Lead Opinion
Petition for Review granted by published opinion. Judge SHEDD wrote the opinion in which Judge AGEE joined. Judge WILKINSON'wrote a dissenting opinion.
Francisco Mena petitions for review of the Board of Immigration Appeals’ (“BIA”) decision finding him to be ineligible for cancellation of removal under the Immigration and Nationality Act (“INA”) because he is an aggravated felon. For
I
■Mena is a native and citizen of the Dominican Republic who was admitted to the United States as a lawful permanent resident. An immigration judge (“IJ”) ordered Mena’s .removal based on his twо convictions of crimes involving moral turpitude not arising out of the same criminal scheme. See 8 U.S.C. § 1227(a)(2)(A)(ii). Mena did not appeal the, removal order to the BIA, and he does not contest it in his petition for review.
During his immigration proceedings, Mena applied for cancellation of removal, a form of discretionary relief that is available to certain aliens who have not been convicted of an “aggravated felony.” See 8 U.S.C. §' 1229b(a)(3). For purposes of the INA, an aggravated felony is, among other things, a “theft offense (inсluding receipt of -stolen property) ... for which the term of imprisonment [is] at least one year.”-- 8 U.S.C. § 1101(a)(43)(G).
Mena has a prior conviction for violating 18 U.S.C, § 659, which- creates four offenses, each set forth in a separate paragraph. Pertinent here, the first paragraph of § 659 proscribes the illegal taking by embezzlement or theft of certain property that has moved in interstate or foreign commerce. The' second paragraph proscribes the purchase, receipt, or possession of such property “knowing the same to have been embezzled or stolen.” Mena was convicted under the second paragraph and was sentenced to a 60-month imprisonment term.
The IJ concluded that Mena is an aggravated felon based on his finding that the § 659 conviction falls within the scope of § 1101(a)(43)(G). Accordingly, the IJ pre-termitted ■ Mena’s cancellation of removal application. Thereafter, in a single-member panel decision, the BIA dismissed Mena’s appeal of the IJ’s order.
II
Because the BIA issued its own opinion without adopting the IJ’s reasoning, we review only the BIA decision. Hernandez-Avalos v. Lynch,
A.-
When the Government alleges that a prior conviction qualifies as an INA aggravated felony, wé must employ the “categorical approach” to determine whether the offense is comparable to an offense listed in the INA. Omargharib,
Because we examine what the prior conviction necessarily involved, npt the facts underlying the case, we must presume that the prior conviction rested upon nothing more than the least of the acts criminalized and then determine whether even those acts are encompassed by the generic federal offense. Moncrieffe v. Holder, — U.S. -,
B,
¡ Applying the categorical approach, we addressed the meaning of the § 1101(a)(43)(G) term “theft offense” in Soliman v. Gonzales,
' We reiterated this holding in Omarghar-ib. There, we considered whether the BIA properly concluded that the alien’s Virginia larceny conviction was an INA theft offense. Finding that the BIA erred, we explained that “Virginia law treats fraud and theft as the same for larceny purposes, but -the INA treats them differently. As such, Virginia larceny ‘sweeps more broadly
C.
Mena’s challenge to the BIA’s decision is primarily based on our holding in Solimán. Mena argues that a person can be convicted under the second paragraph of § 659 for receipt of embezzled property, and the crime of embezzlement necessarily involves a taking of property with the owner’s consent. Therefore, according to Mena, because “a taking of property “without consent’ is an essential element” of a § 1101(a)(43)(G) theft offense, Solimán,
The BIA rightly did not dispute this interpretation of the second paragraph of § 659 or the crime of embezzlement, see J.A. 5, because the second paragraph of § 659 plainly criminalizes the receipt of certain embezzled property. Moreover, in what we have described as the “the classic definition,” United States v. Smith,
Despite its acceptance of Mena’s characterization of § 659 and the crime of embezzlement, the BIA applied the categorical approach and concluded that Mena’s conviction under the second paragraph of § 659 categorically falls within § 1101(a)(43)(G). The key to the BIA’s decision is its view that § 1101(a)(43)(G) creates two “‘distinct and separate offenses’ ” — “theft offense” (the base offense) and “receipt of stolen property” (the appended parenthetical offense) — which have “different generic definitions composed of different elements.” J.A. 6 (quoting In re Cardiel-Guerrero, 25 I. & N. Dec. 12, 14 (BIA 2009)). As the BIA explained, this case involves “receipt of stolen property,” a term it has interpreted “to include the category of offenses involving knowing receipt, possession, or retention of property from its rightful owner,” J.A. 5 (citing In re Bahta, 22 I. & N. Dec. 1381, 1391 (BIA 2000)). Given the purported distinction between the two § 1101(a)(43)(G) offenses, the BIA reasoned that it “need not establish the elements of a ‘theft’ offense to demonstrate that a conviction for ‘receipt of stolen property’ qualifies as an aggravated felony” under § 1101(a)(43)(G). J.A. 6. For this reason, the BIA found our holding in Solimán — that a “theft offense” requires a nonconsensual taking of property from its owner — to be inapplicable.
