Ninth Circuit Finds that Washington Conviction for Possession of a Stolen Vehicle is an Aggravated Felony

The Ninth Circuit has determined that a Washington conviction for possession of a stolen vehicle qualifies as an aggravated felony if accompanied by a sentence of at least one year of imprisonment.

“Washington’s stolen vehicle statute also requires actual knowledge that the vehicle was stolen. The statute requires not only that the defendant ‘knowingly’ possess the stolen property but also have a state of mind of ‘knowing that it has been stolen.’” “And since actual knowledge requires an intent to deprive the owner of his property, the state statute also matches the generic offense’s intent requirement.”

The full text of Chmukh v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/23/21-1096.pdf

Third Circuit Finds that PA Retail Theft Conviction is Aggravated Felony

The Third Circuit has determined that a Pennsylvania conviction for retail theft matches the generic definition of a theft aggravated felony. There is an interesting discussion of Pennsylvania’s use of “permissive inferences” in its penal code.

The full text of Baghdad v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/212094p.pdf

Second Circuit finds NY Petit Larceny is CIMT

The Second Circuit has determined that a New York conviction for petit larceny is a crime involving moral turpitude because an intent to appropriate property requires an intent to substantially erode the victim’s ownership rights.

The full text of Ferreiras v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/82e4ac18-2012-401b-8999-8ae9ad5e00e8/5/doc/19-4111_complete_opn_2.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/82e4ac18-2012-401b-8999-8ae9ad5e00e8/5/hilite/

Ninth Circuit Finds HI 4th Degree Theft not CIMT

The Ninth Circuit has determined that a Hawaii conviction for fourth degree theft is not a crime involving moral turpitude because it does not require the defendant to intend to permanently deprive or substantially erode the owner’s property interests. The court further determined that the statute is indivisible.

The full text of Maie v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/02/19-73099.pdf

Ninth Circuit Affirms that CA Petty Theft is a CIMT (but with a Twist!)

The Ninth Circuit has reaffirmed its prior precedent that a conviction in California for petty theft is a crime involving moral turpitude (CIMT). Although the court recognized that the California Supreme Court had clarified that non-permanent takings are criminalized under the petty theft statute (a conclusion that would render any pre-Diaz Lizarraga convictions to be overbroad as CIMTs), it also held that it was bound by the court’s prior precedent that petty theft is a CIMT. Only an en banc court could reverse that precedent.

The full text of Silva v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/10/16-70130.pdf

An amended opinion can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/30/16-70130.pdf

Tenth Circuit finds that Aurora, Colorado Theft Conviction is Divisible as a CIMT

The Tenth Circuit has determined that a conviction under the Aurora, Colorado Municipal Code is overbroad and divisible with respect to the definition of a crime involving moral turpitude. Because the petitioner could not prove that her conviction was under a subsection that did not match the definition of a crime involving moral turpitude, the court concluded that she had not met her burden of proving eligibility of cancellation for removal for nonlawful permanent residents.

The full text of Robles-Garcia v. Barr can be found here:

https://www.ca10.uscourts.gov/opinions/18/18-9511.pdf

Eighth Circuit finds that Nebraska Theft by Receiving Stolen Property Conviction is CIMT

The Eighth Circuit has determined that a Nebraska conviction for theft by receiving stolen property is a crime involving moral turpitude because the statute requires an intent to permanently deprive the owner of the benefits of ownership of the property.

The full text of Reyna v. Barr can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/08/181614P.pdf

Fifth Circuit Declines to Apply Diaz Lizarraga Retroactively

The Fifth Circuit has declined to retroactively apply the Board of Immigration Appeals’ decision in Matter of Diaz Lizarraga - which altered the definition of a crime involving moral turpitude as it applies to theft offenses - finding that doing so would impact the expectations of criminal defendants who accepted pleas to theft offenses in reliance on the prior rule.

The full text of Monteon-Camargo v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60345-CV0.pdf

Tenth Circuit Addresses Municipal Code Theft; inconclusive records of conviction

The Tenth Circuit has determined that theft under the Westminster, Colorado municipal code is overbroad and divisible as compared to the generic definition of a crime involving moral turpitude (CIMT) because it contains four separate crimes, and one subsection does not require the defendant to intend to permanently deprive the owner of the benefits of ownership.  Notably, the Court recognized that the Board of Immigration Appeals has recently updated its definition of theft-related CIMTs, but noted that this updated definition would only apply prospectively to cases initiated after the issuance of the new definition.  

The court then determined that the record of conviction was inconclusive as to which subsection of the theft statute the petitioner was convicted of violating.  However, since he was seeking cancellation of removal, the burden was on him to prove that he had not been convicted of a CIMT, and he could not meet this burden with an inconclusive record.  In so finding, the court joined the Ninth Circuit's recent split from the First Circuit on this issue.

