The opinion
Cite as 28 I&N Dec. 52 (A.G. 2020) Interim Decision #3992
Matter of Onesta REYES, Respondent
Decided by Attorney General July 30, 2020
U.S. Department of Justice
Office of the Attorney General
(1) If all of the means of committing a crime, based on the elements of the statute of
conviction, amount to one or more of the offenses listed in section 101(a)(43) of the
Immigration and Nationality Act, 8 U.S.C. §1101(a)(43), then an alien who has been
convicted of that crime has necessarily been convicted of an aggravated felony for
purposes of the INA.
(2) The respondent’s conviction for grand larceny in the second degree under New York
Penal Law § 155.40(1) qualifies as a conviction for an aggravated felony for
purposes of the INA. DHS charged that the respondent had been convicted of either
aggravated-felony theft or aggravated-felony fraud, as defined in section 101(a)(43)(G)
and (M)(i) of the INA, 8 U.S.C. § 1101(a)(43)(G) and (M)(i). Larceny by acquiring lost
property constitutes aggravated-felony theft, and the parties do not dispute that the other
means of violating the New York statute correspond to either aggravated-felony theft or
aggravated-felony fraud.
BEFORE THE ATTORNEY GENERAL
On November 21, 2019, I directed the Board of Immigration Appeals
(“Board”) to refer this case to me for review. I also invited the parties and
interested amici to brief the question whether an alien who has been
convicted of a criminal offense necessarily has been convicted of an
aggravated felony for purposes of section 237(a)(2)(A)(iii) of INA, 8 U.S.C.
§ 1227(a)(2)(A)(iii), where all of the elements of the statute of conviction,
and thus all of the means of committing the offense, correspond either to an
aggravated-felony theft offense, as defined in section 101(a)(43)(G) of the
INA, 8 U.S.C. § 1101(a)(43)(G), or to an aggravated-felony fraud offense, as
defined in section 101(a)(43)(M)(i) of the INA, 8 U.S.C.
§ 1101(a)(43)(M)(i). Matter of Reyes, 27 I&N Dec. 708 (A.G. 2019).
For the reasons set forth in the accompanying opinion, I vacate the
Board’s order affirming the termination of the removal proceeding and
dismissing the appeal. I conclude that an alien’s prior conviction is for an
aggravated felony where all of the elements of the statute of conviction, and
thus all of the means of committing the offense, correspond to at least one of
the aggravated-felony offenses specified in section 101(a)(43) of the INA. I
abrogate any decision of the Board inconsistent with the accompanying
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opinion and remand this matter to the Board for further proceedings
consistent with the opinion.
The Immigration and Nationality Act (“INA”) makes removable any
alien who is convicted of an “aggravated felony” after admission into the
United States. INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). It
defines “aggravated felony” to include many generic offenses, such as
murder, theft, and burglary. INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).
These offenses are generic in the sense that they are not themselves crimes,
but instead descriptions intended to capture violations of federal, state, and
foreign criminal codes. In deciding whether an alien has been convicted of
an aggravated felony, then, it is necessary to determine whether the particular
offense of conviction corresponds to one or more of the generic offenses
listed in the INA’s definition.
The Supreme Court has held that making this determination generally
requires resort to an analytical technique called the “categorical approach.”
E.g., Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). The categorical
approach disregards “the facts of the particular prior case.” Id. (internal
quotation marks omitted). Instead, it typically focuses on the elements of the
statute of conviction to see if they categorically map on to the elements of an
aggravated felony charged in the immigration proceeding, so that all of the
means of committing the underlying offense necessarily constitute
commission of that aggravated felony. See id. An alien is removable based
on a prior conviction “only if” the underlying offense “necessarily involved
. . . facts equating to” commission of an aggravated felony. Id. (internal
quotation marks omitted).
The categorical approach can generate significant questions concerning
whether a particular offense of conviction corresponds with a generic offense
included in the INA’s definition of “aggravated felony.” Here, the
Department of Homeland Security (“DHS”) initiated a removal proceeding
against the respondent on account of her conviction for grand larceny in the
second degree in violation of New York Penal Law § 155.40(1). DHS
contends that the respondent’s conviction meets the definition of theft,
8 U.S.C. § 1101(a)(43)(G), or of fraud, id. § 1101(a)(43)(M)(i). In DHS’s
view, the state-law crime of which the respondent was convicted necessarily
constitutes either aggravated-felony theft or aggravated-felony fraud.
The respondent moved to terminate the proceeding. She did not
contest in the immigration courts that she had been convicted of either
aggravated-felony theft or aggravated-felony fraud—that is, she did not
dispute that her violation of the New York statute necessarily involved facts
meeting the definition of an aggravated felony under one of the two
generic offenses. But the respondent argued that she is not removable
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because her offense of conviction does not categorically map on to either
aggravated-felony theft or aggravated-felony fraud, taken individually. The
immigration judge accepted respondent’s argument and terminated the
proceeding. The Board of Immigration Appeals (“Board”) affirmed,
agreeing that it may compare the elements of the statute of conviction only
“to one of the generic crimes listed in [section 101(a)(43)] at a time.” Matter
of Reyes, A031 123 346, slip op. at *7 (BIA Apr. 24, 2019).
