Almeida v. HolderAlmeida v. Holder
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- Before:
- Raggi
Fernando F. Almeida, a native of Portugal, petitions for review of a March 11, 2008 order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from the decision of Immigration Judge (“IJ”) Michael W. Straus finding him removable under
I. Background
Almeida was admitted to the United States as a lawful permanent resident on or about August 14, 1969. More than thirty years later, on November 29, 2001, he pleaded guilty in Connecticut state court to narcotics possession in violation of
On May 17, 2007, the Department of Homeland Security (“DHS”) charged Almeida with removability under
Almeida appeared before the IJ on August 23, 2007. DHS introduced into evidence his conviction record, which noted
On September 21, 2007, Almeida filed for cancellation of removal, urging the IJ to apply the “categorical” approach endorsed by this court in
Dickson v. Ashcroft,
346 F.3d 44 (2d Cir.2003), and to conclude that his crimes were not aggravated felonies.
See id.
at 48 (providing for examination of “intrinsic nature of the offense” rather than “particular set of facts underlying ... conviction” (internal quotation marks omitted)). Almeida argued that his second drug conviction did not satisfy the recidivist provision of
On November 7, 2007, the IJ rejected these arguments in an oral decision finding Almeida removable as charged. The IJ held that, “at a minimum,” Almeida was removable based on his conviction for narcotíes possession. In re Fernando Almeida de Ferreira, No. A18 564 939, slip op. at 1-2 (Immig. Ct. Hartford Nov. 7, 2007). The IJ held further that Almeida was removable as an aggravated felon based on his second-degree larceny conviction, in light of our decision in Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir.2004) (holding third-degree larceny under Connecticut law to be aggravated felony). Finally, the IJ held that Almeida was also removable as an aggravated felon based on the second of his drug convictions.
On March 11, 2008, the BIA dismissed Almeida’s appeal from the IJ’s decision. The BIA reasoned that because Almeida’s 2004 drug possession occurred after his 2001 conviction under the same statute became final, the second possession “would have been
punishable
as a felony under the recidivist provision of
II. Discussion
A. Jurisdiction and Standard of Review
Although we ordinarily lack jurisdiction to review either final orders of removal under
B. Almeida’s Larceny Conviction Was for a “Theft Offense ”
Under the Immigration and Nationality Act (“INA”), an alien is removable if he is “convicted of an aggravated felony at any time after admission.”
1. The Term “Theft Offense ” Is Broader than Commovr-Law Larceny
The INA does not define the term “theft offense.” In construing such a term, we afford “substantial deference” to the BIA, the agency charged with implementing the INA. Abimbola v. Ashcroft, 378 F.3d at 175 (internal quotation marks omitted). We are bound to accept the BIA’s construction provided it is not “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, U.S.A, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (holding BIA interpretation of INA was entitled to Chevron deference).
The BIA has interpreted the term “theft offense” to sweep more broadly than common-law larceny.
6
Its leading statement on the issue is
In re V-Z-S-,
22 I.
&
N. Dec. 1338, which served as the basis for its decision in this case. There the BIA considered whether “unlawful driving and taking of a vehicle” in violation of California law was a “theft offense.”
Id.
at 1347. Acknowledging that the relevant California statute did not demand that the charged taking be permanent, as was required for common-law larceny, the BIA
In adopting a broad construction of “theft offense,” the BIA relied on
United States v. Turley,
352 U.S. 407, 417, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957), in which the Supreme Court held that the word “stolen,” as used in the National Motor Vehicle Theft Act,
The BIA’s reading of “theft offense” also relied on the Model Penal Code, which likewise defines “theft” more broadly than common-law larceny. See In re V-Z-S-, 22 I. & N. Dec. at 1344-45. The Model Code defines “theft” as the unlawful taking of, or the exercise of unlawful control over, movable property of another “with purpose to deprive him thereof.” Model Penal Code § 223.2(1) (1980). Meanwhile, the Model Code defines the term “deprive” expansively: “(a) to withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or (b) to dispose of the property so as to make it unlikely that the owner will recover it.” Id. § 223.0(1). Examining these provisions, the BIA concluded that any crime meeting the Model Code’s broad definition of “theft” qualified as a “theft offense” for purposes of the INA. In re V-Z-S-, 22 I. & N. Dec. at 1344-45.
