975 F.3d 195
2d Cir.2020Background
- Andres Luis Santana, a Dominican-born lawful permanent resident, has multiple New York convictions: petit larceny (N.Y. Penal Law §155.25, 2010), possession of stolen property in the third degree (N.Y. Penal Law §165.50, 2011; 1–3 years), and first-degree burglary (N.Y. Penal Law §140.30, 2015; 8 years).
- DHS charged Santana with removability under INA §237(a)(2)(A)(ii) (crimes involving moral turpitude) and §237(a)(2)(A)(iii) (aggravated felonies), alleging his possession and burglary convictions were aggravated felonies under 8 U.S.C. §1101(a)(43)(G) (theft offense, including receipt of stolen property).
- At the BIA, the Government focused on whether Santana’s conviction under N.Y. Penal Law §165.50 (knowing possession of stolen property with intent to benefit or impede recovery) qualifies as an aggravated felony; the BIA concluded it does and dismissed Santana’s appeal.
- Santana argued §165.50 is not categorically an aggravated felony because (1) "receipt of stolen property" should be read as a subset of generic "theft" (which requires lack of owner consent), and §165.50 can cover property obtained with owner consent; and (2) §165.50 lacks an explicit intent-to-deprive element required by the federal definition.
- The Second Circuit applied the categorical approach, concluded the phrase "including receipt of stolen property" in §1101(a)(43)(G) is ambiguous, deferred to the BIA’s published interpretation that receipt is distinct from generic theft, and held that knowing possession under §165.50 implies the requisite intent to deprive; it denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N.Y. Penal Law §165.50 is an aggravated felony under 8 U.S.C. §1101(a)(43)(G) because the parenthetical "including receipt of stolen property" is a subset of generic "theft" (which requires lack of owner consent). | Santana: "including" signals subset; receipt must involve owner nonconsent, so §165.50 can reach conduct outside generic theft. | Government/BIA: "including" is ambiguous and may add a separate offense (receipt of stolen property) that need not require theft as generically defined. | Court: "including" is ambiguous; defer to BIA’s published, reasonable interpretation that receipt of stolen property is distinct from generic theft; §165.50 qualifies. |
| Whether §165.50 fails to match §1101(a)(43)(G) because it lacks an explicit intent-to-deprive element. | Santana: §165.50 does not expressly require intent to deprive, so it does not categorically match the federal aggravated-felony theft definition. | Government/BIA: Knowing possession of stolen property implies intent to deprive; the intent element can be inferred from the statute’s "knowingly possesses" requirement. | Court: Intent to deprive is inherent in knowing possession under New York law; §165.50 categorically matches the federal provision. |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (explains and endorses the categorical approach to immigration consequences of convictions)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (establishes deferential framework for reasonable agency interpretations)
- Flores v. Holder, 779 F.3d 159 (2d Cir. 2015) (applies categorical approach to aggravated-felony theft issues)
- United States v. Flores, 901 F.3d 1150 (9th Cir. 2018) (concludes "including" is ambiguous and supports deference to BIA interpretation)
- Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004) (reasoned that knowing possession of stolen property can imply intent to deprive)
- Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009) (states that generic theft requires property taken without consent)
- United States v. Turley, 352 U.S. 407 (1957) (interprets "stolen" broadly in related statutory context)