Decided: April 27, 2016
The Fourth Circuit granted the petition.
Francisco 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 the plaintiff’s removal based on his two convictions of crimes involving moral turpitude not arising out of the same criminal scheme. During Mena’s immigration proceedings, Mena applied for cancellation of removal, a form of relief that is available to aliens who have not been convicted of an “aggravated felony” based on 8 U.S.C. §1229b(a)(3). The Immigration and Nationality Act (INA) states an aggravated felony is a theft offense with a term of imprisonment of at least one year. Mena had a prior conviction for violation of 18 U.S.C. § 659, which creates four offenses, each set out in a separate paragraph. The first paragraph relates to the illegal taking by embezzlement or theft of certain property that has moved in interstate or foreign commerce. The second paragraph relates to purchases, receipt, or possession of property that was embezzled or stolen. Mena was convicted under this second paragraph and was sentenced to a 60-month imprisonment term. The IJ concluded that Mena’s conviction under § 659 is an aggravated felony, and therefore the IJ pretermitted Mena’s cancellation of removal application. The Board of Immigration Appeals (BIA) dismissed Mena’s appeal as it viewed § U.S.C. § 1101(a)(43)(G) to contain two types of offenses that qualify as an INA aggravated felony: theft offense and receipt of stolen property which is contained in the parenthetical appended to the term “theft offense.” The plaintiff filed a petition to the Fourth Circuit to review the BIA’s decision.
The court used a categorical approach to determine if Mena’s prior conviction qualified as an INA aggravated felony. The prior conviction constitutes an aggravated felony if it has the same elements as the generic INA crime but, if the statute of conviction sweeps more broadly and criminalizes more conduct than the generic federal crime, the prior conviction cannot count as an aggravated felony. The court looked at its earlier opinion in Soliman v. Gonzales where it stated a theft offense requires the essential element of the taking of property without consent. Mena’s argument was that his conviction under the second paragraph of § 659 for receipt of embezzled property, and the crime of embezzlement involves a taking of property with the owner’s consent and therefore, is not a “theft offense” under the categorical approach. The BIA found Soliman inapplicable because it the aggravated felony statute contains not only “theft offenses” but also “the receipt of stolen property” which has different elements than theft offenses and does not require taking property without consent. The BIA based this distinction on its prior opinion in In re Cardiel-Guerrero where the BIA observed extorted property falls within the generic meaning of “receipt of stolen property” under § 1101(a)(43)(G). The BIA also relied on a survey of state theft statues that supported BIA’s view that receipt of embezzled property is included in the generic definition of a “theft offense” under § 1101(a)(43)(G). The court disagreed with BIA and stated that embezzlement involves property that came into the wrongdoer’s hands with the owner’s consent. Accordingly, the court said that a conviction for receipt of an embezzled property under § 659 does not fall within § 1101(a)(43)(G)’s theft offense definition. Therefore, Mena’s crime sweeps more broadly than a § 1101(a)(43)(G) theft offense, and is not an INA aggravated felony under the categorical approach. Mena’s conviction under the second paragraph of § 659 is not a “theft offense” (including receipt of stolen property) under § 1101(a)(43)(G). Therefore, the court granted Mena’s petition for review and remanded the case for further proceedings.
Judge Wilkinson dissented from the majority opinion because the judge considered embezzlement to be included as theft under the generic language of § 1101(a)(43)(G).