The BIA’s decision to construe “theft offense” as a broad, generic term is consistent with judicial decisions reading federal criminal statutes as untethered from common-law categories. For example, in
United States v. Handler,
142 F.2d 351 (2d Cir.1944), we held that the word “steal,” as it appeared in the National Stolen Property Act,
see
We have already judged the BIA’s broad reading of the term “theft offense,” as articulated in In re V-Z-S-, to be reasonable. See Abimbola v. Ashcroft, 378 F.3d at 176. Several other circuits have expressly adopted similar definitions of the term. See, e.g., Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir.2007) (defining “theft offense” as “a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent”) (quoting Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir.2001)); United States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir.2001) (same). Nor does Almeida contend that the BIA’s interpretation of “theft offense” in In re V-Z-S- is arbitrary or capricious. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. at 844, 104 S.Ct. 2778. Thus, we reaffirm the reasonableness of the BIA’s definition of the term “theft offense,” and turn to the question whether Almeida’s offense falls within that definition.
2. Second-Degree Larceny Under Connecticut Law Falls Within the Definition of “Theft Offense ”
Although we defer to the BIA’s interpretation of the term “theft offense,” we owe no deference to its decision that a particular crime, defined by state law, constitutes such an offense. See Dickson v. Ashcroft, 346 F.3d at 48. In addressing such questions de novo, we generally follow the “categorical approach,” under which “every set of facts violating a statute must satisfy the criteria for removability in order for a crime to amount to a removable offense,” and “the BIA may not justify removal based on the particular set of facts underlying an alien’s criminal conviction.” Id. On the other hand, if we determine that a criminal statute is “divisible,” i.e., that it “encompasses diverse classes of criminal acts ... some of which would categorically be grounds for removal and others of which would not,” we apply the “modified categorical approach,” under which we may refer to the criminal record to determine “whether the alien’s conviction was under the branch of the statute that permits removal.” Id. at 48-49. Where, as here, the challenged conviction is obtained pursuant to a guilty plea, our consideration is limited to the “facts to which a defendant actually and necessarily pleaded in order to establish the elements of the offense, as indicated by a charging document, written plea agreement, or plea colloquy transcript.” James v. Mukasey, 522 F.3d 250, 257 (2d Cir.2008) (internal quotation marks omitted).
Almeida pleaded guilty to conspiracy to commit second-degree larceny in violation of
(3) To “deprive” another of property means (A) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him, or (B) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property. (4) To “appropriate” property of another to oneself or a third person means (A) to exercise control over it, or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (B) to dispose of the property for the benefit of oneself or a third person.
Almeida argues that because a person may be convicted of larceny under Connecticut law based on a showing of intent either (1) “to deprive another of property” or (2) “to appropriate the same to himself or a third person,”
This is not the first time we have examined whether larceny under Connecticut law is a “theft offense” for purposes of
More relevant still to Almeida’s challenge, our decision in
Abimbola
rejected the argument that
We acknowledge that, to the extent Connecticut has separately defined “deprive” and “appropriate,”
see
Connecticut defines “deprive” for purposes of its larceny statute by reference to an owner’s loss of his right to actual possession of his property.
See
Indeed, we think Connecticut itself recognizes that its statutory scheme, in using “intent to deprive” and “intent to appropriate” to focus on different property rights, ultimately establishes a broad generic requirement of an intent to deprive another person (to the degree statutorily specified) of some rights or benefits of property ownership.
See State v. Calonico,
256 Conn. at 160, 770 A.2d at 469;
see also Howard v. MacDonald,
270 Conn. 111, 129 n. 8, 851 A.2d 1142, 1152 n. 8 (2004) (recognizing “statutory theft” under
The rights and benefits of property ownership are, after all, many. As Judge Oakes explained, they include not only the right to actual possession of a thing, but also the right to exclude others from possessing it, the right to use it and receive income from its use, the right to transmit it to another, and the right to sell, alienate, waste, or even destroy it.