The respondent does not explain why she should avoid removal simply
because both the immigration judge and the Board could not settle on which
one of two aggravated felonies she had committed. And I do not believe that
either the INA or the Supreme Court’s precedent requires such a result. If
all of the means of committing a crime, based on the elements of the statute
of conviction, amount to one or more of the offenses listed in section
101(a)(43) of the INA, then an alien who has been convicted of that crime
has necessarily been convicted of an aggravated felony as that term is defined
in the INA. Accordingly, I vacate the decision below and remand to the
Board for further proceedings.
I.
The INA imposes immigration-related consequences on any alien who is
convicted of certain serious crimes. As relevant here, “[a]ny alien who is
convicted of an aggravated felony at any time after admission” is removable
from the United States. 8 U.S.C. § 1227(a)(2)(A)(iii). In addition, an alien
convicted of an aggravated felony is not eligible for certain forms of
discretionary relief, such as asylum, cancellation of removal, and voluntary
departure. See id. § 1158(b)(2)(A)(ii), (B)(i); id. § 1229b(a)(3), (b)(1)(C);
id. § 1229c(b)(1)(C).
Section 101(a)(43) of the INA defines “aggravated felony” to mean any
of a long list of serious offenses spelled out across subparagraphs (A) through
(T), id. § 1101(a)(43)(A)–(T), and any “attempt or conspiracy to commit an
offense described in” the foregoing provisions, id. § 1101(a)(43)(U). Some
of the subparagraphs list familiar crimes, such as “murder,” “rape,” and
“burglary.” Id. § 1101(a)(43)(A), (G). Other subparagraphs define
categories of offenses through cross-references to various provisions of the
U.S. Code, e.g., id. § 1101(a)(43)(B) (“illicit trafficking in a controlled
substance (as defined in section 802 of Title 21)”), or capture offenses that
relate to or involve particular conduct, e.g., id. § 1101(a)(43)(K)(i) (“an
offense that . . . relates to the owning, controlling, managing, or supervising
of a prostitution business”). The offenses in section 101(a)(43) are not
themselves substantive crimes, but rather descriptions of crimes that may be
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committed under federal, state, and foreign law. See id. § 1101(a)(43) (“The
term [‘aggravated felony’] applies to an offense described in this paragraph
whether in violation of Federal or State law and applies to such an offense in
violation of the law of a foreign country for which the term of imprisonment
was completed within the previous 15 years.”).
When DHS seeks to remove an alien based on a conviction for an
aggravated felony, it ordinarily charges the alien with having been convicted
of one or more of the offenses listed in section 101(a)(43). Under the
“categorical approach” that applies to most aspects of the aggravated-felony
definition, DHS generally must show that the elements of the offense of
which the alien has been convicted match those of at least one of the offenses
listed in section 101(a)(43). It does not matter what “label [is] assign[ed] to
a crime” or “the means by which the defendant, in real life, committed his
crime[].” Mathis v. United States, 136 S. Ct. 2243, 2251 (2016). Instead,
DHS generally must show that the elements of the statute of conviction
categorically map onto those of a listed offense in order to establish that the
conviction necessarily amounted to the commission of an aggravated felony.
See Moncrieffe, 569 U.S. at 190 (“[W]e examine what the state conviction
necessarily involved, not the facts underlying the case[.]”); see also Shular
v. United States, 140 S. Ct. 779, 783 (2020) (explaining that the analysis
requires either defining and comparing “offense elements” or determining
“whether the conviction meets some other [statutory] criterion”). If the fact
of conviction does not establish a conviction for an aggravated felony, then
DHS may not rely upon that conviction as a basis for removal. 1
In this case, the particular types of offenses at issue are aggravated-felony
theft, which is defined as “a theft offense (including receipt of stolen
property) . . . for which the term of imprisonment [is] at least one year,”
8 U.S.C. § 1101(a)(43)(G), and aggravated-felony fraud, which is defined as
“an offense . . . that involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000,” id. § 1101(a)(43)(M)(i). The Board has
previously examined the line between theft and fraud. In Matter of
Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008), the Board concluded that
“[t]he key and controlling distinction between these two crimes is . . .
the ‘consent’ element.” Id. at 439 (internal quotation marks omitted).
Aggravated-felony theft entails “the taking of, or exercise of control over,
1
The Supreme Court has rejected the view that the conviction must establish the
commission of an aggravated felony to a logical certainty and requires instead that there
be “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 v. Duenas-Alvarez,
549 U.S. 183, 193 (2007).
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property without consent whenever there is criminal intent to deprive the
owner of the rights and benefits of ownership, even if such deprivation is less
than total or permanent.” Id. at 440–41 (emphasis added). Aggravated fraud,
by contrast, involves a taking “with consent that has been fraudulently
obtained.” Id. at 440 (emphases added); see also id. at 439 (“in a fraud
scheme, the owner has voluntarily ‘surrendered’ his property, because of an
‘intentional perversion of truth,’ or otherwise ‘act[ed] upon’ a false
representation to his injury”) (internal quotation marks omitted). The Board
has therefore concluded that theft and fraud are mutually exclusive.
