Samir Baptista v. Pamela Bondi

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-2237

SAMIR FERNANDES BAPTISTA,

Petitioner,

v.

PAMELA JO BONDI, Attorney General,

Respondent.

------------------------------

LEGAL AID JUSTICE CENTER; CAPITAL AREA IMMIGRANTS’ RIGHTS

COALITION; AMERICAN IMMIGRATION LAWYERS ASSOCIATION;

MARYLAND OFFICE OF THE PUBLIC DEFENDER; MASSACHUSETTS

COMMITTEE FOR PUBLIC COUNSEL SERVICES,

Amici Supporting Petitioner.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: January 31, 2025 Decided: May 1, 2025

Before DIAZ, Chief Judge, and HARRIS and BERNER, Circuit Judges.

Petition denied by published opinion. Chief Judge Diaz wrote the opinion, in which Judge

Harris and Judge Berner joined.

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ARGUED: Rachael Maguire, Eleni Rebecca Bakst, HARVARD IMMIGRATION &

REFUGEE CLINICAL PROGRAM, Cambridge, Massachusetts, for Petitioner. Margot

Lynne Carter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: Mikaela Rabb, Crimmigration Clinic, HARVARD LAW

SCHOOL, Cambridge, Massachusetts, for Petitioner. Brian Boynton, Assistant Attorney

General, Lindsay B. Glauner, Senior Litigation Counsel, Office of Immigration Litigation,

Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. Elizabeth Schmelzel, Rohmah A. Javed, LEGAL AID JUSTICE CENTER,

Falls Church, Virginia, for Amicus Legal Aid Justice Center. Katherine L. Evans, Jenny

Kim, Gracy Embrey, Immigrant Rights Clinic, DUKE UNIVERSITY SCHOOL OF LAW,

Durham, North Carolina, for Amici The American Immigration Lawyers Association,

Capital Area Immigrants’ Rights Coalition, Maryland Office of the Public Defender, and

Massachusetts Committee for Public Counsel Services.

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DIAZ, Chief Judge:

Samir Fernandes Baptista is a lawful permanent resident who was convicted in

Massachusetts of unarmed assault with intent to rob or steal. During Baptista’s later

removal proceedings, the immigration judge and Board of Immigration Appeals concluded

that the state crime of which Baptista was convicted is categorically an aggravated felony

attempted theft offense under the Immigration and Nationality Act. So the immigration

judge ordered Baptista removed for having committed “an aggravated felony . . . after

admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The Board upheld that order.

We consider whether the Board’s legal conclusion is correct. Concluding that it is,

we deny Baptista’s petition for review.

I.

Baptista is a citizen of Cape Verde. He was admitted to the United States as a lawful

permanent resident in 2005. More than a decade later, he was convicted in Massachusetts

state court of unarmed assault with intent to rob or steal. He was sentenced to nine to ten

years’ imprisonment.

The Department of Homeland Security issued Baptista a notice to appear based on

his conviction. The notice asserted that Baptista’s state conviction was “an aggravated

felony as defined in sections 101(a)(43)(G) and 101(a)(43)(U) of the [Immigration and

Nationality] Act, a law relating to an attempted theft offense . . . for which the term of

imprisonment is at least one year.” J.A. 479.

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Baptista moved several times to terminate the removal proceedings. The

immigration judge denied the motions, concluding that the state offense qualified as an

aggravated felony attempted theft offense, which in turn rendered Baptista removable

under 8 U.S.C. § 1227(a)(2)(A)(iii). Baptista appealed the immigration judge’s ruling to

the Board of Immigration Appeals, which “affirm[ed] the decision of the Immigration

Judge,” and “dismissed” the appeal. J.A. 3–7.

Baptista timely petitioned for our review. We review the Board’s legal conclusion

de novo. Sanchez v. Sessions, 885 F.3d 782, 786 n.2 (4th Cir. 2018).

II.

A.

