Khan v. Garland

Case: 21-60146 Document: 00516768347 Page: 1 Date Filed: 05/30/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

May 30, 2023

No. 21-60146

Lyle W. Cayce

Clerk

Saroun Khan,

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals

Agency No. A027 291 961

Before Graves, Ho, and Duncan, Circuit Judges.

James E. Graves, Jr., Circuit Judge:

Saroun Khan seeks relief from an order of the Board of Immigration

Appeals (“BIA”) affirming a decision by an Immigration Judge (“IJ”)

finding that he is removable for having been convicted of an aggravated felony

under 8 U.S.C. § 1227(a)(2)(A)(iii). Because the court finds that Khan’s

conviction under 18 Pa. Cons. Stat. § 3925(a) constitutes receipt of

stolen property, and thus is an aggravated felony for purposes of the

Immigration and Nationality Act (“INA”), we deny the petition for review.

Case: 21-60146 Document: 00516768347 Page: 2 Date Filed: 05/30/2023

No. 21-60146

I.

Khan, a native and citizen of Cambodia, was admitted to the United

States as a refugee in 1983. Khan’s status was changed to that of a lawful per-

manent resident on May 12, 1986. In 1999, he pleaded guilty to receiving sto-

len property in violation of 18 Pa. Cons. Stat. § 3925(a) in Pennsylvania

state court and was sentenced to 3 to 24 months imprisonment. Based on that

conviction, Khan was charged as removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony as de-

fined in 8 U.S.C. § 1101(a)(43)(G). 1 Khan filed a motion to terminate his re-

moval proceedings. Relevant here, Khan argued that his conviction did not

categorically qualify as an aggravated felony, because a mens rea of “reason

to believe” that the property was stolen, he contended, was sufficient to sup-

port a conviction under Pennsylvania law.

An IJ denied the motion. In doing so, the IJ held that § 3925(a) “on its

face” requires proof of “a defendant’s knowledge or belief, and that belief is

not objective,” and that the statute thus satisfied the generic mens rea

requirement. Further, the IJ emphasized that the Superior Court of

Pennsylvania, in Commonwealth v. Newton, 994 A.2d 1127, 1132 n.7 (Pa.

Super. Ct. 2010), explained that “[t]o the extent that the phrase ‘reason to

believe the property was stolen’ is used in our case law, we must interpret

that phrase as being the equivalent to the express statutory language

‘believing it had been stolen.’”

On appeal to the BIA, Khan asserted that the IJ erred for two reasons.

First, he contended that his conviction did not qualify as a generic theft

offense because Pennsylvania courts had commonly held that a defendant

1

“[A]ggravated felony” includes “a theft offense (including receipt of stolen

property)” for which the term of imprisonment was at least one year. 8 U.S.C.

§ 1101(a)(43)(G).

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could be found guilty of that offense if he, inter alia, had a “reason to believe”

that the property had been stolen. Second, the IJ improperly relied on Newton

because it did not accurately represent the law in effect at the time of his

conviction.

The BIA agreed with the IJ’s determination, holding that

Pennsylvania courts have not created a jurisprudential “reason to believe”

standard and that § 3925(a) requires purely subjective knowledge or belief

that an item is stolen. Further, the BIA noted, “even if Newton strayed from

previous applications of the law,” Newton applied retroactively under

Pennsylvania law. The BIA then upheld removal and dismissed the appeal.

Khan now petitions this court for review.

II.

“When reviewing a BIA decision, questions of law are reviewed de

novo, but this Court defers to the BIA’s interpretation of immigration stat-

utes and regulations.” Vazquez v. Sessions, 885 F.3d 862, 870 (5th Cir. 2018)

(citing Danso v. Gonzales, 489 F.3d 709, 712–13 (5th Cir. 2007)). Though our

review is generally limited to the BIA’s decision, we may also review the IJ’s

decision when it influences the BIA’s decision or where the BIA has adopted

all or part of the IJ’s reasoning. Le v. Lynch, 819 F.3d 98, 104 (5th Cir. 2016).

III.

Khan argues that § 3925(a) is broader than the generic theft offense

and that, accordingly, his conviction under the statute does not constitute an

aggravated felony for receipt of stolen property. In addition, Khan contends

that applying Newton retroactively violates his due process rights and impli-

cates ex post facto concerns. 2 We discuss each argument in turn.

