Matter of Enrique ALDAY-DOMINGUEZ (agency decision, June 1, 2017)

Plain-English summary

The Board reviewed the Department of Homeland Security's appeal from an Immigration Judge's termination of removal proceedings against a lawful permanent resident of Mexico. The respondent had a California conviction for receiving stolen property and a 16-month prison sentence. The Board held that the aggravated-felony theft provision covers receipt of stolen property and does not require that the property have been obtained through common-law theft or larceny. It sustained DHS's appeal, reinstated the proceedings, and remanded the record to the Immigration Judge to consider any available relief.

Decision snapshot

• Cited authorities: 8 U.S.C. §§ 1101(a)(43)(G) and 1227(a)(2)(A)(iii); 8 C.F.R. § 1003.1(d)(3)(ii)
• Outcome: The appeal was sustained, the Immigration Judge's decision was vacated, the removal proceedings were reinstated, and the record was remanded for further proceedings.
• Key point: The receipt-of-stolen-property provision does not require that the property have been obtained by common-law theft or larceny.

Full text (BIA official public release)

    Cite as 27 I&N Dec. 48 (BIA 2017)                               Interim Decision #3894




         Matter of Enrique ALDAY-DOMINGUEZ, Respondent
                                  Decided June 1, 2017

                             U.S. Department of Justice
                      Executive Office for Immigration Review
                          Board of Immigration Appeals


  The aggravated felony receipt of stolen property provision in section 101(a)(43)(G) of
the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), does not require
that unlawfully received property be obtained by means of common law theft or larceny.
FOR RESPONDENT: Michael E. Ward, Esquire, Washington, D.C.
FOR THE DEPARTMENT OF HOMELAND SECURITY:                              Robert Wities, Senior
Attorney
BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and KENDALL CLARK,
Board Members.
PAULEY, Board Member:


    In a decision dated May 3, 2016, an Immigration Judge terminated the
removal proceedings, finding that the respondent is not removable under
section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated
felony theft offense under section 101(a)(43)(G) of the Act, 8 U.S.C.
§ 1101(a)(43)(G) (2012). The Department of Homeland Security (“DHS”)
has appealed from that decision. The appeal will be sustained, the
proceedings will be reinstated, and the record will be remanded to the
Immigration Judge.
    The respondent is a native and citizen of Mexico and a lawful permanent
resident of the United States. He was convicted on March 11, 2011, of
receiving stolen property in violation of section 496(a) of the California
Penal Code and was sentenced to serve 16 months in prison. 1 Based on this


1
   At all relevant times, section 496(a) of the California Penal Code provided in pertinent
part as follows:

        Every person who buys or receives any property that has been stolen or that has been
        obtained in any manner constituting theft or extortion, knowing the property to be so
        stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling,


                                              48
    Cite as 27 I&N Dec. 48 (BIA 2017)                             Interim Decision #3894




conviction, the DHS issued a notice to appear charging that he is removable
as an alien convicted of an aggravated felony theft offense under section
101(a)(43)(G) of the Act.
    The Immigration Judge concluded that the DHS did not demonstrate that
the respondent is removable as charged and terminated the proceedings.
According to the Immigration Judge, a conviction under section 496(a) of
the California Penal Code is not categorically a conviction for an aggravated
felony theft offense in light of Lopez-Valencia v. Lynch, 798 F.3d 863 (9th
Cir. 2015), a decision of the United States Court of Appeals for the Ninth
Circuit, in whose jurisdiction this case arises. Whether receiving stolen
property under California law is an aggravated felony theft offense is a
question of law that we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2016).
    Section 101(a)(43)(G) of the Act defines an aggravated felony as “a theft
offense (including receipt of stolen property) or burglary offense for which
the term of imprisonment [is] at least one year.” 2 Because the phrase “theft
offense” precedes the “receipt of stolen property” parenthetical and this
parenthetical begins with the word “including,” the Immigration Judge
appears to have presumed that an aggravated felony receipt of stolen property
offense must involve received property that was obtained by common law
larceny or theft. For the following reasons, we hold that the receipt of stolen
property provision in section 101(a)(43)(G) does not require that unlawfully
received property be obtained by means of theft.
    In Matter of Cardiel, 25 I&N Dec. 12, 17 (BIA 2009), we held that a
conviction for receipt of stolen property under section 496(a) of the
California Penal Code is categorically a conviction for an aggravated
felony under section 101(a)(43)(G) of the Act if it is accompanied by a
prison sentence of at least 1 year. 3 The Ninth Circuit held likewise in



        or withholding any property from the owner, knowing the property to be so stolen or
        obtained, shall be punished by imprisonment . . . .
2
   The Supreme Court, the Ninth Circuit, and the Board have defined aggravated felony
“theft” as the taking of property or an exercise of control over property without consent
with the criminal intent to deprive the owner of rights and benefits of ownership, even if
such deprivation is less than total or permanent. See, e.g., Gonzales v. Duenas-Alvarez,
549 U.S. 183, 189 (2007); Lopez-Valencia, 798 F.3d at 868; Matter of Garcia-Madruga,
24 I&N Dec. 436, 438 (BIA 2008).
3
   We further held in Matter of Ibarra, 26 I&N Dec. 809, 813 (BIA 2016), “that the generic
definition of aggravated felony theft under section 101(a)(43)(G) of the Act encompasses
extortionate takings, in which consent is coerced by the wrongful use of force, fear, or
threats.”


