Nugent v. Atty Gen USA

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

5-7-2004

Nugent v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 02-4329

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PRECEDENTIAL STEVEN A. MORLEY, ESQ. (Argued)

Morley, Surin & Griffin, P.C.

UNITED STATES COURT OF Constitution Place

APPEALS 325 Chestnut Street, Ste 1305-P

FOR THE THIRD CIRCUIT Philadelphia, PA 19106

ATTORNEY FOR PETITIONER

No. 02-4329

PETER D. KEISLER, ESQ.

ERROL O'NEIL NUGENT, Assistant Attorney General, Civil Division

DAVID V. BERNAL, ESQ.

Petitioner Assistant Director

WILLIAM C. MINICK, ESQ.

v. ANTHONY C. PAYNE, ESQ.

JAMIE M . DOWD, ESQ. (Argued)

JOHN ASHCROFT, ATTORNEY Office of Immigration Litigation

GENERAL OF THE UNITED STATES, Civil Division

United States Justice Department

Respondent P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

ATTORNEYS FOR RESPONDENT

Petition for Review of an Order

of the Board of Immigration Appeals

(No. A30-198-870)

No. 04-1541

Argued

January 12, 2004 ERROL O’NEIL NUGENT,

Before: SLOVITER, RENDELL and

ALDISERT, Circuit Judges Appellant

(Filed May 7, 2004)

v.

PATRICIA MULLIN, ASSOC.

SPECIAL AGENT IN CHARGE OF THE

PHILADELPHIA OFFICE OF UNITED

1

S T A TE S I M M IG R A T IO N A N D

CUSTOMS AND ENFORCEM ENT

(USICE) OF THE DEPARTMENT OF MARY C. FRYE, ESQ.

HOMELAND SECURITY; THEODORE Office of United States Attorney

NORDMARK, ASSISTANT DISTRICT 615 Chestnut Street, Suite 1250

DIRECTOR FOR DEPORTATION AND Philadelphia, PA 19106

D E T E N TI O N OF USICE IN

PHILADELPHIA THE DEPARTMENT ATTORNEY FOR APPELLEE

OF HOMELAND SECURITY,

Appellees

OPINION OF THE COURT

Appeal from the United States District

ALDISERT, Circuit Judge.

Court for the Eastern District

of Pennsylvania In the petition by Errol O’Neil

(Civil No. 03-cv-06064) Nugent at No. 02-4329 for review of a

District Judge: Honorable J. Curtis final order of removal by the Board of

Joyner Immigration Appeals (“BIA”), we must

decide whether we have jurisdiction

inasmuch as Nugent was ordered removed

Submitted under Third Circuit LAR from the United States under 8 U.S.C. §

34.1(a) 1227(a)(2)(A)(ii) for having been

March 22, 2004 convicted of two crimes involving moral

_________ turpitude. In the consolidated appeal at

04-1541 from a judgment of the United

Before: SLOVITER, RENDELL and States District Court for the Eastern

ALDISERT, Circuit Judges District of Pennsylvania we must decide

whether a conviction under a Pennsylvania

theft by deception statute constitutes an

aggravated felony.

Steven A. Morley

We hold that we lack jurisdiction

Morley, Surin & Griffin, P.C.

in the petition for review of the final order

325 Chestnut Street, Suite 1305-P

of removal and will dismiss the petition,

Philadelphia, PA 19106

but, for reasons other than those stated by

the district court, we affirm the judgment

of the district court on the aggravated

ATTORNEY FOR APPELLANT

felony issue denying the writ of habeas

2

corpus without prejudice to Appellant’s Pleas of Montgomery County for the State

applying to the Attorney General for of Pennsylvania of theft by deception in

cancellation of the removal order pursuant violation of 18 Pa. Cons. Stat. Ann. §

to 8 U.S.C. § 1229b. We will first address 3922(a) (West 1983 & Supp. 2000). He

the petition for review. was sentenced to a term of imprisonment

of not less than six months but not more

I.

than 23 months.

Nugent is a native and citizen of

It was on the basis of Nugent’s

Jamaica who entered the United States on

2000 Pennsylvania conviction that the

August 25, 1971, as a lawful permanent

Immigration and Naturalization Service

resident when he was seven years old. On

(“INS”)1 charg e d N u g ent w ith

January 30, 1984, he was convicted in the

removability from the United States under

Court of Common Pleas of M ontgomery

8 U.S.C. § 1227(a)(2)(A)(iii) for having

County for the State of Pennsylvania of

been convicted of an aggravated felony as

theft by unlawful taking (theft of movable

defined in 8 U.S.C. § 1101(a)(43)(G). The

property) in violation of 18 Pa. Cons. Stat.

original Notice to Appear stated:

Ann. § 3921(a) (West 1973 & Supp. 1983)

and receiving stolen property in violation 4. You were, on November 28,

of 18 Pa. Cons. Stat. Ann. § 3925(a) (West 2000, convicted in the Court of

1973 & Supp. 1983). The crime involved Common P le a s, C oun ty of

theft of two typewriters valued at a total of Montgomery, Commonwealth of

approximately $1,900. Nugent could have

been sentenced to five years imprisonment,

but instead he was sentenced to 12 months 1

The INS is now known as the

on probation. Theft of the two typewriters

Bureau of Citizenship and Immigration

valued at this amount constituted a

Services (“BCIS”) within the Department

misdemeanor of the first degree. See 18

of Homeland Security (“DHS”). See

Pa. Cons. Stat. Ann. § 3903(b) (West 1973

Homeland Security Act of 2002, Pub. L.

& Supp. 1983). A misdemeanor of the

No. 107-296, § 451, 116 Stat. 2135, 2195

first degree was punishable by up to five

(2002) (codified at 6 U.S.C. § 271 (Supp.

years imprisonment. See 18 Pa. Cons.

2003)). Within the BCIS is the Office of

Stat. Ann. § 1104(1) (West 1983); Com v.

United States Immigration Enforcement

Schreiber, 466 A.2d 203, 208 (Pa. Super.

(“USICE”). Id. Because the operative

1983) (holding that a sentence of five

events in this case took place before the

years imprisonment would have been

name change, INS is used here. In the

appropriate for a first-degree misdemeanor

appeal at 04-1541 the principal defendant

conviction of theft by unlawful taking).

in the habeas corpus proceedings was

On November 28, 2000, Nugent Patricia Mullen, Associate Special Agent

was convicted in the Court of Common in charge of the Philadelphia office of

USICE.

3

Pennsylvania for the offenses of Pleas of Montgomery County for

THEFT BY DECEPTIO N the State of Pennsylvania, of Theft

(DOCKET # 1061-00) and of Movable Property and Theft by

DRIVING UNDER THE Receiving Stolen Property, in

INFLUENCE (DOCKET # 1974- violation of Pennsylvania Criminal

00), in violation of Title 18, Laws Sections 3921 and 3925.

Pennsylvania Statutes, Section

3922 and Title 75, Pennsylvania

Statutes, Section 3731. 7. The conviction alleged above in

Allegation No. 6 and the conviction

alleged in Allegation No. 4 on the

(App. at 206.) Notice to Appear dated February

14, 2001 did not arise out of a

On September 7, 2001, Nugent filed

single sc he me of c r im in al

a motion to terminate removal proceedings

misconduct.

on the basis that his conviction for theft by

deception under Pennsylvania law did not (App. at 138.)

constitute an aggravated felony theft

At a hearing before the IJ on

offense as defined by 8 U.S.C. §

October 11, 2001, the following colloquy

1101(a)(43)(G).

took place:

On September 14, 2001, an

Judge to Mr. Mazer

immigration judge (“IJ”) issued an

[representing petitioner

interlocutory order denying Nugent’s

Nugent]:

motion to terminate removal proceedings.

