BIA PRECEDENT: SD Receipt Of Stolen Motor Vehicle NOT An Agfel — Lacks Mens Rea — Matter Of DEANG, 27 I&N Dec. 57 (BIA 2017) — Split Panel!

https://www.justice.gov/eoir/page/file/974211/download

BIA HEADNOTES:

(“1) An essential element of an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2012), is that an offender must receive property with the “knowledge or belief” that it has been stolen, and this element excludes a mens rea equivalent to a “reason to believe.”

(2) A conviction for receipt of a stolen motor vehicle under section 32-4-5 of the South Dakota Codified Laws categorically does not define an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Act because it is indivisible with respect to the necessary mens rea and only requires, at a minimum, that an offender have a “reason to believe” that the vehicle received was stolen.”

BIA PANEL: Appellate Immigration Judges Pauley, Creppy, & Malphrus

OPINION BY: Judge Pauley

DISSENTING OPINION: Judge Malphrus

Here’s an excerpt from Judge Malphrus’s dissent:

“I cannot agree with the majority’s conclusion that the respondent’s receipt of stolen property offense does not qualify as an aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012). I agree that our task is to determine the generic, contemporary meaning of the phrase “receipt of stolen property” in section 101(a)(43)(G) by surveying the Federal and State statutes as they existed in 1994, when Congress added the phrase “receipt of stolen property” to section 101(a)(43) of the Act, as well as the Model Penal Code. See Taylor v. United States, 495 U.S. 575, 592, 598 (1990); see also Matter of Alvarado, 26 I&N Dec. 895, 897 (BIA 2016). However, there was simply no consensus regarding the mens rea standard for receipt of stolen property offenses in 1994. I cannot conclude that Congress intended to adopt a mens rea that, according to the majority, would preclude offenses in 21 jurisdictions, as well as a Federal offense, from qualifying as aggravated felonies.”

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Read the complete majority and dissenting opinions at the link. This is a very rare (these days) “split panel” on a BIA precedent.

PWS

06-18-17

 

NEW PRECEDENT: BIA On “Receipt Of Stolen Property” –Matter of ALDAY-DOMINGUEZ, 27 I&N Dec. 48 (BIA 2017) — Still Getting It Wrong After All These Years — Read My “Dissenting Opinion!”

https://www.justice.gov/eoir/page/file/970806/download

Here’s the BIA headnote:

“The aggravated felony receipt of stolen property provision in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), does not require that unlawfully received property be obtained by means of common law theft or larceny.”

PANEL: BIA Appellate Immigration Judges Pauley, Guendelsberger, and Kendall Clark

OPINION BY: Judge Pauley

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I respectfully dissent.

The Immigration Judge got it right. Under the “plain meaning” of the statute, the respondent is not an aggravated felon. Therefore, the DHS appeal should be dismissed.

Nearly 17 years ago, when I was Chairman of the BIA, I joined the dissenting opinion of Judge Lory D. Rosenberg in a related case, Matter of Bhata, 22 I&N Dec. 1381 (BIA 2000) https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3437.pdf which is cited by this panel in Matter of Alday-Dominguez. Indeed, the panel relies on Bhata to support it’s incorrect decision.

However, as Judge Rosenberg pointed out cogently in her dissent:

Accordingly, the modifying parenthetical phrase helps only to elucidate the main clause of the provision. Although the language “theft offense” may require our interpretation, the parenthetical must be read according to its own terms in the context of that subsection of the Act. The phrase “(including receipt of stolen property)” after the word “offense” limits the crimes that are included within the phrase “theft offense.” United States v. Monjaras-Castaneda, supra, at 329 (citing John E. Warriner & Francis Griffith, English Grammar and Composition (Heritage ed., Harcourt Brace Jovanovich 1977)). Specifically, the parenthetical provides that a “theft offense” encompasses the particular offense of receiving stolen property (which, by implication and judicial interpretation, is not a theft).

Matter of Bhata, supra, at 1396 (Rosenberg, AIJ dissenting).

Clearly, as pointed out by Judge Rosenberg, under a “plain reading” of the statutory language, “receipt of stolen property”  is a “subgroup” of a theft offense. Consequently, the unlawfully received property must have been obtained by “theft.” The California statute includes things other than property obtained by theft, specifically objects obtained by “extortion.”

Therefore, under the “categorical approach,” the California statute is broader than the aggravated felony offense described in section 101(a)(43)(G) of the Act. Accordingly, the DHS fails to establish that the respondent is removable under that section. Hence, the Immigration Judge correctly terminated removal proceedings, and the DHS appeal should be dismissed.

The majority is just as wrong today as it was in Bhata. Remarkably, a member of this panel, Judge Guendelsberger, along with Judge Gus Villageliu and Judge Neil Miller, joined our dissent in Bhata. Sadly, over the course of his unjustified exile, followed by re-education, rehabilitation, and reappointment to his Appellate Judgeship, my friend and colleague’s views must have changed since the days when he stood up with the rest of us for respondents’ legal rights against the majority of our colleagues who all too often bought the Government’s arguments, even when they were less than persuasive.

