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Immigration – Law covering “de minimis” theft no grounds for removal

Rebecca Lightle//June 21, 2018

Immigration – Law covering “de minimis” theft no grounds for removal

Rebecca Lightle//June 21, 2018

Because not all of the offenses encompassed under Maryland’s theft statute qualify as crimes involving moral turpitude, the Board of Immigration Appeals erred in concluding that the petitioner committed such crimes and was thus ineligible for cancellation of removal.


Petitioner Maricela Martinez is a native of Mexico who entered the country illegally when she was 15 years old. She is the mother of four children, all citizens of the United States. Between 2007 and 2016, Martinez was convicted three times in Maryland for petty theft. One conviction involved theft of less than $500; the others involved thefts of less than $100 each. After Martinez’s third conviction, immigration officials sought to deport her.

Although Martinez initially conceded removability, she later obtained counsel and contended that the theft offenses did not qualify as crimes involving moral turpitude. An immigration judge disagreed and held that she was not entitled to apply for cancellation of removal. The Board of Immigration Appeals affirmed, and Martinez thereafter filed this petition for review.

Crimes of moral turpitude

Martinez’s theft convictions arise under § 7-104 of Maryland’s criminal code, which consolidated multiple offenses into a single statute. Although the structure of the statute might suggest that it encompasses multiple separate offenses, § 7-102 explains that the “[c]onduct described as theft in this part constitutes a single crime ….” Because Maryland’s theft statute is not divisible, the modified categorical approach is inapplicable, and the question is whether all of the conduct prohibited by the statute, including the least culpable conduct, categorically qualifies as a crime involving moral turpitude.

This court is generally obliged to defer to the Board’s definition of “crime involving moral turpitude” but not to its conclusion that the Maryland theft offenses at issue here qualify as such crimes.

Assuming that In re Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016), applies and is entitled to deference, Martinez’s theft offenses still do not qualify as crimes involving moral turpitude. Under the Diaz-Lizarraga standard, a statute that permits a theft conviction for a de minimis, temporary taking like joyriding does not qualify as a crime involving moral turpitude. Maryland’s theft statute does not distinguish between substantial and de minimis takings as required to qualify as a crime involving moral turpitude under Diaz-Lizarraga.

A defendant may be convicted under § 7-104 for a temporary taking that deprives the owner of any portion of the property’s value. This standard is lower than the Board’s substantial-erosion standard, and it permits the state to obtain a theft conviction for joyriding, the paradigmatic example of a de minimis and non-morally-turpitudinous taking; a joyrider deprives the vehicle owner of the value of the gasoline, oil, and tire treads that are consumed during the ride. Because § 7-104 permits such de minimis temporary takings to be prosecuted as theft, the statute does not categorically qualify as a crime involving moral turpitude.

The Board thus erred in concluding that Martinez had been convicted of crimes involving moral turpitude. Accordingly, Martinez is not ineligible for cancellation of removal.

Concession of removability

The immigration judge’s refusal to accept Martinez’s withdrawal of her concession of removability appears to have been largely based on his conclusion that her convictions qualified as crimes involving moral turpitude. Under these circumstances, this court leaves it for the Board to address this issue on remand.

Petition granted; vacated and remanded.

Martinez v. Sessions (Lawyers Weekly No. 001-104-18, 18 pp.) (Traxler, J.) No. 17-1301; June 15, 2018; from BIA. Maureen A. Sweeney and Adina Bassin Appelbaum for Petitioner; Sara J. Bayram for Respondent. 4th Cir.


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