The IJ concluded that Nugent’s conviction ....

for theft by deception constituted an

Q. And how do you

aggravated felony theft under 8 U.S.C. §

plead allegations six and

1101(a)(43)(G).

seven?

On September 12, 2001, the INS

charged Nugent with being subject to

removal under 8 U.S.C. § A. We will

122 7(a)(2 )(A)(ii) for having been concede those

convicted of two or more crimes involving allegations.

moral turpitude. In notifying Nugent of

the additional charge, the INS stated in its

“Additional Charges of Q. Okay. You concede that they

Inadmissibility/Deportability” Form I-261: constitute crimes involving

moral turpitude then?

6. You were convicted on January

30, 1984 in the Court of Common

4

A. Ah, yes. The BIA had jurisdiction pursuant

to 8 C.F.R. §§ 1003.1(b)(3) and 1240.15 to

(App. at 124.)

review the decision of the IJ. We have

On the same day, October 11, 2001, jurisdiction pursuant to 8 U.S.C. §

the IJ issued an oral decision concluding 1252(a)(1) and (b) “to determine our

that Nugent was subject to removal as an jurisdiction under [ 8 U.S .C.] §

aggravated felon. The IJ then added: 1252(a)(2)(C).” Drakes v. Zimski, 240

“Further, in court today counsel has F.3d 246, 247 (3d Cir. 2001). Section

conceded the allegations set forth in the I- 1252(a)(2)(C), the INA’s no-review

261. The Court finds the respondent is provision, bars us from reviewing any final

subject to removal as charged therein.” removal order for an alien who has been

(App. at 80.) As set forth above, the Form ordered removed from the United States

I-261 added paragraphs 6 and 7 in which because of convictions for either an

the INS listed Nugent’s 1984 conviction aggravated felony or two crimes of moral

for theft by unlawful taking and referenced turpitude, among other offenses. Thus, we

his 2000 conviction for theft by deception. m u s t “ d e te r m i n e w h e t h e r t h es e

Thus, the two crimes involving moral jurisdictional facts are present.” Valansi v.

turpitude consisted of theft by deception, Ashcroft, 278 F.3d 203, 207 (3d Cir.

conviction date November 28, 2000, as 2002).

contained in the INS’ Allegation No. 4 in

In determining the pure legal

the original Notice to Appear, and theft by

questions before us that govern our own

unlawful taking, conviction date January

jurisdiction, we apply a de novo standard

30, 1984, as contained in the INS’

of review. Id.

Allegation Nos. 6 and 7 in the Form I-261.

The IJ specifically ordered Nugent III.

removed from the United States based on

The INA’s no-review provision

convictions for both the aggravated felony

provides in relevant part:

listed in the Notice to Appear and the two

crimes of moral turpitude listed in the N o t w i t h st a nd i n g a n y o th e r

“Form I-261, Additional Charges of provision of law, no court shall

Inadmissibility/Deportability.” have jurisdiction to review any

final order of removal against an

Nugent appealed the IJ’s decision to

alien who is removable by reason

the BIA, and on November 18, 2002, the

of having committed a criminal

BIA affirmed the IJ’s decision without

offense covered in sectio n

opinion, thereby adopting the IJ’s decision

1182(a)(2) or 1227(a)(2)(A)(iii)

as the final agency determination. Nugent

[aggravated felony], (B), (C), or

timely appealed the BIA’s order.

(D) of this title, or any offense

II. covered by section

1227(a)(2)(A)(ii) [two or more

5

crimes involving moral turpitude, .” 8 U.S.C. § 1227(a)(2)(A)(ii). Both

not arising out of a single scheme crimes of moral turpitude could have

of criminal misconduct] of this title resulted in sentences “of one year or

for which both predicate offenses longer[,]” id. § 1227(a)(2)(A)(i)(II), and

are, without regard to their date of whether the crimes were committed more

commission, otherwise covered by than five years after Nugent’s admission to

section 1227(a)(2)(A)(i) of this the United States is irrelevant under 8

title. U.S.C. § 1252(a)(2)(C). Therefore, under

the no review provision, § 1252(a)(2)(C),

we lack jurisdiction to review the removal

8 U.S.C. § 1252(a)(2)(C). order based on Nugent’s having committed

two crimes involving moral turpitude, §

1227(a)(2)(A)(i)-(ii).

Nugent’s 1984 conviction for theft

Although Nugent concedes that he

by unlawful taking (theft of movable

is subject to removal based on his

property) was a crime involving moral

convictions for two crimes involving

turpitude. The INA does not define moral

moral turpitude, he nevertheless contests

turpitude, but we have noted that a legal

the order of removal based on the

dictionary defines the term as “[c]onduct

aggravated felony conviction because he

that is contrary to justice, honesty, or

contends that the Pennsylvania theft by

morality.” De Leon-Reynoso v. Aschroft,

deception conviction set forth in paragraph

293 F.3d 633, 636 (3d Cir. 2002) (quoting

No. 4 of the Notice to Appear does not

Black’s Law Dictionary 1026 (7th ed.

constitute an aggravated felony under 8

1999)). Although Nugent received a

U.S.C. § 1101(a)(43)(G). For its part, the

sentence of only 12 months on probation

government concedes that “M r. Nugent is

for the 1984 conviction, he could have

removable both by reason of having

been sentenced to up to five years

committed an offense that is properly

imprisonment. See 18 Pa. Cons. Stat. Ann.

considered an aggravated felony and by

§ 1104 (West 1983); 18 Pa. Cons. Stat.

reason of having committed two crimes

Ann. §§ 3903 and 3921 (West 1973 &

involving moral turpitude for which,

Supp. 1983).

respectively, he could have received a

Likewise, Nug ent’s 2000 sentence of one year . . . .” (Br. for Resp’t

conviction for theft by deception at 2.) The government nevertheless asks

constituted a crime involving moral us to address the aggravated felony issue

turpitude. Nugent received a sentence of to obviate the need for Nugent to seek

imprisonment of not less than six months resolution of that issue via a petition for

but not more than 23 months. The 1984 writ of habeas corpus. (Id. at 18-19 n.4.)

and 2000 crimes did “not aris[e] out of a

Having decided, or more properly,

single scheme of criminal misconduct . . .

because the parties stipulate, that we have

6

no jurisdiction to review the final order Nugent asks us to review not the

bottomed on moral turpitude grounds, we final order but one of two reasons for

must now decide whether this court removal in the final order. For its part, the

possesses jurisdiction to consider the issue government recognizes that we lack

both parties have urged upon us by brief jurisdiction because of the moral turpitude

and oral argument, to-wit, whether a convictions but somehow seeks a decision

conviction under the Pennsylvania theft by on the aggravated felony issue. To assist

deception statute constitutes an aggravated us in deciding this very difficult issue, on

felony under 8 U.S.C. § 1101(a)(43)(G). February 11, 2004, we requested

It is to this issue that we now turn. supplemental briefing:

IV. By statute, our jurisdiction is

limited to reviewing final orders, 8

A federal court, whether trial or

U.S.C. § 1252(a)(1), (b), (d) and

appellate, is obliged to notice want of

(g), not a particular reason

jurisdiction on its own motion. Mansfield,

supporting the order. If we do not

C. & L.M. Ry. Co. v. Swan, 111 U.S. 379,

have jurisdiction to review the

381-386 (1884). We have jurisdiction in

order based on one of the reasons

immigration cases to determine whether

(i.e., Petitioner’s removability on

jurisdictional facts are present. Drakes,

grounds of two crimes of moral

240 F.3d at 247. “Graven in stone is the

turpitude), what authority do we

maxim that parties cannot confer

have to review another reason

jurisdiction on a federal court by consent

supporting the order (i.e., whether

or stipulation.” Reale Int’l, Inc. v. Federal

the BIA erred in determining that

Republic of Nigeria, 647 F.2d 330, 331

Petitioner’s conviction constitutes

(2d Cir. 1981). “Without jurisdiction the

an aggravated felony)?

court cannot proceed at all in any cause.

