*1 NUGENT, Petitioner Errol O’Neil
v. ASHCROFT, Attorney
John General of States, Respondent
the United Nugent, Appellant
Errol O’Neil Mullin, Special Agent
Patricia Assoc.
Charge Philadelphia Office of Immigration and
United States Cus- (USICE)
toms and Enforcement Department of Homeland Securi-
ty; Nordmark, Theodore Assistant Deportation
District Director for Philadelphia
Detention of USICE in Department of Homeland Securi-
ty, Appellees
Nos. 04-1541. Appeals,
United States Court of
Third Circuit.
Argued Jan. 2004. 7,May
Filed 2004. LAR
Submitted under Third Circuit
34.1(a) March Morley A. (Argued), Morley,
Steven Su- Griffin, P.C., PA, rin Philadelphia, & Petitioner. Keisler,
Peter D. Attorney Assistant General, Division, Bernal, Civil David V. Director, Minick, Assistant An- William C. thony Payne, (Argued), C. Jamie M. Dowd *2 163 gust Di- Immigration Litigation, permanent Civil lawful Office of resi- vision, Department, years dent when he was States Justice seven old. United On 30, D.C., 1984, Respondent. January for he was Washington, convicted of of Montgomery Court Common Pleas SLOVITER, RENDELL Before: County for the of Pennsylvania State ALDISERT, Judges. Circuit (theft taking unlawful of movable property) violation of Pa. 18 Cons.Stat. THE OF COURT OPINION (West 3921(a) § Ann. Supp.1983) 1973 & ALDISERT, Judge. Circuit and receiving stolen in violation 3925(a) (West § of 18 Pa. Cons.Stat. Ann. petition by Nugent In the Errol O’Neil Supp.1983). 1973 & The crime involved at for review of a final order No. 02-4329 typewriters of two valued at a total of Immigration of removal the Board of $1,900. approximately Nugent could have (“BIA”), Appeals we must decide whether years been sentenced to imprison- five jurisdiction Nugent have inasmuch as ment, but instead he was sentenced to 12 removed from the was ordered United months on probation. Theft of the two 1227(a)(2)(A)(ii) § States under 8 U.S.C. typewriters at valued this amount consti- having for convicted of two crimes been tuted a degree. misdemeanor of the first In the turpitude. moral consoli- 3903(b) § See 18 Pa. Cons.Stat. Ann. judgment at from a appeal dated 04-1541 (West Supp.1983). 1973 & A misdemeanor for of the United States District Court degree of the first punishable by up was Pennsylvania Eastern District of we must years imprisonment. five See 18 Pa. Cons. decide whether conviction under Penn- 1104(1) (West 1983); §Ann. Stat. Com sylvania by deception statute consti- Schreiber, 367, Pa.Super. 319 466 A.2d aggravated felony. tutes an (1983) (holding 208 that a sentence of five jurisdiction hold that we lack in the years imprisonment ap- would have been petition for review of the final order of propriate first-degree for a misdemeanor but, petition, removal and will dismiss taking). conviction of theft unlawful for than reasons other those stated 28, 2000, Nugent On November was con- court, judgment we affirm the district victed the Court Common Pleas of the district court on the Montgomery County for State denying corpus issue the writ of habeas Pennsylvania of theft in viola- prejudice Appellant’s applying without 3922(a) § tion of 18 Pa. Cons.Stat. Ann. Attorney to the General for cancellation of (West Supp.2000). 1983 & He was sen- pursuant the removal order to 8 U.S.C. imprisonment tenced to a term of of not peti- 1229b. We will first address the than six months but not more than less 23 tion for review. months.