Additionally, the BÍA stated that “a survey of State theft statutes supports [its] view that receipt of embezzled property is included in the generic definition of a ‘theft offense (including receipt of stolen property)’ ” under § 1101(a)(43)(G). J.A. 6. The BIA noted that when § il01(a)(43)(G) was added to the INA, most states had adopted the Model. Penal Code’s approach of consolidating the variоus common law offenses of larceny, embezzlement and false pretenses, receiving stolen property, and extortion into a unitary “theft” offense. J.A. 6. The BIA also found support for its holding in the fact that § 659 requires proof that the defendant received the property knowing that it was embezzled or stolen, and with the -intent to deprive the owner of the rights or benefits of the property. J.A. 6.
D.
Common sense suggests that knowingly receiving either stolen or embezzled property — ie., the offense set forth in the second paragraph of § 659 — is a form оf theft; See, e.g., United States v. Johnson,
As noted, Solimán establishes that “a taking of property ‘without consent’ is an essential element” of a § 1101(a)(43)(G) “theft offense.”
By definition, embezzlement, like the closely related crime of fraud,
In reaсhing this decision, we accept the government’s unremarkable observation— premised on the BNA’s prior Bahta decision — that the ' parenthetical clause ■ of § 1101 (a) (43) (G) clarifies that the term “theft” is not limited to require proof that the offender "was involved in the actual taking, of the property. However, that observation simply does not support the BIA’s conclusion that the “.without consent” element of a “theft offense” is inapplicable to a “receipt, offense.” Section U01(a)(43)(G) plainly.'applies to both “taking” аnd “receiving” offenses. Nonetheless, as we have explained, a “receipt offense” is one type of “theft offense”, for purposes of the INA, and Solimán establishes that a necessary element of a “theft offense” is a taking from the owner without consent.
We also find the BIA’s analogy between embezzlement and extortion misplaced. In Cardiel-Guerrero, the BIA noted that although “consent” of the property owner is an element of extortion, “the concept of ‘consent’ used in the daw of extortion is highly unconventional and does not connote a voluntary or elective conferral of property.” 25 I. & N. Dec. at 20. Indeed, as the Second' Circuit has observed, the “consent” element in an extortion case presents the victim with a “Hobson’s choice” and “is the razor’s edge that distinguishes extortion from robbery.” United States v. Zhou,
Additionally, we find the BIA’s reliance on its survey of State statutes and the Model Penal Code to be unavailing. Although the BIA pointed to the States’ “trend” to consolidate various common law offenses into a unitary “theft” offense, that trend involves, аmong other things, certain fraud offenses. Of course, we implicitly rejected that trend in Solimán and Omargharib by holding that fraud offenses are not § 1101(a)(43)(G) “theft offenses.”
Finally, we note the anomalous result that the BIA decision would create.
IH
In short, based on our application of the categorical approach, we hold that a conviction under the second paragraph of § 659 is- not a “theft offense (including receipt of stolen property)” under § 1101(aj(43)(G). The BIA therefore erred in finding Mena to be an aggravated felon who is ineligible for cancellation of removal under § 1229b(a)(3). Accordingly, we grant the petition for review and remand for further proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED
Notes
. Consistent with the BIA's analysis, the parties agree that § 659 is divisible and that Mena was convicted' under the second paragraph. F ■ -
. In addition to the § 1101(a)(43)(G) "theft .offense,”, an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” is also an aggravated felony. See 8’U.S.C. § 1101(a)(43)(M)(i).
. Consistent with Solimán, the BIA now defines "theft offense”' for purposes of § 1101(a)(43)(G) as "the taking of, or exercise of control .over, property without consent whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent,” In re Garcia-Madruga, 24 I. & N. Dec. 436, 440-41 (BIA 2008) (emphasis added).
. The pеrtinent text of § 1101(á)(43)(G) actually reads: "theft offense (including receipt of stolen property).” The key word in this provision is "including,” which most naturally means that the term that follows is a part of the term that precedes "including.” See, e.g., P.C. Pfeiffer Co. v. Ford,
. The Supreme Court has explained that "the word ‘embezzled’ itself implies fraudulent
. Depending on the circumstances of a given case, we accord various levels of deference to
. Our determination that Mena’s § 659 conviction is not categorically an INA aggravated felony does not alter the basic nature of his offense. Mena may not have committed an INA “theft offense” as a technical matter, but he did commit an offense involving his knowing receipt of illegally obtained property. The govеrnment apparently feels strongly that Mena should not receive cancellation of removal relief, asserting that if (as we are ordering) the case is remanded, the BIA should be free to consider whether Mena is ineligible for cancellation of removal on another basis. Brief for Respondent, at 44. Mena disputes this assertion, but we decline to enter the fray. We note, however, that regardless of whether Mena is ultimately - deemed to be eligible for cancellation of removal, the Attorney General’s decision whether to grant cancellation relief is discretionary and generally not subject to judicial review. See 8 U.S.'C. § 1252(a)(2)(B)(i). -
We do not know if the issue of discretionary relief will eventually be considered. in this case, and we express no opinion about that. However, as a general observation, it seems that a great deal of the effort and resources expended in appeals of cases of this type could potentially be preserved if the IJ or BIA proceeded beyond the eligibility determination and ruled alternatively' on the discretionary cancellation decision. See, e.g., Ennis v. Att’y Gen. of the U.S.,
Dissenting Opinion
dissenting:
Embezzlement is a theft. Ask the person seated next to you, He or she will tell you that it is. -
It is from that proposition that I respectfully dissent.