Jurisdiction is power to declare the law,

and when it ceases to exist, the only

In Petitioner’s response dated March 1,

function remaining to the court is that of

2004, he advised the court:

announcing the fact and dismissing the

cause.” Steel Co. v. Citizens for a Better In October 2003, Petitioner filed a

Env’t, 523 U.S. 83, 94 (1998) (quoting Ex petition for writ of habeas corpus in

parte McCardle, 7 Wall. 506, 514 (1869)). the Eastern District of Pennsylvania

“For a court to pronounce upon the which was docketed at No:

meaning or the constitutionality of a state 03-cv-6064 and assigned to the

or federal law when it has no jurisdiction Honorable J. Curtis Joyner, Judge

to do so is, by very definition, for a court of the Eastern District of

to act ultra vires.” Id. at 101-102. Pennsylvania. That petition for writ

of habeas corpus raised the single

V.

question that has been presented to

7

this Court, whether theft by view of this consolidation, and in light of

deception under Pennsylvania law the thorny jurisdictional problem, we will

is a theft offense or a fraud/deceit not consider the aggravated felony issue in

offense. The reason for filing that this proceeding at No. 02-4329. Rather,

petition at that time was that Mr. we will consider it in the appeal of the

Nugent had just been detained by district court’s habeas corpus judgment at

DHS and this Court denied a stay No. 04-1541.

of removal. The government

Accordingly, we will dismiss for

opposed the stay of removal in this

lack of jurisdiction the petition to review

Court on jurisdictional grounds –

the removal order based on Nugent’s

those raised recently by this Court –

having committed two crimes involving

but that denial of the stay did not

moral turpitude. See 8 U.S.C. §§

state a basis for the motions panel

1252(a)(2)(C) and 1227(a)(2)(A).

decision denying the stay. All facts

regarding this Court's consideration We now turn to the appeal from the

of the matter, as well as the denial district court at No. 04-1541.

of the stay, was set forth in the

VI.

petition for a writ of habeas corpus.

Judge Joyner issued a stay shortly Nugent contends that the district

after the filing of the petition, but, court erred in denying his habeas corpus

on February 19, 2004, denied the petition because it held his 2000

Petition for Writ of Habeas Corpus, Pennsylvania conviction for theft by

holding, without opinion or deception was “a theft offense (including

ana1ysis, that theft by deception is receipt of stolen property) or burglary

an aggravated felony. On February offense for w hich th e term of

27, 2004, Petitioner appealed the imprisonment [is] at least one year.” 8

order of Judge Joyner to this Court. U.S.C. § 1101(a)(43)(G). Because the

Attached hereto is a copy of the denial of the writ of habeas corpus was a

notice of appeal as well as the final order and an appeal was timely we

docketing statement from this have jurisdiction. 42 U.S.C. § 1291. Our

Court. review is plenary on this issue involving

statutory construction. Valansi, 278 F.3d

at 207.

The habeas appeal has been

Appellant represents to us that

docketed in this Court at 04-1541. By

because in October, 2003 he was detained

order dated M arch 5, 200 4, we

by the DHS, he applied for writ of habeas

consolidated the habeas appeal from the

corpus under 28 U.S. C. § 2411(c) in the

United States District Court at No. 04-

district court. “The petition . . . raised the

1541 with the present petition to review

single question that has been presented to

the Order of the BIA at No. 02-4329. In

8

this Court, whether theft by deception previously addressed whether a conviction

under Pennsylvania law is a theft offense under Pennsylvania’s theft by deception

or a fraud/deceit offense.” (Ltr. of statute comes within the rubric of an

Petitioner’s Counsel to the court dated aggravated felony as it relates to a “theft

March 1, 2004, p. 3.) Although by order offense” under 8 U.S. C. § 1101(a)(43)(G)

dated February 19, 2004, the district court and/or “an offense . . . that involves fraud

denied the petition without a detailed or deceit” u n de r 8 U .S .C §

statement of reasons, it stated in a footnote 1101(a)(43)(M)(i).

to its order: “This Court finds that the

The record indicates that on January

Petitioner was convicted of an aggravated

8, 1999, Nugent attempted to make two

felony and as such, he is removable. See 8

withdrawals totaling $3,450 from an

U.S.C. § 1101(a)(43)(G).”

account in the name of Earl Rampert at

For the reasons that follow, we Willow Grove Bank in Abington

disagree with the district court’s sole Township, Pennsylvania. Earlier on the

reason for denying the writ. We hold that same day, Nugent had made separate

the Appellant is removable, but not on the withdrawals of $1,450 and $2,000,

basis of Section 1101(a)(43)(G) for having respectively, from the Willow Grove and

been convicted of an aggravated felony, as Hatboro branches of Willow Grove Bank.

stated by the court, but solely on the basis The account from which Nugent attempted

of 8 U.S.C. § 1227(a)(2)(A)(ii) for having to make the withdrawals had been opened

been convicted of two or more crimes with a $100 deposit on December 13,

involving moral turpitude. We will affirm 1998, and a check for $4,831.26 had been

the judgment of the district court on this deposited into the account on January 6,

ground only, and apply the tenet that we 1999. Nugent admitted to police that the

may affirm for reasons completely $4,831.26 check was counterfeit.

different from those advanced by the

On November 28, 2000, Nugent

district court. PAAC v. Rizzo, 502 F. 2d

was convicted in the Court of Common

306, 308 n.1 (3d Cir. 1974); cert. denied,

Pleas of Montgomery County for the State

419 U.S. 1108 (1975) (“[i]t is proper for

of Pennsylvania of theft by deception in

an appellate court to affirm a correct

violation of 18 Pa. Cons. Stat. Ann. § 3922

decision of a lower court even when that

(West 1983 & Supp. 2000). 2 Section 3922

decision is based on an inappropriate

ground”) (emphasis in original). We now

discuss in detail why we disagree with the

2

district court’s stated reason that Nugent’s The statute reads:

conviction under Pennsylvania’s theft by

deception statute, 18 Pa. Cons. Stat. Ann. A person is guilty of theft if he

§ 3922, constitutes an “aggravated felony” intentionally obtains or withholds

as defined by the INA. We have not property of another by deception.

