Francisco Mena v. Loretta Lynch
820 F.3d 114
4th Cir.2016Background
- Francisco Mena, a lawful permanent resident from the Dominican Republic, was ordered removed after two convictions for crimes involving moral turpitude; he applied for cancellation of removal but the IJ and BIA found him ineligible as an aggravated felon.
- Mena’s relevant prior federal conviction was under 18 U.S.C. § 659, paragraph 2 (knowingly receiving property "knowing the same to have been embezzled or stolen"); he received a 60‑month sentence.
- The INA defines an aggravated felony to include a "theft offense (including receipt of stolen property) ... for which the term of imprisonment is at least one year" (8 U.S.C. § 1101(a)(43)(G)).
- The BIA treated § 1101(a)(43)(G) as covering two distinct generic offenses — a "theft offense" and a separate "receipt of stolen property" offense — and concluded Mena’s § 659 conviction fit the latter, making him an aggravated felon.
- Mena argued (relying on Solimán) that an INA "theft offense" requires an element of taking "without consent," and because embezzlement (and receipt of embezzled property) can involve an initial consensual entrustment, a § 659(2) conviction sweeps more broadly than the INA theft offense.
- The Fourth Circuit reversed the BIA: applying the categorical approach and Solimán, the court held § 659(2) (receipt of embezzled property) is not categorically a § 1101(a)(43)(G) theft offense because it does not require a nonconsensual taking.
Issues
| Issue | Plaintiff's Argument (Mena) | Defendant's Argument (Government/BIA) | Held |
|---|---|---|---|
| Whether a conviction under paragraph 2 of 18 U.S.C. § 659 (receipt of embezzled property) is a categorical "theft offense (including receipt of stolen property)" under 8 U.S.C. § 1101(a)(43)(G) | § 659(2) can criminalize receipt of embezzled property where the initial taking involved lawful entrustment, so it lacks the INA theft element of a taking "without consent" and therefore sweeps more broadly | The parenthetical "including receipt of stolen property" shows Congress intended to encompass receipt offenses; the BIA treats "receipt of stolen property" as a distinct generic offense that § 659(2) fits | Held for Mena: § 659(2) is not categorically an INA theft offense because it does not require a taking without the owner’s consent; BIA erred |
| Proper application of the categorical approach to determine aggravated‑felony status | Categorical approach requires comparing elements; must presume least conduct criminalized — here that may include consensual entrustment (embezzlement) | BIA applied categorical approach but concluded receipt fits the INA parenthetical independent of the nonconsent element | Court applied the categorical approach and concluded § 659(2) "sweeps more broadly" than the INA theft definition |
| Whether Solimán’s holding (theft requires nonconsensual taking) applies to receipt/receiving offenses | Solimán’s nonconsent requirement applies; receipt of embezzled property lacks that element | BIA argued Solimán inapplicable because § 1101(a)(43)(G) has a separate receipt offense in the parenthetical | Court held Solimán controls: a § 1101(a)(43)(G) theft offense requires a taking without consent and that element applies to receipt offenses included in the phrase |
| Whether BIA’s reliance on state consolidations/Model Penal Code justifies its interpretation | Mena: state consolidation often includes fraud/embezzlement which Solimán rejects as theft; thus trend doesn’t help | BIA: many states consolidated larceny/embezzlement/receipt into unitary theft definitions, supporting a broad reading | Court rejected that reliance as insufficient to overcome Solimán and statutory text; result would otherwise create anomalous outcomes |
Key Cases Cited
- Solimán v. Gonzales, 419 F.3d 276 (4th Cir.) (theft offense requires a taking without consent)
- Omargharib v. Holder, 775 F.3d 192 (4th Cir.) (applying categorical approach; state larceny that conflates fraud and theft can sweep more broadly than INA theft)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S.) (categorical approach; presume minimal conduct criminalized)
- Mellouli v. Lynch, 135 S. Ct. 1980 (U.S.) (rejection of BIA interpretations producing anomalous or unreasonable results)
- Castillo v. Holder, 776 F.3d 262 (4th Cir.) (illustrating anomalous results from overly broad BIA interpretations)