II.
The respondent, a native and citizen of Italy, was admitted to the United
States in 1972 as a lawful permanent resident. In 2014, she pleaded guilty to
grand larceny in the second degree under New York Penal Law § 155.40(1).
She was convicted and sentenced to a term of one to three years’
imprisonment.
In 2015, DHS began a removal proceeding based upon the respondent’s
2014 conviction. DHS specified in the Notice to Appear that the conviction
qualified as a theft offense under section 101(a)(43)(G). Two weeks later,
DHS changed course and instead described the conviction as a fraud offense
under section 101(a)(43)(M)(i). Then, on the eve of a scheduled hearing,
DHS identified theft as an additional charge to fraud. See 8 C.F.R. § 1003.30
(“At any time during deportation or removal proceedings, additional or
substituted charges of deportability and/or factual allegations may be lodged
by [DHS] in writing.”). DHS explained that “research and consideration
of where the law stands on this issue makes the Government believe
that both charges may be correct.” Matter of Reyes, Hearing Transcript
at *32 (Immig. Ct. July 14, 2015). DHS thus chose to pursue both
aggravated-felony offenses in the removal proceeding.
The respondent moved to terminate the proceeding. Because New York
law defines larceny to include both a taking of property without consent and
one where consent was fraudulently obtained, see infra Part III.B, the
respondent argued that the statute of conviction is not a categorical match to
either aggravated-felony theft or aggravated-felony fraud. Even if the New
York offense must constitute either theft or fraud, she contended, the
immigration judge could not determine using the categorical approach the
one particular aggravated felony that she had committed. Therefore, she
argued, her larceny conviction could not support her removal.
The immigration judge granted the motion to terminate. The immigration
judge concluded that the New York statute defines a single crime that “is
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much broader than either of the charges brought by the Government.” Matter
of Reyes, Order on Motion to Terminate at *4 (Immig. Ct. July 28, 2015).
After DHS appealed, the Board invited the parties and interested amici to
submit supplemental briefs addressing “[w]hether DHS can establish
removability by charging an alien as an aggravated felon under two separate
aggravated felony definitions, neither of which would independently be a
categorical match to the statute of conviction, if all means of violating the
statute fall within at least one of the charged aggravated felony definitions.”
Letter for Michael Zamel Goldman, Esq., from Rebecca Noguera, Appeals
Examiner, Board of Immigration Appeals (Jan. 24, 2018). The Board also
invited supplemental briefing on the question “[w]hether all means of
violating New York Penal Law § 155.05 would meet the definition of an
aggravated felony as defined in either section 101(a)(43)(G)
[aggravated-felony theft] OR section 101(a)(43)(M) [aggravated-felony
fraud].” Id.
In April 2019, the Board affirmed the termination of the removal
proceeding in a split unpublished decision. The Board “assume[d] without
deciding” that all of the means of committing larceny under the New York
statute amount either to aggravated-felony theft or aggravated-felony fraud.
See Reyes, slip op. at *3 n.4. But the majority concluded that because the
statute reaches both takings without consent and those with fraudulently
obtained consent, it is “overbroad relative to the definition of a theft offense
at section 101(a)(43)(G)” and “overbroad relative to the definition of ‘fraud
or deceit’ at section 101(a)(43)(M)(i).” Id. at *3. The majority explained
that “neither the Supreme Court nor the circuit courts have used the
categorical approach to determine whether an alien has been convicted of an
‘aggravated felony’ by looking to multiple definitions listed in section
101(a)(43) in combination.” Id. at *6–7. Therefore, the majority surmised,
“we may only compare the State crime to one of the generic crimes listed in
that section at a time.” 2 Id. at *7.
One Board member dissented, asserting that the majority’s approach
yielded a “patently absurd result.” Id. at *11 (O’Connor, dissenting). He
described the categorical approach as a “tool for discerning what crime an
alien was necessarily convicted of,” id. at *10 (internal quotation marks and
2
There is no dispute about the $10,000-loss requirement of section 101(a)(43)(M)(i), or
about the term-of-imprisonment requirement of section 101(a)(43)(G), which, in any event,
can be proved with evidence other than the offense elements, see Nijhawan v. Holder, 557
U.S. 29, 40 (2009). Respondent was convicted under New York Penal Law § 155.40(1),
which requires that the value of the property “exceed[] fifty thousand dollars,” and was
sentenced to between one and three years’ imprisonment.
