Interim Decision #3434

Interim Decision #3434

In re V-Z-S-, Respondent

Decided August 1, 2000

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) A taking of property constitutes a “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act (“Act”), 8 U.S.C. §

1101(a)(43)(G) (Supp. IV 1998), 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.

(2) The respondent’s conviction for unlawful driving and taking of a vehicle in violation of section 10851 of the California Vehicle Code is a “theft offense” under section

101(a)(43)(G) of the Act.

Pro se

Before:

Board En Banc: DUNNE, Vice Chairman; SCIALABBA, Vice Chairman; HEILMAN, HOLMES, HURWITZ, COLE, VILLAGELIU, MATHON, JONES,

GRANT, and MOSCATO, Board Members. Concurring and Dissenting Opinion:

GUENDELSBERGER, Board Member, joined by SCHMIDT, Chairman; FILPPU, ROSENBERG, and MILLER, Board Members.1

GRANT, Board Member:

In a decision dated August 19, 1998, an Immigration Judge found the

respondent removable under section 237(a)(2)(A)(iii) of the Immigration

and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. IV 1998), as an

alien convicted of an aggravated felony. The Immigration Judge further

determined that the respondent is ineligible for any relief from removal and

ordered him removed from the United States to Lebanon. The respondent

has filed a timely appeal from that decision. The appeal will be dismissed.2

1

Board Member Fred W. Vacca participated in the deliberations concerning this case,

but retired prior to the issuance of the final decision.

2

On appeal, the respondent argues that the Immigration Judge erred in failing to rule on

his motion to change venue. However, the record reflects that the Immigration Judge denied

the respondent’s motion on August 11, 1998.

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I. FACTUAL BACKGROUND

The respondent is a 27-year-old male who was born in Lebanon, but

who claims that he was never given citizenship in that country. On June 22,

1974, the respondent was admitted to the United States as a lawful permanent resident. The record reflects that on February 8, 1996, the respondent

was convicted of grand theft of an automobile (“grand theft auto”) in violation of section 487h(a) of the California Penal Code and was sentenced to

2 years’ imprisonment. Based on this conviction, the Immigration and

Naturalization Service issued and personally served the respondent with a

Notice to Appear (Form I-862), charging him with removability pursuant to

section 237(a)(2)(A)(iii) of the Act, as an alien convicted of an aggravated

felony as defined in section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43)

(1994 & Supp. IV 1998). Subsequently, the Immigration Judge found the

respondent subject to removal as charged.

The Immigration Judge also determined that the respondent is ineligible for relief from removal because he was convicted of an aggravated

felony. See sections 208(b)(2)(A)(ii), (B)(i) (asylum); 240A(a)(3) (cancellation of removal); 240B(b)(1)(C) (voluntary departure) of the Act, 8 U.S.C.

§§ 1158(b)(2)(A)(ii), (B)(i); 1229b(a)(3); 1229c(b)(1)(C) (Supp. IV 1998).

In addition, the Immigration Judge concluded that the respondent is ineligible for withholding of removal under section 241(b)(3)(B) of the Act, 8

U.S.C. § 1231(b)(3)(B) (Supp. IV 1998), because he was convicted of

aggravated felonies for which he was sentenced to an aggregate term of

imprisonment of at least 5 years.

At his removal hearing, the Service presented evidence that the respondent had been convicted of the following crimes. On May 20, 1993, the

respondent was convicted of burglary in the second degree and received a

prison sentence of 16 months. On June 17, 1993, he was convicted of grand

theft auto and commercial burglary, for which he received concurrent prison

sentences of 16 months. On August 31, 1995, the respondent was convicted of unlawful driving and taking of a vehicle and was sentenced to 5 years’

imprisonment. On January 23, 1996, he was again convicted of unlawful

driving and taking of a vehicle, for which he received a 2-year prison sentence. On the same day, the respondent was also convicted of grand theft

auto, but his sentence was stayed. Finally, on February 8, 1996, the respondent was convicted of grand theft auto and receiving stolen property. For

these convictions he received concurrent 2-year sentences of imprisonment,

which were also to run concurrently with his 1995 and 1996 sentences.

In arriving at his conclusion that the respondent had been sentenced to

an aggregate term of imprisonment of at least 5 years, the Immigration

Judge calculated that the 16-month sentence for the grand theft auto conviction that was imposed on June 17, 1993, plus the 2-year sentence for the

grand theft auto conviction that was imposed on February 8, 1996, plus the

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2-year sentence for the receiving stolen property conviction that was

imposed on February 8, 1996, add up to an excess of 5 years in the aggregate. Consequently, the Immigration Judge found that the respondent had

been convicted of a particularly serious crime, rendering him ineligible for

withholding of removal. See section 241(b)(3)(B)(ii) of the Act. The

respondent appealed this decision, arguing that the Immigration Judge erred

in pretermitting all applications for relief from removal.

II. ISSUES ON APPEAL

The ultimate issue on appeal is whether the respondent’s criminal convictions render him ineligible for withholding of removal under section

241(b)(3) of the Act. To resolve this question, we must first address two

issues: (1) whether the Immigration Judge correctly calculated the respondent’s multiple sentences to imprisonment for his aggravated felonies,

which he found added up to 5 years in the aggregate and rendered the

respondent automatically ineligible for withholding of removal; and (2)

whether the respondent’s conviction under section 10851 of the California

Vehicle Code, for which he was sentenced to 5 years’ imprisonment, is a

theft offense and therefore an aggravated felony under section

101(a)(43)(G) of the Act, rendering him automatically ineligible for withholding of removal as an alien convicted of a particularly serious crime.

We find (1) that under Matter of Aldabesheh, 22 I&N Dec. 983 (BIA

1999), the Immigration Judge’s calculation of the time for which the

respondent was sentenced was incorrect; and (2) that the respondent’s conviction under section 10851 of the California Vehicle Code is a “theft

offense” as defined in section 101(a)(43)(G) of the Act. Therefore, we conclude that the respondent’s convictions render him ineligible for withholding of removal under section 241(b)(3) of the Act.

III. AGGREGATE SENTENCES

Section 241(b)(3)(B) of the Act provides that an alien is ineligible for

withholding of removal for having committed a particularly serious crime,

if he has been convicted of an aggravated felony (or felonies) for which he

was sentenced to an “aggregate term of imprisonment” of at least 5 years.

As noted above, the Immigration Judge determined that the respondent was

sentenced to an aggregate term of imprisonment of at least 5 years. The

Immigration Judge calculated this aggregate term by adding together the

sentences imposed on the respondent for both of his convictions for grand

theft auto on June 17, 1993, and on February 8, 1996, and for his conviction for receipt of stolen property on February 8, 1996. The Immigration

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Judge did not include the respondent’s sentence for his burglary conviction

on May 20, 1993.3

Subsequent to the Immigration Judge’s decision, we determined in

Matter of Aldabesheh, supra, that where an alien has been convicted of

two or more aggravated felonies and has received concurrent sentences to

imprisonment, the alien’s aggregate term of imprisonment, for purposes

of determining eligibility for withholding of removal under section

241(b)(3) of the Act, is equal to the length of the alien’s longest concurrent sentence. The record reflects that the 2-year sentences imposed for

the respondent’s February 8, 1996, convictions for grand theft auto and

receipt of stolen property were ordered to run concurrently. Consequently,

these sentences cannot be added together to calculate an aggregate term

of imprisonment.