A person deceives if he

9

is taken word for word from § 223.3 of the “aggravated felony” any “theft offense

Model Penal Code (“Code”) promulgated (including receipt of stolen property) and

by the American Law Institute (“ALI”) in robbery for which the term of

1962. Nugent was sentenced to a term of imprisonment [is] at least one year.”

imprisonment of not less than six months

Nugent argues that because his

but not more than 23 months.

conviction for theft by deception involved

VII. fraud or deceit, it is not a “theft offense”

under 8 U.S.C. § 1101(a)(43)(G), but a

The IJ concluded and the BIA

fraud or deceit offense under 18 U.S.C. §

agreed that Nugent’s Pennsylvania

1101(a)(43)(M)(i), in which “[t]he term

conviction of theft by deception came

‘aggravated felony’ means . . . an offense

within the purview of 8 U.S.C. §

that . . . involves fraud or deceit in which

1101(a)(43)(G), that includes as an

the loss to the victim or victims exceeds

$10,000[.]” The loss suffered by the

victims of Nugent’s theft by deception did

intentionally: not exceed $10,000, and thus the INS did

not charge him with removability based on

(1) creates or reinforces a false Section 1101(a)(43)(M)(i).

impression, including false

Whether Nugent’s theft by

impressions as to law, value,

deception offense is a “theft offense”

intention or other state of mind;

and/or a “an offense involving fraud or

but deception as to a person’s

deceit” is a distinction with a serious

intention to perform a promise

difference, as it carries a significant

shall not be inferred from the fact

consequence for Nugent. There is no

alone that he did not subsequently

minium dollar amount to constitute an

perform the promise;

aggravated felony if the Pennsylvania

(2) prevents another from

conviction is a “theft offense” as

acquiring information which

contemplated by Section 1101(a)(43)(G),

would affect his judgment of a

but if it is “an offense that . . . involves

transaction; or

fraud or deceit” and the loss to the victim

(3) fails to correct a false

or victims is $10,000 or less, it would not

impression which the deceiver

qualify as an aggravated felony under

previously created or reinforced,

Section 1101(a)(43)(M )(i). Here, the bad

or which the deceiver knows to be

check amounted to only $4831.26.

influencing another to whom he

stands in a fiduciary or Carrying his reasoning one step

confidential relationship. further, Nugent argues that although he is

subject to removal based on his

18 Pa. Cons. Stat. Ann. § 3922(a) (West convictions for two crimes involving

1983 & Supp. 2000).

10

moral turpitude, convictions on this 183, 189 (1984) (internal quotations and

ground alone do not prevent him from citations omitted).

applying for cancellation of the removal

Moreover, Nugent contends that

order pursuant to 8 U.S.C. § 1229b.

Congress’ inclusion in Se ction

Having a conviction that is deemed an

1101(a)(43)(M)(i) of the language “fraud

aggravated felony, however, would make

or deceit in which the loss to the victim or

Nugent ineligible to apply for the

victims exceeds $10,000” demonstrates

cancellation. See 8 U.S.C. § 1229b(a)(3)

that Congress did not intend fraud or

(stating that the Attorney General may not

deceit offenses involving $10,000 or less

cancel removal in the case of an alien who

to nevertheless be defined as aggravated

has been convicted of an aggravated

felonies under Section 1101(a)(43)(G).

felony).

See INS v. Cardoza-Fonseca, 480 U.S.

Nugent argues first that the 421, 432 (1987) (explaining “where

determination of what constitutes a “theft Congress includes particular language in

offense” in the context of the INA’s one section of a statute but omits it in

definition of an “aggravated felony” is another section of the same Act, it is

made by reference to a federal standard generally presumed that Congress acts

rather than the labels attached to crimes by intentionally and purposefully in the

Pennsylvania’s criminal laws. See Taylor disparate inclusion or exclusion”) (internal

v. United States, 495 U.S. 575, 592 (1990) quotations and citation omitted).

(stating that the term “burglary” in 18

Although we reject Nugent’s

U.S.C. § 924(e) “must have some uniform

“either-or” argument, for the reasons that

definition independent of the labels

follow, we agree with his contention that

employed by the various States’ criminal

an offense under Pennsylvania’s theft by

codes”); In re V-Z-S-, 22 Interim Decision

deception statute falls within Section

1338 (BIA 2000) (explaining that “we

1101(a)(43)(M)(i) so that it would not be

generally apply a federal standard in

an aggravated felony unless the victim

determining whether a state offense fits

suffered a loss exceeding $10,000. But we

within the aggravated felony definition”).

must go further, we must decide whether

the Pennsylvania statute must also meet

Nugent is correct in saying that the requirements of Sectio n

Pennsylvania’s labeling of the crime as 1101(a)(43)(G).

theft by deception is not determinative of

VIII.

its status as a theft offense under Section

1101(a)(43)(G). Rather, this court must In aligning state and federal

examine the plain language of the INA and criminal offenses, previously this court has

“assume that the legislative purpose is applied a “formal categorical approach”

expressed by the ordinary meaning of the that requires comparison of the elements

words used.” INS v. Phinpathya, 464 U.S. of the state law offense to see if they

11

“encompass[] acts beyond those subject to Under this approach, “we must

prosecution under the federal definition.” examine [Penns ylvania’s th eft b y

Drakes, 240 F.3d at 248-249 (noting the deception] law to see if it encompasses

Supreme Court’s endorsement of such an acts beyond those subject to prosecution

approach in Taylor, 495 U.S. at 600). under the federal [theft offense]

definition[,]” as contemplated by 8 U.S.C.

Where federal criminal statutes use

§ 1101(a)(43)(G). Id. at 249. More

words of established meaning

specifically, we must determine whether a

without further elaboration, courts

Pennsylvania theft by deception offense is

typically give those terms their

also an “offense involving fraud or deceit”

common law definition. Moskal v.

set forth in 8 U.S.C. § 1101(a)(43)(M)(i).

United States, 498 U.S. 103, 114 . .

. (1990); Gilbert v. United States, Unfortunately the INA does not

370 U.S. 650, 655 . . . (1962) ("in define “theft offense,” and equally

the absence of anything to the unfortunately, Congress has not supplied

contrary it is fair to assume that a definition of “theft” or “larceny” in the

Congress used ['theft'] in the statute galaxy of federal offenses. And, in the

in its common-law sense."). If context of the facts in this case, we are

research into the common law unwilling to say that the contretemps

yields several co mp eting involving a theft offense crime and a fraud

definitions, however, courts should or deceit crime is free from ambiguity. We

look to the reading that "best therefore must refer to the teachings of

accords with the overall purposes Drakes and follow the “formal categorical”

of the statute" even if it is the approach.

minority view. Moskal, 498 U.S. at

IX.

116-17 . . . . Where the traditional

definition is out of step with the Our starting point is clear. Where

modern meaning of a term, more federal criminal statutes use words of

"generic, contemporary" established meaning without further

definitions--such as those found in elaboration, courts typically give those

state statutes--may apply. See terms their common law definition.

Taylor, 495 U.S. at 596, 598 . . . .

Furthermore, "Congress' general

The common law spoke in terms of

purpose in enacting a law may

“larceny,” rather than “theft” and the

prevail over this rule of statutory

word s a r e use d inte r c hange ably.

construction" altogether. Id.

Blackstone defined larceny simply as “the

felonious taking and carrying away of the

personal goods of another.” 2 Blackstone,

Drakes, 240 F. 3d at 249.

