Almeida v. Holder

588 F.3d 778

Fernando F. ALMEIDA, Petitioner, v. Eric H. HOLDER, Jr.,¹ Respondent.

No. 08-1410-ag.

United States Court of Appeals, Second Circuit.

Argued: October 31, 2008.

Decided: December 8, 2009.

Michael A. Ugolini, Springfield, Massachusetts, for Petitioner.

R. Alexander Goring, Trial Attorney, Office of Immigration Litigation (Gregory G. Katsas, Assistant Attorney General, Civil Division; Blair T. O'Connor, Senior Litigation Counsel, on the brief), Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before: WALKER, B.D. PARKER, and RAGGI, Circuit Judges.

REENA RAGGI, Circuit Judge:

Fernando F. Almeida, a native of Portugal, petitions for review of a March 11, 2008 order of the Board of Immigration Appeals ("BIA") dismissing his appeal from the decision of Immigration Judge ("IJ") Michael W. Straus finding him removable under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1227(a)(2)(B)(i) and ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3). Almeida alleges error based on the agency's determination that two state convictions qualified as aggravated felonies. Specifically, he challenges the IJ's conclusions that (1) a 2004 second conviction for simple possession of narcotics in violation of Conn. Gen. Stat. § 21a-279(a) constituted "illicit trafficking in a controlled substance," an aggravated felony under 8 U.S.C. § 1101(a)(43)(B); and (2) a 2004 conviction for second-degree larceny in violation of Conn. Gen.Stat. §§ 53a-48 and 53a-123 was a "theft offense," and thus an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). Almeida also complains of various procedural errors. While our decision in Alsol v. Mukasey, 548 F.3d 207 (2d Cir.2008), announced after the BIA's challenged decision in this case, casts doubt on the characterization of Almeida's narcotics conviction as an aggravated felony, we nevertheless deny the petition for review because we conclude that Almeida's larceny conviction by itself renders him removable as an aggravated felon. Nor need we consider Almeida's procedural challenges based on the review of his application for cancellation of removal, because aggravated felons are statutorily ineligible for such cancellation. See 8 U.S.C. § 1229b(a)(3).

I. Background

Almeida was admitted to the United States as a lawful permanent resident on or about August 14, 1969. More than thirty years later, on November 29, 2001, he pleaded guilty in Connecticut state court to narcotics possession in violation of Conn. Gen.Stat. § 21a-279(a). On October 27, 2004, he pleaded guilty to a second violation of the same statute, as well as to conspiring to commit second-degree larceny in violation of Conn. Gen.Stat. §§ 53a-48 and 53a-123. On the 2004 plea, Almeida was sentenced to three years' imprisonment.

On May 17, 2007, the Department of Homeland Security ("DHS") charged Almeida with removability under 8 U.S.C. § 1227(a)(2)(B)(i) based on his violation of a law "relating to a controlled substance." It alleged further that he was removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii) because (1) his second narcotics conviction constituted "illicit trafficking in a controlled substance" within the meaning of 8 U.S.C. § 1101(a)(43)(B), and (2) his larceny conviction constituted a "theft offense" within the meaning of 8 U.S.C. § 1101(a)(43)(G).²

Almeida appeared before the IJ on August 23, 2007. DHS introduced into evidence his conviction record, which noted the statutes he had violated without describing the underlying conduct. Almeida conceded his general removability but denied that he was an aggravated felon, a status that precludes cancellation of removal. See 8 U.S.C. § 1229b(a)(3).³

On September 21, 2007, Almeida filed for cancellation of removal, urging the IJ to apply the "categorical" approach endorsed by this court in Dickson v. Ashcroft, 346 F.3d 44 (2d Cir.2003), and to conclude that his crimes were not aggravated felonies. See id. at 48 (providing for examination of "intrinsic nature of the offense" rather than "particular set of facts underlying ... conviction" (internal quotation marks omitted)). Almeida argued that his second drug conviction did not satisfy the recidivist provision of 21 U.S.C. § 844(a), and thus was not an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). He argued further that his 2004 larceny conviction did not qualify as a "theft offense" under 8 U.S.C. § 1101(a)(43)(G) because the BIA had interpreted "theft offense" to require an "intent to deprive," see In re V-Z-S-, 22 I. & N. Dec. 1338, 1346 (BIA 2000), and Connecticut's definition of larceny is satisfied by either intent to "deprive" or intent to "appropriate," Conn. Gen.Stat. § 53a-119.