If the respondent’s sentences to imprisonment were properly added for

the convictions that the Immigration Judge found to be aggravated felonies,

the respondent would have an aggregate term of imprisonment of only 4

years and 8 months. This calculation includes 2 years for the concurrent

sentences imposed for the February 8, 1996, convictions for receipt of

stolen property and grand theft auto, plus 16 months for the concurrent sentences imposed for the June 17, 1993, convictions for grand theft auto and

commercial burglary, plus the 16-month sentence for the May 20, 1993,

conviction for burglary in the second degree. In light of the concurrent sentences imposed on the respondent and the Immigration Judge’s finding that

the convictions for unlawful driving and taking of a vehicle are not aggravated felonies, we find that the Immigration Judge erred in concluding that

the respondent was sentenced to an aggregate term of imprisonment equal

to at least 5 years. See Matter of Aldabesheh, supra.

IV. “THEFT OFFENSE” UNDER SECTION 101(a)(43)(G) OF THE ACT

We have not previously addressed in a precedent decision what constitutes a “theft offense” for purposes of section 101(a)(43)(G) of the Act.

However, this question does not come to us on a clean slate.

First, we generally apply a federal standard in determining whether a

state offense fits within the aggravated felony definition. See Matter of

Rodriguez-Rodriguez, Interim Decision 991 (BIA 1999). In addition, the

term “theft offense” in section 101(a)(43)(G) of the Act should be given a

3

In addition, the Immigration Judge did not consider the respondent’s two convictions

for unlawful driving or taking of a vehicle, because he found that they were not aggravated

felonies. We disagree with this finding, as discussed below.

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“uniform definition independent of the labels employed by the various

States’ criminal codes.” Taylor v. United States, 495 U.S. 575, 592 (1990)

(discussing the term “burglary” in 18 U.S.C. § 924(e)).

Second, in addressing terms in the aggravated felony definition that are

not defined by reference to a specific statute, we look to several sources for

guidance. Our analysis begins with the principles of statutory construction.

It is rudimentary that interpretation of the statutory language begins with the terms of

the statute itself, and if those terms, on their face, constitute a plain expression of congressional intent, they must be given effect. Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-43 (1994). Where Congress’ intent is not

plainly expressed, we then need to determine a reasonable interpretation of the language and fill any gap left, either implicitly or explicitly, by Congress. Id. at 843-44.

The rules of statutory construction dictate that we take into account the design of the

statute as a whole. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). Moreover,

the paramount index of congressional intent is the plain meaning of the words used in

the statute taken as a whole. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). The

legislative purpose is presumed to be expressed by the ordinary meaning of the words

used. INS v. Phinpathya, 464 U.S. 183, 189 (1984).

Matter of Rodriguez-Rodriguez, supra, at 993. In undertaking this task,

therefore, we look not only to the term “theft offense” as it appears in section 101(a)(43)(G) of the Act, but also to analogous provisions of federal

statutes, federal case law, relevant state provisions, and authoritative compendiums such as the Model Penal Code.

These sources readily confirm that although “theft” is a “popular name”

for larceny,4 the term “theft” is generally considered in federal law “to be

broader than ‘commonlaw larceny.’” United States v. Turley, 352 U.S. 407,

414 (1957). We are mindful that, under the common law, “larceny” requires

the intent to permanently deprive the owner of possession or use of his

property. See Morissette v. United States, 342 U.S. 246, 270 (1952). But see

United States v. Maloney, 607 F.2d 222, 226 (9th Cir. 1979) (providing that

the offense of larceny as defined in 18 U.S.C. § 661 does not require a permanent deprivation of property).5 Thus, one cannot answer the question

whether the respondent’s August 31, 1995, conviction under section 10851

Black’s Law Dictionary 1477 (6th ed. 1990).

Even the principle that common law larceny requires proof of an intent to permanently

deprive an owner of his or her property is not beyond question. See, e.g., Pennsylvania

Indemnity Fire Corp. v. Aldridge, 117 F.2d 774, 776 (D.C. Cir. 1941) (“[T]he only rule as to

felonious intent in larceny to which all the cases can be reconciled, is that the intent of the

taker must be to appropriate the stolen property to a use inconsistent with the property rights

of the person from whom it is taken.”). The court in Pennsylvania Indemnity Fire Corp. held

that the term “theft,” as used in an automobile insurance policy, did not require a showing of

intent to permanently deprive the owner of his or her property. Id. at 778.

4

5

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of the California Vehicle Code is a “theft offense” by simply opining that

there can be no theft without an intent to permanently deprive an owner of

his or her property. This conclusion is equally supported by the Model

Penal Code description and commentary regarding theft offenses, which do

not limit the deprivation necessary to constitute theft solely to circumstances where there is an intent to permanently deprive an owner of property. The federal statutes most relevant to this discussion are Chapter 31 of

Title 18 of the United States Code (entitled “Embezzlement and Theft”) and

the National Motor Vehicle Theft Act, 18 U.S.C. §§ 2311-2313 (1994)

(“Dyer Act”).

The provisions of Chapter 31 of Title 18, including 18 U.S.C. §§ 641

and 661, deal with “embezzlement and theft” crimes within the maritime

and special jurisdictions of the United States. Section 661 does not directly

define the offense of larceny or theft, and these terms do not appear in its

language. However, all courts “which have considered the question have

concluded that the offense defined in 18 U.S.C. § 661 is larceny.” United

States v. Maloney, supra, at 226. Moreover, 18 U.S.C. § 661 is not limited

to offenses amounting to common-law larceny and “does not require the

element of intent to permanently deprive the owner of his property.” Id. at

231; see also United States v. Henry, 447 F.2d 283, 285 (3d Cir. 1971) (recognizing that “courts have used terms such as ‘stealing,’ ‘theft,’ and ‘larceny’ interchangeably”). Rather, the United States Supreme Court’s delineation of the meaning of the word “stolen” in United States v. Turley, supra,

at 417, has been held applicable in interpreting the phrase “with intent to

steal or purloin” in 18 U.S.C. § 661. Id. at 413.6 Similarly, the United

States Court of Appeals for the Ninth Circuit has held that the intent

required to constitute a violation of 18 U.S.C. § 641 is “the intent to appropriate [property] to a use inconsistent with the owner’s rights and benefits.”

Ailsworth v. United States, 448 F.2d 439, 442 (9th Cir. 1971).

The Dyer Act, enacted in 1919, deals with the specific crimes of automobile taking in a straightforward manner: “Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to

have been stolen, shall be fined under this title or imprisoned not more than

10 years, or both.” 18 U.S.C. § 2312. In United States v. Turley, supra, the

Supreme Court rejected narrow interpretations of the word “stolen” that

restricted the term to those offenses that would constitute common-law larceny. Instead, the Court held that the term “stolen,” as used in the Dyer Act,

includes “all felonious takings of motor vehicles with intent to deprive the

owner of the rights and benefits of ownership, regardless of whether or not

The term “steal” denotes “the commission of theft.” Black’s Law Dictionary, supra, at

6

1413.

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the theft constitutes common-law larceny.” United States v. Turley, supra,

at 417. In reaching this result, the Justices relied on the fact, related in the

legislative history of the Dyer Act, that the advent of the automobile had

created new problems with which existing state law on larceny was not fully

equipped to deal. “The automobile was uniquely suited to felonious taking

whether by larceny, embezzlement or false pretenses. It was a valuable, salable article which itself supplied the means for speedy escape. ‘The automobile (became) the perfect chattel for modern large-scale theft.’” Id. at

413 (quoting Hall, Theft, Law and Society 235 (2d ed. 1952)) (emphasis

added). The Court also noted the following:

Throughout the legislative history Congress used the word ‘stolen’ as synonymous

with ‘theft,’ a term generally considered to be broader than ‘commonlaw larceny.’ To

be sure, the discussion referred to ‘larceny’ but nothing was said about excluding other

forms of ‘theft.’ The report stated the object of the Act in broad terms, primarily

emphasizing the need for the exercise of federal powers. No mention is made of a purpose to distinguish between different forms of theft, as would be expected if the distinction had been intended.

