona, 295 F.3d 996, 1001 (9th Cir. 2002) (Arizona conviction of "joyriding" pursuant to Arizona Revised Statutes 13-1803 was not an aggravated felony theft offense because a "theft offense" must require some showing of intent to deprive, and the statute here had no intent element at all).

AGGRAVATED FELONY - THEFT OFFENSE - UNAUTHORIZED DRIVING
United States v. Vidal, 504 F.3d 1072 (9th Cir. Oct. 10, 2007) (9-6 en banc) (California conviction for unlawful driving or taking of vehicle, under Penal Code 10851(a), did not categorically qualify as an aggravated felony theft offense under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G) for purposes of enhancement of illegal reentry sentence, since the offense includes accessory after the fact, which is not listed in INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(G) as an aggravated felony inchoate offense).

Eleventh Circuit

AGGRAVATED FELONY " THEFT " SHOPLIFTING
Ramos v. U.S. Attorney General, 709 F.3d 1066 (11th Cir. Feb. 19, 2013) (Georgia conviction of shoplifting, in violation of Georgia Code 16"8"14(a)(1) [theft has two alternative intent elements: the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part ...], is not categorically an aggravated felony theft offense, for purposes of deportability, because it can be committed with mere intent to appropriate, which falls outside the generic definition of aggravated felony theft); following Jaggernauth v. U.S. Attorney General, 432 F.3d 1346 (11th Cir. 2005) (a theft statute that included two disjunctive intent requirements"an intent to deprive and an intent to appropriate"was divisible and did not categorically constitute an aggravated felony theft offense).

AGGRAVATED FELONY " THEFT OFFENSE " GENERIC DEFINITION
Ramos v. U.S. Attorney General, 709 F.3d 1066 (11th Cir. Feb. 19, 2013) (an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), is defined as: the taking of property ... with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.); quoting Gonzales v. Duenas"Alvarez, 549 U.S. 183, 189, 127 S.Ct. 815, 819"20, 166 L.Ed.2d 683 (2007).

AGGRAVATED FELONY " THEFT " SHOPLIFTING
Ramos v. U.S. Attorney General, ___ F.3d ___, 2013 WL 599552 (11th Cir. Feb. 19, 2013) (Georgia conviction of shoplifting, in violation of Georgia Code 16"8"14(a)(1) [theft has two alternative intent elements: the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part ...], is not categorically an aggravated felony theft offense, for purposes of deportability, because it can be committed with mere intent to appropriate, which falls outside the generic definition of aggravated felony theft); following Jaggernauth v. U.S. Attorney General, 432 F.3d 1346 (11th Cir. 2005) (a theft statute that included two disjunctive intent requirements"an intent to deprive and an intent to appropriate"was divisible and did not categorically constitute an aggravated felony theft offense).

AGGRAVATED FELONY " THEFT OFFENSE " GENERIC DEFINITION
Ramos v. U.S. Attorney General, ___ F.3d ___, ___, 2013 WL 599552 (11th Cir. Feb. 19, 2013) (an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), is defined as: the taking of property ... with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.); quoting Gonzales v. Duenas"Alvarez, 549 U.S. 183, 189, 127 S.Ct. 815, 819"20, 166 L.Ed.2d 683 (2007).