As he did before the Board, Baptista argues that his Massachusetts unarmed assault

conviction doesn’t qualify as an attempted theft offense under the Immigration and

Nationality Act. He contends that a defendant may be convicted in Massachusetts of

unarmed assault by stealing property with the victim’s fraudulently obtained consent.

If Baptista is correct, then the offense would be broader than a generic federal theft

offense, which requires the taking to be against the victim’s will. He also presses that his

conviction can’t qualify as an attempt because it doesn’t require a defendant to commit an

overt act toward a taking.

As we explain, we reject Baptista’s arguments.

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B.

We start with a brief primer on the relevant law.

The Immigration and Nationality Act renders removable “[a]ny alien who is

convicted of an aggravated felony at any time after admission.” 8 U.S.C.

§ 1227(a)(2)(A)(iii). “[A] theft offense . . . for which the term of imprisonment [is] at least

one year” qualifies as an aggravated felony. 1 Id. § 1101(a)(43)(G). So does “an

attempt . . . to commit” such a theft offense. Id. § 1101(a)(43)(U).

To decide whether a state offense qualifies as a theft offense under the Immigration

and Nationality Act, we apply the categorical approach, under which “we consider only the

elements of the statute of conviction rather than the defendant’s conduct underlying the

offense.” Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014). We must identify the

elements of the state offense, which are “the constituent parts of a crime’s legal

definition—the things the prosecution must prove to sustain a conviction.” Mathis v.

United States, 579 U.S. 500, 504 (2016) (quotations omitted). And those elements must

be “the same as, or narrower than, those of the generic offense” for the offense to count as

a categorical match under federal law. Id. “[I]f the crime of conviction covers any more

conduct than the generic offense,” then it isn’t a categorical match. 2 Id.

1

Baptista doesn’t challenge that the punishment for a completed theft in

Massachusetts is a prison term of at least one year.

2

If the crime of conviction isn’t a categorical match, we consider whether the

“[state] statute sets out multiple, alternative elements of a crime, effectively creating

several different crimes, and is therefore divisible.” Gomez-Ruotolo v. Garland, 96 F.4th

670, 678 (4th Cir. 2024) (quotation omitted). As explained below, we reject Baptista’s

(Continued)

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We deploy this analysis twice for attempt offenses, once for the offense that is the

object of the attempt, and once for the attempt itself. United States v. McCollum, 885 F.3d

300, 304–05 (4th Cir. 2018). The object of the attempt—here, Massachusetts theft—must

categorically match a generic federal offense.

The “generic definition of theft” is 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.” Gonzales

v. Duenas-Alvarez, 549 U.S. 183, 189 (2007) (quotation omitted); see also Mena v. Lynch,

820 F.3d 114, 117 (4th Cir. 2016) (explaining that lack of consent is essential). A theft

under state law committed with the victim’s consent doesn’t fall within the federal generic

definition of theft. Such a state crime therefore isn’t a categorical match to federal theft.

Even if a state theft offense qualifies as a federal theft offense, an attempt to commit

that state offense must still independently qualify as a federal attempt offense. That

happens when a state crime’s elements include “(1) an intent to commit a theft offense, and

(2) an overt act constituting a substantial step towards the commission of the offense.”

Rendon v. Holder, 764 F.3d 1077, 1084 (9th Cir. 2014) (cleaned up).

III.

We now turn to whether Baptista’s conviction is a categorical match to an

aggravated felony attempted theft offense under the Immigration and Nationality Act.

argument that his statute of conviction’s “intent to rob or steal” element is categorically

overbroad as to the “steal” prong. Thus, we need not decide whether the statute is divisible

as to “rob or steal.” See Descamps v. United States, 570 U.S. 254, 257 (2013).

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Baptista was convicted of unarmed assault with intent to rob or steal under Massachusetts

law.

The statute of conviction reads:

Whoever, not being armed with a dangerous weapon, assaults another with

force and violence and with intent to rob or steal shall be punished by

imprisonment in the state prison for not more than ten years.