United States v. Turley, supra, at 414-15 (footnotes omitted).

In the wake of Turley, the federal courts of appeals have uniformly

applied a broad reading to the term “stolen” in the Dyer Act. According to

the Ninth Circuit, the jurisdiction in which this case arises, the Dyer Act is

“not to be interpreted so narrowly as to limit its application to situations

which at common law would be considered larceny. It includes all takings

with a criminal intent to deprive the owner of the rights and benefits of ownership.” United States v. Pittman, 441 F.2d 1098, 1099 (9th Cir. 1971). The

Fifth Circuit has articulated the standard for conviction under the Dyer Act

in terms strikingly similar to those employed in the statute at issue in this

case: “[A] defendant must have had the intent to permanently or temporarily deprive the rightful owner of the rights and benefits of ownership.”

United States v. Chatham, 568 F.2d 445, 449 (5th Cir. 1978). According to

the Eighth Circuit, the Dyer Act is violated “by ‘something less than permanency and something less than a deprival of the totality of ownership.’”

Kimball v. United States, 437 F.2d 921, 923 (8th Cir. 1971) (quoting United

States v. Bruton, 414 F.2d 905 (8th Cir. 1969)); accord United States v.

Fouchey, 462 F.2d 585, 586 (8th Cir. 1972) (stating that an allegation that

the defendants may have been joyriding rather than engaging in a commercial venture is without significance in a Dyer Act prosecution); McCarthy v.

United States, 403 F.2d 935, 938 (10th Cir. 1968) (finding that a vehicle

may be “stolen” under the Dyer Act whether there was an intent to deprive

the owner permanently or only for so long as suited the purposes of the

taker).

The Model Penal Code also distinguishes “theft” from the commonlaw concept of “larceny.” The Model Penal Code itself defines “theft” as

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the unlawful taking of, or the unlawful exercise of control over, movable

property of another with the intent to deprive him thereof. Model Penal

Code and Commentaries § 223.2(1) (1980). The term “deprive” means

(a) to withhold property of another permanently or for so extended a period as to

appropriate a major portion of its economic value, or with intent to restore only upon

payment of reward or other compensation; or (b) to dispose of the property so as to

make it unlikely that the owner will recover it.

Model Penal Code § 223.0(1) (emphasis added). The question whether

there is a “theft” under the Model Penal Code, therefore, turns on whether

the specific taking entails a deprivation under the above definition. See

Model Penal Code § 223.2, cmt. 6, at 174 (“[A]lthough the common-law

definition of larceny was often formulated in terms of an intent to deprive

permanently, convictions were sustained upon evidence that fell considerably short of proving a purpose totally and finally to deprive another of his

property.”). In addition, several states have adopted a definition of “theft”

very similar to that provided by the Model Penal Code. See, e.g., Ky. Rev.

Stat. Ann. §§ 514.010(1), 514.030 (Banks-Baldwin 1998); Me. Rev. Stat.

Ann. tit. 17-A, §§ 352.3, 353 (West 1999); Nev. Rev. Stat. §§ 205.0824,

205.0832 (Michie 1999); N.J. Stat. Ann. §§ 2C:20-1(a), 2C:20-3 (West

1999); Tex. Penal Code Ann. §§ 31.01(2), 31.03 (West 1999).7 We would

find that a conviction under this Model Penal Code standard constitutes a

theft offense. However, we also would find that the federal case law

includes a somewhat broader concept of the perpetrator’s intent than that

embodied in the Model Penal Code definition of the term “deprive.”

Otherwise stated, the federal standard is not entirely restricted to the specific circumstances set forth by the Model Penal Code formulation.8

To summarize, we conclude from our analysis of pertinent federal

statutes and case law that Congress’ use of the term “theft” is broader than

the common-law definition of that term. Specifically, a “theft offense”

under section 101(a)(43)(G) of the Act does not require as a statutory ele-

7

By contrast, at least one state has specifically held that a temporary deprivation would

constitute theft. For example, to be convicted of “theft by taking” under section 16-8-2 of the

Official Code of Georgia Annotated requires only an intent to temporarily deprive an owner

of property. Regardless of whether a defendant intended to take the property and withhold it

permanently, his intent to take it for his own temporary use without the owner’s authorization

evinces an intent to commit theft. Smith v. State, 323 S.E.2d 257 (1984).

8

Under the dissent’s approach, one could have a federal larceny or theft conviction under

the Dyer Act or within the maritime and special jurisdictions of the United States that would

not be found to constitute a “theft” offense under section 101(a)(43)(G) of the Act. This is so

because the elements of these federal crimes do not fall within the parameters of the Model

Penal Code definition, which requires a permanent deprivation of the owner’s interest in the

property. We do not agree with this result.

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ment the specific intent to permanently deprive an owner of his property, an

element that was present in the common-law definition of larceny. Rather,

a taking of property constitutes a “theft” 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. Not all takings of property, however, will meet this standard because some takings entail a de minimis deprivation of ownership interests.

V. CALIFORNIA VEHICLE CODE SECTION 10851

AS A “THEFT OFFENSE”

The respondent was convicted on August 31, 1995, of unlawful driving

or taking of a vehicle in violation of section 10851 of the California Vehicle

Code, and he was sentenced to 5 years’ imprisonment.9 The criminal

Information for this offense alleged the following:

On and between February 2, 1995 and February 8, 1995, in the County of Los Angeles,

the crime of UNLAWFUL DRIVING OR TAKING OF A VEHICLE, in violation of

VEHICLE CODE SECTION 10851(A), a Felony, was committed by [Respondent],

who did willfully and unlawfully drive and take a certain vehicle . . . then and there

the personal property of ABLE AUTO PAWN without the consent of and with intent,

either permanently or temporarily, to deprive the said owner of title to and possession

of said vehicle. (Emphasis added.)

The Immigration Judge found that the respondent’s conviction was not for

an aggravated felony under section 101(a)(43)(G) of the Act. According to

the Immigration Judge, the crime was not a theft offense because

under the California Vehicle Code, one may be convicted of this offense simply by

unlawfully driving a vehicle and temporarily depriving the owner of possession. This

is not a theft . . . . Theft by its common law definition requires the taking and depriving of the owner of the property with intent to do so permanently. A glorified borrowing of property is not a theft.

We concur with the Immigration Judge that a “glorified borrowing” of

property is not a theft offense. However, based on the language of section

10851 of the California Vehicle Code, we do not agree that the respondent

was convicted of a crime analogous to a “glorified borrowing.” Instead,

having analyzed the requirements for conviction under the California

statute in light of the federal law and Model Penal Code constructions of

9

Although the respondent was also convicted on January 23, 1996, of the same offense

and was sentenced to 2 years’ imprisonment, for purposes of clarity we will focus on the 1995

conviction and its accompanying 5-year sentence.

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“theft” previously discussed, we conclude that the respondent’s August 31,

1995, conviction for unlawful driving or taking of a vehicle, in violation of

section 10851 of the California Vehicle Code, is a “theft offense” under section 101(a)(43)(G) of the Act.