I. It Nugent’s was on the basis of 2000 Nugent Pennsylvania is a native and citizen of Immigra- Jamai- conviction (“INS”)1 ca who entered the United States on Au- tion and Naturalization Service Within (Supp.2003)). 1. The INS is now known as the Bureau of U.S.C. 271 the BCIS Citizenship Immigration Immigration Services Office United is the States (“BCIS”) ("USICE”). Department op- within Home- Enforcement Id. Because the ("DHS”). Security place land See Homeland Secu- erative events in this case took before rity change, Act of Pub.L. No. the name INS is used here. In the (2002) (codified appeal principal Stat. at 04-1541 the defendant Pennsylvania, of Theft of removability Prop- with from Movable charged by Receiving erty and Theft Stolen the United States 1227(a)(2)(A)(iii) having Property, in violation of been convict- felony as defined in 8 Laws 3921 and 3925. ed of an Criminal Sections *3 1101(a)(43)(G). original The No- U.S.C. alleged 7. The conviction in Alle- above Appear tice to stated: gation alleged No. 6 and the conviction were, 28, 2000, 4. You on November Allegation 4 on the No. Notice Pleas, convicted the Court of Common 14, February dated 2001 did not Appear County Montgomery, Commonwealth single out of a criminal arise scheme of Pennsylvania for the offenses of misconduct. (DOCKET THEFT BY DECEPTION 138.) (App. at #1061-00) and DRIVING UNDER hearing At a before the IJ October (DOCKET # THE INFLUENCE 1974- following colloquy place: the took 00), 18, Pennsylvania in violation of Title Judge [representing peti- to Mr. Mazer Statutes, and Title Section 3922 Nugent]: tioner Statutes, Pennsylvania Section 3731. 206.) (App. at Q. you plead allegations And do how 7, 2001, September Nugent filed a On six and seven? proceedings
motion to terminate removal allegations. A. will concede those by on the basis that his for theft conviction Q. Okay. they not You concede that con- deception under law did aggravated felony involving turpitude an theft of- stitute crimes moral constitute by defined then? fense 1101(a)(43)(G). Ah, yes. A. 14, 2001, September immigration
On 124.) (App. at (“IJ”) judge interlocutory issued an order 11, 2001, day, the same On October denying Nugent’s motion to terminate re- concluding issued an oral decision IJ proceedings. moval The IJ concluded that subject Nugent ag- was to removal as an Nugent’s by conviction for theft gravated felon. The IJ then added: “Fur- constituted an theft un- ther, today in court counsel has conceded 1101(a)(43)(G). der 8 U.S.C. allegations forth in set the 1-261. The 12, 2001, September On INS subject respondent Court finds the charged Nugent being subject with to re- 80.) charged (App. removal as therein.” 1227(a)(2)(A)(ii) moval under 8 U.S.C. above, As set forth the Form 1-261 added having for been convicted of two or more paragraphs 6 and 7 in which the listed INS involving crimes moral turpitude. noti- Nugent’s 1984 conviction for theft un- fying Nugent of the charge, additional taking lawful and referenced his 2000 con- Charges stated in its “Additional INS Thus, by deception. viction for theft Inadmissibility/Deportability” Form 1-261: turpitude two crimes moral con- January
6. You by deception, were convicted on sisted of theft conviction 28, 2000, in the Court Common Pleas of date November as contained in Montgomery County 4 in Allegation original for the State of the INS’ No. corpus proceedings Philadelphia the habeas Mullen, was Patricia office of USICE. charge Special Agent Associate any unlawful review final order of Appear, and theft removal Notice against an alien who January date is removable taking, conviction having reason of committed a criminal Allegation in the Nos. 6 as contained INS’ 1182(a)(2) offense covered in section specifical- 7 in the Form 1-261. The IJ 1227(a)(2)(A)(iii) [aggravated felony], from the Unit- ly ordered removed (D) (C), (B), title, of this or any ed States based on convictions both offense covered section aggravated felony listed the Notice to 1227(a)(2)(A)(ii) or more crimes in- [two Appear turpi- and the two crimes of moral volving turpitude, moral arising out listed in the “Form Additional tude single of a scheme of criminal miscon- Inadmissibility/Deportability.” Charges of of this title for which predi- duct] both *4 Nugent appealed the IJ’s decision to the are, regard cate offenses without to BIA, on the BIA November commission, their date of otherwise cov- opinion, affirmed the IJ’s decision without 1227(a)(2)(A)(i) ered section of this thereby adopting the IJ’s decision as the title. agency Nugent final determination. time- 1252(a)(2)(C). § 8 U.S.C. ly the BIA’s appealed order. Nugent’s 1984 conviction for theft (theft taking unlawful proper of movable II. ty) was a crime involving turpitude. moral jurisdiction pursuant The BIA had to 8 The INA does not turpitude, define moral 1003.1(b)(3) §§ and 1240.15 to re- C.F.R. legal dictionary but we have noted that a juris- decision of the have view the IJ. We defines the term as con “[c]onduet 1252(a)(1) § to pursuant diction 8 U.S.C. trary justice, honesty, morality.” to De (b) jurisdiction “to our un- determine 633, Leon-Reynoso Ashcroft, v. 293 F.3d 1252(a)(2)(C).” § v. U.S.C.] der Drakes [8 (3d Cir.2002) (quoting 636 Law Black’s (3d Cir.2001). Zimski, 246, 240 F.3d 247 (7th ed.1999)). Dictionary Although 1026 1252(a)(2)(C), the INA’s no-review Nugent only received a 12 sentence any final provision, reviewing bars us from probation on for the 1984 convic months removal order for an alien who has been tion, up could have sentenced to he been removed from the ordered United States years imprisonment. Pa. five See 18 Cons. aggra- because of convictions for either an (West 1983); § Pa. Stat. Ann. 1104 18 felony turpi- moral vated or two crimes of (West §§ Ann. 3903 3921 Cons.Stat. Thus, tude, among other offenses. we Supp.1983). 1973 & jurisdic- must “determine whether these Likewise, Nugent’s 2000 conviction present.” tional facts are Valansi v. Ash- by deception for theft constituted a crime Cir.2002). (3d croft, F.3d 207 278 involving turpitude. Nugent moral re determining pure legal questions imprisonment ceived a sentence of jurisdiction, govern before us that our own not more than less than six months but 23 apply we a de novo standard of review. and 2000 crimes did months. The 1984 Id. single “not out of a scheme of crimi aris[e] ” nal misconduct .... III. 1227(a)(2)(A)(ii). § of moral Both crimes provision provides The INA’s no-review in sentences turpitude could have resulted part: relevant year longer[,]” id. “of one 1227(a)(2)(A)(i)(II), Notwithstanding any provision other and whether law, jurisdiction committed more than five no court shall have crimes were 166 Mansfield, on its motion. &
years
Nugent’s
after
admission to the
tion
own
C.