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emphasis omitted), and reasoned that “[w]hile there may be uncertainty over
whether the respondent was convicted of a theft offense or a fraud offense,
there can be no uncertainty that she was convicted of an aggravated felony
offense,” id. “[T]hat ends the analysis,” the dissent concluded, because
section 237(a)(2)(A)(iii) of the INA makes removable any alien who is
convicted of any aggravated felony. Id. at *11.
In November 2019, I directed the Board to refer this case to me for review
and invited supplemental briefing from the parties and interested amici on
the question whether an alien who has been convicted of a criminal offense
necessarily has been convicted of an aggravated felony where all of the
elements of the statute of conviction—and thus all of the means of
committing the offense—correspond either to aggravated-felony theft or to
aggravated-felony fraud. Matter of Reyes, 27 I&N Dec. 708 (A.G. 2019).
For the reasons explained below, I conclude that the respondent’s 2014
conviction for grand larceny under New York law is necessarily a conviction
for an aggravated felony as defined in section 101(a)(43) of the INA.
III.
The INA provides that an alien who is convicted of an “aggravated
felony” is removable from the United States. 8 U.S.C. § 1227(a)(2)(A)(iii).
DHS charged that the respondent had been convicted of either
aggravated-felony theft or aggravated-felony fraud, and the Board assumed
that was the case. The Board nonetheless concluded that the respondent is
not removable, because it could not determine using the categorical approach
which one of the two aggravated felonies matches the respondent’s offense
of conviction.
No doubt the categorical approach, by ignoring the respondent’s
real-world offense, may sometimes lead to bizarre results. See, e.g., Mathis,
136 S. Ct. at 2255–56 (acknowledging the “oddities” and “counter-intuitive
consequences” that may result); United States v. Chapman, 866 F.3d 129,
136 (3d Cir. 2017) (en banc) (Jordan, J., concurring) (lamenting that the
approach “require[s] judges to ignore the real world”); United States v. Faust,
853 F.3d 39, 61 (1st Cir. 2017) (Lynch, J., concurring) (noting
“counterintuitive results”). Indeed, the categorical approach has proven to
be particularly disruptive to the immigration system, because in a number of
cases it has prevented the removal of aliens who have unquestionably been
convicted of serious crimes, all because of the manner in which a state
legislature has phrased a particular criminal statute or a state court has
interpreted its elements. See, e.g., Amos v. Lynch, 790 F.3d 512 (4th Cir.
2015) (holding that an alien’s conviction under Maryland law for sexually
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abusing a five-year-old boy did not qualify as a conviction for “sexual abuse
of a minor,” 8 U.S.C. § 1101(a)(43)(A)); see generally United States
v. Burris, 912 F.3d 386, 408 (6th Cir.) (Thapar, J., concurring) (likening the
categorical approach to a “lottery” or “game of chance,” in which the
outcome “depends on how a state legislature and its judiciary have defined
and interpreted [a] crime”). A test that produces outcomes that seem random
or disconnected from reality can undermine the rule of law. But the Supreme
Court has spoken. Here, even accepting as I must the limitations of the
categorical approach, I believe that the Board’s wooden application of it in
this context conflicts with common sense and was not required by the
governing precedent.
A.
Although it is necessary to determine whether the underlying statute of
conviction meets the INA’s definition of an aggravated felony, see, e.g.,
Moncrieffe, 569 U.S. at 191, nothing in the INA requires that the elements of
a statute of conviction correspond to one and only one offense listed in
section 101(a)(43). Where it is known to a practical certainty that an alien
has been convicted of at least one such offense, the conviction qualifies, even
if the categorical approach does not permit a conclusive determination about
which one (here, theft or fraud).
The respondent argues that she “is aware of no precedent standing for the
principle that removability may be established through the application of
multiple aggravated felony definitions,” and therefore an underlying
conviction must correspond to one and only one type of aggravated felony.
Respondent’s Memorandum of Law in Response to Attorney General’s
Invitation to Submit Brief at 5 (Dec. 18, 2019) (“Respondent’s Br.”). The
Board likewise viewed DHS as proposing a “novel methodology” where two
types of aggravated felonies could be aggregated together. Reyes, slip op. at
*5. Amici who filed briefs in support of the respondent go further and
read the universe of cases applying the categorical approach to demand a
“one-to-one” comparison between the underlying criminal statute and a
single generic offense. E.g., Brief of the National Immigration Project of the
National Lawyers Guild et al., at 4 (Jan. 15, 2020).
I am not persuaded by these arguments. The cases on which the Board
and the amici rely, involving a one-to-one comparison of underlying criminal
statute and aggravated felony, reflect the fact that in each of those cases, the
government had charged only a single aggravated felony (or other type of
generic offense). None of the cases holds that a court is required to compare
the alien’s underlying crime to one, and only one, generic offense at a time.
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Moreover, before the Supreme Court’s decisions in Mathis and Descamps
v. United States, 570 U.S. 254 (2013), courts more routinely considered the
records of the earlier criminal proceeding to obtain a better understanding of
the nature of the underlying crime. Such a measure would likely have made
it easier to determine which one of two (or more) potentially applicable
aggravated felonies applied. Although the Court in those decisions
emphasized that consideration of the trial-court record is restricted, that does
not mean that an alien who indisputably was convicted of an aggravated
felony may evade that conclusion simply because there is a lack of clarity
about which aggravated felony the conviction reflects.
