Immigration – Felon Is Eligible for Cancellation of Removal

Mena v. Lynch (Lawyers Weekly No. 001-083-16, 22 pp.) (Shedd, J.) No. 15-1009, April 27, 2016; On Petition for Review; 4th Cir.

Holding: The 4th Circuit grants a petition for review filed by a citizen of the Dominican Republic whose removal was ordered based on his two convictions of crimes involving moral turpitude; based on the categorical approach, we hold that a conviction under the “receipt of embezzled or stolen property” offense of 18 U.S.C. § 659 is not a “theft offense” under 8 U.S.C. § 1101(a)(43)(G) and the Board of Immigration Appeals erred in finding petitioner to be an aggravated felon ineligible for cancellation of removal.

When the government alleges that a prior conviction qualifies as an INA aggravated felony, we must employ the “categorical approach” to determine whether the offense is comparable to an offense listed in the INA. Because we examine what the prior conviction necessarily involved, not the facts underlying the case, we must presume the prior conviction rested upon nothing more than the least of the acts criminalized and then determine whether those acts are encompassed by the generic federal offense.

Applying the categorical approach, we addressed the meaning of the 8 U.S.C. § 1101(a)(43)(G) term “theft offense” in Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005). We held that a taking of property “without consent” is an essential element of a § 1101(a)(43)(G) theft offense and found that the alien’s credit card fraud offense was not an INA “theft offense” – i.e., an aggravated felony. We reiterated this holding in Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014), and held that a Virginia larceny conviction does not constitute an aggravated felony for purposes of the INA under the categorical approach.

Relying on Soliman, petitioner argues that a person can be convicted under the second paragraph of 18 U.S.C. § 659 for receipt of embezzled property, and the crime of embezzlement necessarily involves a taking of property with the owner’s consent. According to petitioner, because a taking of property without consent is an essential element of a § 1101(a)(43)(G) theft offense, a conviction under the second paragraph of § 659 is not a § 1101(a)(43)(G) “theft offense” under the categorical approach.

Despite its acceptance of petitioner’s characterization of § 659 and the crime of embezzlement, the BIA applied the categorical approach and concluded that his conviction under the second paragraph of § 659 categorically falls within § 1101(a)(43)(G).

Applying the categorical approach, we believe that Soliman, combined with a straightforward reading of §§ 659 and 1101(a)(43)(G), dictates the result in petitioner’s favor. By definition, embezzlement, like the closely related crime of fraud, involves property that came into the initial wrongdoer’s hands with the owner’s consent, regardless of whether the property is later transferred to, and received by, a third party. A conviction for receipt of embezzled property under § 659 does not require proof that the owner did not consent to the taking of the property. Lacking the “without consent” element, receipt of embezzled property under § 659 does not fall within the § 1101(a)(43)(G) theft offense definition. Consequently, the crime set forth in the second paragraph of § 659 sweeps more broadly than the generic § 1101(a)(43)(G) theft offense, and it is not an INA aggravated felony under the categorical approach.

Petition for review granted.

Dissent

Wilkinson, J.: Embezzlement is a theft. Ask the person seated next to you, who will tell you that it is. The majority says not. Come again? The majority says embezzlement is not a form of theft. It is from that proposition that I respectfully dissent. This case is much less complicated than the majority makes it. To repeat: embezzlement is a theft.