Swan,
Ry.
United States is irrelevant
8 U.S.C. L.M.
Co.
U.S.
381-
1252(a)(2)(C). Therefore,
(1884).
under the no 386,
obviate the need for to seek reso- that petition lution of issue via a for writ of Nugent asks us to review not the final (Id. 4.) corpus. habeas at 18-19 n. order but one of two reasons for removal decided, Having properly, or more be- in final part, gov- order. For its parties stipulate, cause that we have no recognizes jurisdic- ernment that lack we jurisdiction to review the final order bot- tion because of the moral turpitude convic- grounds, on moral turpitude tomed we tions but' somehow seeks a decision on the must now decide whether court pos- this aggravated felony issue. To assist us in jurisdiction sesses tó consider the issue deciding very issue, this difficult on Febru- parties urged upon both have us brief ary requested supplemental to-wit, argument, and oral whether a con- briefing: viction under the jurisdiction By our limited to deception statute is aggravat- constitutes 1101(a)(43)(G). reviewing orders, final felony ed under 8 8 U.S.C. (d) 1252(a)(1), (b), It (g), par- this issue that we now turn. and not a supporting ticular reason If the order. IV. jurisdiction we do not have to review the court, (i.e., A order based on appel- federal whether trial or one of the reasons late, obliged jurisdic- removability grounds notice want Petitioner’s appeal from the United States District turpitude), what of moral two crimes present at No. 04-1541 with the another Court have to review authority do we (ie., petition to review the Order of the BIA at the order wheth- supporting reason consolidation, determining in No. 02-4329. view of this BIA erred er the ag- light thorny jurisdictional constitutes an conviction Petitioner’s felony)? problem, aggra- we will not consider the gravated No. felony proceeding vated issue this dated March response In Petitioner’s Rather, 02-4329. we will consider it advised the court: he appeal corpus of the district court’s habeas peti- Petitioner filed In October judgment at No. 04-1541. in the corpus of habeas tion for writ Pennsylvania which District of Eastern Accordingly, we will dismiss for lack at No: 03-cv-6064 jurisdiction was docketed petition to review the re- Joy- to the Honorable J. Curtis assigned Nugent’s having moval order based on ner, of the Eastern District Judge committed two crimes moral tur- Pennsylvania. petition 1252(a)(2)(C) That for writ pitude. See §§ single question 1227(a)(2)(A). raised the corpus habeas Court, to this presented that has been appeal now turn to the from the Penn- whether district court at No. 04-1541. a theft offense or sylvania law is fil- reason for offense. The fraud/deceit VI. at that time was ing petition that the district court contends just Nugent had been detained Mr. denying corpus petition his habeas erred stay and this Court denied DHS *6 Pennsylvania it held his 2000 con- because the government opposed removal. The “a theft viction for theft was jurisdic- in this Court on stay of removal (including receipt proper- offense of stolen recently by grounds tional raised —those ty) burglary offense for which the term stay of the did this Court-but that denial year.” imprisonment at least one [is] panel a for the motions not state basis 1101(a)(43)(G). § the de- Because U.S.C. stay. All facts re- denying decision the a corpus nial of the writ of habeas was of the this consideration garding Court’s timely an we appeal final order and was matter, stay, as the denial of the as well § jurisdiction. 28 1291. Our have a writ of petition set forth in the for was plenary is on this issue review Joyner corpus. Judge issued habeas Valansi, 278 F.3d construction. stay shortly filing peti- after the at 207. 19, 2004, tion, but, February denied on Corpus, for of Habeas
the Petition Writ to us that because Appellant represents analysis, that holding, opinion without October, in 2003 he was detained by deception aggravated is an felo- theft DHS, corpus for applied he writ habeas 27, 2004, February Petitioner ny. On 2411(c) '§ in C. the district under 28 U.S. Joyner to Judge the order of appealed single ... raised the petition court. “The copy Attached hereto is a this Court. presented that has been to this question appeal notice of as well as the dock- Court, under by deception whether eting statement from this Court. offense or a Pennsylvania law is (Ltr. of Petitioner’s offense.” appeal The has been docketed habeas fraud/deceit 1, 2004, to the court dated March By order dated Counsel this Court at 04-1541. 