Mass. Gen. Laws ch. 265, § 20. Accordingly, the elements of this offense are: (1) an assault

(2) by an unarmed person with (3) force and violence and (4) the intent to rob or steal.

A.

We start with whether the completed offense contemplated by the statute of

conviction—robbery or stealing—is a generic federal theft offense.

Baptista focuses on stealing. According to him, “stealing” under Massachusetts law

includes a taking of property accomplished with the consent of its rightful owner (albeit

fraudulently obtained), as in embezzlement or larceny by false pretenses. Since a generic

federal theft offense requires the taking to be accomplished “without consent,” Gonzales,

549 U.S. at 189, Baptista contends that the theft contemplated by his statute of conviction

is categorically overbroad.

If Baptista is correct, then his statute of conviction wouldn’t be a categorical match

to a federal attempted theft offense as to both the completed offense and the attempt itself.

That’s because the completed offense wouldn’t be a generic federal theft crime and because

the attempt defined in the statute wouldn’t encompass the intent to “commit a theft

offense.” Rendon, 764 F.3d at 1084.

As we explain, we reject Baptista’s reading of Massachusetts law.

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1.

First, some context.

At common law, larceny was “the unlawful taking and carrying away of someone

else’s tangible personal property with the intent to deprive the possessor of it permanently.”

50 Am. Jur. 2d Larceny § 1 (2025). Larceny was a “crime against possession” involving

“trespass” against personal property. Id. § 9. In contrast, the common law distinguished

other theft offenses—like larceny by false pretenses and embezzlement—where the owner

consented to the taking based on fraud.

The modern trend is to abandon the distinction between “various common-law

categories of crime, and instead group them under the catch-all term ‘theft.’” Id. § 2.

Massachusetts has adopted this approach. Its larceny statute reads, “[w]hoever steals, or

with intent to defraud obtains by a false pretence, or whoever unlawfully, and with intent

to steal or embezzle, converts . . . the property of another . . . shall be guilty of larceny.”

Mass. Gen. Laws ch. 266, § 30(1).

Massachusetts’s highest court has explained that “three formerly separate crimes”—

larceny, embezzlement, and obtaining by false pretenses—“have been merged into the one

crime of larceny . . . to eliminate the possibility that a defendant indicted for one of the

crimes would escape punishment if the proof at trial established another of the crimes.”

Commonwealth v. Mills, 764 N.E.2d 854, 860 (Mass. 2002). Accordingly, “the word steal

has become a term of art and includes the criminal taking or conversion by way either of

larceny, embezzlement or obtaining by false pretences.” Id. (cleaned up). And

Massachusetts allows indictments to allege broadly that a defendant “stole” without

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requiring prosecutors to specify whether the stealing occurred through “larceny of the

property,” “embezzle[ment],” or “by false pretences.” Mass. Gen. Laws ch. 277, § 41.

2.

Baptista seizes on the comment in Mills that “steal” is now a “term of art” that

includes “larceny, embezzlement or obtaining by false pretences.” 764 N.E.2d at 860. He

presses that “steal” should be construed that way across Massachusetts law, including in

the unarmed assault statute.

If Baptista is right, the use of the term “steal” in his statute of conviction would

incorporate larceny, embezzlement, and larceny by false pretenses—situations where a

taking occurs with the victim’s fraudulently obtained consent. So unarmed assault would

criminalize more conduct than a generic federal theft offense.

The Board of Immigration Appeals rejected this argument, reasoning that there is

“no indication that [the Mills court’s] understanding of the term ‘steal’ was intended to

apply outside the context of the larceny statute and the specific purposes for which it was

broadly drafted.” J.A. 5. We agree with the Board.

The statutory text doesn’t define the word “steal” and the case law interpreting

Massachusetts unarmed assault with intent to rob or steal is slim. But we find some

guidance in how Massachusetts defines the offense of robbery.