This understanding finds support in how the Ninth Circuit addressed a
similar issue when applying the categorical approach to a provision of the
federal Sentencing Guidelines. In United States v. Becerril-Lopez, 541 F.3d
881 (9th Cir. 2008), the court analyzed whether an alien’s conviction under
a California statute qualified as a “crime of violence” under the commentary
to section 2L1.2 of the Guidelines. At the time, the commentary defined
“crime of violence” to include “robbery” or “extortion.” U.S. Sentencing
Guidelines Manual § 2L1.2 cmt. n.1.B.iii (2005). Applying the categorical
approach, the court held that the California statute defined a crime of
violence because all of the means of committing the underlying offense
corresponded to the essential elements of either robbery or extortion. See
Becerril-Lopez, 541 F.3d at 892 (“[I]f a conviction under Cal. Penal Code
§ 211 involved a threat not encompassed by generic robbery, it would
necessarily constitute generic extortion and therefore be a ‘crime of violence’
under U.S.S.G. § 2L1.2.”). In United States v. Chaves-Cuevas, 862 F.3d 729
(9th Cir. 2017), the court confirmed the continuing validity of this approach,
explaining that “the categorical approach in Becerril-Lopez was not a
conduct-based analysis” of the sort barred by Mathis and Descamps because
Becerril-Lopez “focused squarely on the elements of California robbery and
the relevant generic offenses and not on a particular defendant’s conduct.”
Id. at 740.
The Board dismissed Becerril-Lopez on the ground that the decision
involved an interpretation of the Sentencing Guidelines rather than the INA.
See Reyes, slip op. at *6. But when the categorical approach applies to an
inquiry about whether a conviction meets a definition, it does not matter
whether the definition appears in the INA, a criminal statute, or the
Sentencing Guidelines. The Supreme Court accordingly has observed that it
has “appl[ied] the categorical approach set forth in [a criminal case] to the
INA.” Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017)
(describing Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007)); see also
Kawashima v. Holder, 565 U.S. 478, 483 (2012) (same). In fact, the Ninth
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Circuit in Becerril-Lopez treated both immigration and criminal decisions as
relevant precedents when explaining the categorical approach. See
Becerril-Lopez, 541 F.3d at 890 (quoting Duenas-Alvarez and citing criminal
cases).
The Board further suggested that Becerril-Lopez was “no longer good
law” in the Ninth Circuit. Reyes, slip op. at *6 n.7. But that decision was
superseded only because of subsequent amendments to the Sentencing
Guidelines, which rendered the California statute overbroad relative to the
new definition of “crime of violence.” See United States v. Bankston,
901 F.3d 1100, 1104 (9th Cir. 2018) (“Under Amendment 798,
Guidelines-defined extortion does not criminalize extortion committed by
threats to property; California robbery does. California robbery is thus no
longer a categorical match to a combination of Guidelines-described robbery
and extortion, and Becerril-Lopez’s holding to the contrary no longer
controls.”). The fact that the Sentencing Commission amended the definition
in a way that upset the specific result in Becerril-Lopez simply has no bearing
on that case’s sensible conclusion that, where all of the means of committing
an offense correspond to one or the other of two different crimes of violence,
then a conviction for the offense necessarily counts as a conviction for a
crime of violence.
The Board also rejected Becerril-Lopez’s approach on the ground that it
would effectively create a “hybrid” aggravated felony of theft/fraud, which
would be similar to the “hybrid offense theory” that the Third Circuit has
repudiated. See Al-Sharif v. U.S. Citizenship and Immigration Services, 734
F.3d 207 (3d Cir. 2010) (en banc) (overruling Nugent v. Ashcroft, 367 F.3d
162 (3d Cir. 2004)). In Nugent, the Third Circuit determined that a
Pennsylvania statute criminalizing theft by deception constituted a “hybrid
crime” implicating both aggravated-felony theft and aggravated-felony
fraud. See 367 F.3d at 177–79; id. at 179–80 (Rendell, J., concurring)
(describing the offense as a “hybrid crime”). The court held that to constitute
an aggravated felony, it was not sufficient for the alien’s conviction under
the statute to meet the definition of either aggravated-felony theft or
aggravated-felony fraud, but rather, the offense must satisfy the requirements
for both theft and fraud. See id. at 179 (“[Nugent’s] convict[ion] under
Pennsylvania’s theft by deception statute does not qualify as an aggravated
felony as defined by the INA, because although the term of imprisonment
imposed on Nugent was one year or more [as required by section
101(a)(43)(G)], the victims’ loss did not exceed $10,000 [as required by
section 101(a)(43)(M)(i)].”). In Al-Sharif, the en banc Third Circuit
overruled this “hybrid offense theory” as contrary to the plain text of the INA
and held that it was sufficient for the state-law offense to meet the
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requirements of only one of the offenses in the aggravated-felony definition.