3.) February 2004, by order dated 5, p. Although March we consolidated habeas 19, 2004, peti- by deception statute comes within the the district court denied the a detailed statement of rea- tion without rubric of an relates sons, it in a footnote to its order: stated a “theft offense” under 8 U.S.C. finds that the Petitioner was 1101(a)(43)(G) “This Court § “an ... offense and/or felony convicted of an and as involves fraud deceit” such, he is removable. See 1101(a)(43)(M)(i). U.S.C 1101(a)(43)(G).” January The record indicates on follow, For the reasons that we dis 1999, Nugent attempted to make two with- court’s sole reason agree with the district $3,450 totaling drawals from an account hold that denying for the writ. We Rampert of Earl name Willow removable, not on the Appellant but Penn- Abington Township, Grove Bank 1101(a)(43)(G) having for basis of Section sylvania. day, Nugent Earlier on the same aggravated felony, of an been convicted $1,450 separate had made withdrawals of court, solely stated but on the basis $2,000, respectively, from the Willow 1227(a)(2)(A)(ii) having for of 8 U.S.C. Grove and Hatboro branches of Willow or more in been convicted of two crimes Grove Bank. The account from which Nu- affirm volving turpitude. moral We will gent attempted to make the withdrawals judgment of the district court on this opened deposit had been with $100 only, apply the tenet that we ground a check for December may completely affirm for reasons differ $4,831.26 deposited had been into the ac- from advanced the district ent those January count on admit- Rizzo, court. PAAC v. 502 F.2d $4,831.26 police ted to check was (3d Cir.1974); denied, n. 1 cert. 419 U.S. counterfeit. (1975) 780, 42 L.Ed.2d 804 28, 2000, Nugent con- On November was (“[i]t court proper appellate victed in the Court of Common Pleas of affirm a correct decision of a lower court Montgomery County for the State of even when that decision is based on an of theft in viola- ground”) (emphasis origi inappropriate Pa. tion of 18 Cons.Stat. Ann. nal). why now discuss in detail (West Supp.2000).2 1983 & Section 3922 is disagree with the district court’s stated *7 § taken word for word from 223.3 of the Nugent’s reason that conviction under (“Code”) promulgated Model Penal Code Pennsylvania’s by deception theft (“ALI”) by the American Law Institute § Pa. Ann. 18 Cons.Stat. constitutes Nugent was sentenced to a term of “aggravated felony” by an as defined the than previously imprisonment INA. have not addressed not less six months a conviction under not more than 23 whether but months. (2) prevents acquiring
2. The statute reads:
another from
infor-
judgment
mation which would affect his
person
guilty
intentionally
A
of theft if he
transaction;
by
obtains or withholds
of another
a
deception.
person
(3)
A
he inten-
deceives if
impression
fails
correct a false
which
tionally:
previously
the deceiver
created or rein-
(1)creates
impression,
or reinforces a false
forced, or which the deceiver knows to be
law, value,
including
impressions
false
as to
influencing another to whom he stands in a
mind;
decep-
intention or other state of
but
fiduciary
relationship.
or confidential
person’s
perform
tion as to a
intention to
3922(a) (West
§
18 Pa. Cons.Stat. Ann.
1983
promise shall not be inferred from the fact
Supp.2000).
&
subsequently perform
alone that he did not
promise;
however,
an aggravated felony,
deemed
VII.
Nugent ineligible
would make
apply
agreed
BIA
concluded and the
The IJ
cancellation.
See
8 U.S.C.
Pennsylvania conviction of
Nugent’s
that
1229b(a)(3) (stating
§
Attorney
purview
came within the
by deception
theft
may not
General
cancel removal in the
1101(a)(43)(G),
that includes
of 8 U.S.C.
case of an alien who has been convicted of
felony” any “theft of-
“aggravated
as an
aggravated felony).
an
(including receipt
property)
of stolen
fense
robbery
impris-
for which the term of
Nugent argues first that the determina
year.”
onment
at least one
[is]
tion what constitutes a “theft offense” in
Nugent argues that because his convic-
the context of the INA’s definition of an
fraud
by deception
tion for theft
involved
“aggravated felony”
by
is made
reference
deceit,
a “theft offense”
it is not
under 8 to a federal standard rather than the la
(a)(43)(G),
but a fraud or de-
U.S.C.
attached
by Pennsylvania’s
bels
to crimes
ceit
offense
Taylor
criminal
laws. See
v. United
1101(a)(43)(M)(i),
in which
term
“[t]he
States,
575, 592,
495 U.S.
110 S.Ct.
... an
‘aggravated felony’ means
offense
(1990)
1101(a)(43)(G).
yields
com-
into the common law
several
See INS
Cardoza-
definitions, however,
Fonseca,
421, 432,
1207,
courts
peting
107
U.S.
S.Ct.