A. Applicable California Statutes

At the time of the respondent’s 1995 conviction for violating section

10851(a) of the California Vehicle Code, the state legislature had enacted

three separate statutes punishing the taking or use of a vehicle without the

owner’s consent: section 10851(a) of the California Vehicle Code, defining

theft and unlawful driving or taking of a vehicle; section 499b of the

California Penal Code, defining the taking of a vehicle for temporary use;

and section 487h(a) of the California Penal Code, defining grand theft auto.

See generally People v. Morales, 24 Cal. Rptr. 2d 847 (Cal. Ct. App. 1993).

Section 10851 of the California Vehicle Code defined theft and unlawful driving or taking of a vehicle, providing in pertinent part as follows:

Any person who drives or takes a vehicle not his or her own, without the consent of

the owner thereof, and with intent either to permanently or temporarily deprive the

owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, . . . is guilty of a public offense and, upon conviction

thereof, shall be punished by imprisonment in the state prison for 16 months or two or

three years or a fine of not more than ten thousand dollars ($10,000), or both, or by

imprisonment in the county jail not to exceed one year or a fine of not more than one

thousand dollars ($1,000), or both.

Cal. Veh. Code § 10851(a) (West 1995).

Section 499b of the California Penal Code defined the taking of a vehicle for temporary use, stating in pertinent part as follows:

Any person who shall, without the permission of the owner thereof, take any automobile, bicycle, motorcycle, or other vehicle or motorboat or vessel, for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor . . . .10

Cal. Penal Code § 499b (West 1995).

Section 487h of the California Penal Code defined “grand theft” of

10

This provision was commonly known as the “joyriding” statute. In 1996, the California

legislature amended section 499b of the Penal Code, substituting “bicycle or motorboat” for

“automobile, bicycle, motorcycle, or other vehicle or motorboat.” See 1996 Cal. Stat. ch. 660,

§ 3 (A.B. 3170). The legislative intent behind this amendment was “to clarify and streamline

existing law by deleting provisions in Section 499b of the Penal Code that are generally

duplicative of provisions in subdivision (a) of Section 10851 of the Vehicle Code.” Id. The

amendment to section 499b of the Penal Code was not intended to be construed as evidencing a legislative intent to eliminate a crime. Id.

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vehicles, stating in pertinent part as follows:

Every person who feloniously steals or takes any motor vehicle, as defined in Section

415 of the Vehicle Code, . . . is guilty of grand theft . . . .11

Cal. Penal Code § 487h (West 1995).

These state statutes established different crimes depending on the intent

of the perpetrator in attempting to take or drive a motor vehicle. People v.

Morales, supra, at 1390-95. A conviction under section 10851(a) of the

California Vehicle Code required an intent to permanently or temporarily

deprive the owner of his vehicle without his consent. A conviction under

section 499b of the California Penal Code merely required an intent to use

or operate another’s vehicle without the owner’s consent. There existed no

requirement under section 499b of an intent to deprive the owner of his

property. Therefore, where a person was guilty of joyriding, or temporarily

operating another’s vehicle, without an intent to deprive the owner of such

vehicle, a conviction could not be effected under section 10851(a) of the

California Vehicle Code.

B. Application of the Federal Standard

We conclude that the respondent’s conviction under section 10851 of

the California Vehicle Code should be classified as a “theft offense” under

the federal standard we have articulated. Like the Dyer Act, section 10851

is directed to a specific variant of criminal taking of property. The fact that

a prosecutor does not have to prove specific intent to permanently deprive

the owner of property in order to secure a conviction under section 10851

does not alter the character of the public harm—vehicle taking—that is to

be punished. We agree with the principle, as articulated by the Ninth

Circuit, that “theft” of an automobile is established whenever there is an

intent to deprive the owner of the rights and benefits of ownership. See

United States v. Pittman, supra. Similarly, we find that the concept of

“theft” in this context is satisfied by “something less than permanency” and

something less than total deprivation of ownership rights. Kimball v. United

States, supra.

Section 10851 is neither a strict liability nor a regulatory offense; it

does not punish the mere possession of a vehicle not one’s own or a misunderstanding or mistake that has led to such possession. A conviction

11

On January 1, 1997, this section was repealed and a new section 487 became operative,

defining grand theft, in pertinent part, as the taking of an automobile. See Cal. Penal Code §

487(d) (West 1999).

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requires a driving or taking, without the owner’s consent, coupled with a

specific intent to deprive the owner of title and/or possession, either temporarily or permanently. See People v. Thomas, 373 P.2d 97 (1962) (noting

that in contrast to the joyriding statute, section 499b of the Penal Code, conviction under section 10851(a) requires a specific intent to deprive the

owner of title to or possession of the vehicle). Any such taking, on its face,

can be said to “deprive the owner of the rights and benefits of ownership,

regardless of whether or not the theft constitutes common-law larceny.”

United States v. Turley, supra, at 417. We believe that such deprivation of

ownership interests, sufficient to bring conduct within the scope of the Dyer

Act, is likewise sufficient to bring the conduct within the scope of section

101(a)(43)(G) of the Act.

The respondent’s record establishes that, at a minimum, he was convicted of a felony under section 10851(a) of the California Vehicle Code for

“willfully and unlawfully driv[ing] and tak[ing] a certain vehicle . . . without the consent of and with intent . . . temporarily . . . to deprive the said

owner of title to and possession of said vehicle.” Cal. Veh. Code § 10851(a)

(emphasis added). The respondent’s conviction for this conduct reflects an

intent to, at the very least, temporarily deprive the rightful owner of the

automobile of “the rights and benefits of ownership.” United States v.

Turley, supra, at 417. Accordingly, the respondent’s conviction falls within the scope of section 101(a)(43)(G) as a “theft offense.”

The respondent’s 1995 conviction was not under section 499b of the

California Penal Code, which at the time was the California “joyriding”

statute. The principal and “subtle” difference between the respondent’s conviction under section 10851 and a conviction under the California “joyriding” statute is that “joyriding” does not require a specific intent to deprive

the owner of title or possession of the vehicle. Rather, it simply requires a

general intent to be “temporarily using or operating the same.” People v.

Thomas, 373 P.2d 97, 101 (Cal. 1962) (emphasis added).

As we have previously done in our decisions holding that a felony conviction for drunk driving constitutes an aggravated felony under section

101(a)(43)(F) of the Act, we also take into account here the impact on the

victims and society of the crimes committed. See Matter of Puente, 22 I&N

Dec. 1006 (BIA 1999); Matter of Magallanes, 22 I&N Dec. 1 (BIA 1998).

The problems Congress recognized 80 years ago in enacting the Dyer Act

are even more prevalent today. Intentional, nonconsensual takings of automobiles rarely amount to “glorified borrowing.” Rather, such takings

almost invariably involve a significant impairment of ownership rights;

even when vehicles are recovered, they are likely to have been deliberately

or accidentally damaged.

As the Fifth Circuit has recognized, “the unauthorized use of a vehicle

likewise carries a substantial risk that the vehicle might be broken into,

‘stripped,’ or vandalized, or that it might become involved in an accident.”

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United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999). Such factors led the Fifth Circuit to conclude that unauthorized use of a motor vehicle constitutes a “crime of violence” under 18 U.S.C. § 16(b) (1994), which,

of course, would also make it an aggravated felony under section

101(a)(43)(F) of the Act. Id. at 219-20. In this case, we do not reach the issue

whether a conviction under section 10851(a) of the California Vehicle Code

constitutes a conviction for a crime of violence, and further, we recognize

that the Court of Appeals for the Ninth Circuit, in which jurisdiction this case

arises, has recently ruled that burglary of an automobile under California law

does not constitute a crime of violence. Ye v. INS, 214 F.3d 1128 (9th Cir.