Commentaries on the Laws of England,

Book IV, at 230 (1879). But in the

12

development of the common law, courts excluded from the common law offense of

defined larceny in more comprehensive larceny. See Bell v. United States, 462

terms. The refined common law U.S. 356, 360 (1983).

description appears to be “the felonious

Thus, it would seem that the

taking by trespass and carrying away by

modern crime of obtaining property by

any person of the personal goods or things

false pretenses was not even a crime at

of another from any place, without the

common law. To plug the loophole, in

latter’s consent and with the felonious

1757 Parliament enacted a statute that

intent to deprive the owner of his or her

punished one who “knowingly and

property permanently and to convert it to

designedly, by false pretense or pretenses,

the taker’s own use . . . .” 50 Am. Jur. 2d,

shall obtain from any person or persons,

Larceny § 1. Professor Wayne R. LaFave

money, goods, wares or merchandises,

supplies a concise summary:

with intent to cheat or defraud any person

Larceny at common law may be defined as or persons of the same.” 30 Geo II, c. 24

the (1) trespassory, (2) taking and (3) (1757) (cited in LaFave, supra, at 114). In

carrying away of the (4) personal property the eighteenth century, “[t]he theoretical

(5) of another (6) with intent to steal it. distinction between false pretenses and

American statutes dealing with larceny as larceny by trick may be stated simply. If a

a discrete offense have generally left the thief, through his trickery, acquired title to

six elements of the crime unchanged, the property from the owner, he has

except that there has been considerable obtained property by false pretenses; but if

enlargement of the kinds of property which he merely acquired possession from the

can be the subject of larceny. owner, he has committed larceny by trick.”

Bell, 462 U.S. at 359-360 (emphasis

added).

Wayne R. LaFave, 3 Substantive Criminal

Specific to Pennsylvania, our

Law § 19.2, at 62 (2nd ed. 2003) (footnote

research discloses that the false pretenses

omitted).

statute, 30 Geo II, c. 24, was not

Before statutory offenses appeared “received” by the “province” prior to the

on the scene, “[c]hoses in action including Declaration of Independence and the

bonds and notes of all classes, according to subsequent creation of the present

the common law, are not the subject of Commonwealth:

larceny, being mere rights of action,

An act was passed on the 28th

having no corporeal existence; though . . .

January, 1777, entitled ‘An Act to

a person may be indicted for stealing the

revive and put in force such and so

paper on which they are written.” I

much of the late laws of the

Wharton’s Criminal Law § 876, at 766

province of Pennsylvania, as is

(10th ed. 1896) (emphasis added). A bank

judged necessary to be in force in

check was considered a chose-in-action

13

this commonwealth.’ In this act it in the common law because the crime of

is provided, that the common law, false pretenses, a fraud or deceit crime,

and such of the statute laws of was the product of Parliament and not the

England as have been heretofore in collective experience of the judiciary.

force in the said province, shall be

Following the direction of the

in force, except as hereafter

“categorical approach” in Drakes, if

excepted.

research into the common law does not

supply the answer, we look to the reading

that best accords with the overall purpose

Samuel Roberts, Digest of Select British

of the statute. In so doing, however,

Statutes xv (1847) (hereinafter “Digest”)

“[w]here the traditional definition is out of

(discussed in Commonwealth v. Guy, 41

step with the modern meaning of a term,

Pa. D & C 2d 151, 156 (1966) (Aldisert,

more ‘generic, contemporary’ definitions

J.)). An examination of Pennsylvania’s

– such as that found in state statutes – may

official compendium of British Statutes

apply.” Drakes, 240 F.3d at 249 (quoting

that were deemed to be in effect at the time

Taylor, 495 U.S. at 596).

Pennsylvania became a state reveals that

the statute 30 Geo II, c. 24 was not X.

included. See generally, Digest

As early as 1925, Judge Cardozo

(containing the full December 14, 1808,

was preaching the use of generic,

Report to the Pennsylvania legislature by

contemporary definitions rather than older,

the Justices of the Supreme Court of

if not truly ancient, approaches. When

Pennsylvania “of the English statutes

speaking of the difference between larceny

which are in force in the said

and embezzlement, he said, “[t]he

commonwealth, and of those of the said

distinction, now largely obsolete, did not

statutes which in their opinion ought to be

ever correspond to any essential difference

incorporated into the statute laws of the

in the character of the acts or in their effect

said commonwealth[,]” id. at xv).

upon the victim. The crimes are one to-day

From the foregoing discussion, we in the common speech of men as they are

must conclude that the government may in moral quality.” Van Vechten v. Am.

not find support for its position in the Eagle Fire Ins. Co, 146 N.E. 432, 433

common law crime of larceny, or theft, (N.Y. 1925).

because the property that was the subject

In 1983, the Supreme Court was

of its asportation had to be tangible and

faced with a problem similar to what we

corporeal. Choses-in-action, like bonds,

face in this case. Bell, 462 U.S. at 357.

notes, and, to be sure, modern bank

Here, we must decide whether the

checks, were not considered goods or

Pennsylvania offense of larceny by

property in the context of common law

deception (trick) involving $10,000 or less

larceny. Similarly, Nugent finds no succor

is an “aggravated felony” as defined in

14

Section 1103(a)(43) of the INA. Whereas to two other aspects of § 2113(b) that

in Bell, the Court had to interpret the bank indicate Congress’ “intention to go beyond

robbery provision, 18 U.S.C. § 2113(b), the common-law definition of larceny.”

that imposes criminal sanctions on Id. First, whereas common law larceny

“[w]hoever takes and carries away, with excluded “theft of a written instrument

intent to steal or purloin, any property or embodying a chose in action[,]” Section

money or any other thing of value, 2113(b) is broader in that it includes “any

exceeding $100 belonging to, or in the property or money or any other thing of

care, custody, control, management, or value exceeding $100.” Id. (citing W.

possession of any bank, credit union, or LaFave & A. Scott, Handbook on Criminal

any savings and loan association.” 462 Law 633 (1972)). Second, whereas

U.S. at 357-358. common law larceny required theft from

the owner’s possession, Section 2113(b) is

In Bell, the Court discussed

more expansive in that “[i]t applies when

extremely technical distinctions present in

the property ‘belong[s] to,’ or is ‘in the

old interpretations of two offenses –

care, custody, control, management, or

larceny by trick and false pretenses. Bell

possession of,’ a covered institution.” Id.

opened a bank account and deposited

at 360-361 (citations omitted). Based on

therein a $10,000 check belonging to

the above analysis, the Court held that

another. After the check cleared, he closed

notwithstanding the “common law” label

the account and was paid the total balance

attached to § 2113(b), more “generic,

in cash. He was arrested and convicted.

contemporary” definitions proscribe Bell’s

The question for decision was whether the

conduct here, explaining:

restricted common law definition of

robbery should apply. Although the court Although the term “larceny”

was faced with a robbery statute, its appears in the legislative reports,

discussion concentrated on concepts of the congressional purpose plainly

larceny by trick. was to protect banks from those

who wished to steal banks’ assets –

The Court concluded, “Congress

even if they used no force in doing

has not adopted the elements of larceny in

so . . . . To the extent that a bank

common-law terms[,]” explaining that the

needs protection against larceny by

statutory language “takes and carries

trick, it also needs protection from

away” represents merely one element of

false pretenses. We cannot believe

common law larceny and “is entirely

that Congress wished to limit the

consistent with false pretenses.” Id. at 360.