3.

Unarmed assault with intent to rob or steal falls within chapter 265 of the

Massachusetts General Laws, which is labeled “Crimes Against the Person.” Other crimes

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in this chapter include murder, manslaughter, assault and battery, and, most relevant here,

armed and unarmed robbery. Mass. Gen. Laws ch. 265, §§ 1, 13, 13A, 15, 17, 19.

The armed and unarmed robbery statutes reference “steal[ing],” just like the

unarmed assault offense of which Baptista was convicted. Id. §§ 17, 19(b). And unarmed

assault is a lesser included offense of unarmed robbery. See Commonwealth v.

Drewnowski, 694 N.E.2d 1301, 1304–05 (Mass. App. Ct. 1998).

There’s no Massachusetts model jury instruction for unarmed assault, but the

instruction for robbery informs our understanding of “steal” for chapter 265 offenses. 3 The

key language reads:

The second element the Commonwealth must prove beyond a reasonable

doubt is that the defendant took the money or other property with the intent

to steal it. This means that the Commonwealth must prove that the defendant

took and carried away property, against [the alleged victim’s] will, with the

intent to deprive [the alleged victim] of (his/her) possessions permanently.

Mass. Super. Ct. Crim. Prac. Jury Instr. § 3.16.3 (emphasis added); see also id. § 3.16.1.

The instruction states that the taking of property must be against the victim’s will

for a defendant to be convicted of robbery. In other words, a person can’t commit robbery

in Massachusetts through fraud or embezzlement. 4

3

The larceny statute the court discussed in Mills falls in chapter 266, which is

labeled “Crimes Against Property.” Mass. Gen. Laws ch. 266, § 30.

4

In applying the categorical approach, we often look to model jury instructions to

clarify unclear points of state law. E.g., Pugin v. Garland, 19 F.4th 437, 452 (4th Cir.

2021).

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Baptista responds that the requirement that the taking be “against the victim’s will”

refers to the actus reus of the offense, not the intent required to carry it out. On Baptista’s

reading, the defendant could intend to take property through fraud or embezzlement, but in

fact rob using force and violence.

But the instruction itself says that “the intent to steal” property “means . . . that the

defendant took and carried away property . . . against [the victim’s] will.” Mass. Super.

Ct. Crim. Prac. Jury Instr. § 3.16.3 (emphasis added). By its own terms, the instruction

forecloses Baptista’s argument.

In short, Massachusetts robbery requires that the taking be against the victim’s will.

We see no reason why the same wouldn’t be true for unarmed assault, which is also a

chapter 265 “Crime Against the Person.”

4.

We’re also persuaded that the unarmed assault statute’s requirement of “force and

violence” makes the crime impossible to commit with the victim’s consent. This element

requires, at minimum, “[p]hysical intimidation” that “produce[s] a reasonable

apprehension of bodily injury.” Commonwealth v. Gauthier, 488 N.E.2d 806, 809 (Mass.

App. Ct. 1986). The intimidating act must be intended “to put the victim in fear of

immediate bodily harm.” Commonwealth v. Jorritsma, No. 00-P-1153, 2001 WL 1561861,

at *1 (Mass. App. Ct. 2001) (unpublished table decision); see also Commonwealth v.

Musgrave, 649 N.E.2d 784, 787 (Mass. App. Ct. 1995) (explaining that Massachusetts

criminal assault requires “proof of intent to cause fear or apprehension”), aff’d, 659 N.E.2d

284 (Mass. 1996).

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Baptista argues that the “force and violence [requirement] applies only to the

assault, not the intended taking.” Reply Br. at 18. We’re unconvinced. A person may

commit an assault in Massachusetts through either an attempted battery or a threatened

battery. Commonwealth v. Porro, 939 N.E.2d 1157, 1163 (Mass. 2010). Attempted battery

requires the intent to commit a battery. Id. Threatened battery requires “menacing

conduct” performed with the intent “to place the victim in fear of an imminent battery.”