2000). However, for many of the reasons cited by the Fifth Circuit, we

believe that the “full range of the conduct” described in section 10851(a)

squarely places that conduct within the ambit of a “theft offense,” as that

term is employed in section 101(a)(43)(G) of the Act. Therefore, unlike the

dissent, we conclude that section 10851 is not a “divisible” statute that

requires a factual determination whether a particular criminal had the specific intent to permanently deprive the owner of his or her vehicle.12

We note that under the California precedent, the taking of property is

not a “theft” absent the specific intent to permanently deprive the victim of

his or her property. See In Re Albert A., 55 Cal. Rptr. 2d 217 (Cal. Ct. App.

1996); People v. Jaso, 84 Cal. Rptr. 567 (Cal. Ct. App. 1970). However, the

state courts have repeatedly concluded that this specific intent can be presumed whenever one unlawfully takes, or attempts to take, the property of

another. In Re Albert A., supra; People v. Morales, supra; People v. Jaso,

supra. Thus, even circumstances in which a car has been taken and abandoned after 1 hour can support the inference that the perpetrator intended to

deprive the owner permanently of the vehicle. People v. DeLeon, 188 Cal.

12

We distinguish the present case from our decision in Matter of D-, 1 I&N Dec. 143

(BIA 1941), where we held that a conviction under a predecessor statute to section 10851 was

not a crime involving moral turpitude because the statute in question could include a mere

temporary taking, as well as a permanent deprivation of the vehicle. Id. at 145. An offense

involving the taking of property need not be a crime involving moral turpitude in order to be

considered a “theft” offense. More pertinent to this case, however, is our finding in Matter of

Grazley, 14 I&N Dec. 330 (BIA 1973), that a taking could constitute “theft” even if it did not

include the turpitudinous element of intent to permanently deprive the owner of his or her

property.

In Grazley, we reviewed section 283 of the Criminal Code of Canada, which provided

for a theft conviction whether the taking was permanent or temporary. Ordinarily, a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended. Because section 283 included some offenses that involved moral turpitude and others that

did not, it was treated as a “divisible” statute. Therefore, we found it permissible to look

beyond the statute to the record of conviction to determine whether the conviction was rendered under the portion of the statute dealing with crimes that did involve moral turpitude. Id.

at 332-33.

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Rptr. 63 (1982); see also People v. Tellez, 89 P.2d 451 (Cal. Ct. App. 1939)

(finding that where a car was taken and abandoned 4 miles away with tires

stripped there was a permanent intent to deprive the owner of the vehicle).

California courts have thus rejected the theory applied by the

Immigration Judge to this respondent’s conviction—that because the

respondent might have been involved in a mere joyriding episode, his

offense cannot have constituted a theft. See People v. Morales, supra. In

Morales, the defendant argued that an intent to permanently deprive the

owner of property cannot be inferred from the break-in and attempted taking of a locked automobile. The court disagreed.

If, as defendant suggests, intent to permanently deprive the owner of property cannot

be inferred from the circumstances surrounding the break-in, then it would be impossible to prove that an unlawful entry into a locked car constitutes automobile burglary

when, in cases such as this, the culprit is caught immediately after the entry. In fact,

applying defendant’s reasoning, it would be impossible to prove automobile burglary

(and even car theft in violation of section 487 or a violation of Vehicle Code section

10851) when the culprit actually succeeds in taking the vehicle but is stopped before

he or she has driven it a substantial distance or for a substantial time. Under defendant’s theory, the defense could argue that the trier of fact cannot infer an intent to permanently deprive from the break-in and actual taking of the vehicle because it is possible the culprit simply might have intended to joyride. The Legislature could not have

intended such an absurd result.

Id. at 853.

California case law, therefore, closely tracks the interpretation of the

Dyer Act by the federal courts, as well as the trend described by the Model

Penal Code in its discussion of “theft.” As the Model Penal Code commentary states, theft can be found even where evidence “[falls] considerably short” of establishing a specific intent to permanently deprive an owner

of property. Model Penal Code § 223.2, cmt. 6, at 174. Our task, of course,

is not to engage in a fact-finder’s exercise of evaluating evidence in light of

permissible evidentiary presumptions. Rather, it is to determine the character of the offenses described under this statute, section 10851, and to decide

whether they meet the federal standard of a “theft offense.” In making this

determination, we find it highly persuasive that, under California law, the

heightened standard of “specific intent to permanently deprive”–a standard

that we have stated does not need to be met to constitute a theft offense–can

be presumed from the mere fact of an unlawful taking, even if quite temporary.

In the case before us, where the conviction in question had as an element the specific intent to temporarily or permanently deprive the owner of

title to and possession of the vehicle, we are satisfied that the conviction is

for a “theft offense” as such offenses have been understood in the federal

law. Because we find that the respondent’s conviction under section

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10851(a) falls within the definition of a “theft offense” under section

101(a)(43)(G) of the Act, and he was sentenced to at least 5 years’ imprisonment for this crime, the respondent has been convicted of a particularly

serious crime. See section 241(b)(3)(B) of the Act; Matter of S-S-, 22 I&N

Dec. 458 (BIA 1999). Consequently, the respondent is ineligible for withholding of removal under section 241(b)(3) of the Act.13

VI. CONCLUSION

The respondent’s conviction for grand theft auto is a conviction for an

aggravated felony under section 101(a)(43)(G) of the Act. He is therefore

removable as charged under section 237(a)(2)(A)(iii) of the Act. The

respondent’s conviction for “unlawful taking and driving of a vehicle”

under section 10851 of the California Vehicle Code is also a theft offense

and an aggravated felony under section 101(a)(43)(G) of the Act. Because

the respondent received a 5-year sentence of imprisonment for this crime,

he has been convicted of a particularly serious crime. Consequently, he is

ineligible for relief from removal. See Matter of S-S-, supra. Accordingly,

the appeal will be dismissed.

ORDER: The appeal is dismissed.

CONCURRING AND DISSENTING OPINION: John Guendelsberger,

Board Member, in which Paul W. Schmidt, Chairman; Lauri Steven Filppu,

Lory Diana Rosenberg, and Neil P. Miller, Board Members, joined

I respectfully concur in part and dissent in part.

No one disputes that the respondent is removable for having been convicted under section 487h(a) of the California Penal Code of an aggravated

felony, grand theft of an automobile (“grand theft auto”), or that this conviction renders the respondent ineligible for asylum under sections

208(b)(2)(A)(ii) and (B)(i) of the Immigration and Nationality Act, 8

U.S.C. §§ 1158(b)(2)(A)(ii) and (B)(i) (Supp. IV 1998). The only issues on

appeal concern the respondent’s eligibility for withholding of removal

under section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3) (Supp. IV 1998).

In particular, the respondent must show that he has not been convicted of a

particularly serious crime, either an aggravated felony for which he has

been sentenced to an aggregate term of imprisonment of at least 5 years or

13

While we respect the dissent’s articulation of its position to the contrary, we believe

that the analysis set forth herein speaks for itself and that no further response to the dissent

is required.

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an offense that is otherwise considered a “particularly serious crime” under

section 241(b)(3)(B)(ii) of the Act.

I disagree with the majority’s determination that the respondent’s conviction under section 10851 of the California Vehicle Code, for which he

was sentenced to 5 years of imprisonment, is an aggravated felony “theft

offense” under section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G)

(Supp. IV 1998).1

I. ISSUE ON APPEAL

The issue in this case is whether the respondent’s conviction for taking

a vehicle is an aggravated felony under section 101(a)(43)(G) of the Act,

which refers to “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least 1 year.”