scope of the amended Act’s

Moreover, the statutory language “with

coverage, and thus limit its

intent to steal or purloin” has no

remedial purpose, on the basis of an

established common law meaning. Id.

arcane and artificial distinction

(citing United States v. Turley, 322 U.S.

more suited to the social conditions

407, 411-412 (1957)). The Court pointed

15

of 18th century England than the (i.e. just theft and receipt); rather, with its

needs of 20th century America. word choices, Congress indicated that the

Such an interpretation would signal phrase ought to be given a broad read.”

a return to the “incongruous See Hernandez-M ancilla v. INS, 246 F.3d

results” that the 1937 amendment 1002, 1008 (7th Cir. 2001); see also

was designed to eliminate. United States v. Corona-Sanchez, 291 F.3d

1201, 1205 (9th Cir. 2002) (en banc)

462 U.S. at 362.

(“Congress used the words ‘theft offense’

Thus, the marching order we rather than just ‘theft,’ thus indicating that

receive from the Court is that in the phrase ought be read to incorporate

interpreting federal criminal statutes where different but closely related constructions

there is no specific definition, do not fall in modern state statutes.”). Under the

in love with the label attached to an Code, “theft” includes theft by unlawful

offense. taking or disposition; theft by deception;

theft by extortion; theft of property lost,

We now turn to an analysis of the

mislaid, or delivered by mistake; receiving

“generic, contemporary” definitions of the

stolen property; theft of services; theft by

t e r m s “ t h e f t o f f e n s e ,” S e c t i o n

failure to make required disposition of

1103(a)(43)(G), and “an offense that

funds received; and unauthorized use of

involves fraud or deceit,” Section

automobiles and other vehicles. Model

1103(a)(43)(M)(i), to determine whether

Penal Code §§ 223.2-223.9. In

either or both of these “aggravated

Hernandez-M ancilla, the Seventh Circuit

offense” provisions applies to offenses

engaged in an extensive discussion of the

under Pennsylvania’s theft by deception

background of the term “theft offense” as

statute. For this we look to logical

used by Congress in the INA, including an

reasoning and the background of the

evaluation of theft offenses set forth in the

“aggravated offense” provisions enacted

Code, and came up with the definition: “a

by Congress and the foundation of the

taking of property or an exercise of control

theft by deception statute adopted by

over property without consent.” 246 F.3d

Pennsylvania’s legislature.

at 1009. The Ninth Circuit has adopted

XI. this definition, Corona-Sanchez, 291 F.3d

at 1205, and a panel within this Circuit has

At the onset, we agree with our

relied on it in a not-for-publication

sister circuits that it was Congress’ intent

opinion, Williams v. INS, 54 Fed. Appx.

for a “theft offense” to include more than

55 (3d Cir. 2002) (Judges Fuentes, Sloviter

what was considered larceny at common

and Debevoise).

law: “[B]y choosing the words ‘theft

offense’ rather than just ‘theft,’ . . . We agree that given this broad

Congress signaled that it was not definition, Nugent’s bad check transaction

presenting an exhaustive list of offenses for which he was convicted under the

16

Pennsylvania theft by deception statute is check is regarded as property in the

a “theft offense” as set forth in Section context of “generic, contemporary”

1103(a)(43)(G). Indeed, a worthless check larceny, or theft, concepts requiring

is “property” within the scope of “caption” (when the actor secured

Pennsylvania’s theft by deception statute. dominion over the property of another) and

As we have explained previously, in “asportation” (carrying away of the other’s

common law larceny it was not so property), and therefore Nugent’s bad

regarded: “common law larceny was check transaction for which he was

limited to thefts of tangible personal convicted under Pennsylvania’s theft by

property. This limitation excluded, for deception statute is a “theft offense” under

example, the theft of a written instrument 18 U.S.C. § 1101(a)(43)(G). This does

embodying a chose in action.” Bell, 462 not, however, end our inquiry.

U.S. at 362. Pennsylvania’s consolidated

The sole question for decision is

theft statute, which we note was taken

whe the r with in the p urvie w of

verbatim from Code § 223.0, defines

Pennsylvania’s theft by deception statute,

“property” in the context of theft offenses:

Section 3922, Nugent’s conviction for

Anything of value, including real passing a bad check represents “an offense

estate, tangible and intangible involving fraud or deceit” under 8 U.S.C.

personal property, contract rights, § 1101(a)(43)(M)(i), notwithstanding that

c h o ses-in-action , and o t h er it also constitutes a “theft offense” under 8

interests in or claims to wealth, U.S.C. § 1101(a)(43)G). If we decide that

admission or transportation tickets, Nugent’s conviction is “an offense that

captured or domestic animals, food involves fraud or deceit” as well as “a theft

and drink, electric or other power. offense,” then to qualify as an aggravated

felony under the INA it must meet the

requirements of Section

18 Pa. Cons. Stat. Ann. § 3901 (emphasis 1101(a)(43)(M)(i), loss to the victim of

added). Wharton teaches that a chose-in- more than $10,000, in addition to Section

action includes “bonds and notes of all 1101(a)(43)(G), term of imprisonment of

classes.” Wharton’s Criminal law, supra, § at least one year. Here it is stipulated that

876, at 62. A chose-in-action is defined as Nugent’s state conviction was based on a

“[a] right to receive or recover a debt, or bad check amounting to only $4,831.26,

money, or damages for breach of contract, and therefore Nugent’s conviction could

or for a tort connected with contract, but not be an aggravated felony if Section

which cannot be enforced without action,” 1101(a)(43)(M)(i) applies.

and includes “a check on a bank.” See 1

And the distinction is especially

Bouvier’s Law Dictionary 483 (8th ed.

critical to Nugent because if we determine

1914).

that both the district court in the habeas

We must conclude then that a bank corpus proceeding and the IJ in the

17

removal proceeding erred in concluding The term “offense” means “[t]he

that his state offense amounted to an doing that which a penal law forbids to be

aggravated felony under the INA, then, as done, or omitting to do what it

we have emphasized previously, Nugent commands.” Bouvier’s Law Dictionary

will be able to apply for cancellation of 2399 (3rd ed. 1914).

removal pursuant to 8 U.S.C. § 1229b.

In comparing these two subsections

Conviction of an “aggravated felony”

of Section 1101(a)(43), we are struck by

prohibits such relief. See 8 U.S.C. §

several distinctions. First, we note that (G)

1229b(a)(3).

is limited to “a theft offense;” second, in

For the reasons that follow, we are (M), Congress uses the broader term “an

persuaded that Appellant is correct in his offense” (as does every other 14 different

contention that he was not guilty of an offenses set forth in (43) (E), (H) through

aggravated felony when he was convicted (L) and (N) through (U);3 third, (M) and

of Pennsylvania’s statutory offense of theft the laundering money offense (D) are the

by deception in which the victims’ loss did only offenses listed in Section (43) that set

not exceed $10,000. a minimum amount of damages that must

be proved before the offense may qualify

XII.

as an “aggravated felony.”

Title 8 U.S.C. § 1101(a) provides:

These distinctions are significant.