(1987)
reading
look to the
that “best
(explaining “where
should
U.S. 8 L.Ed.2d IX. (1962) (“in anything absence *9 contrary starting point to the it is fair to assume that Our is clear. Where fed- Congress used the statute in eral criminal statutes use [‘theft’] words estab- sense.”). meaning its common-law If research lished without further elabora-
171 tion, typically give those terms their check courts was considered a chose-in-action ex- law definition. cluded common from the common law offense of larceny. States, See Bell v. United 462 spoke in terms of “lar- The common law U.S. 76 L.Ed.2d ceny,” rather than “theft” and the words (1983). 638 interchangeably. are used Blackstone de- Thus, larceny simply fined as “the felonious tak- seem that would the modern ing carrying away personal and of the crime of obtaining property pre- false Blackstone, goods of another.” Com- tenses was not even a crime at common on of England, mentaries the Laws Book law. To plug loophole, the in 1757 Parlia- (1879). TV,at 230 But in the development ment a punished enacted statute that one law, larceny of the common courts defined “knowingly who designedly, by false comprehensive pretense pretenses, more terms. The re- or shall obtain from description any person fined common law or appears persons, money, goods, to merchandises, taking trespass be “the felonious and wares with intent to any any cheat or carrying away by person per- person persons of the defraud (1757) (cited II, the same.” 30 goods things sonal of another from Geo c. any 114). LaFave, supra, at In place, eighteenth the the without latter’s consent and with century, theoretical “[t]he to distinction be- deprive felonious intent the owner of pretenses tween false larceny by trick property permanently his or her and to may thief, be stated If simply. through convert it to the taker’s own use ....” 50 trickery, acquired his property title to the Am.Jur.2d, Larceny Wayne 1. Professor owner, from the property he has obtained supplies summary: R. LaFave a concise pretenses; false if merely but he ac- Larceny may at common law be defined quired owner, possession from the he has (1) (2) (3) trespassory, taking as the Bell, larceny by committed trick.” (4) carrying away personal prop- U.S. at (emphasis S.Ct. 2398 (5) (6) erty of another with intent added). steal it. American dealing statutes with larceny gener- as discrete offense have Specific Pennsylvania, our research ally left the six elements of the crime pretenses statute, discloses that the false unchanged, except that there has been II, 30 Geo c. was not “received” enlargement considerable of the kinds of “province” prior to the Declaration of In- subject which can be of dependence subsequent and the creation of larceny. present Commonwealth: LaFave, Wayne R. An passed Substantive Criminal act on January, was the 28th (2nd ed.2003) (footnote 19.2, Law at 62 ‘An put entitled Act to revive and omitted). in force such and so much of the late province Pennsylvania, laws
Before
appeared
offenses
judged necessary
to be in force in this
scene,
including
in action
“\c]hoses
provid-
commonwealth.’
this act it is
classes,
bonds and
of all
according
*10
older, if
(discussed
rary
rather
than
Guy,
definitions
in Commonwealth
(1966) (Aldisert,
151,
ancient,
truly
approaches.
speaking
Pa. D. & C.2d
When
J.)).
of-
An
of
examination
larceny
of the difference between
and em-
that
compendium
ficial
of British Statutes
bezzlement,
said,
distinction, now
“[t]he
he
time
to be in effect at the
were deemed
obsolete,
correspond
largely
did not ever
Pennsylvania became a state reveals
in
any
difference
the character
essential
II,
includ-
c. 24 was not
the statute
Geo
upon
acts or in their effect
of the
(containing the
generally, Digest
ed. See
to-day in
The crimes are one
victim.
14, 1808, Report
to the
full December
they are in
speech
common
of men as
Pennsylvania legislature by the Justices
Eagle
v. Am.
quality.”
moral
Van Vechten
Pennsylvania
“of the
Supreme
Court
Co.,
432,
Fire Ins.
239 N.Y.
146 N.E.
in force in the
English statutes which are
(N.Y.1925).
commonwealth,
of the
and of those
said
opinion ought
in their
said statutes which
Supreme
In
Court was faced
laws of
incorporated
to be
into the statute
in
problem
a
similar to what we face
with
xv).
commonwealth[,]” id. at
the said
Bell,
common law X. faced apply. Although the court was with robbery concentrat- its discussion early Judge As Cardozo was larceny by trick. generic, contempo- concepts ed on preaching the use of
173
concluded, “Congress has not
purpose,
The Court
its remedial
on the basis of an
larceny in
adopted the elements of
com-
arcane and artificial distinction more
terms[,]” explaining that the stat-
mon-law
suited to the social conditions of 18th
away”
utory language “takes
carries
century England than the needs of 20th
represents merely one element of common
century America.
interpreta-
Such an
larceny
entirely
and “is
consistent
law
tion would signal a return to the “incon-
pretenses.”
with false
Id. at
gruous results” that
the 1937 amend-
Moreover,
statutory language
ment
designed
was
to eliminate.
purloin”
“with intent
to steal or
has no
362, 103
462
U.S.
S.Ct. 2398.
common
meaning.
established
law
Id.
Thus,
marching
order we receive
(citing
Turley,
United States v.