2

It is well-settled that the Ex Post Facto Clause does not apply to the judiciary. See

Rogers v. Tennessee, 532 U.S. 451, 460 (2001) (“The Ex Post Facto Clause, by its own terms,

does not apply to courts.”). Thus, to the extent that Khan makes this argument, we address

it as a due process claim.

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A.

Noncitizens convicted of certain criminal offenses are removable. See

8 U.S.C. § 1227(a)(2). To determine whether a noncitizen’s state conviction

constitutes a removable offense, we apply a categorical approach comparing

the elements of the state statute with the elements of the generic federal

offense as defined in the INA. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013).

“A state offense is a categorical match with a generic federal offense only if a

conviction of the state offense would necessarily involve proving facts that

would establish a violation of the generic federal offense.” Vetcher v. Barr,

953 F.3d 361, 366 (5th Cir. 2020) (citation omitted). If “a state statute

criminalizes offenses that fall outside of the generic definition, there is not a

categorical match.” Id. (citation omitted).

The categorical approach “requires more than the application of legal

imagination to a state statute’s language. It requires a realistic probability, not

a theoretical possibility, that the State would apply its statute to conduct that

falls outside the generic definition of a crime.” Vazquez, 885 F.3d at 871

(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). To show

this, the noncitizen must establish “that the State actually prosecutes the

non-generic offense.” Id. (internal quotations and citations omitted).

Neither the INA nor the BIA defines the term “theft offense,” but we

have construed it to mean the “taking of property or an exercise of control

over property without consent with the criminal intent to deprive the owner of

rights and benefits of ownership, even if such deprivation is less than total or

permanent.” Martinez v. Mukasey, 519 F.3d 532, 540 (5th Cir. 2008)

(emphasis in original) (quoting Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir.

2007)). “[T]his generic definition requires an intent to deprive the owner of

the benefit proceeding from possession of the stolen goods.” United States v.

Sanchez-Rodriguez, 830 F.3d 168, 172 (5th Cir. 2016) (internal quotations and

citation omitted). To satisfy this generic mens rea requirement for a receipt

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of stolen property offense under the INA the offense must, at a minimum,

require a subjective mens rea of “knowledge or belief” that the property was

stolen. In re Deang, 27 I. & N. Dec. 57, 61, 63 (BIA 2017).

Khan contends that the BIA erred in determining that his Pennsylva-

nia conviction for receipt of stolen property qualifies as an aggravated felony.

Specifically, Khan argues that § 3295(a) cannot qualify as an aggravated fel-

ony because, at the time of his conviction, Pennsylvania courts had long in-

terpreted § 3295(a) as requiring only a “reason to believe” mens rea to satisfy

a conviction.

The statute underlying Khan’s conviction is 18 Pa. Cons. Stat.

§ 3925(a), which provides that: “A person is guilty of theft if he intentionally

receives, retains, or disposes of movable property of another knowing that it

has been stolen, or believing that it has probably been stolen, unless the prop-

erty is received, retained, or disposed with intent to restore it to the owner.”

The Third Circuit has recently held that a conviction under this stat-

ute qualifies as an aggravated felony conviction. See Barradas Jacome v. At-

torney Gen. United States, 39 F.4th 111, 123 (3d Cir. 2022), cert. denied sub

nom. Barradas-Jacome v. Garland, 22-595, 2023 WL 3158362 (U.S. May 1,

2023). We agree. In particular, we find that the Pennsylvania statute falls

within the generic definition of “a theft offense” because the statute, by its

plain text, requires the offender have “knowledge or belief” that the property

was stolen. Id. at 123– 24; see Deang, 27 I. & N. Dec. at 63.

Despite the language of § 3925(a), Khan argues that at the time of his

conviction, Pennsylvania courts routinely applied a lower mens rea standard

of “reason to believe” for receiving stolen property. However, this argument

was recently resolved, adversely to Khan’s position, in Barradas Jacome v.

Att’y Gen. United States. See 39 F.4th at 123. There, the court explained that

the text of § 3925(a) was amended by the Pennsylvania legislature in 1972 to

remove its objective reasonable person standard. See id. at 123 n.9; see also

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Act of Dec. 6, 1972, No. 334, 1972 Pa. Laws 1482, 1538–39. However, after

its adoption, Pennsylvania lower courts were less than clear about the

application of its mens rea standard. Id. at 124 n.10. Some of these lower

courts applied the updated statute as written. See, e.g., Commonwealth v.