See
Hon. James L. Oakes,
“Property Rights
”
in Constitutional Analysis Today,
56 Wash. L.Rev. 583, 589 (1981). As a practical matter, a person cannot, without authorization, “acquire the major portion” of the “economic value or benefit” of another’s property, nor can he “dispose of’ that property for his own benefit or that of a third person,
Almeida’s efforts to hypothesize facts on which a person could intend to appropriate without intending to deprive are unconvincing. He suggests that a person who gained unauthorized access to another person’s internet or cable television service— an act of appropriation specifically defined as larceny by
The
Jaggemauth
case is not helpful to our resolution of this petition because of differences between the Florida and Connecticut larceny statutes. The “deprive” prong of the Florida statute does not describe discrete property rights, as does
We conclude that each of the intent provisions of
C. Procedural Error
Finally, we address Almeida’s procedural challenges. Almeida contends that the IJ erred by (1) placing on him the burden of proving that his 2004 convictions were not aggravated felonies, and (2) resolving both the question of his removability as an aggravated felon and his application for cancellation of removal at a single hearing. These contentions are without merit.
The record does not indicate improper assignment of the burden of proof. The IJ explained that, if Almeida were found removable as an aggravated felon, it would be Almeida’s burden to prove that he was nonetheless entitled to cancellation.
Nor did the IJ err by finding Almeida removable as an aggravated felon and denying cancellation of removal at the same November 7, 2007 proceeding. Almeida’s claim that this procedure denied him a meaningful opportunity to carry his burden on cancellation is belied by the record, which demonstrates that he filed a 58-page brief in advance of the November 7 hearing bearing the title “Respondent’s Memorandum in Support of Application for Cancellation of Removal,” and that he was permitted to argue the question to the IJ. To the extent Almeida claims that the IJ violated BIA rules by denying his cancellation motion at a “master calendar hearing,” even if the November 7 proceeding could be so characterized, the manual on which Almeida relies for the purported rule did not take effect until after the proceeding in question.
Moreover, even if we were to identify procedural error, Almeida would not be entitled to relief, because his removability as an aggravated felon renders him statutorily ineligible for cancellation of removal, rendering any procedural error in the denial of such relief necessarily harmless. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-39 (2d Cir.2006) (holding remand was unnecessary where “disregarding those aspects of the IJ’s reasoning that are tainted by error, we can state with confidence that the same decision would be made were the petition remanded”); In re Lemus-Losa, 24 I. & N. Dec. 373, 380 (BIA 2007) (holding that purported errors in denial of continuance were harmless where alien sought relief for which he was ineligible).
III. Conclusion
To summarize, we conclude that:
1. A conviction for second-degree larceny in violation of
2. Having been convicted in Connecticut in 2004 of second-degree larceny, Almeida was correctly ordered removed as an aggravated felon and found statutorily ineligible for cancellation of removal under
The petition for review is DENIED.
Notes
. Title
. Removal as an aggravated felon has other implications. Ordinary removal under
.
Later that year, we held that “a second conviction for simple drug possession under state law is not a felony under the Controlled Substances Act simply because it
could have
been prosecuted as a recidivist offense under
. As we have previously explained, it appears that a scrivener’s error resulted in the omission of the word “is.” See United States v. Pacheco, 225 F.3d 148, 152 (2d Cir.2000).
. In Connecticut, common-law larceny required “the wrongful taking and carrying away of the personal property of another” without the consent of the owner and with a specific intent to deprive permanently. State v. Banet, 140 Conn. 118, 122, 98 A.2d 530, 531 (1953).
. The conditions are: “(1) The property consists of a motor vehicle, the value of which
exceeds ten thousand dollars, (2) the value of the property or service exceeds ten thousand dollars, (3) the properly, regardless of its nature or value, is taken from the person of another, (4) the properly is obtained by defrauding a public community, and the value of such properly is two thousand dollars or less, (5) the property, regardless of its nature or value, is obtained by embezzlement, false pretenses or false promise and the victim of such larceny is sixty years of age or older or is blind or physically disabled, as defined in section 1-1 f, or (6) the property, regardless of its value, consists of wire, cable or other equipment used in the provision of telecommunications service and the taking of such property causes an interruption in the provision of emergency telecommunications service.”