Criminal Defense of Immigrants

(B)  Permanent v. Temporary Deprivation.  Most courts to address the issue have found that the aggravated felony “theft offense” definition includes the taking of property with intent to temporarily deprive the owner of the rights or benefits of said property.

Counsel can argue, however, that the Board of Immigration Appeals is mistaken in including offenses lacking intent to permanently deprive within the definition of a “theft offense.”  Common-law terms such as theft that appear in the aggravated felony definition should be interpreted according to their “ordinary, contemporary, and common meaning.”[1149]  The definition of theft universally requires as an element the intent to permanently deprive the owner of property, or to approximate a permanent deprivation, under common law, the Model Penal Code, and generally under state law.[1150]  To support its conclusion that joyriding can amount to theft, the majority decision relied not upon common law sources, state laws, or treatises on the definition of theft, but on a particular federal statute that relates to taking stolen cars across state borders.  This ruling therefore appears to be in error.  However, because this is an area in which the BIA is owed Chevron deference, counsel will need to show that the BIA definition is not reasonable.

[1149] See, e.g., Taylor v. United States, 495 U.S. 575, 598 (1990); United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999); Matter of LG, 21 I. & N. Dec. 89 (BIA 1995) (en banc) (federal, not state, definition applies to determine whether a state drug offense is a “felony”); Kahn v. INS, 37 F.3d 1412 (9th Cir. 1994) (the INA “was designed to implement a uniform federal policy, and the meaning of concepts important to its application are ‘not to be determined according to the law of the forum, but rather require a uniform federal definition’”) (citation omitted).

[1150] See, e.g., black’s law dictionary (6th Ed., West Publishing Company 1990); American Law Institute, Model Penal Code and Commentaries, pt. II, art. 223.9, comment 4 (1980) (while some temporary takings at critical times or of great length could amount to theft, casual joyriding does not).  See excellent discussion in Matter of VZS, 22 I. & N. Dec. 1338, Concurrence and Dissent, pp. 25-29 (BIA 2000).