Mena v. Lynch

820 F.3d 114

Francisco Alberto MENA, Petitioner

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 15–1009.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 27, 2016.

Decided: April 27, 2016.

ARGUED: David Kendall Roberts, O'Melveny & Myers LLP, Washington, D.C., for Petitioner. Benjamin Mark Moss, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Joyce R. Branda, Acting Assistant Attorney General, Civil Division, Douglas E. Ginsburg, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Petition for Review granted by published opinion. Judge SHEDD wrote the opinion in which Judge AGEE joined. Judge WILKINSON wrote a dissenting opinion.

SHEDD, Circuit Judge:

Francisco Mena petitions for review of the Board of Immigration Appeals' (“BIA”) decision finding him to be ineligible for cancellation of removal under the Immigration and Nationality Act (“INA”) because he is an aggravated felon. For the following reasons, we grant the petition.

I

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 Mena's removal based on his two convictions of crimes involving moral turpitude not arising out of the same criminal scheme. See 8 U.S.C. § 1227(a)(2)(A)(ii). Mena did not appeal the removal order to the BIA, and he does not contest it in his petition for review.

During his immigration proceedings, Mena applied for cancellation of removal, a form of discretionary relief that is available to certain aliens who have not been convicted of an “aggravated felony.” See 8 U.S.C. § 1229b(a)(3). For purposes of the INA, an aggravated felony is, among other things, a “theft offense (including receipt of stolen property) ... for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G).

Mena has a prior conviction for violating 18 U.S.C. § 659, which creates four offenses, each set forth in a separate paragraph. Pertinent here, the first paragraph of § 659 proscribes the illegal taking by embezzlement or theft of certain property that has moved in interstate or foreign commerce. The second paragraph proscribes the purchase, receipt, or possession of such property “knowing the same to have been embezzled or stolen.” Mena was convicted under the second paragraph and was sentenced to a 60–month imprisonment term.

The IJ concluded that Mena is an aggravated felon based on his finding that the § 659 conviction falls within the scope of § 1101(a)(43)(G). Accordingly, the IJ pretermitted Mena's cancellation of removal application. Thereafter, in a single-member panel decision, the BIA dismissed Mena's appeal of the IJ's order.¹ As we discuss below, the BIA primarily based its decision on its view that § 1101(a)(43)(G) contains two separate types of offenses that qualify as an INA “aggravated felony”: a “theft offense,” which is the base offense listed in the statutory section, and “receipt of stolen property,” which is contained in the parenthetical appended to the term “theft offense.”

II

Because the BIA issued its own opinion without adopting the IJ's reasoning, we review only the BIA decision. Hernandez–Avalos v. Lynch, 784 F.3d 944, 948 (4th Cir.2015). We review de novo the BIA's determination that an offense is an INA aggravated felony, Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir.2014), affording “appropriate deference” to the BIA's statutory interpretation of the INA, Espinal–Andrades v. Holder, 777 F.3d 163, 166 (4th Cir.2015).

A.

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. Omargharib, 775 F.3d at 196. “Under that approach, we consider only the elements of the statute of conviction rather than the defendant's conduct underlying the offense.” Id. The prior conviction constitutes an aggravated felony if it has the same elements as the generic INA crime. Id. However, 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. Id. This is so even if the defendant actually committed the offense in its generic form. Id.

Because we examine what the prior conviction necessarily involved, not the facts underlying the case, we must presume that the prior conviction rested upon nothing more than the least of the acts criminalized and then determine whether even those acts are encompassed by the generic federal offense. Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). Our focus on the minimum conduct criminalized by the statute of conviction is not an invitation to apply “legal imagination” to the prior offense; rather, there must be “a realistic probability” that the government would apply its statute to conduct that falls outside the generic definition of a crime. Id. at 1684–85.

B.