Id.

In either case, a person must direct the attempted or threatened use of force at the

victim to produce the desired result: the turnover of property in the victim’s possession.

The attempted or threatened use of force constituting the actus reus of unarmed assault

would be gratuitous if the victim could consent to the defendant’s taking.

The categorical approach requires “a realistic probability, not a theoretical

possibility, that the State would apply its statute to conduct that falls outside the generic

definition of a crime.” Gonzales, 549 U.S. at 193. Baptista offers no case or hypothetical

showing how one could commit unarmed assault with “force and violence” despite the

victim’s consent to the taking, and we can’t imagine one. Even if there’s conceptual space

between the force and intent elements, as Baptista urges, our job isn’t “to apply ‘legal

imagination’ to the state offense.” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013).

Our view that the force requirement makes it impossible to commit unarmed assault

while intending to take property with the victim’s consent finds support in the elements of

Massachusetts robbery. That offense, like unarmed assault, “requires that force and

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violence be used against the victim or that the victim be put in fear.” Commonwealth v.

Johnson, 396 N.E.2d 974, 977 (Mass. 1979).

Baptista concedes that robbery’s force requirement “makes the taking against the

[victim’s] will.” Pet’r’s Br. at 19 (quotation marks omitted); see Commonwealth v. Jones,

283 N.E.2d 840, 844 (Mass. 1972) (distinguishing larceny and robbery based on the

robbery victim’s “aware[ness] of the application of force which relieves him of his

property,” which makes robbery “against the victim’s will” (cleaned up)). But Baptista

rejects the same concession for unarmed assault, without explaining the inconsistency in

his position.

We find that the force element of Massachusetts’s unarmed assault statute excludes

the possibility that a person may be convicted of that offense for a taking committed with

the victim’s consent.

5.

Our decision tracks the Eleventh Circuit’s view of a similar issue. In Kemokai v.

U.S. Att’y Gen., 83 F.4th 886 (11th Cir. 2023), the court considered whether the

Massachusetts armed robbery statute qualifies as a theft offense under the Immigration and

Nationality Act. Applying a categorical analysis, the court rejected the notion that the

armed robbery statute’s reference to intent to steal meant “that larceny, in all of its

common-law forms, constitutes an element of robbery.” Id. at 894.

The Kemokai court cited Massachusetts cases making clear that Massachusetts

robbery must occur against the victim’s will and with force and violence. Id. at 894–95

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(collecting cases). These requirements also apply to the unarmed assault statute, as we’ve

explained.

So we reject Baptista’s contention that the unarmed assault statute is categorically

overbroad because it allows for prosecution of an act committed with the intent to take

property with the victim’s fraudulently obtained consent. Rather, we conclude that the

completed offense contemplated by the Massachusetts unarmed assault statute qualifies as

a theft offense under the Immigration and Nationality Act.

B.

Next, we consider whether Massachusetts unarmed assault with intent to rob or steal

categorically matches a generic federal attempt offense. Having concluded that the intent

required to violate the statute is the intent to commit a theft offense, we turn to whether the

statute requires “an overt act constituting a substantial step towards the commission of [a

theft].” Rendon, 764 F.3d at 1084.

1.

To begin, we find unpersuasive the contention pressed by Baptista and amici that

an attempt offense under the Immigration and Nationality Act refers only to an offense that

a state has labeled as an attempt, such as a general attempt statute proscribing the attempt

to commit the completed offenses described in other provisions. Instead, we conclude that

the “attempt” referenced in § 101(a)(43)(U) can include a completed offense, the elements

of which satisfy the generic federal definition of an attempt.

In applying the categorical approach, our job is a narrow one. We “consider only

the elements of the offense of conviction” to determine whether the state offense sweeps

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in more conduct than the generic federal crime. Castendet-Lewis v. Sessions, 855 F.3d

253, 260 (4th Cir. 2017). And the sole question is whether the minimum conduct that the

state statute criminalizes falls within the generic federal crime.