(43) The term ‘aggravated felony’ It could be that because all other offense

means –

(G) a theft offense (including

3

receipt of stolen property) or Offenses relating to explosive

burglary offense for which the term materials, firearms, violence, demand for

of imprisonment [is] at least one receipt of ransom, child pornography,

year. 8 U.S.C. § 1101(a)(43)(G); racketeering influenced corrupt

organizations, gambling, prostitution,

peonage, slavery or involuntary

[and] servitude, misuse of national defense

information, alien smuggling, smuggling,

failure to appear for service of a

(M) an offense that – (i) involves sentence, bribery, counterfeiting, forgery,

fraud or deceit in which the loss to trafficking in altered vehicle

the victim or victims exceeds identification numbers, obstruction of

$10,000[.] 8 U .S.C . § justice, perjury or subornation of perjury,

1101(a)(43)(M)(i) bribery of a witness, failure to appear

before a court on a felony charge, an

attempt or conspiracy to commit an

offense described in § 1101(a)(43).

18

portions of Section 1101(a)(43) are listed Accordingly, we must decide in favor of

in the universal form “offense” rather than the Appellant because the property loss

the limited or particular form “theft involved was less than the statutory

offense,” that Congress intended that minimum.

Subsection M(i) apply only to theft

A.

offenses. Indeed, a case could be made

that was its intention. This view would First, the logicians teach us that a

find support in the rules of logic discussed term, such as “an offense” as contained in

heretofore in the distinctions between Section 1101(a)(43)(M) or “a theft

universal and particular propositions, and offense” as in Section 1101(a)(43)(G), is

distributed and undistributed terms. In any said to have both a quality and a quantity.

event, for our immediate purposes, it is not Here we are concerned with quantity. The

necessary for us to decide how many of the quantity of a proposition is universal or

other 14 offenses listed in Section particular according to whether the

1101(a)(43), if any, are limited by proposition refers to all members of a class

Subsection M(i). And we expressly do not or to some members of the class

do so. Suffice it to say, we decide here designated by its subject term. In the case

only that M(i) clearly applies to those of (M) we have a term representing all

“theft offenses” under Subsection (G) that members of a class – “an offense.”

are anchored on “fraud or deceit.”

When a term contains no

In the view we take we therefore restrictions (as in (M) – “an offense”),

reject the “either-or” arguments advanced logicians refer to it as “distributed,” and

by the parties. We reject the government’s the proposition of which it is the subject as

contention that the naked language of “universal” and is a class. In the universe

Subsection (G) compels a conclusion that of offenses set forth in Section

Nugent committed an “aggravated felony” 1101(a)(43), however, the term “theft

as defined by Section 1103(a)(43) of the offense” in (G) is predicated on some, but

INA; and also reject Nugent’s argument not all, of the distributed term “an offense”

that Subsection (G) does not apply, that he in (M), and is therefore considered as

did not commit a theft, but only an offense “undistributed” and is a subclass. The

involving fraud or deceit under Subsection proposition of which it is the subject is

(M)(i). denoted as a “particular.” See Ruggero J.

Aldisert, Logic for Lawyers: A Guide to

Instead, we hold that Congress’

Clear Legal Thinking 57-59 (3rd ed.

intent was for both G and M (i) to apply to

1997); Irving M. Copi, Introduction to

an “offense” involving “theft” and “fraud

Logic 173 (7th ed. 1986). Expressed in

or deceit,” and thus the requirements of

less technical phrasing: “All theft offenses

both provisions must be fulfilled for such

are offenses, but not all offenses are theft

an offense to qualify as an aggravated

offenses.”

felony for purposes of the INA.

19

We are taught that conclusions in Depriving another of property by

all reasoning, including legal reasoning, fraud or deceit is an offense (M).

deductive or inductive analogy, “derive[]

their validity from the axiom known as the

dictum de omni et nullo, which states: The offense of theft by deception

“What is true of the universal (or class) is deprives another of property by

true of the particular (or subclass).” theft (G).

Joseph Gerard Brennan, A Handbook of

Logic 64 (1957); see also Ralph M. Eaton,

General Logic 97 (1931). This is an axiom Therefore, the offense of theft by

concerning all or none in its class. It was deception is an offense under (M)

first established by Aristotle, but in today’s and (G).

legal reasoning it is the unstated linchpin

in formulating the major premise in every

categorical deductive syllogism that

lawyers use in their briefs, and judges in *****

their opinions. The axiom may also be

stated as: If every member of a class has

(or does not have) a certain property, and The offense of theft by deception is

if certain individuals are included in that an offense under (M) and (G).

class, then these individuals have (or do

not have) the property. See L.S. Stebbing,

A Modern Introduction to Logic 86 (6th A violation of Pennsylvania’s theft

ed. 1948) (“[t]hat one term should be by deception statute, § 3922, is an

included in another as in a whole is the offense of theft by deception.

same as for the other to be predicated of all

of the first”) (quoting Aristotle, Anal.

Priora, 24(b) 26-30). T h e r e f o re , a v i o l a t io n o f

Pennsylvania’s theft by deception

We believe, therefore, that the

statute, § 3922, is an offense under

logical framework used to support the

(M) and (G).

conclusion we reach can be set forth in the

following polysyllogism:4

4

A polysyllogism is defined as “a

series of syllogisms in which the

conclusion of one becomes the premise prosyllogism; a syllogism in which one

of the next. In such a series the syllogism premise is the conclusion of a preceding

whose conclusion becomes the syllogism is call an episyllogism.” Logic

succeeding premise is called the for Lawyers, supra, at 64.

20

With the foregoing as our analytical designedly, by false pretense or pretenses,

guide, we now proceed to evaluate the shall obtain from any person or persons,

elements of Sections 1101(a)(43)(G) and money, goods, wares or merchandises,

(M)(i) of the INA and those of the with intent to cheat or defraud any person

Pennsylvania theft by deception statute, 18 or persons of the same.” Accordingly, we

Pa. Cons. Ann. Stat. § 3922. It is beyond believe that when Congress defined a

cavil that the particular or subclass particular species of aggravated felony in

Pennsylvania statute under which Nugent Section 1101(a)(43)(M)(i) as “an offense

was convicted falls within the purview of that . . . involves fraud or deceit” it had in

“a theft offense (including receipt of stolen mind, inter alia, the statutory offense of

property) or burglary offense for which the false pretenses.

term of imprisonment [is] at least one

The Pennsylvania’s theft by

year.” 8 U.S.C. § 1101(a)(43)(G). The

deception statute under which Nugent was

sole question for decision is whether

convicted provides in part:

Pennsylvania’s theft by deception statute,

w h i c h is subs um ed in S ectio n (a) Offense defined – A person is

1101(a)(43)(G) as a particular “theft guilty of theft if he intentionally

offense,” also comes within the universal obtains or withholds property of

(or class) nature of “an offense” bottomed another by deception. A person

on fraud or deceit under Section deceives if he intentionally:

1101(a)(43)(M)(i). We hold that it does.

B.

(1) creates or reinforces a false

First, under the teachings of Bell, we impre s s i o n , i n c l u d ing f alse

decide that in drafting the INA, Congress impressions as to law, value,

recognized the distinction in theft offenses intention or other state of mind; but

coming within the common law offense of deception as to a person’s intention

larceny and the statutory offense of false to perform a promise shall not be

pretenses. It recognized that larceny inferred from the fact alone that he

required a taking (caption) and carrying did not subsequently perform the

away (asportation) of another’s property. promise . . . .