734 F.3d at 213.
The Board’s discussion of the hybrid-offense theory is perplexing
because DHS does not contend here that New York larceny should be viewed
as a hybrid offense under Nugent that must satisfy the elements of both theft
and fraud. Nor does DHS seek to fuse the criteria of section 101(a)(43)(G)
with that of section 101(a)(43)(M)(i) to create a novel aggravated felony.
What DHS does contend is that the respondent was convicted of an
aggravated felony because, under New York law, her larceny conviction
necessarily constitutes one of two listed offenses. I agree. If an alien has
been convicted of one of two (or more) offenses listed in section 101(a)(43),
then the alien has necessarily been convicted of an aggravated felony for
purposes of the INA, even if the strictures of the categorical approach
obscure the specific offense committed. 3
This reasoning is supported by the structure of the INA’s definition of
aggravated felony. There is significant internal overlap between various
parts of that definition. For instance, section 101(a)(43)(F) includes “a crime
of violence . . . for which the term of imprisonment [is] at least one year,”
and that category includes several offenses that are separately listed
elsewhere in the definition, such as “murder” and “rape” (subparagraph (A)),
the use of fire or explosives to destroy property (subparagraph (E)(i)), and
“burglary” (subparagraph (G)). Similarly, subparagraph (K)(i) refers to
offenses related to running a prostitution business, which could include
offenses in subparagraph (A) (“sexual abuse of a minor”) or subparagraph
(K)(ii) (transporting someone, for commercial advantage, for the purpose of
engaging in prostitution). By including overlapping categories within its
many-pronged definition of aggravated felony, Congress evidently sought to
capture more offenses. What matters is that a serious crime necessarily falls
within the definition somewhere, not whether it falls within one particular
prong or another. When all means of committing the offense of conviction
satisfy one or the other of two alternative aggravated felonies, the conviction
does not fall between stools. Instead, it is necessarily supported by one or
the other, even if the categorical approach obscures which one.
3
Section 239(a)(1) of the INA requires that an alien in removal proceedings receive
written notice of, among other things, “[t]he charges against the alien and the statutory
provisions alleged to have been violated.” 8 U.S.C. § 1229(a)(1)(D). As the Board noted,
there are constitutional dimensions to this requirement. Reyes, slip op. at *4 n.6. (citing
Nolasco v. Holder, 637 F.3d 159, 163 (2d Cir. 2011)). The Board here correctly determined
that the respondent had adequate notice of and opportunity to respond to the specific
charges of removability. Id.
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B.
Whether the respondent was convicted of either aggravated-felony theft
or aggravated-felony fraud depends on whether the statute of conviction
categorically fits within one or the other. As noted above, the Board assumed
without deciding that all of the means of committing larceny under New
York Penal Law § 155.40(1) amount to either aggravated-felony theft or
aggravated-felony fraud. Although the respondent did not dispute this issue
before the Board, she has objected to this assumption before me, and I
exercise my discretion to consider the issue.
New York Penal Law § 155.40(1) provides that “[a] person is guilty of
grand larceny in the second degree when he steals property and when . . . the
value of the property exceeds fifty thousand dollars.” New York Penal Law
§ 155.05(1) explains that “[a] person steals property and commits larceny
when, with intent to deprive another of property or to appropriate the same
to himself or to a third person, he wrongfully takes, obtains or withholds such
property from an owner thereof.” New York Penal Law § 155.05(2) then
identifies various methods of committing larceny:
Larceny includes a wrongful taking, obtaining or withholding of
another’s property, with the intent prescribed in subdivision one of this
section, committed in any of the following ways: (a) By conduct heretofore
defined or known as common law larceny by trespassory taking, common
law larceny by trick, embezzlement, or obtaining property by false pretenses;
(b) By acquiring lost property . . . ; (c) By committing the crime of issuing a
bad check . . . ; (d) By false promise . . . ; [or] (e) By extortion. 4
DHS contends that all of the theories of larceny under New York Penal
Law § 155.05(2) meet the generic definition of either aggravated-felony theft
or aggravated-felony fraud as defined in Garcia-Madruga. Specifically,
DHS identifies larceny by trespassory taking, acquiring lost property, and
extortion as aggravated-felony theft, and larceny by trick, false pretenses,
embezzlement, issuing a bad check, and false promises as aggravated-felony
fraud.
4
The parties agree that the various methods of committing larceny that are outlined in
New York Penal Law § 155.05(2) constitute different means rather than alternative
elements; in the argot of the categorical approach, the statute of conviction is “indivisible.”
See Mathis, 136 S. Ct. at 2248–49. Numerous cases hold that the prosecution need not
prove the particular manner in which the property was stolen. See, e.g., People v. Tighe,
768 N.Y.S.2d 871, 872 (N.Y. App. Div. 2003); People v. Ponnapula, 655 N.Y.S.2d 750,
759–60 (N.Y. App. Div. 1997).