352 U.S.
from the
in interpreting
Court is that
fed-
407, 411-412,
relied
prop-
actor secured dominion over the
(3d
INS,
Fed.Appx.
Williams
another)
(carry-
erty
“asportation”
Cir.2002)
Fuentes,
(Judges
Sloviter and ing away
property),
of the other’s
Debevoise).
Nugent’s bad
therefore
check transaction
Pennsyl-
for which he was convicted under
given
defini-
agree
this broad
a
deception
vania’s theft
statute is
tion, Nugent’s
check transaction for
bad
“theft
offense”
under
8 U.S.C.
Pennsyl-
which he was convicted under
1101(a)(43)(G).
however,
not,
§
This does
by deception
vania theft
statute is a “theft
inquiry.
end our
offense”
set
forth
in Section
1103(a)(43)(G). Indeed,
question
a
check
The sole
for decision is whether
worthless
Pennsyl-
Pennsylvania’s
“property”
scope
purview
within the
within the
statute,
vania’s theft
statute. As we
Section
Nu-
gent’s
passing
conviction for
check
explained previously,
have
common law
bad
larceny
represents
“common
“an offense
fraud or
regarded:
was
so
1101(a)(43)(M)(i),
larceny
tangi-
to thefts of
deceit” under 8
law
was limited
U.S.C.
notwithstanding that it
personal property.
ble
This limitation ex-
also constitutes
cluded,
under
example,
the theft of a written
“theft
offense”
8 U.S.C.
1101(a)(43)(G).
embodying
in action.”
If we decide that Nu-
instrument
chose
Bell,
gent’s
“an offense that
in-
was based on a bad check 1101(a)(43)(M)(i) $4,831.26, only and therefore con- Nugent’s *13 The term “offense” means doing “[t]he an aggravated felony viction could not be if that which a penal done, law forbids to be (a)(43)(M)(i)applies. Section 1101 or omitting to do what it commands.” especially And the distinction is critical (3rd Bouvier’s Law Dictionary 2399 Nugent because if we determine ed.1914). court in corpus both district the habeas In comparing these two subsections of proceeding and in pro- the IJ the removal 1101(a)(43), Section we are struck sev- in ceeding concluding erred that his state First, (G) eral distinctions. we note that offense amounted to an offense;” second, (M), limited to “a in INA, then, empha- under the as we have Congress uses the broader term “an of- previously, Nugent sized will be able to (as every fense” does other 14 different apply pursuant for cancellation of removal (H) (43)(E), offenses set forth in through to 8 U.S.C. 1229b. of an Conviction (L) (N) (U));3 (M) third, through “aggravated felony” prohibits such relief. (D) the laundering money offense are the 1229b(a)(3). See 8 U.S.C. (43) only offenses listed in Section that set follow, a minimum For the amount of per- damages reasons that we are that must Appellant proved may suaded that be before the qualify is correct in his offense as an guilty “aggravated felony.” contention that he was not of an aggravated felony when he was convicted significant. These distinctions are It offense could be that because all other offense in deception which the victims’ loss did 1101(a)(43) portions of Section are in listed $10,000. not exceed the universal form “offense” rather than particular limited or form “theft of- fense,” XII. that Congress intended that Sub- M(i) section apply only to theft offenses. 1101(a) Title provides: Indeed, a case could be made that was its (43) ‘aggravated The term felony’ intention. This view find in support would means— logic rules of discussed in hereinafter (G) a theft (including receipt offense the distinctions between par- universal and stolen property) burglary or offense for propositions, ticular and distributed and which the term imprisonment event, any undistributed terms. In [is] for our materials, relating explosive 3. Offenses counterfeiting, forgery, trafficking in altered firearms, violence, receipt numbers, demand for identification vehicle obstruction of ransom, pornography, racketeering child in- justice, perjury perjury, or subornation of corrupt organizations, gambling, fluenced witness, bribery appear of a failure to before prostitution, peonage, slavery involuntary felony charge, attempt a court aon servitude, misuse of national defense infor- conspiracy to commit an offense described in mation, smuggling, smuggling, alien failure 1101(a)(43). sentence, appear bribery, for service of a (as a term contains no restrictions necessary it is not for When purposes, immediate (M) offense”), logicians refer to it many of the other in us to decide how —’“an 1101(a)(43), “distributed,” proposition and the offenses listed Section if M(i). And limited any, subject are Subsection it as “universal” and is which is the it to expressly do not do so. Suffice In of offenses set a class. the universe M(i) only clearly say, we decide here 1101(a)(43), however, forth offenses” under to those “theft applies (G) predicated term “theft offense” (G) anchored on “fraud that are Subsection some, all, of the distributed term but deceit.” (M), is therefore con- “an offense” is a as “undistributed” and sub- sidered reject take we therefore the view we proposition The of which is the class. arguments advanced the “either-or” subject See reject government’s “particular.” con- is denoted as parties. We Aldisert, language Lawyers: of Subsec- A Ruggero Logic tention the naked J. (G) (3rd compels a conclusion that Thinking tion Legal to Clear 57-59 Guide *14 felony” de- “aggravated committed an as ed.1997); Irving Copi, M. Introduction 1103(a)(43) INA; by fined Section (7th ed.1986). Expressed in Logic 173 less reject Nugent’s argument that and also phrasing: technical “All theft offenses are (G) apply, that he did does not Subsection offenses, not all offenses are theft of- but theft, only a an offense not commit but fenses.” involving fraud or deceit under Subsection that conclusions in all taught We are (M)(i). including legal reasoning, de- reasoning, Instead, Congress’ we hold that intent analogy, “derive[ ] ductive inductive M(i) apply to an