Applying the categorical approach, we addressed the meaning of the § 1101(a)(43)(G) term “theft offense” in Soliman v. Gonzales, 419 F.3d 276 (4th Cir.2005). In that case, the BIA held that the alien's Virginia credit card fraud conviction constituted an INA theft offense and, therefore an aggravated felony, based on its determination that a conviction for fraud may also constitute “theft” for purposes of the INA. We disagreed. We first noted that the “plain text of § 1101(a)(43) shows that Congress specifically distinguished fraud from theft, and that it meant for the two offenses to be treated differently.” Id. at 282.² We then observed that “[w]hen a theft offense has occurred, property has been obtained from its owner ‘without consent;’ ” but “in a fraud scheme, the owner has voluntarily ‘surrendered’ his property, because of an ‘intentional perversion of truth,’ or otherwise ‘act [ed] upon’ a false representation to his injury.” Id. We thus explained that the “key and controlling distinction between these two crimes is ... the ‘consent’ element—theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained.” Id. Accordingly, we held that “a taking of property ‘without consent’ is an essential element” of a § 1101(a)(43)(G) theft offense. Id. at 283.³ Consequently, we 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. There, we considered whether the BIA properly concluded that the alien's Virginia larceny conviction was an INA theft offense. Finding that the BIA erred, we explained that “Virginia law treats fraud and theft as the same for larceny purposes, but the INA treats them differently. As such, Virginia larceny ‘sweeps more broadly’ than the INA's theft offense.” 775 F.3d at 197 (citation omitted). We therefore held that a Virginia larceny conviction “does not constitute an aggravated felony for purposes of the INA under the categorical approach.” Id.

C.

Mena's challenge to the BIA's decision is primarily based on our holding in Soliman. Mena argues that a person can be convicted under the second paragraph of § 659 for receipt of embezzled property, and the crime of embezzlement necessarily involves a taking of property with the owner's consent. Therefore, according to Mena, because “a taking of property ‘without consent’ is an essential element” of a § 1101(a)(43)(G) theft offense, Soliman, 419 F.3d at 283, a conviction under the second paragraph of § 659 is not a § 1101(a)(43)(G) “theft offense” under the categorical approach.

The BIA rightly did not dispute this interpretation of the second paragraph of § 659 or the crime of embezzlement, see J.A. 5, because the second paragraph of § 659 plainly criminalizes the receipt of certain embezzled property. Moreover, in what we have described as the “the classic definition,” United States v. Smith, 373 F.3d 561, 565 (4th Cir.2004), the Supreme Court long ago explained that embezzlement “is the fraudulent appropriation of property by a person to whom such property has been intrusted [sic], or into whose hands it has lawfully come,” Moore v. United States, 160 U.S. 268, 269, 16 S.Ct. 294, 40 L.Ed. 422 (1895) ; see also United States v. Stockton, 788 F.2d 210, 216 (4th Cir.1986) (explaining that the crime of embezzlement requires that “the embezzled property must have been in the lawful possession of the defendant at the time of its appropriation”). This classic definition applies to the term as it is used in § 659. See, e.g., United States v. Waronek, 582 F.2d 1158, 1161 (7th Cir.1978) (explaining in the context of a § 659 embezzlement conviction that although larceny “involves an unlawful trespass to the possessory interest of the owner in the property,” where “the taker has been entrusted with possession of the property, the taking is more aptly described as embezzlement”); see generally Boone v. United States, 235 F.2d 939, 941 (4th Cir.1956) (explaining that the § 659 “crime of receiving include[s] a receipt of property founded on an antecedent capture of it through fraud and deception”).

Despite its acceptance of Mena's characterization of § 659 and the crime of embezzlement, the BIA applied the categorical approach and concluded that Mena's conviction under the second paragraph of § 659 categorically falls within § 1101(a)(43)(G). The key to the BIA's decision is its view that § 1101(a)(43)(G) creates two “ ‘distinct and separate offenses' ”—“theft offense” (the base offense) and “receipt of stolen property” (the appended parenthetical offense)—which have “different generic definitions composed of different elements.” J.A. 6 (quoting In re Cardiel–Guerrero, 25 I. & N. Dec. 12, 14 (BIA 2009) ). As the BIA explained, this case involves “receipt of stolen property,” a term it...