The Immigration and Nationality Act declares that any “theft offense (including receipt of stolen property) ... for which the term of imprisonment is at least one year” is an aggravated felony. 8 U.S.C. § 1101(a)(43)(G). This broad, generic language embraces a variety of offenses, and the plain meaning of “theft” makes clear that Mena’s conviction under 18 U.S.C. § 659 is a theft offense.
The majority believes that embezzlement is not a theft because the owner of the funds voluntarily entrusts them to the embezzler. That totаlly ignores the fact that the whole purpose of the entrustment is for an honest stewardship of the funds. The betrayal of that purpose through embezzlement is purely and simply theft.
Theft is defined as “[bjroadly, any act or instance of stealing, including larceny, burglary, embezzlement, and false pretenses.” Theft, Black’s Law Dictionary (10th ed. 2014) (emphasis added). In common parlance, theft means “the action or crime of stealing.” Concise Oxford English Dictionary 1494 (11th ed. 2004). At the core of these definitions is a singular concept: theft happens when property is taken without any semblance of consent.
The рarenthetical “(including receipt of stolen property)” reinforces § 1101(a)(43)(G)’s broad meaning. “Stolen property” means “goods acquired by,” among other means, “theft.” Stolen Property, Black’s Law Dictionary (10th ed. 2014). Stolen property thus includes property taken through any of the common-law means that make up theft. This is consistent with the definition of the verb “steal”: “[t]o take (something) by larceny, embezzlement, or false pretenses.” Steal, Black’s Law Dictionary (10th ed.2014) (emphasis added). “Including,” furthermore, means “ ‘containing]’ or ‘comprising] [ ] part of a whole.’ ” Chickasaw Nation v. United States,
This plain meaning of theft is underscored by the fact that the INA uses the term “theft offense” in a generic sense. Its meaning therefore “roughly corre-spondes] to the definitions” of theft found “in a majority of the States’ criminal codes.” See Taylor v. United States,
The majority explicitly abjures common sense, i.e. plain meaning, in its approach to this problem. Maj. Op. at 119. But the categorical approach is supposed to
Like theft, embezzlement is also' stealing. And “distinctions between” different types of stealing “serve no useful purpose in the criminal law but are useless handicaps from the standpoint of the administration of criminal justice.” Rollin M. Perkins & Ronald Boyce, Criminal Law, 389-90 (3d ed. 1982). Like a victim of traditional larceny, a victim of embezzlement does not “consent” to the loss of his property. . Nor-does a victim of embezzlement, like a victim of larceny, “consent” tо the involvement of a third party when his property is transferred. Both victims consider their property stolen.
Petitioner rejects this view, relying on our earlier decision in Soliman v. Gonzales. In that case, we held that an INA “theft offense” must involve a taking without consent.
The majority views this as an unfair result. It contends that embezzlement (as opposed to receipt of embezzled property) is not itself an aggravated felony unless the amount embezzled exceeds $10,000. Maj. Op; at 120-21. Making receipt of embezzled property an aggravated felony would thus risk, in the majority’s view, treating the lesser criminal more harshly than the greater one. But this reasоning assumes that the original embezzler is not also guilty of a theft,offense — an incorrect assumption. And even if the majority’s understanding were correct, several considerations limit its relevance. First, fairness in the treatment ■ of ■ the family of embezzlers is more' properly addressed during their individual sentencings. Second, § 1101(a)(43)(G) contains a safeguard. The term of imprisonment for any predicate theft offense must be “at least one year.” Mena, for example, was sentenced to. sixty months of incarceration. Minor receipt оf embezzled property offenses thus, still avoid aggravated-felony status. Finally, if the point of the categorical approach, properly adopted by the majority, is to compare the elements of predicate against generic INA offenses, then the majority’s concerns are not only misplaced but irrelevant. The capacious terms of § 1101(a)(43)(G) embrace Mena’s 18 U.S.C. § 659 conviction, and we are obliged to respect that legislative choice.
This case is much less complicated than the majority makes it. To repeat: embezzlement is a theft. Just ask the person two rows down.