                                             49
    Cite as 27 I&N Dec. 48 (BIA 2017)                             Interim Decision #3894




Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1061–62 (9th Cir. 2009). 4
Neither we nor the Ninth Circuit directly addressed the contention that the
language of section 101(a)(43)(G) requires that unlawfully received property
be obtained by means of theft. We conclude that it does not and reaffirm our
holding in Matter of Cardiel.
     In that case, we observed that “‘receipt of stolen property’ is not merely
a subset of ‘theft’ as that term is used in section 101(a)(43)(G) of the Act,
because each can be considered to be a distinct and separate offense.” Matter
of Cardiel, 25 I&N Dec. at 14; see also Matter of Sierra, 26 I&N Dec. 288,
290 (BIA 2014) (reaffirming our conclusion in Matter of Bahta, 22 I&N Dec.
1381, 1390 (BIA 2000), that the receipt of stolen property parenthetical in
section 101(a)(43)(G) “clarif[ies] that the term ‘theft’ was not being used in
its limited traditional sense to require proof that the offender was involved in
the actual taking of the property at issue”). 5
     The respondent argues that the receipt of stolen property parenthetical in
section 101(a)(43)(G) only encompasses offenses where the property is
obtained through theft, and not, for example, property obtained by false
pretenses. This assertion is unpersuasive. The parenthetical does not say
that it only includes “receipt of property obtained by theft” or some
comparable formulation. Rather, it refers to “receipt of stolen property.”
Section 101(a)(43)(G) of the Act (emphasis added).
     The Supreme Court has held in a different, albeit relevant, context that
the term “stolen” is not a common law term with a fixed meaning that relates
only to common law offenses such as theft and larceny but should, instead,
be interpreted broadly as including offenses of embezzlement, false
pretenses, and any other felonious takings. United States v. Turley, 352 U.S.
4
    There is no support for the Immigration Judge’s determination that the Ninth Circuit
implicitly overruled its holding in Verdugo-Gonzalez in its more recent decision in
Lopez-Valencia, 798 F.3d 863. Lopez-Valencia involved a different statute—section 484
of the California Penal Code—and did not even cite Verdugo-Lopez, much less overrule it.
Indeed, following Lopez-Valencia, the Ninth Circuit has reaffirmed its holding in
Verdugo-Gonzalez. See Prieto-Hernandez v. Lynch, 653 F. App’x 547, 549 (9th Cir. 2016)
(citing Verdugo-Gonzalez, 581 F.3d at 1061–62, in support of its holding that an alien’s
“conviction for receipt of stolen property under California Penal Code § 496(a) is a ‘theft
offense’ within the meaning of [section 101(a)(43)(G)]”). Moreover, the Ninth Circuit’s
holding in Lopez-Valencia—that section 484 is categorically overbroad relative to the
generic definition of aggravated felony theft because it covers theft of labor, false credit
reporting, and theft by false pretenses—has no bearing on the issue here, namely, whether
section 496 reaches receipt of stolen property offenses involving property obtained by
means other than theft. Lopez-Valencia, 798 F.3d at 868.
5
    Receiving stolen property is a statutory offense separate from the crime involved in the
stealing of property. See 3 Wayne R. LaFave, Substantive Criminal Law § 20.2, Westlaw
(database updated Oct. 2016); see also Model Penal Code §§ 223.2, 223.6 (2016).


                                            50
    Cite as 27 I&N Dec. 48 (BIA 2017)                              Interim Decision #3894




407, 415−17 (1957). 6 Thus, we need not decide whether the respondent’s
violation of section 496(a) of the California Penal Code is a generic “theft”
offense as we have defined that term, because the receipt of stolen property
parenthetical is not limited to receipt offenses in which the property was
obtained by means of theft. 7
    We therefore conclude that the respondent’s conviction for receipt of
stolen property is categorically for an aggravated felony theft offense under
section 101(a)(43)(G) of the Act and that the Immigration Judge’s reliance
on Lopez-Valencia was misplaced. Accordingly, the DHS’s appeal will be
sustained, the proceedings will be reinstated, and the record will be remanded
for consideration of any relief from removal for which the respondent may
be eligible.
    ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.
    FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.




6
    Our survey of State law indicates that most jurisdictions broadly define “stolen” beyond
the common law offenses of theft and larceny to include property obtained by unlawful
means such as robbery, extortion, coercion, burglary, false pretenses, deceit, embezzlement,
and other illegal conduct.
7
    We note that section 101(a)(43)(G) is not the only aggravated felony provision in the
Act where Congress has employed an expression preceded by the word “including” to
cover a broader range of offenses than those previously referenced. For example, section
101(a)(43)(B) covers “illicit trafficking in a controlled substance (as defined in section 102
of the Controlled Substances Act), including a drug trafficking crime (as defined in section
924(c) of title 18, United States Code).” (Emphasis added.) It is clear that the latter
category, which reaches any felony under the Controlled Substances Act, covers a greater
swath of offenses than those constituting illicit trafficking. See Matter of L-G-H-, 26 I&N
Dec. 365, 369 (BIA 2014) (“Since the phrase ‘including a drug trafficking crime’ in section
101(a)(43)(B) is set forth as a subset of ‘illicit trafficking,’ Congress must have intended
that ‘illicit trafficking’ would encompass other controlled substance offenses beyond those
defined to be a ‘drug trafficking crime . . . .’”).


                                             51