was for both G and validity axiom known as the their from'the “theft” and “offense” “fraud nullo, dictum de omni et which states: deceit,” requirements and thus the both (or class) is true of the universal ‘What fulfilled for such an provisions must be ” (or subclass).” particular Jo- true of qualify offense to Brennan, A seph Gerard Handbook Accordingly, purposes of the INA. we Eaton, (1957); Logic Ralph see also M. in Appellant must decide favor of the be- (1931). Logic 97 This is an axiom General property cause the loss involved was less concerning all or none in its class. It was statutory minimum. than the Aristotle, in to- by first established but day’s legal reasoning it is the unstated
A. major linchpin formulating premise in First, term, that a logicians teach us every categorical syllogism in deductive contained in such as “an offense” as Sec- briefs, lawyers judges that in their and use 1101(a)(43)(M)or “a theft offense” as tion opinions. may The axiom also be their 1101(a)(43)(G), is said to have Section of a every stated as: If member class has quantity. and a Here we quality both (or have) property, does not a certain and quantity. quanti- The are concerned with if included in that certain individuals are ty particu- is universal or proposition (or class, have do then these individuals proposition according lar to whether have) Stebbing, property. See L.S. a class or to refers to all members of some (6th Logic A Introduction to Modern designated by its members of the class ed.1948) (“[t]hat (M) term should in- one be subject term. In the case of have we in a whole is the same cluded another as representing all members of a a term predicated for the other to of all of offense.” be class—-“an first”) Aristotle, Priora, 1101(a)(43)(M)(i). Anal. (quoting We hold that it 26-30). 24(b) does. believe, therefore, logical support
framework used to the conclusion B. following can forth in the we reach be set First, Bell, teachings under the polysyllogism:4 INA, decide that in drafting the Congress by Depriving property another of fraud recognized the distinction in theft offenses (M). or deceit is an offense coming within the common law offense of The offense of deception theft de- larceny and the statutory offense false (G). prives another of pretenses. It recognized larceny re- Therefore, the offense of decep- quired taking (caption) carrying and (M) (G). tion is an offense under away (asportation) of another’s property. A taking occurs when the offender secures ‡ % sfc H* dominion over property, and a carrying The offense of theft is an away requires slight away movement (M) (G). offense under LaFave, the property. supra, at 74. Con- Pennsylvania’s A violation of gress knew that the pre- offense of false is an offense law, tenses was not known at common by deception. of theft nature and stems Therefore, a violation of II, (1757), from 30 c. 24 punish- Geo which *15 statute, by deception § theft anis es one “knowingly designedly, who and by (M) (G). offense under and pretense pretenses, false shall obtain foregoing analytical the our With as any person persons, money, from goods, guide, proceed we to now evaluate the merchandises, wares or with intent 1101(a)(43)(G) of elements Sections any person cheat or defraud or persons of (M)(i) of the INA and those of the Penn- Accordingly, the same.” we believe that statute, sylvania by deception theft 18 Pa. Congress particular spe- when defined a § It beyond Cons.Ann. Stat. 3922. is cavil cies of in Section that particular Pennsylva- the or subclass 1101(a)(43)(M)(i) “an ... as offense that Nugent nia statute under which was con- mind, involves fraud or deceit” it had in purview victed falls within the of “a theft alia, inter the offense of false (including receipt proper- offense of stolen pretenses. ty) burglary for offense which the term Pennsylvania’s The theft deception imprisonment year.” at least one [is] statute under which was convicted 1101(a)(43)(G). § The sole ques- provides part: tion for decision is whether (a) statute, person which is sub- Offense defined—A guilty 1101(a)(43)(G) sumed in Section a par- intentionally as of theft if he obtains or offense,” ticular “theft also comes within withholds property decep- another (or class) the universal nature of “an of- A person tion. deceives if he intention- fense” bottomed on fraud or ally: deceit under polysyllogism
4.
prosyllogism;
syllogism
prem-
A
is defined as “a series of
in which one
syllogisms
which the
conclusion of one
preceding syllogism
ise is the
of a
conclusion
premise
becomes the
the
next.