Robbins, 647 A.2d 555, 557 (Pa. Super. Ct. 1994) (“Therefore, to obtain a

conviction for receiving stolen property the Commonwealth must establish

beyond a reasonable doubt that the defendant knew or should have known

that the property was stolen.”); Commonwealth v. Stafford, 623 A.2d 838, 839

n.2 (Pa. Super. Ct. 1993), aff’d, 652 A.2d 297 (Pa. 1995) (“Model Penal Code,

§ 223.6, served as the basis for the present offense of receiving stolen

property when the Legislature drafted the 1972 Crimes Code . . . and

reads: . . . [a] person is guilty of theft if he purposely receives, retains, or

disposes of movable property of another knowing that it has been stolen, or

believing that it has probably been stolen . . . .”).

Other courts, however, cited the outdated mens rea language, even

though they ultimately concluded that the offenders actually knew that they

were receiving stolen property. See, e.g., Commonwealth v. Foreman, 797 A.2d

1005, 1013 (Pa. Super. Ct. 2002) (“We find that sufficient circumstantial

evidence existed for the trier of fact to conclude that Appellant received

stolen goods knowing that they were stolen.”); Commonwealth v. Grabowski,

452 A.2d 827, 830 (Pa. Super. Ct. 1982) (“The evidence in the instant case

was sufficient to prove that appellant had received the Chevrolet truck

knowing that it had been stolen or having reason to believe that it had

probably been stolen.”); Commonwealth v. Brady, 560 A.2d 802, 806 (Pa.

Super. Ct. 1989) (“Here, it is clear that the property had been stolen and that

appellant knew it had been stolen.”); Commonwealth v. Matthews, 632 A.2d

570, 573 (Pa. Super. Ct. 1993) (“The present case is not similar to those cases

where the condition of the vehicle clearly indicated that it had been stolen or

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where the actions of the accused support the inference that he knew the vehicle

was stolen.”) (emphasis added).

Thus, as the court in Barradas Jacome explained, while these cases use

“loose language,” it appears only to reflect an oversight, not the creation of

an objective requirement. See Barradas Jacome, 39 F.4th at 123; see also De

Leon-Reynoso v. Ashcroft, 293 F.3d 633, 637 (3d Cir. 2002) (rejecting defend-

ant’s argument that Pennsylvania Superior Court cases “injected an objec-

tive element into the Pennsylvania statute”). Indeed, none of the decisions

Khan relies upon involve a defendant who was prosecuted, or convicted, for

receiving stolen property under a mens rea of “reason to believe,” as op-

posed to the subjective standard put forth in § 3925(a). Consequently, we

conclude that this use of outdated language does not establish a realistic prob-

ability of conviction under § 3925(a).

In sum, the Third Circuit, in two well-reasoned opinions, has held that

Pennsylvania’s receipt of stolen property offense does not have an objective

element and is “purely subjective.” Barradas Jacome, 39 F.4th at 123; De

Leon-Reynoso, 293 F.3d at 636. The Third Circuit has considered variations

on Khan’s argument and has rejected them. We are not inclined to part ways

with those opinions. We, therefore, conclude that 18 Pa. Cons. Stat.

§ 3925(a) is a categorical theft offense, and thus qualifies as an “aggravated

felony” under 8 U.S.C. § 1227(a)(2)(A)(iii).

B.

Lastly, Khan contends that by applying Newton retroactively, the BIA

violated his due process rights. 3 However, this argument is unavailing.

3

Khan also argues that the BIA erred in relying on Commonwealth v. Nero, 58 A.3d

802 (Pa. Super. Ct. 2012), because it was decided in 2012, 14 years after his conviction.

However, the BIA only used this case to set out the elements of § 3925(a), which are already

in the text of the statute. So, for the same reasons that his argument regarding Newton fails,

this argument is also unpersuasive.

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Retroactivity need not be addressed when a decision does not change the law.

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 534 (1991) (“It is only

when the law changes in some respect that an assertion of nonretroactivity

may be entertained.”); Chevron Oil Co. v. Huson, 404 U.S. 97, 106 (1971)

(“[T]he decision to be applied nonretroactively must establish a new

principle of law, either by overruling clear past precedent on which litigants

may have relied . . . or by deciding an issue of first impression whose

resolution was not clearly foreshadowed.” (citations omitted)).

Despite Khan’s contentions and the BIA’s assertion that Newton

applied retroactively, such a proposition is unfounded. Newton did not

announce a new rule, but instead clarified an existing rule that was adopted

with the passage of the newest version of § 3925. Newton explained, as

outlined above, that the Pennsylvania legislature explicitly removed the

“reason to believe” standard from § 3925(a) in 1972. See Newton, 994 A.2d

at 1132. Given the differences between the language in the pre-1972 statute

and its current version, the court stated, “[w]e interpret this change as

eliminating any suggestion that a person can be found guilty of receiving

stolen property simply by retaining property that a reasonable person would

conclude is probably stolen.” Id. at 1131–32.

