Winsome Elaine Vassell v. U.S. Attorney General
839 F.3d 1352
11th Cir.2016Background
- Winsome Vassell, a Jamaican national and lawful permanent resident, pleaded guilty in Georgia to "theft by taking" (O.C.G.A. § 16-8-2) in 2013 for taking merchandise while employed at the store.
- An Immigration Judge found the conviction was an aggravated felony (a "theft offense") under the INA and ordered removal.
- The BIA initially reversed, holding Georgia § 16-8-2 did not contain the generic "without consent" element; after reconsideration a single-member BIA order concluded the statute did require lack of consent and reinstated removal.
- The government conceded generic theft includes a "without consent" element and that Georgia law criminalizes obtaining property via fraudulently obtained consent; its dispute was whether fraudulently obtained consent can qualify as "without consent."
- Eleventh Circuit analyzed the generic "without consent" element (as adopted by the BIA in In re Garcia-Madruga and endorsed by Soliman) to distinguish theft (taking without consent) from fraud (consensual surrender induced by deception), and concluded § 16-8-2 is broader than generic theft because it covers fraudulently induced surrenders.
- The court granted Vassell’s petition for review and remanded to the BIA, holding § 16-8-2 is not categorically a "theft offense" for INA purposes.
Issues
| Issue | Vassell's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Georgia § 16-8-2 is "a theft offense" under INA § 1101(a)(43)(G) | § 16-8-2 lacks the generic "without consent" element because it criminalizes obtaining property by deception (fraudulently obtained consent) | § 16-8-2 criminalizes unlawful takings and juries must find lack of consent; even if consent was obtained by fraud, consent later expires when victim learns truth, producing "exercise of control without consent" | § 16-8-2 is overbroad; it criminalizes both theft and fraud and is not categorically a "theft offense" because it does not necessarily require the generic "without consent" element |
| Proper meaning of the generic "without consent" element | It excludes cases where property was voluntarily surrendered due to fraud (that is, fraud is distinct and governed by separate INA provision) | (Conceded that generic theft contains "without consent"; dispute only about fraudulently obtained consent) | "Without consent" means involuntary or unwilling taking at the moment of surrender; consensual surrender induced by deception is fraud, not generic theft |
| Whether the categorical approach requires showing actual state prosecutions of nongeneric conduct | Pointed to Georgia cases applying § 16-8-2 to frauds (Spray, Ray, Stull) to show realistic probability of nongeneric applications | Argued Vassell failed to point to a decision applying statute outside generic theft to her facts | The statutory language "regardless of the manner" plus state precedent demonstrates realistic probability that § 16-8-2 reaches nongeneric (fraud-based) conduct |
| Whether inconsistent unpublished BIA orders justify relief | Noted BIA earlier unpublished orders held § 16-8-2 not a theft offense; inconsistent final order here was arbitrary | Government offered no persuasive reason to treat Vassell differently from other BIA decisions | Court granted petition on legal grounds (BIA’s reasoning was mistaken); inconsistencies underscore error but court did not rely solely on arbitrary/inconsistent practice |
Key Cases Cited
- Balogun v. U.S. Att’y Gen., 425 F.3d 1356 (11th Cir.) (jurisdiction and deference principles for BIA interpretations)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (use of the categorical approach and generic offense comparison)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (explaining categorical approach for immigration grounds)
- Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005) (distinguishing theft as taking without consent from fraud as consensual surrender induced by deception)
- Ramos v. U.S. Att’y Gen., 709 F.3d 1066 (11th Cir. 2013) (statutory text can create realistic probability that state law covers nongeneric conduct)
- Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014) (applying Soliman’s distinction to hold a state larceny statute was not a generic theft offense)