Winsome Elaine Vassell v. U.S. Attorney General
825 F.3d 1252
11th Cir.2016Background
- Winsome Vassell, a lawful permanent resident, pleaded guilty in Georgia to "theft by taking" under O.C.G.A. § 16-8-2 based on taking merchandise from her employer; an IJ found the conviction an aggravated felony making her deportable.
- The BIA initially held § 16-8-2 did not match the INA's generic definition of a "theft offense" because it lacked a required "without consent" element, but on reconsideration a single-member unpublished BIA order reversed and found it did.
- The Government conceded generic theft includes a "without consent" element and that Georgia law criminalizes obtaining property by fraudulently obtained consent; it argued that fraudulently obtained consent nonetheless satisfies the generic definition.
- The Eleventh Circuit reviewed de novo the state-law question (no deference to BIA on state-law), and limited deference to unpublished single-member BIA decisions unless consistent with other BIA decisions.
- The court held the BIA’s final ruling was erroneous: Georgia § 16-8-2 is broader than the INA’s generic theft definition because its "regardless of the manner in which the property is taken or appropriated" language covers fraudulently obtained consent.
Issues
| Issue | Vassell's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the INA "theft offense" requires property obtained "without consent" | Generic theft requires absence of consent to distinguish theft from fraud; thus § 16-8-2 must require that | Conceded generic theft has "without consent" but argued fraudulently obtained consent can become "without consent" once consent lapses | Held: Generic theft requires lack of consent at surrender (distinguishes theft from fraud); fraudulently induced surrender is not generic theft |
| Whether Georgia § 16-8-2 contains the generic "without consent" element | § 16-8-2 lacks a consent requirement because it punishes taking "regardless of the manner" and Georgia cases show it covers deception/fraud | Argued "unlawfully" implies lack of consent and that the statute can capture loss of consent later (exercise of control) | Held: § 16-8-2 is overbroad — Georgia law punishes fraudulently induced transfers and thus does not necessarily meet generic theft |
| Whether Duenas‑Alvarez’s realistic-probability test saves § 16-8-2 | Pointed to Georgia cases (Spray, Ray, Stull) showing § 16-8-2 has been applied to fraud; realistic probability satisfied by statute text and precedent | Asked for case-specific showing that Georgia applied statute to nongeneric conduct in practice | Held: Statutory language plus state decisions create the realistic probability that § 16-8-2 covers nongeneric conduct; categorical mismatch established |
| Whether inconsistent unpublished BIA orders require deference to the most recent single-member order | Not necessary to resolve because the court found the BIA’s reasoning substantively wrong; noted many BIA orders sided with Vassell | Govt relied on the most recent BIA single-member reconsideration | Held: Court reverses BIA because the BIA’s reasoning was incorrect; consistency of other BIA unpublished orders underscores error |
Key Cases Cited
- Balogun v. U.S. Att’y Gen., 425 F.3d 1356 (11th Cir. 2005) (circuit has jurisdiction to review BIA aggravated-felony determinations and explains deference principles)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (adopt categorical approach and realistic-probability standard for matching state offenses to generic definitions)
- Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005) (distinguishes theft from fraud by focusing on whether property was obtained "without consent")
- Ramos v. U.S. Att’y Gen., 709 F.3d 1066 (11th Cir. 2013) (statutory language can itself create a realistic probability statute covers nongeneric conduct)
- Donawa v. U.S. Att’y Gen., 735 F.3d 1275 (11th Cir. 2013) (no deference to unpublished single-member BIA decisions unless consistent with other BIA decisions)
- Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008) (endorses Soliman’s consent-based distinction between theft and fraud)
- Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014) (applies Soliman to conclude a state larceny statute that conflates fraud and theft is not a generic theft offense)
- Al‑Sharif v. U.S. Citizenship & Immigration Servs., 734 F.3d 207 (3d Cir. 2013) (cites Soliman in refining fraud/theft analysis)