The respondent was convicted under section 10851 of the California

Vehicle Code, which provides, in pertinent part, as follows:

Theft and unlawful driving or taking of a vehicle

a) Any person who drives or takes a vehicle not his or her own, without the consent of

the owner thereof, and with intent either to permanently or temporarily deprive the

owner thereof of his or her title to or possession of the vehicle, whether

with or without intent to steal the vehicle, . . . is guilty of a public offense . . . .

Cal. Veh. Code § 10851 (West 1995) (emphasis added).

II. DECISION BELOW

The Immigration Judge noted that section 10851 of the California

Vehicle Code covers a wide range of conduct. At one extreme, it includes

takings amounting to a permanent deprivation of the owner’s title or possession. At the other end of the spectrum, it includes takings that do not

involve an intent to steal the vehicle at all and that only temporarily deprive

the owner of title or possession. The respondent in this case was charged

under section 10851 for unlawfully driving and taking a vehicle “with intent

either permanently or temporarily, to deprive the said owner of title to and

possession of said vehicle.” (Emphasis added.) The Immigration Judge

concluded that

one may be convicted of this offense simply by unlawfully driving a vehicle and tem-

1

I agree with the majority that the Immigration Judge erred, under Matter of Aldabesheh,

22 I&N Dec. 983 (BIA 1999), by adding together concurrent sentences to find an aggregate

sentence of over 5 years in finding the respondent ineligible for withholding of removal.

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porarily depriving the owner of possession. This is not a theft. For that offense to be

an aggravated felony there must be some showing that it is a theft offense under

Section 101(a)(43)(G). Theft by its common law definition requires the taking and

depriving of the owner of the property with intent to do so permanently. A glorified

borrowing of property is not a theft. Consequently, those offenses are not a part of the

calculation.

For the reasons stated below, I agree with the Immigration Judge’s conclusion that some convictions under section 10851 of the California Vehicle

Code are not aggravated felony “theft” offenses under section

101(a)(43)(G) of the Act.

III. ANALYSIS

A. The Meaning of “Theft” in Section 101(a)(43)(G) of the Act

Congress designated “theft” offenses as aggravated felonies under section 101(a)(43)(G) without providing a definition of the term “theft” and

without referencing any other provisions in the United States Code. In the

absence of a definition of “theft” in the Act, or of some other clear expression of congressional intent, our task is to identify or formulate a uniform

definition of “theft” for purposes of the immigration law, in keeping with

the intent of the legislation as a whole. Castro-Baez v. Reno, 217 F.3d 1057

(9th Cir. 2000); Ye v. INS, 214 F.3d 1128 (9th Cir. 2000); United States v.

Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999); Matter of Perez, 22

I&N Dec. 1325 (BIA 2000).

Absent sufficient indication to the contrary, we assume that Congress

intends the words in its enactments to carry their “‘ordinary, contemporary,

and common meaning.’” Castro-Baez v. Reno, supra, at 1057 (quoting

United States v. Baron-Medina, supra); see also United States v. ZavalaSustaita, 214 F.3d 601 (5th Cir. 2000); United States v. Baron-Medina,

supra. We determine the “ordinary, contemporary, and common meaning”

of the term “theft” by looking to the common law, the contemporary meaning of the term as expressed in state and federal law, and other respected

sources such as the Model Penal Code. Taylor v. United States, 495 U.S.

575, 598 (1990).

Unlike a number of other provisions in section 101(a)(43), Congress

did not reference any provisions of federal law when it included “theft” in

the aggravated felony definition. Furthermore, that overall definition directs

that the term “applies to an offense described in this paragraph whether in

violation of Federal or State law.” Section 101(a)(43) of the Act. Here,

Congress used a generic common-law crime, or, at least, a popular name for

a common-law crime, that is frequently prosecuted by the states. This suggests that we should give meaningful weight to the approach taken by the

state law in defining “theft” when we fill in any gaps in the statutory lan1354

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guage as applied in individual cases.

In addressing the meaning of the term “burglary” in a federal sentencing provision, the United States Supreme Court found that Congress, in the

absence of a federal statutory definition, meant to use the term “burglary”

in “the generic sense in which the term is now used in the criminal codes of

most States.” Taylor v. United States, supra, at 598. In Taylor, the Court

derived a federal generic definition of burglary consistent with the use of

that term in most state criminal codes and in the Model Penal Code. Id.; see

also United States v. Baron-Medina, supra, at 1146 (looking to “‘the ordinary, contemporary, and common meaning of the words that Congress

used’” in determining the meaning of the term “sexual abuse of a minor” in

the aggravated felony provision at section 101(a)(43)(A) of the Act (quoting Zimmerman v. Oregon Dep’t of Justice, 170 F.3d 1169, 1174 (9th Cir.

1999))). As discussed below, the common-law understanding of “theft” and

the contemporary definition of “theft” in most state codes is consistent with

the approach described in the Model Penal Code, which includes as theft

offenses those takings of property that are permanent or essentially equivalent to a permanent dispossession because of prolonged use or manner of

disposal. Mere temporary dispossession of property, by contrast, generally

is not considered to fit within the concept of theft.

The majority formulates a definition of “theft” based primarily on the

broad construction afforded to the federal offense of transporting stolen

vehicles in interstate commerce under the Dyer Act provision at 18 U.S.C.

§ 2312. See National Motor Vehicle Theft Act, 18 U.S.C. §§ 2311-2313

(1994) (“Dyer Act”). As discussed below, however, the Dyer Act does not

employ the term “theft.” Moreover, the Dyer Act is not concerned with the

full range of offenses involving stolen property, but narrowly addresses the

transport of stolen vehicles in interstate commerce. The majority minimizes

the importance of state statutes and the Model Penal Code provisions,

which continue to emphasize the distinction between takings that are essentially permanent in nature and those that amount to temporary dispossession

of property.

There is no definition of the term “theft” in section 101(a)(43)(G) of the

Act. Nor, as noted above, is there any reference to a specific provision in the

federal criminal code, as in some of the other paragraphs setting forth

offenses that are aggravated felonies. See, e.g., sections 101(a)(43)(B), (C),

(D), (E), (H), (I), (J), (K), (L), (M), (P) of the Act. In the absence of a specific reference to a federal definition of a term used in defining an aggravated felony, we have looked to a variety of sources in determining the

intended meaning. See, e.g., Matter of Rodriguez-Rodriguez, 22 I&N Dec.

991, at 994 (BIA 1999) (noting that in defining the term “sexual abuse of a

minor” in section 101(a)(43)(A) of the Act, “we are not obliged to adopt a

federal or state statutory provision”).

1. Common-Law Theft, the Model Penal Code, and State Law

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For a crime of taking of property to be a theft, the common law required

a specific intent to permanently deprive the owner of the property. See In re

Albert A., 55 Cal. Rptr. 2d 217 (Cal. Ct. App. 1996) (holding that the taking of property of another is not a “theft” absent the specific intent to permanently deprive the victim of his or her property); Matter of Grazley, 14

I&N Dec. 330 (BIA 1973); Matter of D-, 1 I&N Dec. 143 (BIA 1941).

The Model Penal Code specifically addresses the contemporary meaning of the term “theft” in the criminal law and provides a particularly useful description and commentary on the scope of various theft offenses,

including takings of vehicles. See Model Penal Code and Commentaries pt.

