26 I. & N. Dec. 847
BIA2016Background
- Respondent Guillermo Diaz-Lizarraga, a lawful permanent resident, was convicted in Arizona of shoplifting under Ariz. Rev. Stat. § 13-1805(A) in 2010, 2012, and 2013.
- DHS charged removability under INA § 237(a)(2)(A)(ii) for convictions of two or more crimes involving moral turpitude (CIMTs) not part of a single scheme.
- Arizona’s shoplifting statute criminalizes knowingly obtaining merchandise with intent to “deprive,” and Ariz. Rev. Stat. § 13-1801(A)(4) defines “deprive” to include withholding permanently or for so long that substantial value or usefulness is lost, or withholding to restore only on payment.
- The Immigration Judge terminated proceedings, finding § 13-1805(A) overbroad because it did not require an intent to permanently deprive and was indivisible (precluding the modified categorical approach).
- The Board reviewed whether shoplifting under § 13-1805(A) is categorically a CIMT and whether the IJ erred in terminating proceedings.
Issues
| Issue | Plaintiff's Argument (DHS) | Defendant's Argument (Respondent) | Held |
|---|---|---|---|
| Whether Arizona shoplifting (§ 13-1805(A)) is a categorical crime involving moral turpitude | Statute requires an intent to deprive in a way that aligns with modern theft law; therefore it is a categorical CIMT | Because statute’s definition of “deprive” does not require literal permanent deprivation, it is overbroad and not categorically a CIMT | Held: § 13-1805(A) is categorically a CIMT; conviction qualifies as a CIMT even without literally permanent-intent if deprivation is substantial or substantially erodes owner’s rights |
| Whether prior Board precedent requires a literal intent to permanently deprive for theft to be a CIMT | Modern theft law recognizes substantial temporary deprivations as morally turpitudinous; precedent should be updated | Precedent requiring literal permanence controls and renders the statute overbroad | Held: Overruled earlier BIA decisions to the extent they required literal permanent intent; updated test adopted (permanent or substantial deprivation) |
| Whether the IJ properly applied the modified categorical approach / divisibility analysis | DHS argued divisibility issue unnecessary if statute is categorical CIMT | Respondent argued statute indivisible and non-CIMT, requiring inquiry into record | Held: Because statute is categorical CIMT, no need to address divisibility or modified categorical approach |
| Whether IJ erred in terminating removal proceedings | DHS: yes, termination was error because the convictions are for CIMTs | Respondent: termination proper due to overbreadth finding | Held: IJ erred; Board sustained DHS appeal, vacated IJ decision, reinstated proceedings and remanded |
Key Cases Cited
- Almanza-Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016) (discussing categorical approach for CIMTs)
- Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. 2009) (treating theft with intent to deprive as CIMT under Ninth Circuit precedent)
- Flores Juarez v. Mukasey, 530 F.3d 1020 (9th Cir. 2008) (Ninth Circuit decisions recognizing theft offenses as CIMTs when intent to deprive shown)
- United States v. Esparza-Ponce, 193 F.3d 1133 (9th Cir. 1999) (theft intent analysis relevant to moral turpitude inquiry)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (limits on modified categorical approach and emphasis on elements-focused analysis)
- People v. Davis, 965 P.2d 1165 (Cal. 1998) (California precedent explaining that “permanently” need not be literal and noting substantial temporary deprivation can satisfy intent requirement)