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As noted, before the Board, the respondent did not dispute DHS’s
contentions, either in her initial brief or in the supplemental brief requested
by the Board. The respondent now argues that one theory of larceny under
New York Penal Law § 155.05(2)—larceny by acquiring lost property—“is
neither a fraud nor a theft aggravated felony.” Respondent’s Br. at 2. The
respondent asserts that “[a]cquiring lost property under New York Penal Law
§ 155.05(2)(b) does not involve taking property from the victim with or
without consent, but merely involves exercising control over, and failing to
make reasonable measures to return[,] property which may have come into
one’s possession through no fault of one’s own.” Id. The respondent further
asserts that larceny by acquiring lost property “can be performed in the
absence of consent, or by mistaken consent,” and therefore it does not satisfy
the definition of theft as stated in Garcia-Madruga. Id.
The respondent cites no precedent in support of that interpretation, and I
conclude that larceny by acquiring lost property categorically meets the
definition of aggravated-felony theft. New York law provides that a person
has committed larceny by acquiring lost property when “with the intent
prescribed in subdivision one”—that is, “with intent to deprive another of
property or to appropriate the same to himself or to a third person,” New
York Penal Law § 155.05(1)—“he exercises control over property of another
which he knows to have been lost or mislaid, or to have been delivered under
a mistake as to the identity of the recipient or the nature or amount of the
property, without taking reasonable measures to return such property to the
owner.” Id. § 155.05(2)(b). In Garcia-Madruga, the Board held that
aggravated-felony theft entails “the taking of, or exercise of control over,
property without consent whenever there is criminal intent to deprive the
owner of the rights and benefits of ownership, even if such deprivation is less
than total or permanent.” 24 I&N Dec. at 440–41.
Larceny by acquiring lost property categorically fits within
aggravated-felony theft. First, larceny by acquiring lost property requires an
“exercise[] [of] control over property of another.” N.Y. Penal Law
§ 155.05(2)(b). Aggravated-felony theft requires “the taking of, or exercise
of control over, property” of another. Garcia-Madruga, 24 I&N Dec. at
440–41. Second, larceny by acquiring lost property requires a lack of
consent—the owner is incapable of having consented, as the property has
been “lost,” “mislaid,” or “delivered under a mistake,” and the possessor both
“knows” this and fails to take “reasonable measures” to return it. N.Y. Penal
Law § 155.05(2)(b). Aggravated-felony theft requires that the taking or
exercise of control occur “without consent.” Garcia-Madruga, 24 I&N Dec.
at 440–41. Third, larceny by acquiring lost property requires “intent to
deprive another of property,” or “to appropriate the same.” N.Y. Penal Law
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§ 155.05(2)(b); see also People v. Jennings, 512 N.Y.S.2d 652, 659 (1986)
(noting that “the terms ‘deprive’ and ‘appropriate’ . . . connote a purpose . . .
to exert permanent or virtually permanent control over the property taken, or
to cause permanent or virtually permanent loss to the owner of the possession
and use thereof”). Aggravated-felony theft requires a “criminal intent to
deprive,” even if the deprivation is “less than total or permanent.”
Garcia-Madruga, 24 I&N Dec. at 440–41. 5
Because larceny by acquiring lost property constitutes aggravated-felony
theft, and because there is no dispute that the other means of violating New
York Penal Law § 155.40(1) correspond to either aggravated-felony theft or
aggravated-felony fraud, I conclude that the respondent’s conviction under
the statute is for an aggravated felony.
C.
The respondent’s final argument is that, if I conclude that her conviction
for larceny is one for an aggravated felony, then I cannot apply that
conclusion in this case because it constitutes a “new” rule whose application
would be “impermissibly retroactive.” Respondent’s Br. at 4. The
respondent relies on Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2018), where
the court explained that “[a]gencies may create new rules through
adjudication, but the retroactive application of the resulting rules ‘must be
balanced against the mischief of producing a result which is contrary to a
statutory design or to legal and equitable principles.’” Id. at 445 (quoting
SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)). This argument fails for
several reasons.
First, there is no retroactivity problem here. This opinion does not
announce any “new” rule, because I have not departed from settled precedent
or practice. See Judulang v. Holder, 565 U.S. 42, 63 n.12 (2011) (“Because
5
In Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009), the Second Circuit rejected an
argument that a Connecticut larceny statute incorporates theories of larceny not included
within the INA’s definition of aggravated-felony theft because, like the New York statute
at issue here, a conviction under the Connecticut statute may rest on proof of intent to
appropriate rather than intent to deprive. See id. at 787–88. The court reasoned that, under
Connecticut law, the phrases “intent to deprive” and “intent to appropriate” are “focus[ed]
on different property rights,” but both “ultimately establish[] a broad generic requirement
of an intent to deprive another person (to the degree statutorily specified) of some rights or
benefits of property ownership.” Id. at 788. Almeida forecloses any similar argument that
the respondent may have made in this case, because the phrases “to deprive” and “to
appropriate” are defined identically under Connecticut and New York law. Compare Conn.