On November 7, 2007, the IJ rejected these arguments in an oral decision finding Almeida removable as charged. The IJ held that, "at a minimum," Almeida was removable based on his conviction for narcotics possession. In re Fernando Almeida de Ferreira, No. A18 564 939, slip op. at 1-2 (Immig. Ct. Hartford Nov. 7, 2007). The IJ held further that Almeida was removable as an aggravated felon based on his second-degree larceny conviction, in light of our decision in Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir.2004) (holding third-degree larceny under Connecticut law to be aggravated felony). Finally, the IJ held that Almeida was also removable as an aggravated felon based on the second of his drug convictions.

On March 11, 2008, the BIA dismissed Almeida's appeal from the IJ's decision. The BIA reasoned that because Almeida's 2004 drug possession occurred after his 2001 conviction under the same statute became final, the second possession "would have been punishable as a felony under the recidivist provision of 21 U.S.C. § 844(a)." In re Fernando Almeida de Ferreira, No. A18 564 939, slip op. at 2, 2008 WL 762626 (BIA Mar. 11, 2008) (emphasis in original).⁴ As for Almeida's larceny conviction, the BIA relied on Abimbola to affirm the IJ's aggravated felony determination. It rejected Almeida's argument that, under Connecticut law, it was possible to commit second-degree larceny without the intent to deprive required for a theft offense, explaining that "larceny by `appropriation' necessarily entails a deprivation of the owner's rights and interests in the property" at issue. Id. at 3. Having determined that Almeida was statutorily ineligible for cancellation, the BIA did not address his procedural challenges.

II. Discussion

A. Jurisdiction and Standard of Review

Although we ordinarily lack jurisdiction to review either final orders of removal under 8 U.S.C. § 1227(a)(2)(A)(iii), see id. § 1252(a)(2)(C), or judgments "regarding the granting of relief under section ... 1229b," id. § 1252(a)(2)(B)(i), we retain jurisdiction to review "constitutional claims or questions of law raised upon a petition for review," id. § 1252(a)(2)(D), including the question whether a particular conviction is for an aggravated felony, which we review de novo, see Martinez v. Mukasey, 551 F.3d 113, 117 (2d Cir.2008). Further, where, as here, the BIA affirms but does not expressly adopt the IJ's decision, the BIA's decision alone is "the basis for judicial review." Garcia-Padron v. Holder, 558 F.3d 196, 199 (2d Cir.2009) (internal quotation marks omitted).

B. Almeida's Larceny Conviction Was for a "Theft Offense"

Under the Immigration and Nationality Act ("INA"), an alien is removable if he is "convicted of an aggravated felony at any time after admission." 8 U.S.C. § 1227(a)(2)(A)(iii). The INA defines "aggravated felony" to include any "theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year."⁵ 8 U.S.C. § 1101(a)(43)(G). Almeida asserts that his Connecticut larceny conviction cannot be described categorically as a "theft offense" because the BIA has limited theft offenses to crimes involving a specific intent to deprive, and second-degree larceny can be proved in Connecticut based on either an intent to deprive or an intent to appropriate.

1. The Term "Theft Offense" Is Broader than Common-Law Larceny

The INA does not define the term "theft offense." In construing such a term, we afford "substantial deference" to the BIA, the agency charged with implementing the INA. Abimbola v. Ashcroft, 378 F.3d at 175 (internal quotation marks omitted). We are bound to accept the BIA's construction provided it is not "arbitrary, capricious, or manifestly contrary to the statute." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (holding BIA interpretation of INA was entitled to Chevron deference).

The BIA has interpreted the term "theft offense" to sweep more broadly than common-law larceny.⁶ Its leading statement on the issue is In re V-Z-S-, 22 I. & N. Dec. 1338, which served as the basis for its decision in this case. There the BIA considered whether "unlawful driving and taking of a vehicle" in violation of California law was a "theft offense." Id. at 1347. Acknowledging that the relevant California statute did not demand that the charged taking be permanent, as was required for common-law larceny, the BIA nevertheless identified the state crime as a "theft offense," concluding that "Congress' use of the term `theft' is broader than the common-law definition of that term." Id. at 1345. The BIA construed "theft offense" to encompass any taking of property where "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." Id. at 1346.

In adopting a broad construction of "theft offense," the BIA relied on United States v. Turley, 352 U.S. 407, 417, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957), in which the Supreme Court held that the word "stolen," as used in the National Motor...