Just this week, in a unanimous decision written by Justice Clarence Thomas, the Supreme Court reinforced the “plain meaning” analysis in applying the categorical approach to an aggravated felony removal provision involving “sexual abuse of a minor.” Esquivel-Quintana v. Sessions, ___ U.S. ___ (2017). Yet, the panel seems “tone-deaf” to the very clear message from Justice Thomas and his colleagues about the impropriety of manipulating clear statutory language to achieve a finding of removal.

In conclusion, the respondent has not been convicted an of an aggravated felony under section 101(a)(43)(G) of the Act by virtue of his conviction for receiving stolen property under the California Penal Code. Consequently, the Immigration Judge reached the correct result, and the DHS appeal should be dismissed.

Therefore, I respectfully dissent from the panel’s decision to sustain the DHS appeal.

Paul Wickham Schmidt

Former BIA Chairman, Appellate Immigration Judge, & United States Immigration Judge (Retired)

Entered: June 2, 2017

PRECEDENT: BIA Opines On “Divisibility” In Agfel Cases — Matter of CHAIREZ-CASTREJON, 27 I&N Dec. 21 (BIA 2017)

https://www.justice.gov/eoir/page/file/959656/download

Here’s the BIA headnote:

“In determining whether a statute is divisible under Mathis v. United States, 136 S. Ct. 2243 (2016), Immigration Judges may consider or “peek” at an alien’s conviction record only to discern whether statutory alternatives define “elements” or “means,” provided State law does not otherwise resolve the question.”

PANEL: Appellate Immigration Judges Pauley, Greer, Malphrus

OPINION BY: Judge Pauley

CONCURRING OPINION BY: Judge Malphrus

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This case is unusual because BIA Judges seldom file “separate opinions” in published decisions these days.

In his concurring opinion, Judge Garry D. Malphrus appears to be both questioning whether the  Supreme Court’s approach to statutory “divisibility” analysis comports with congressional intent in immigration matters and inviting Congress to perhaps change the INA so that the BIA and the Immigration Judges could examine the facts of the case, as set forth in the record of conviction, to determine whether the individual should be removed. Judge Malphrus says in his conclusion:

“Here, we must presume that the respondent committed the least of the acts criminalized within the range of conduct punishable under his statute of conviction. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). This is true even though the respondent’s plea agreement indicates that he did more—specifically, that he knowingly discharged a firearm at another, and thus he committed an aggravated felony crime of violence. See id.

The approach to divisibility required by Descamps and Mathis will result in immigration proceedings being terminated for many aliens who have committed serious crimes in the United States. See, e.g., Ramirez v. Lynch, 810 F.3d 1127, 1134–38 (9th Cir. 2016) (reversing the order of removal upon concluding that the California statute proscribing felony child abuse was not divisible, and thus it was improper to consider the conviction records in determining whether the alien’s conviction constituted an aggravated felony crime of violence). [footnote omitted].  It is for Congress to determine whether this approach is consistent with its intent regarding the immigration consequences of such criminal conduct.”

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Another observation: How could an unrepresented respondent charged under this section possibly defend himself consistent with due process when the law is so complex and convoluted. This particular respondent was fortunate enough to have a lawyer, and as we can see, he was able to achieve a favorable result. But, recent studies have shown that the overwhelming number of respondents in detention (as individuals charged as “agfels” must be) must proceed without counsel. http://wp.me/p8eeJm-Gv

PWS

04-24-17

 

 

BIA Says MD Sexual Solicitation Of Minor Is Categorical CIMT — Matter of JIMENEZ-CEDILLO, 27 I&N Dec. 1 (BIA 2017) — BIA Reaches A Publication Milestone!

https://www.justice.gov/eoir/page/file/955631/download

Here’s the headnote:

“(1) A sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young—that is, under 14 years of age—or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child. Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016), clarified.

(2) Sexual solicitation of a minor under section 3-324(b) of the Maryland Criminal Law with the intent to engage in an unlawful sexual offense in violation of section 3-307 is categorically a crime involving moral turpitude.”

PANEL: Appellate Immigration Judges Pauley, Mullane, and Greer; Opinion by Judge Pauley.

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Yeah, I know that they teach you in law school never to rely on headnotes. So, if you are going to use this case for any legal filing you should of course read the entire opinion.

But, for the rest of us, the BIA headnotes are some of the “best in the business” if I do say so myself, having had some role in setting up the “modernized version” of BIA precedent distribution and formatting in one of my former lives.

And with this case, the BIA crosses another threshold in its 77 year history: completion of Volume 26 and the very first decision in Volume 27.

PWS

04-08-17