Gen. Stat. § 53a-118(a)(3)–(4), with N.Y. Penal Law § 155.00(3)–(4).
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we find the BIA’s prior practice so unsettled, we likewise reject Judulang’s
argument that Blake and Brieva-Perez were impermissibly retroactive.”); cf.
Obeya, 884 F.3d at 448 (concluding that the BIA had created a new rule
where its decision “expressly effected a clear departure from longstanding
BIA precedent”). Neither the respondent nor amici have identified any case
reaching a contrary result on the legal questions here. The respondent
maintains that she is “aware of no precedent” recognizing an aggravated
felony under similar circumstances, Respondent’s Br. at 5, but the absence
of such precedent demonstrates at most an ambiguity in the law, rather than
a settled understanding to the contrary upon which she could have reasonably
relied. See Judulang, 565 U.S. at 63 n.12. And, as discussed above, the
closest precedent on point—the Ninth Circuit’s decision in Becerril-Lopez—
applied the categorical approach precisely as I have.
Second, even if this opinion announces something that could be
considered a “new” principle of law, there would be no barrier to applying it
in this case. As a general proposition, “where legal consequences hinge upon
the interpretation of statutory requirements, and where no pre-existing
interpretive rule construing those requirements is in effect, nothing prevents
the agency from acting retroactively through adjudication.” Bowen
v. Georgetown Univ. Hosp., 488 U.S. 204, 224 (1988) (Scalia, J.,
concurring). 6 Consistent with that understanding, there is a well-recognized
“exception” to the anti-retroactivity principle for a litigant whose case gives
rise to a new legal interpretation, because that person had an opportunity to
present argument to the agency and ran the risk that the agency would use
his case to announce the new understanding. Velásquez-Garcia v. Holder,
760 F.3d 571, 580–81 (7th Cir. 2014). There can be no doubt that the
respondent here had a full and fair opportunity to present argument on the
dispositive issues, including two rounds of briefing before the Board, and
another round before me.
Third, the respondent has not established, and cannot establish, that she
relied on what she supposes to be the old rule—a fact that is fatal under the
balancing tests applied by some courts to address retroactivity claims,
6
Courts have on occasion regarded an agency’s adjudication as more akin to a
rulemaking, and for that reason have held that the general principle of the agency’s decision
may be applied only prospectively. See De Niz Robles v. Lynch, 803 F.3d 1165, 1172–75
(10th Cir. 2015) (Gorsuch, J.); see also Velásquez-Garcia v. Holder, 760 F.3d 571, 581
(7th Cir. 2014). But this case does not involve any of the facts that were most critical in
De Niz Robles—that the alien clearly relied on an old rule; that the agency clearly adopted
a new legal principle; that a court ultimately deferred to the agency’s interpretation of a
statute under administrative-law principles; and that the alien’s reasonable expectations
were unsettled as a result. See 803 F.3d at 1167–68, 1172–75.
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especially when added to the reasons I have already given for rejecting the
respondent’s claim. See Obeya, 884 F.3d at 445 (considering “whether the
case is one of first impression”; whether the new rule abruptly “depart[s]
from well-established practice”; whether the party had relied on the former
rule; “the degree of the burden which a retroactive order places on a party”;
and “the statutory interest in applying a new rule”); De Niz Robles v. Lynch,
803 F.3d 1165, 1177 (10th Cir. 2015) (Gorsuch, J.) (discussing the same
factors, and explaining that they “direct our attention to the question whether
the petitioner can claim reasonable reliance on some past rule or decision”).
The respondent asserts that it was “eminently reasonable” for her to plead
guilty to the larceny charge based on her understanding of the state of the law
at that time. Respondent’s Br. at 5. But the respondent does not explain what
authorities would have reasonably supported her understanding, and she
could not seriously maintain that she relied upon a prediction about the
meaning of “aggravated felony” under the INA when she chose to plead
guilty. Moreover, the respondent acknowledged during her plea colloquy
that she had consulted with an immigration attorney and understood that a
guilty plea could lead to her removal. DHS Notice of Filing of Intended
Evidence, Ex. C at 12–13 (Immig. Ct. May 14, 2015) (Plea Minutes, People
v. Reyes, No. 1997N-13 (N.Y. Sup. Ct. Apr. 3, 2014)). On these facts, there
is no basis to avoid applying the correct legal principle to the respondent’s
case.
IV.
For the reasons set forth above, I conclude that the respondent’s 2014
conviction for grand larceny in the second degree under New York Penal
Law § 155.40(1) is necessarily one for an aggravated felony under section
101(a)(43) of the INA. Because the respondent was convicted of an
aggravated felony, the Board erred in affirming the immigration judge’s
order terminating the removal proceeding and in dismissing DHS’s appeal.
I vacate the decision below and remand for further proceedings consistent
with this opinion.
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