26 I. & N. Dec. 809
BIA2016Background
- Respondent, a lawful permanent resident from Nicaragua, was convicted in 2004 of two counts of second-degree robbery by force or fear under Cal. Penal Code § 211, with a firearm enhancement, and served prison time.
- DHS charged removability as an aggravated felony theft offense under INA § 101(a)(43)(G) and sought deportation under INA § 237(a)(2)(A)(iii).
- The Immigration Judge concluded § 211 is not categorically an aggravated felony theft because it can reach takings with the victim’s “consent,” while INA § 101(a)(43)(G) defines theft as taking “without consent.”
- The IJ relied on Ninth Circuit precedent treating § 211 as encompassing extortion, which is described as obtaining property “with [consent] induced by wrongful use of force, fear, or threats.”
- The Board of Immigration Appeals reversed, holding that extortionate takings—consent coerced by force, fear, or threats—are encompassed by the generic definition of theft under INA § 101(a)(43)(G), and remanded for further proceedings on removability and relief.
Issues
| Issue | Plaintiff's Argument (DHS) | Defendant's Argument (Ibarra) | Held |
|---|---|---|---|
| Whether Cal. Penal Code § 211 conviction is a categorical aggravated felony “theft offense” under INA § 101(a)(43)(G) | § 211 involves takings that are effectively against the victim’s will (coerced consent) and thus fit generic theft | § 211 also covers extortionate takings “with consent,” so it criminalizes conduct outside the INA theft definition requiring takings “without consent” | Held: Extortionate takings (consent induced by force, fear, or threats) fall within the generic theft definition; § 211 is categorically an aggravated felony theft offense |
| Whether the IJ properly applied Ninth Circuit precedent | DHS: Ninth Circuit law supports treating coerced consent as not true consent for theft analysis | Ibarra: Ninth Circuit decisions limit their holdings to § 484 (theft) cases and support non-categorical treatment | Held: Prior Ninth Circuit cases did not control this distinct question; the Board interprets consent coerced by force/fear as not voluntary, so INA theft encompasses § 211 takings |
| Whether jury instruction language (“against that person’s will”) affects categorical match | DHS: California instructions require taking “against that person’s will,” consistent with theft element | Ibarra: Emphasis on statutory wording referencing consent undermines categorical match | Held: CALCRIM and California law treat extortionate consent as coerced; no meaningful difference from takings against the victim’s will |
| Whether consent obtained via coercion should be treated like consent obtained via fraud or deceit for INA theft analysis | DHS: Coerced consent is not voluntary and aligns with “without consent” element of theft | Ibarra: Argued distinctions between types of consent may exclude extortion from theft | Held: Coerced consent is qualitatively different from voluntary consent and from fraudulently obtained consent; extortion fits within INA theft |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (established the categorical approach to defining predicate offenses)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (defined theft for INA § 101(a)(43)(G) purposes)
- Scheidler v. National Organization for Women, 537 U.S. 393 (described extortion as obtaining property with consent induced by wrongful force, fear, or threats)
- Mathis v. United States, 136 S. Ct. 2243 (clarified focus of categorical approach on statutory elements)
- Becerril-Lopez v. Holder, 541 F.3d 881 (9th Cir.) (discussed § 211 as encompassing extortion; relied on by the IJ)
- Corona-Sanchez, 291 F.3d 1201 (9th Cir.) (Ninth Circuit decision distinguishing § 484 theft cases)
- Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir.) (limited to § 484 and not dispositive here)
- Mena v. Lynch, 820 F.3d 114 (4th Cir.) (noted distinction between coerced consent in extortion and consent in embezzlement/fraud)