935 F.3d 630
8th Cir.2019Background
- Petitioner Juan Inzunza Reyna, a Mexican national who entered the U.S. unlawfully in 1998, pleaded guilty in Nebraska (2008) to theft by receiving stolen property under Neb. Rev. Stat. § 28-517, a Class I misdemeanor.
- The Nebraska statute criminalizes receiving, retaining, or disposing of stolen movable property while knowing or believing it to be stolen, unless done with intent to restore to the owner.
- Immigration proceedings followed; Reyna conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b. The IJ and BIA denied relief, concluding his Nebraska conviction was categorically a crime involving moral turpitude (CIMT).
- Reyna challenged the BIA’s determination and also argued the immigration court lacked jurisdiction because the initial notice to appear omitted time/place information.
- The Eighth Circuit reviewed the CIMT determination de novo, rejected the jurisdictional challenge as foreclosed by Ali v. Barr, and applied the categorical approach focusing on the statutory elements.
- The court held the Nebraska offense is categorically a CIMT because lack of intent to restore is functionally equivalent to intent to permanently deprive; Reyna failed to show a realistic probability Nebraska would apply the statute to non-turpitudinous conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the immigration court had jurisdiction because the NTA omitted time/place | Reyna: NTA omission divests jurisdiction | Gov: Ali v. Barr forecloses this challenge | Court: Jurisdiction challenge rejected (Ali controls) |
| Whether Nebraska theft by receiving (§ 28-517) is categorically a CIMT | Reyna: Lacking intent to restore ≠ intent to permanently deprive; hypothetical “joyriding” shows realistic probability statute covers non-turpitudinous conduct | Gov: Statutory element requiring lack of intent to restore equates to intent to permanently deprive; Nebraska case law supports this equivalence | Court: Statute is categorically a CIMT; Reyna failed to show realistic probability of non-turpitudinous application |
Key Cases Cited
- Gomez-Gutierrez v. Lynch, 811 F.3d 1053 (8th Cir. 2016) (categorical-approach limitations; realistic-probability standard)
- Pereida v. Barr, 916 F.3d 1128 (8th Cir. 2019) (definition and consequences of CIMT in removal context)
- Ali v. Barr, 924 F.3d 983 (8th Cir. 2019) (NTA omission does not automatically deprive immigration court of jurisdiction)
- Dominguez-Herrera v. Sessions, 850 F.3d 411 (8th Cir. 2017) (theft offenses are CIMTs only when permanent taking is intended under older BIA precedent)
- Villatoro v. Holder, 760 F.3d 872 (8th Cir. 2014) (petitioner bears burden to show realistic probability state would apply statute to non-generic conduct)
- State v. Hubbard, 673 N.W.2d 567 (Neb. 2004) (Nebraska Supreme Court treats lack of intent to restore as functionally equivalent to intent to permanently deprive)