A taking occurs when the offender secures

dominion over the property, and a carrying

away requires slight movement away of 18 Pa. Cons. Stat. Ann. § 3922. In

the property. LaFave, supra, at 74. evaluating this statute, we turn to relevant

Congress knew that the offense of false provisions and the ALI’s accompanying

pretenses was not known at common law, commentary of the Code. We are obliged

and that it is statutory in nature and stems to do this because 18 Pa. Cons. Stat. Ann.

from 30 Geo II, c. 24 (1757), which § 3922, theft by deception, was adopted by

punishes one who “knowingly and the Pennsylvania legislature word for word

21

from Code § 223.3, theft by deception. cheat or wrongfully deprive another of his

property by deception or artifice.” United

Examining the o ff i c ia l

States v. Thomas, 315 F.3d 190, 200 (3d

commentaries of the ALI relating to §

Cir. 2002) (internal quotations and citation

223.3, we are informed that this section

omitted); see also United States v.

“covers that portion of the consolidated

Summers, 19 F.2d 627 (W.D. Va. 1927)

offense of theft that derives from the

(“The word ‘fraud,’ as commonly used,

traditional offense of obtaining property by

implies deceit, deception, artifice,

false pretenses . . . [which] is statutory in

trickery.”). Ballentine defines “deceit” as

origin. It stems from 30 Geo 2, ch. 24

“[a] species of fraud; actual fraud

(1757).” ALI, Model Penal Code and

consisting of any false representation or

Commentaries, § 223.3 Theft by

contrivance whe r e by one person

Deception, 180 and n.1 (1980). The ALI

overreaches and misleads another to his

makes clear that “theft by deception” states

hurt.” Ballentine, supra, at 335. By its

the elements of the statutory offense of

very language, the Pennsylvania statute is

false pretenses. Moreover, the

bottomed on “fraud” and “deceit.”

commentaries indicate that many states

have adopted § 223.3 and many other This, too, must be said. In

states have enacted statutes that also commentary accompanying the proposed

describe false pretenses as “theft.” official draft of the Code dealing with

“Bad Checks,” § 224.5, the ALI stated:

It is significant that in the very

“[I]f the check is over $500.00, the passer

language of Pennsylvania’s theft by

could be prosecuted for felonious theft by

deception statute, various forms of the

deception, under Sections 223.1(2) and

word “deceive” appear in five places;

223.3.” ALI, Model Penal Code, Reprint

“false impression,” in three places.

– Proposed Official Draft (May 4, 1962).

Supporting our conclusion that a

Moreover, in the Official Comment to the

Pennsylvania theft by deception offense

Pennsylvania bad checks statute, 18 Pa.

falls within the purview of Section

Cons. Stat. Ann § 4105, we are told: “A

1101(a)(43)(M)(i) of the INA are accepted

person who passes a bad check could be

definitions of the words “fraud” and

prosecuted for theft by deception under

“deceit” as used in that provision. Fraud

Section 3922.” As in 18 U.S.C. §

has been defined as “conduct which

1103(a)(43)(M)(i), the structure of

operates prejudicially on the rights of

Pennsylvania’s theft by deception statute

others, and is so intended; deception

includes a minimum amount of damages to

practiced to induce another to part with

qualify as an elevated offense.

property, or surrender some legal right,

and which accomplished the end desired.” The final reason, and not the least

James Ballentine, Law Dictionary with important, why we believe that Congress

Pronunciations 526 (1930). “In common intended to import the provisions of (M)(i)

parlance, the word ‘defraud’ means to into the “theft offenses” of (G) is that were

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we not to consider “theft offenses” as a contemporary’ definitions” found in the

subclass of “an offense that . . . involves C o d e , a s a d op te d ve rb a ti m by

fraud or deceit,” the application of (M)(i) Pennsylvania’s legislature, supply the

would be seldom invoked. Moreover, meaning that “best accords with the

were it not for the $10,000 loss limitation overall purposes of the statute.” 240 F.3d

of (M)(i), then in those jurisdictions like at 249 (internal quotation and citations

Pennsylvania that hold that a person who omitted). We determine that although an

passes a bad check of a modest amount offense under the Pennsylvania statute is a

could be convicted of theft by deception, “ the f t of f e nse ” so tha t Sectio n

we would be faced with the anomalous 1101(a)(43)(G) applies, because the state

situation that the minor offense would be statute is bottomed on “fraud or deceit,”

considered an aggravated felony. the offense mu st also m eet the

requirements of Section 1101(a)(43)(M )(i)

For all of these reasons, we

to qualify as an aggravated felony under

conclude that a conviction under

the INA. We accordingly conclude that

Pennsylvania’s theft by deception statute is

Nugent’s bad checks transaction for which

the type of offense that comes within 8

he was convicted under Pennsylvania’s

U.S.C. § 1101(a)(43)(M)(i), “an offense

theft by deception statute does not qualify

that . . . involves fraud or deceit,” albeit it

as an aggravated felony as defined by the

t o o c o m e s w i t h in 8 U .S .C . §

INA, because although the term of

1101(a )(43)(G), “a theft offense.”

imprisonment imposed on Nugent was one

Because the particular Pennsylvania statute

year or more, the victims’ loss did not

is designed entirely on all-embracing

exceed $10,000.

concepts of fraud or deceit – various forms

of the word “deceive” appear five times Accordingly, we will dismiss the

and “false impression” three times – it is petition for review at No. 02-0329 for lack

precisely the particular type of theft of jurisdiction. In the appeal at No. 04-

contemplated in the universal class of 1541, for reasons other than those stated

offenses set forth in the fraud or deceit by the district court as set forth above, we

Subsection 1101(a)(43)(M)(i). We will affirm the judgment of the district

therefore apply the axiom de omni et court without prejudice to the Appellant to

nullo: what is true of the universal (or apply to the Attorney General for

class) in § 1101(a)(43)(M)(i) is true for the cancellation of the removal order pursuant

p a r t ic u l a r ( o r s u b c l a s s ) i n § to 8 U.S.C. § 1229b.5

1101(a)(43)(G).

***** 5

Title 8 U.S.C. § 1229b(e) limits

In reaching our ultimate conclusion, the number of actions by the Attorney

therefore, we follow the teachings of General that cancel the removal or

Drakes and conclude that “more ‘generic, adjusts the status of aliens under section

1229b.

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Rendell, Circuit Judge - Concurring.

I am pleased to join in the majority’s

scholarly opinion. As amply demonstrated

by the majority’s historical exegesis, theft

by deception is a hybrid crime that is both

a theft offense, 8 U.S.C. § 1101(a)(43)(G),

and an offense involving fraud or deceit, 8

U.S.C. § 1101(a)(43)(M)(i). Therefore, in

order to qualify as an aggravated felony, it

must be shown that Nugent’s conviction

for theft by deception qualifies under the

statutory definitions for both theft offenses

and fraud/deceit offenses. I think this is

necessary to carry out Congress’s intention.

Nugent’s conviction was for an offense

that involved deceit resulting in a loss of

less than the $10,000 minimum set forth in

(M)(i). However, while I applaud Judge

Aldisert’s logical tour de force in devising

a way to reason to this conclusion under

the statute, I write separately to stress that

this logic should not compel that we

combine definitions within this section, as

a general rule. Rather, only where an

offense is a hybrid—as I submit theft by

deception is—and the aggravated felony

classifications contain two distinct, clearly

applicable tests, should we conclude that

both must be fulfilled in order for the

offense to qualify as an aggravated felony.

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