Bastian-Mojica v. Sessions
16-3331
| 2d Cir. | Dec 5, 2017Background
- Petitioner Javier Bastian-Mojica, a Mexican national, was ordered removed based on a Connecticut conviction for fourth-degree larceny (Conn. Gen. Stat. § 53a-125).
- The IJ and BIA concluded the conviction was an aggravated-felony "theft offense" under INA § 1101(a)(43)(G), making him deportable.
- Bastian-Mojica challenged that characterization, arguing Connecticut larceny encompasses takings both without consent (theft) and with consent obtained by deception (fraud), so it is not categorically a theft aggravated felony.
- The Second Circuit retained jurisdiction to review the pure question of law under 8 U.S.C. § 1252(a)(2)(D) and reviewed the issue de novo.
- The statute defining Connecticut larceny (§ 53a-119) lists multiple means of taking property, including both extortion (without consent) and false promise/scheme to defraud (with consent).
- The Court remanded the case to the BIA for further consideration, vacating the BIA decision, and directed the BIA to address whether Connecticut larceny is categorically a theft aggravated felony in light of the BIA’s theft–fraud distinction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Conn. larceny §53a-119( & §53a-125) is categorically a "theft" aggravated felony under INA §1101(a)(43)(G) | Bastian-Mojica: statute criminalizes both nonconsensual takings (theft) and consensual takings obtained by deception (fraud), so it is not categorically theft | Government: Connecticut larceny has been treated as aggravated theft in prior decisions and the statute covers theft conduct meeting the INA definition | Court: Grant petition, vacate and remand to BIA to explain whether Conn. larceny is categorically a theft aggravated felony considering the BIA’s theft–fraud distinction |
Key Cases Cited
- Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir.) (treated Connecticut larceny as aggravated felony in third degree larceny context)
- Almeida v. Holder, 588 F.3d 778 (2d Cir.) (treated Connecticut second-degree larceny as aggravated felony)
- Hoodho v. Holder, 558 F.3d 184 (2d Cir.) (explaining categorical approach)
- Pierre v. Holder, 588 F.3d 767 (2d Cir.) (standard of review for questions of law)
- James v. Mukasey, 522 F.3d 250 (2d Cir.) (categorical approach formulation)
- Soliman v. Gonzales, 419 F.3d 276 (4th Cir.) (discussing consent distinction between theft and fraud)