The label a state applies to its crimes—choate or inchoate—is irrelevant. A uniform

body of federal law requires definitions that can’t be commandeered by magic words. See

Taylor v. United States, 495 U.S. 575, 592 (1990) (explaining that a federal sentencing

enhancement for predicate burglaries “must have some uniform definition independent of

the labels employed by the various States’ criminal codes”). We find persuasive a sister

circuit’s explanation “that Congress did not intend to allow the [federal] definition of

‘attempt’ to vary solely according to the labels applied by the jurisdiction in which an alien

was charged.” Sui v. INS, 250 F.3d 105, 114 (2d Cir. 2001); see also United States v.

Martinez-Garcia, 268 F.3d 460, 465 (7th Cir. 2001) (adopting Sui’s reasoning).

Our rejection of a per se prohibition on completed offenses qualifying as attempts

under the Immigration and Nationality Act isn’t novel. Several courts, for example, have

concluded that the completed offense of entering a locked vehicle with the intent to steal it

is an attempted theft offense. Martinez-Garcia, 268 F.3d at 466; Ngaeth v. Mukasey, 545

F.3d 796, 802 (9th Cir. 2008); see Lopez-Elias v. Reno, 209 F.3d 788, 792 n.7 (5th Cir.

2000) (stating in dicta that “burglary of a vehicle with intent to commit theft is tantamount

to an offense of attempted theft” (emphasis in original)).

Baptista suggests that breaking into a locked vehicle with the intent to steal is

“unique” because of “the specificity of the proscribed conduct.” Pet’r’s Br. at 38 n.6. But

his suggestion concedes that a completed offense can sometimes be attempted theft. And

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he offers no reason why other state offenses couldn’t likewise be a categorical match for

an attempted theft.

Baptista claims that the government’s efforts to remove him based on his unarmed

assault conviction would “dangerously expand” the Immigration and Nationality Act.

Pet’r’s Br. at 37. He insists that this leap “creates redundancies in state criminal codes”

and “unpredictability in the immigration consequences of criminal convictions.” Id. at 39.

Amicus curiae Legal Aid Justice Center similarly contends that the Board’s view

“improperly conflates intent with attempt,” which “unduly eas[es] the burden on the

Department of Homeland Security . . . to establish removability.” Br. of Amicus Curiae

Legal Aid Justice Center at 4 (emphasis in original). Legal Aid Justice Center presses that

the Board’s position raises a litany of “due process concerns.” Id. at 9. And other amici

note that the Board’s position would disrupt criminal practice by making it harder for

lawyers to counsel their clients about the immigration consequences of pleading guilty to

state offenses. See generally Br. of Amici Curiae The American Immigration Lawyers

Ass’n et al.

We don’t share these concerns. Our conclusion is the natural result of the

categorical approach, which requires us to look only at the elements of the state offense.

Before today, defense counsel needed to consider the categorical approach to advise their

clients on the immigration consequences of criminal convictions, and today’s decision does

nothing to change that. See, e.g., United States v. Swaby, 855 F.3d 233, 240 (4th Cir. 2017).

In short, we reject the notion that, as a matter of law, offenses defined as complete

under state law can’t qualify as attempts under the Immigration and Nationality Act.

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2.

The final question before us is whether Massachusetts unarmed assault requires “an

overt act constituting a substantial step towards the commission of [a theft].” Rendon, 764

F.3d at 1084. Baptista challenges this element on two fronts.

First, he argues that unarmed assault doesn’t require proof of an overt act that meets

the substantial step threshold. On this point, he relies heavily on Commonwealth v.

Delgado, 326 N.E.2d 716 (Mass. 1975). In that case, four men committed armed robberies

of two convenience stores. During one of the robberies, while a co-defendant held a knife

to the store manager, the defendant said, “Hold him or I’m going to shoot him.” Id. at 717.