The full text of Lucio-Rayos v. Sessions can be found here:

https://www.ca10.uscourts.gov/opinions/15/15-9584.pdf

First Circuit Finds that CT Conviction for Third Degree Larceny is Theft Offense

The First Circuit has determined that a Connecticut conviction for third-degree larceny qualifies as a theft offense aggravated felony.  The petitioner argued that the statute was not a categorical match to the definition of a theft offense because it did not require an intent to permanently deprive the owner of the benefits of ownership and because it included theft of services.  The court rejected the first argument, finding that a total deprivation is not required.  The court also rejected the second argument, finding that Congress did not intend the definition of a theft offense to be a perfect match to the common-law definition of theft, and noting that at the time theft-related aggravated felonies were added to the INA, the Model Penal Code and half of the states included theft of services in the definition of theft.

Finally, the court declined to rule on whether theft by fraudulent means, which is clearly covered by the statute, precluded a determination that the statute was a categorical match to the generic definition of a theft offense, because the petitioner had failed to raise this argument to the agency.

The full text of De Lima v. Sessions can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/15-2453P-01A.pdf

Ninth Circuit finds that Idaho Petit Theft Statute is Overbroad with Respect to Definition of a CIMT

The Ninth Circuit has determined that Idaho's petit theft statute is overbroad as compared to the definition of a crime involving moral turpitude because it criminalizes temporary takings of property.  

The court also noted that the effect of an inconclusive record is unclear because it remains an open question whether the burden allocations in Young v. Holder survived the Supreme Court's decision in Moncrieffe v. Holder.  However, the panel declined to reach that question because another panel has priority to do so.  

The court also directed the BIA to reconsider its decision in Matter of Cortez, in which the BIA found that the unambiguous text of the cancellation statute disqualified any person from seeking cancellation who had been convicted of a crime involving moral turpitude for which a sentence of at least one year could be imposed, regardless of whether the conviction took place more than five years after the person's admission to the United States.  The court found the statute is not unambiguous, and thus, directed the BIA to examine its analysis using its discretion to interpret the statute in a reasonable manner. 

The full text of Lozano-Arredondo v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/08/11-72422.pdf                              

Eighth Circuit Addresses Kansas Municipal Judgments

The Eighth Circuit has determined that municipal judgments under Kansas law qualify as convictions for immigration purposes.  The court further determined that theft, as defined in the Uniform Public Offense Code, requires permanent takings, thus, qualifies as a crime involving moral turpitude.

The full text of Dominguez-Herrera v. Sessions can be found here:

http://media.ca8.uscourts.gov/opndir/17/03/153457P.pdf

BIA Issues Two Precedential Decisions Addressing Theft Crimes as CIMTS

The Board of Immigration Appeals (Board) has issued a pair of companion cases addressing when theft crimes are properly considered to be crimes involving moral turpitude (CIMT).  In Matter of Diaz-Lizarraga, the Board determined that a conviction for theft would qualify as a CIMT if it required an intent to permanently deprive the owner of the property or circumstances where the owner's property rights are substantially eroded.  The Board then determined that a conviction for shoplifting in Arizona categorically qualified as a CIMT.  In Matter of Obeya, the Board applied this new definition to determine that conviction for petit larceny in New York is also a CIMT.

The full text of Matter of Diaz-Lizarraga can be found here:

https://www.justice.gov/eoir/page/file/910821/download

The full text of Matter of Obeya can be found here:

https://www.justice.gov/eoir/page/file/910826/download

Eleventh Circuit Construes Georgia's "Theft By Taking" Statute

The Eleventh Circuit has determined that Georgia's "theft by taking" statute is not categorically a theft offense.  The statute includes obtaining property through fraudulent means, and thus, with the owner's consent.  This conduct falls outside the generic definition of a theft offense.

The full text of Vassell v. Attorney General can be found here: 

http://media.ca11.uscourts.gov/opinions/pub/files/201511156.pdf

Ninth Circuit Finds that California Theft Convictions are never Aggravated Felonies

In a follow up to several published and unpublished decisions that have suggested this holding, the Ninth Circuit issued a published decision finding that California theft crimes (which include theft of labor and theft by false pretenses) are overbroad and indivisible compared to the generic definition of a theft offense.  As such, they will never qualify as theft aggravated felonies, regardless of the sentence imposed.

The full text of Lopez-Valencia v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/17/12-73210.pdf

Ninth Circuit Finds that CA Petty Theft Offenses are Overbroad and Indivisible

In a short unpublished case, the Ninth Circuit determined that California's definition of petty offense is categorically overbroad and indivisible as compared to the generic definition of a theft offense.  As such, it can never be a theft aggravated felony, regardless of the sentence imposed.

The full text of Chavez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/08/06/11-73977.pdf

FOURTH CIRCUIT ADDRESSES VIRGINIA'S CRIME OF UNAUTHORIZED USE OF A MOTOR VEHICLE

In a precedent decision issued today, the Fourth Circuit determined that a conviction in Virginia for unauthorized use of a vehicle does not qualify as a theft offense aggravated felony.  After analysis state case law interpreting the statute of conviction, the court determined that it criminalizes de minimis deprivations of ownership interests, which the court described as "glorified borrowing."  Because this conduct falls outside the generic definition of a theft offense, the conviction does not serve as a ground of removability.  The language of the decision suggests (though does not explicitly state) that the statute is overbroad AND non-divisible, meaning that a modified categorical analysis will never be appropriate.  

The full text of Castillo v. Holder can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/01/14/13-10322.pdf