Background

• Respondent Enrique Alday-Dominguez, a lawful permanent resident from Mexico, was convicted in California of receiving stolen property (Cal. Penal Code § 496(a)) and sentenced to 16 months’ imprisonment.
• DHS charged him as removable under INA § 237(a)(2)(A)(iii) based on an aggravated felony conviction for a theft offense under INA § 101(a)(43)(G) (theft offense, including receipt of stolen property, punishable by ≥1 year).
• The Immigration Judge terminated removal, relying on Ninth Circuit precedent (Lopez-Valencia) and concluding § 496(a) is not categorically an aggravated felony theft offense.
• The BIA reviewed de novo whether the “receipt of stolen property” parenthetical in § 101(a)(43)(G) requires that the property originally have been obtained by common-law theft/larceny.
• The BIA reaffirmed Matter of Cardiel and related Board precedent: “receipt of stolen property” is a distinct category and the term “stolen” is not limited to common-law theft but encompasses embezzlement, false pretenses, extortion, etc.
• The BIA sustained DHS’s appeal, vacated the IJ’s decision, reinstated proceedings, and remanded for consideration of any relief from removal.

Issues

Key Cases Cited

• Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015) (addressed categorical overbreadth of California § 484 in Ninth Circuit)
• United States v. Turley, 352 U.S. 407 (1957) (held “stolen” is not confined to common-law larceny and can include embezzlement and false pretenses)
• Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (definition of generic aggravated-felony “theft” involves control over property without consent)
• Verdugo-Gonzalez v. Holder, 581 F.3d 1059 (9th Cir. 2009) (Ninth Circuit held conviction under § 496(a) is a “theft offense” for INA § 101(a)(43)(G) purposes)