II, art. 223 (1980). In describing the subset of theft offenses generally

described as larceny, i.e., unlawful takings of movable property, the Model

Penal Code provides that a person is guilty of theft “if he unlawfully takes,

or exercises unlawful control over, movable property of another with purpose to deprive him thereof.” Model Penal Code § 223.2(1) (emphasis

added). The term “deprive” is defined as follows:

“[D]eprive” means: (a) to withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to

restore only upon payment of reward or other compensation; or (b) to dispose of the

property so as to make it unlikely that the owner will recover it.

Model Penal Code § 223.0(1). This definition of the term “deprive”

includes both purposefully permanent deprivations as well as several classes of temporary deprivations that essentially destroy the value of the property for the owner. Many states have adopted and follow this definition

when dealing with the crime of theft. See, e.g., Ariz. Rev. Stat. Ann. § 13802 (West 1999); Colo. Rev. Stat. Ann. § 18-4-401 (West 1999); Nev. Rev.

Stat. Ann. § 205.0832 (Michie 1999); N.J. Stat. Ann. § 2C:20-3 (West

1999); N.Y. Penal Law § 40-155.00(3) (McKinney 1999); 18 Pa. Cons. Stat.

Ann. § 3921 (West 1999); Tex. Penal Code Ann. § 31.03 (West 1999).

The Commentaries to the Model Penal Code explain that “[a]lthough

the common law definition of larceny was often formulated in terms of an

intent to deprive permanently, convictions were sustained upon evidence

that fell considerably short of proving a purpose totally and finally to

deprive another of his property.” Model Penal Code § 223.2, cmt. 6, at 174.

Where an offender takes property of another for temporary use without

intending to return it and then abandons it, the offense was typically treated as a permanent taking. Id. For example, an unlawful taking of a lawnmower in early summer with the intent to return it in the fall, when it would

no longer be useful, is sufficient deprivation to amount to a theft offense. An

unlawful taking of the mower for a day or 2, however, would not be a theft

offense under the Model Penal Code.

The Model Penal Code distinguishes the “unauthorized use” of an auto1356

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mobile from the theft of an automobile. See Model Penal Code § 223.9. The

“unauthorized use” offense involves a “temporary dispossession” and is categorized as a misdemeanor. An unauthorized use is distinguished from a

deprivation for an extended period of time in which a “temporary use ripens

into conduct that makes recovery by the owner unlikely.” Model Penal

Code § 223.9, cmt. 4, at 276. In the latter situation, the offense is treated as

a theft offense under Article 223, with graver sanctions available. Id. In

describing the offense of temporary dispossession of a vehicle, the Model

Penal Code states as follows:

The typical situation dealt with is the “joyride,” i.e., the taking of another’s automobile without his permission, not for the purpose of keeping it but merely to drive it

briefly. The offense is typically committed by young people, and the car is generally

returned undamaged. Such behavior would not amount to larceny, which, as traditionally defined, requires proof that the actor intended to deprive the owner permanently.

Under the Model Penal Code, theft may be committed not only where the actor contemplates permanent dispossession of the owner but also where the actor contemplates

deprivation for an extended period of time or a disposition of the property under circumstances that make recovery by the owner unlikely.

See Model Penal Code § 223.9, cmt. 1, at 271 (footnotes omitted). The

Model Penal Code therefore applies the same general rule distinguishing permanent takings (theft offenses) from temporary dispossession (unauthorized

use) in the case of motor vehicles as it does to other movable property.

2. Federal Statutory Provisions Related to Theft Offenses

Although some provisions of the federal law criminalize the taking of

property without regard to whether the taking was temporary or permanent,

these provisions do not use the term “theft.” Rather, they refer to “steal[ing]”

or “purloin[ing],” and the choice of these terms has been recognized as a

deliberate expansion of the common-law concept of theft. E.g., United States

v. Henry, 447 F.2d 283 (3d Cir. 1971). As discussed below, Congress selected the term “theft” as opposed to “stealing.” This choice, in the context of

existing federal statutes using the term “stealing,” suggests a deliberate decision to apply the term “theft” as a term of art, which preserves the long-recognized distinction between permanent and temporary takings.

Title 18 of the United States Code generally categorizes theft-related

offenses under Chapter 31, entitled “Embezzlement and Theft.” 18 U.S.C. §§

641-669 (1994 & Supp. IV 1998). Section 661, the provision most closely

addressing unlawful taking of property, prohibits “within the special maritime

and territorial jurisdiction of the United States, tak[ing] and carry[ing] away,

with intent to steal or purloin, any personal property of another.” The courts

have held that this provision applies to temporary as well as permanent takings. See, e.g., United States v. Henry, supra (holding that 18 U.S.C. § 661

broadens the common-law crime of larceny because the words “steal” and

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“purloin” were used instead of the term “larceny” to describe the punishable

offense). Notably, however, the federal statute requires proof of “intent to

steal or purloin” whereas the California statute allows convictions for taking

“with or without intent to steal the vehicle.” Compare 18 U.S.C. § 661 (1994)

with Cal. Veh. Code § 10851(a) (West 1995).

The Dyer Act provision, 18 U.S.C. § 2312, which prohibits transport of

stolen vehicles in interstate commerce, has also been interpreted to apply

without regard to proof of an intent to take the vehicle permanently. United

States v. Turley, 352 U.S. 407 (1957). Like 18 U.S.C. § 611, the Dyer Act

provision enlarges the common-law approach to larceny and theft. Id. Neither

statute, however, defines or uses the term “theft.” Additionally, the Dyer Act

provision is specific to motor vehicles moved across state lines, whereas the

term “theft” in section 101(a)(43)(G) of the Act is used in regard to the taking of any personal property. Therefore, 18 U.S.C. § 611 and the Dyer Act

provision provide less than a definitive answer with respect to the meaning of

“theft” as used in section 101(a)(43)(G) of the Act.

Had Congress meant to move to a broader definition of “theft,” it could

have used the term “steal” or could have referred to crimes defined in 18

U.S.C. §§ 641-669 or in the Dyer Act. Because Congress chose not to do

so, the federal law relied upon by the majority is not of much help in providing a definitive answer as to the meaning of the term “theft” in section

101(a)(43)(G) of the Act. Particularly considering that the California statute

allows convictions for a taking “with or without the intent to steal the vehicle,” the majority’s reliance on federal law in the context of this state statute

is seriously called into question. See Cal. Veh. Code § 10851(a).

3. Theft Offenses Under Section 101(a)(43)(G) of the Act

The question here is whether Congress intended, in classifying theft

offenses as aggravated felonies, to completely discard the distinction

between permanent and temporary takings or to continue to recognize that

distinction in appropriate cases. If, as the majority concludes, Congress

intended to completely discard the distinction, harsh consequences will be

imposed for what may be relatively minor offenses. Mere joyriding or temporary dispossession of property, without the intent to steal, becomes an

aggravated felony, rendering an offender removable and ineligible for nearly all forms of relief, including withholding of removal.

Congress has not expressed an intent to extend the ordinary understanding of the scope of theft offenses in section 101(a)(43)(G) of the Act

in such a manner. In the absence of any directive to the contrary, the most

reasonable conclusion is that Congress intended to continue to recognize

the well-established distinction between temporary dispossession of property and a taking which, by intent or circumstance, amounts to a permanent

taking. This is particularly so when the Model Penal Code provisions

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addressing theft and unauthorized use of vehicles continue to recognize and

emphasize the distinction. As the Supreme Court has observed,

Where Congress borrows terms of art in which are accumulated the legal tradition and

meaning of centuries of practice, it presumably knows and adopts the cluster of ideas

that were attached to each borrowed word in the body of learning from which it was

taken and the meaning its use will convey to the judicial mind unless otherwise

instructed.

