Omar Norvil Whylie Lewin v. Attorney General United States
885 F.3d 165
3rd Cir.2018Background
- Petitioner Omar Lewin, a Jamaican national and LPR admitted in 1987, was convicted in 2000 under N.J. Stat. Ann. § 2C:20-7(a) (receiving stolen property, third degree) and placed on probation; after a 2007 probation violation he was resentenced to four years’ imprisonment.
- DHS served a Notice to Appear charging removability based on an aggravated-felony conviction under 8 U.S.C. § 1101(a)(43)(G) (theft offense including receipt of stolen property with at least one year’s imprisonment).
- An IJ found Lewin removable and ineligible for cancellation of removal; the BIA affirmed, applying the categorical approach and holding New Jersey’s statute categorically fits the INA’s generic receipt-of-stolen-property aggravated-felony definition.
- Lewin petitioned for review, challenging only the mens rea: New Jersey’s statute criminalizes receiving property “knowing … or believing that it is probably stolen,” and he argued the “believing” formulation does not require the requisite intent to deprive under the INA.
- The Third Circuit reviewed de novo whether the state statute’s minimum elements match the INA’s generic theft/receipt offense and concluded that New Jersey’s law (which requires proof the property was actually stolen and the defendant’s knowledge or belief proved beyond a reasonable doubt) is categorically sufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N.J. § 2C:20-7(a) categorically constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) | Lewin: statute’s mens rea (“believing it is probably stolen”) is too weak; may criminalize mere suspicion or mistake, lacking intent to deprive | Government: statute follows MPC pattern requiring defendant’s knowing or believing mental state; BIA precedent supports that “knowledge or belief” satisfies the INA’s intent element | Court: Affirmed BIA — New Jersey statute is categorically an aggravated felony under § 1101(a)(43)(G) |
Key Cases Cited
- Rojas v. Att’y Gen., 728 F.3d 203 (3d Cir.) (describing categorical approach for aggravated-felony analysis)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (applying categorical approach and requiring realistic probability test)
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (presumption that conviction rests on least conduct criminalized)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (generic theft defined as taking/control without consent with intent to deprive)
- Denis v. Att’y Gen., 633 F.3d 201 (3d Cir. 2011) (discussing Chevron deference to BIA interpretations in aggravated-felony context)
- De Leon-Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir.) (upholding similar state “belief probably stolen” mens rea as sufficiently specific)
- State v. Hodde, 858 A.2d 1126 (N.J. 2004) (New Jersey law requires proof the property was actually stolen)
- State v. Hill, 974 A.2d 403 (N.J. 2009) (due process requires proving each element, including mens rea, beyond a reasonable doubt)