The Delgado court upheld the defendant’s assault conviction based on the threat, despite

the absence of direct evidence that the defendant had a gun, because the defendant’s

statement in the context of a robbery could “cause the victim reasonable apprehension with

respect to his physical security.” Id. at 719.

According to Baptista, Delgado suggests that words alone aren’t necessarily an

overt act since verbal threats don’t need to “strongly corroborat[e] the defendant’s intent,

or be capable of actually effecting that intent” to support an assault conviction. Pet’r’s Br.

at 54. But Delgado says no such thing.

The case makes clear that “words are [generally] not sufficient to constitute an

assault,” but distinguishes between “informational words and threatening words.” 326

N.E.2d at 718–19 (quotation omitted). The former category “might take the place of a

threatening movement or gesture and complete the assault” by “placing another in

reasonable apprehension that force may be used.” Id. at 719 (quotation omitted).

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Informational words can therefore transform a verbal threat of battery into a completed

assault by placing the victim in “reasonable apprehension of bodily injury.” Gauthier, 488

N.E.2d at 809.

In short, because a victim must always be at least objectively afraid of bodily injury

even in the threatened battery form of assault, there must be an overt act causing such fear.

We therefore reject Baptista’s notion that Massachusetts unarmed assault doesn’t require

proof of an overt act.

Baptista’s final challenge is based on his view that Massachusetts law criminalizes

assaults after a larceny. On his reading, unarmed assault can’t necessarily be a substantial

step toward the commission of a larceny because the assault can occur after the defendant

abandons his or her intent to steal.

But that’s wrong. The cases Baptista cites don’t criminalize assaults that take place

after a larceny. They show instead that Massachusetts courts affirm assault convictions

where the defendant’s conduct shows a continuing intent to steal when the assault occurs.

Consider Commonwealth v. Correia, 457 N.E.2d 648 (Mass. App. Ct. 1983). There,

the defendant stole the victims’ handbags from their hotel room while they were sleeping,

reentered the room, and then assaulted them. The court found “sufficient evidence for the

jury to conclude that the defendant returned to the bedroom with a continuing intent to

steal . . . .” Id. at 651. It rejected the notion that the defendant completed the larceny before

the assaults because he returned to the hotel room, suggesting that he intended to take more

items. Id.

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Likewise, in Commonwealth v. Assad, 476 N.E.2d 629 (Mass. App. Ct. 1985), the

court found that the evidence supported the jury’s finding that the defendant had broken

into the victim’s apartment to steal. After the victim in Assad returned to his apartment to

find “two strangers,” one of the strangers “followed him, sprayed him with a liquid which

[he] took to be mace, and knocked him down.” Id. at 630.

On appeal of the defendant’s conviction for assault with a dangerous weapon in a

dwelling house with intent to rob, the defendant argued that “there was no evidence of

intent to rob.” Id. at 631. The defendant insisted that he “used the spray can to facilitate

an escape from the victim’s apartment, not to steal from the victim or in his presence by

putting him in fear, i.e., with the intent to rob the victim.” Id.

The Assad court reasoned that the jury could have found that “the two men who had

broken into an apartment,” “armed . . . with chemical spray devices,” “were there to steal.”

Id. As for the link between the intent to rob and the assault, the court noted that the assault

“was connected to the objective of stealing property from [the] apartment,” even if it

occurred during an escape. Id.

Correia and Assad show that the assault must be linked to a defendant’s ongoing

aim of robbing or stealing from the victim. So long as the defendant assaults a victim to

further that aim, the evidence can support a conviction. That’s enough for the assault to

constitute a substantial step toward the commission of the theft offense, and so

Massachusetts unarmed assault is a categorical match to an attempted theft for purposes of

the Immigration and Nationality Act.

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USCA4 Appeal: 23-2237 Doc: 70 Filed: 05/01/2025 Pg: 20 of 20

IV.

For the reasons given, Baptista’s petition for review is

DENIED.

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