In such a
episyllogism.” Logic
Lawyers,
is call an
syllogism
series the
whose conclusion be-
supra, at 64.
succeeding premise
comes the
is called the
(1)
part
prop
ticed to induce another to
with
impres-
creates or reinforces a false
sion,
erty,
legal right,
or surrender some
including
impressions
false
as to
law, value,
the end desired.”
accomplished
intention or other state of which
Ballentine,
Dictionary
mind;
person’s
to a
James
Law
with
but
(1930).
Pronunciations 526
“In common
perform promise
shall not
intention
‘defraud’ means to
parlance,
from the fact alone that he
the word
be inferred
wrongfully deprive another of his
subsequently perform
prom-
cheat or
did not
by deception or artifice.” United
....
ise
(3d
Thomas,
190, 200
315 F.3d
States
§
In evaluat-
18 Pa. Cons.Stat. Ann. 3922.
Cir.2002) (internal
and citation
quotations
provi-
ing this
we turn to relevant
omitted); see also United States v. Sum
accompanying
sions and the ALI’s
com-
(“The
(WD.Va.1927)
mers,
For all of these we conclude $10,000. not exceed that a conviction under by deception statute the type Accordingly, we will petition dismiss the offense comes within 8 U.S.C. for review at No. juris- 02-0329 for lack of 1101(a)(43)(M)(i), § “an offense that ... diction. In the appeal at No. deceit,” involves fraud or albeit too reasons other than those stated 1101(a)(43)(G), comes within 8 U.S.C. “a above, district court as set forth we will particular theft offense.” Because the judgment affirm the of the district court designed entirely statute is prejudice without Appellant to apply all-embracing concepts of fraud or de- Attorney to the General for cancellation of ceit—various forms of the word “deceive” the removal pursuant order to 8 U.S.C. appear times impression” five and “false § 1229b.5 precisely particular three times-—it is type contemplated of theft in the universal RENDELL, Judge— Circuit class of offenses set forth in the fraud or Concurring. (a)(43)(M)(i). deceit Subsection 1101 the axiom de omni et nul- apply therefore join I am pleased majority’s in the class) lo: what is true of the universal (or scholarly opinion. amply As demonstrated 1101(a)(43)(M)(i) §in partic- is true for the majority’s historical exegesis, theft (or subclass) 1101(a)(43)(G). ular hybrid is a crime that is both offense, 1101(a)(43)(G),
a theft deceit, and an offense fraud or conclusion, In reaching our ultimate 1101(a)(43)(M)(i). Therefore, therefore, we teachings follow the qualify order to as an felony, it *17 Drakes that ‘generic, conclude “more must be that Nugent’s shown conviction contemporary’ definitions” found in the by deception qualifies for theft under the Code, adopted by Pennsylva- verbatim definitions both theft offenses legislature, supply nia’s the meaning that offenses. I think “best accords with this is purposes the overall fraud/deceit (internal necessary carry out Congress’s the statute.” 240 F.3d at inten- omitted). Nugent’s tion. conviction quotation and citations was for an of- We de- termine that although resulting an offense under the fense involved deceit Pennsylvania $10,000 statute is a “theft offense” so loss of less than the minimum set 1101(a)(43)(G) (M)(i). However, applies, applaud be- forth in while I tour de cause the state statute is Judge logical bottomed on Aldisert’s force 1229b(e) adjusts Title 8 U.S.C. limits the number the removal or the status of aliens Attorney of actions General that cancel under section 1229b. this conclusion devising way to reason to separately I write compel logic this should
stress this combine definitions within sec-
that we Rather,
tion, only general rule. as a hybrid I submit an offense is
where —as aggravated is—and distinct, two
felony classifications contain tests,
clearly applicable should we conclude for the must be fulfilled order
that both felony. qualify
offense to as an SABREE, By his Mother and
Hassan SABREE;
Next-Friend, Hana Cather Meade, By
ine her Father and Next-
Friend, Meade; Joseph Fra Robert A.
zier, By Next-Friend, his Mother and Frazier,
Patricia for Themsleves Similarly
All Others Situated
* RICHMAN, B. In Her Official Estelle Secretary
Capacity Depart
ment of Public of the Com Welfare
monwealth Sabree, Meade, and
Hassan Catherine Frazier, Appellants
Joseph
* Pursuant to Clerk’s {Substitution dated and F.R.A.P.
Order 3/28/03 43(c)}
Rule
No. 03-1226. Appeals,
United States Court
Third Circuit.
Argued Sept. 2003. May Filed Gold, Stephen (Argued), Philadelphia, F. Shane, Law
PA and llene W. Disabilities PA, Project, Philadelphia, Appellants. notes ed, law, the common and such of law, the common subject are not the England statute laws of as have larceny, action, being rights mere hav- been heretofore in force in the said existence; ing corporeal no ... though force, province, shall except be in person may stealing be indicted for hereafter excepted. paper they on which are written.” I Roberts, Wharton’s Criminal Law at 766 Digest Samuel of Select British (10th 1896) added). (1847) (hereinafter (emphasis ed. “Digest”) A bank xv Statutes