Thus, Newton did not announce a new rule; Newton renewed and

reemphasized the understanding that § 3925(a) is subjective and lacks the

objective component found in its predecessor. Consequently, Newton does

not constitute a change in the law that triggers retroactivity analysis. 4

IV.

For the reasons stated above, the petition for review is DENIED.

4

As a result of our disposition of Khan’s first argument, we need not address his

contention that the BIA erred by ignoring the test set forth by the Pennsylvania Supreme

Court for determining whether a judicial decision should be applied retroactively.

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James C. Ho, Circuit Judge, concurring in the judgment:

The word “alien” is ubiquitous in statutes, regulations, judicial

decisions, and scholarly commentary on federal immigration law. But despite

this established usage, some members of the judiciary have recently begun to

signal their opposition to using that term, on the ground that it is “offensive.”

Avilez v. Garland, 48 F.4th 915, 917 n.1 (9th Cir. 2022). Respectfully, I do

not share in that sentiment.

United States citizenship is one of the greatest privileges this world

has ever known. My own path to that privilege began with my admission into

this country as an alien. The United States government assigned me an alien

registration number. That number appears on my application for status as a

lawful permanent resident alien. It also appears on numerous other forms,

including the INS notification granting my application for permanent

resident alien status—and ultimately, my certificate of citizenship.

These documents are among my most treasured possessions. That is

for one simple reason: It is my exquisitely good fortune that I was admitted

into this country as an alien—and later naturalized as a citizen. I cannot

imagine how enormously different (and considerably worse, I am sure) my

life would have been had I not been granted resident alien status in America.

There’s no need to be offended by the word “alien.” It’s a centuries-

old legal term found in countless judicial decisions. See, e.g., Martin v.

Hunter’s Lessee, 14 U.S. 304, 370 (1816); Gibbons v. Ogden, 22 U.S. 1, 221

(1824). It’s used in numerous acts of Congress—including the ones that

allowed me to become an American. To this day, both 8 U.S.C. and 8 C.F.R.

address the subject of “Aliens and Nationality.”

Some members of the judiciary are nevertheless concerned that “[t]he

word alien can suggest ‘strange,’ ‘different,’ ‘repugnant,’ ‘hostile,’ and

‘opposed.’” Avilez, 48 F.4th at 917 n.1.

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That may be true in certain contexts. The word also refers to

extraterrestrials in other contexts.

But we always read words in their proper context. And in the context

of immigration law, we use “alien,” not to disparage one’s character—or to

denote one’s planetary origin—but to describe one’s legal status. 1

I agree with my colleague (and fellow former alien) Judge Bea: “Our

federal immigration statutes concern themselves with aliens. This word is

not a pejorative nor an insult. . . . [W]hen used in its statutory context, it

admits of its statutory definition, not those definitions with negative

connotations that can be plucked at will from the dictionary.” Id. at 933 (Bea,

J., concurring). Cf. Bryan A. Garner, Garner’s Dictionary of

Legal Usage 912 (Oxford 3rd ed. 2011) (“Illegal alien is not an

opprobrious epithet: it describes one present in a country in violation of the

immigration laws (hence ‘illegal’).”); Texas v. United States, 787 F.3d 733,

745 n.15 (5th Cir. 2015) (same).

So I see no need to bowdlerize statutes or judicial decisions that use

the word “alien” by substituting terms like “non-citizen.”

I concur in the judgment.

1

See, e.g., Abraugh v. Altimus, 26 F.4th 298, 301 (5th Cir. 2022) (“depending on

context, ‘goat’ can mean ‘an athlete who failed, garishly, hilariously, and at the worst

possible time’—or the ‘greatest of all time’”) (and collecting other examples). To take

another example: Many provisions of federal law use the term “he”—not as a masculine

pronoun, but as a generic term, when read in context. See also 1 U.S.C. § 1 (“In determining

the meaning of any Act of Congress, unless the context indicates otherwise— . . . words

importing the masculine gender include the feminine as well”). Women have held office

in all three branches of the federal government—and in doing so, they surely did not violate

Article I of the Constitution, or Article II (or the Twelfth Amendment), or 28 U.S.C. § 333.

10