Morissette v. United States, 342 U.S. 246, 263 (1952). The choice of the

word “theft” in section 101(a)(43)(G) of the Act brings with it the distinction between permanent and temporary takings discussed above.

At the very least, the intent of Congress remains ambiguous as to

whether temporary dispossessions are included in the term “theft,” after

examination of the state of the law at the time of passage of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Division C

of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”). The majority

asserts that Congress must have been aware of the Dyer Act provision,

which had been broadly interpreted to preclude the need for showing intent

to deprive permanently when there was movement of a motor vehicle across

state lines, and that we should therefore presume that Congress employed

the term “theft” as broadly in section 101(a)(43)(G). Our task, when

Congress does not provide a definition, however, is not to pick and choose

a particular provision of state or federal law as our template. Rather, we are

instructed to apply the “ordinary, contemporary, and common meaning” of

the term at issue. Castro-Baez v. Reno, supra; see also United States v.

Zavala-Sustaita, supra; United States v. Baron-Medina, supra.

Had Congress fully surveyed the state of the law, as the majority

assumes, it would have taken into account more than simply the federal

statutory provisions addressing interstate movement of vehicles. Given the

importance of the Model Penal Code as a reflection of state criminal law

and as a benchmark for the development of that law, it is difficult to accept

that Congress would have regarded the Dyer Act or other federal statutory

provisions as indicative of the “ordinary, contemporary, and common meaning” of the term “theft.” Had Congress so intended, it could have referred

to a federal law provision, as it did in numerous other paragraphs of the Act.

Its failure to expressly reference any federal provision, especially considering that it did reference particular federal provisions in other paragraphs of

section 101(a)(43), suggests an intent to not specifically incorporate the

federal law, over state law, into section 101(a)(43)(G). See United States v.

Zavala-Sustaita, supra.

To the extent that there may be any lingering ambiguities regarding the

intended scope of the term “theft” in section 101(a)(43)(G), doubts should

be resolved in favor of continued recognition of the distinction between

temporary and permanent takings in defining theft offenses. See INS v.

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Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (directing courts and this

agency to “constru[e] any lingering ambiguities in deportation statutes in

favor of the alien”) (citations omitted).

B. Respondent’s Conviction As a Theft Offense

A review of federal and state law, as well as of the Model Penal Code

provisions concerning theft, leads to the conclusion that the general understanding of the concept of “theft” is that it does not include the full range

of offenses encompassed by section 10851 of the California Vehicle Code.

Notably, the offense of taking an automobile for temporary use under

California law, categorized as a misdemeanor under the “joyriding” prohibition in former section 499b of the Penal Code, was amended in 1996 to

apply only to bicycles and motorboats. 1996 Cal. Stat. ch. 660, § 3 (A.B.

3170). This amendment recognized that sections 499b and 10851 had

afforded overlapping coverage for the offense of automobile joyriding.

Since 1996, automobile joyriding is prosecuted only under section 10851,

along with more serious instances of motor vehicles takings. Notably, a separate provision of the California Code penalizes “grand theft,” i.e., the

offense of feloniously stealing or taking a motor vehicle. See Cal. Penal

Code § 487(d) (1999) (formerly § 487).

A state offense qualifies as an aggravated felony only if the “full range

of conduct” covered by the criminal statute would be encompassed by the

aggravated felony at issue. United States v. Baron-Medina, supra, at 1146;

United States v. Lomas, 30 F.3d 1191, 1193 (9th Cir. 1994) (invoking the

categorical approach and stating that the court looked “only at the statutory

definition of [the crime], not the underlying factual circumstances of [the

respondent’s] crime”). When the statute at issue reaches both conduct that

would constitute a theft and conduct that would not, as does section 10851

of the California Vehicle Code, we look to the record of conviction to determine whether the actual offense of which the respondent was convicted

qualifies as a theft offense. See Ye v. INS, supra; United States v. BaronMedina, supra, at 1146 n.3.

In the instant case, there is insufficient evidence in the record of conviction to indicate that the respondent intended either an extended deprivation or one that would make recovery by the owner unlikely. The charging

document in this case is framed to include the entire range of offenses covered by section 10851, from joyriding to intentional permanent dispossession of a vehicle. The charging document is deliberately ambiguous as to

whether the taking was permanent or temporary. It does not indicate that the

respondent’s use of the vehicle was other than for temporary use or mere

joyriding. Although a jury might be permitted to resolve this issue based on

the underlying facts, we are faced with a record of conviction in which the

question of temporary versus permanent taking is left unresolved. We may

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not resort to speculation in determining whether the respondent’s conviction

was for a taking that constitutes a “theft” under the aggravated felony

statute. Nor may we look beyond the charging document to the particular

facts underlying the conviction.2 Ye v. INS, supra.

IV. CONCLUSION

I would affirm the Immigration Judge’s determination that the respondent’s 1995 conviction under section 10851 of the California Vehicle Code

is not for an aggravated felony theft offense and find that, although sentenced to 5 years’ imprisonment for this offense, he is not barred from

applying for withholding of removal.3

For the foregoing reasons, I would remand the record to the

Immigration Judge to provide the respondent an opportunity to submit an

application for withholding of removal to Lebanon under section 241(b)(3)

of the Act.

2

While it may be permissible in the context of a criminal trial for a jury or trier of fact

to draw an inference from the underlying facts that the taking was permanent, we do not retry

the criminal case in assessing whether an aggravated felony has been committed for purposes of determining removability. In a related context, in concluding that an alien was not

deportable for a firearms violation under a statute criminalizing possession of a “weapon”

where the record of conviction did not establish that the weapon was a firearm, we found that

“[g]eneral evidence related to what a respondent has done—as opposed to specific evidence

of what he was actually convicted of doing—is not relevant to the issue of deportability . . .

because neither an Immigration Judge nor this Board can try or retry the criminal case.”

Matter of Teixeira, 21 I&N Dec. 316, 320 (BIA 1996) (citing INS v. Lopez-Mendoza, 468

U.S. 1032, 1039 (1984)).

3

Although the majority does not reach the issue, I would find that the respondent’s

conviction under section 10851, if not an aggravated felony, is also not a “particularly serious crime” within the meaning of section 241(b)(3)(B) of the Act. See Matter of S-S-,

Interim Decision 3374 (BIA 1999). Crimes against persons are generally considered more

serious than crimes directed against property. Id.; Matter of Frentescu, 18 I&N Dec. 244

(BIA 1982), modified, Matter of C-, 20 I&N Dec. 529 (BIA 1992), Matter of Gonzalez, 19

I&N Dec. 682 (BIA 1988). However, even crimes involving risk to other persons are not

necessarily particularly serious crimes. We have held, for example, that the crime of alien

smuggling, under dangerous circumstances but where there was no injury, was not a particularly serious crime. Matter of L-S-, 22 I&N Dec. 645 (BIA 1999). The respondent’s conviction under section 10851 of the California Vehicle Code is for a crime against property.

Although there may be a risk that, in the commission of the criminal act, the defendant

would be involved in activity that might be a particularly serious offense, such conduct is

not necessary for a conviction under section 10851. The respondent’s 5-year sentence for

the offense, although lengthy, was partly a result of sentence enhancement. See Cal. Penal

Code §§ 666.5, 667.5(b) (West 1995) (calling for enhanced sentences for repeat offenders).

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