(B)  Definition of a “Theft Offense.”  The BIA and various circuits have adopted more or less consistent definitions of the term “theft offense,” although there are some differences.  In finding that a conviction for possession of a stolen motor vehicle was an aggravated felony, the Seventh Circuit created a generic definition of “theft” that is consistent with the BIA interpretation.  Theft, according to the court, is “the taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.”[874]  The court arrived at this definition by combining the approaches of the Fifth and Ninth Circuits, merging the Black’s Law Dictionary definition with that under the Model Penal Code, and coming to essentially the same conclusion as the BIA in the VZS case that a temporary taking is sufficient (although those were not the facts of the case at hand and thus this portion of the opinion could be dismissed as dictum). 

Board of Immigration Appeals.  In a controversial decision, a divided BIA held that even a temporary taking of property, such as temporarily stealing a car to go “joyriding,” can constitute theft for purposes of the aggravated felony definition.[875]  The respondent had been convicted under Calif. Penal Code § 10851, a provision that prohibits taking another’s vehicle with the intent to deprive the person of it permanently (which is auto theft) or temporarily (often referred to as “joyriding”).  The Board held that a conviction under either subsection was “theft” within the meaning of the aggravated felony definition.

 

Second Circuit.  The Second Circuit held — contrary to the Ninth Circuit — that theft of services fell within the aggravated felony definition of a theft offense.[876]  The Second Circuit also held that a misdemeanor crime of violence or theft offense can constitute an aggravated felony, for purposes of triggering the 16-level sentence enhancement for illegal re-entry, so long as the offense meets the statutory definition of theft.[877] 

 

Fifth Circuit.  The federal circuit courts are beginning to adopt the BIA interpretation of the generic meaning of “theft.”  In Lopez-Elias v. Reno,[878] the Fifth Circuit held that a petitioner’s conviction under Texas Penal Code Ann. § 30.04(a) for burglary of a vehicle with the intent to commit theft therein did not constitute a “theft offense” because the petitioner was only convicted of having the intent to commit theft rather than for actually having committed theft.  The Fifth Circuit in United States v. Dabeit[879] held that a conviction under 18 U.S.C. § § 1014 and 2113(b) for a check kiting conspiracy was a “theft offense,” relying on the definition found in Black’s Law Dictionary, that “theft” is “the act of stealing.”[880] 

Seventh Circuit.  In United States v. Martinez-Garcia,[881] the Seventh Circuit found that a defendant’s plea to an information charging an intent to commit a theft and the taking of a substantial step toward the commission of the theft (unlawfully entering a motor vehicle without the owner’s consent), met the generic federal definition of attempt,[882] and therefore qualified as an aggravated felony theft conviction.  In finding that a conviction for possession of a stolen motor vehicle was an aggravated felony, the Seventh Circuit crafted a generic definition of “theft” that is consistent with the BIA interpretation.  Theft, according to the court, is “the taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.”[883]  The court arrived at this definition by combining the approaches of the Fifth and Ninth Circuits, merging the Black’s Law Dictionary definition with that under the Model Penal Code, and coming to essentially the same conclusion as the BIA in the VZS case that a temporary taking is sufficient (although those were not the facts of the case at hand and thus this portion of the opinion could be dismissed as dictum). 

            Eighth Circuit.  The Eighth Circuit held that an Iowa conviction of identity theft[884] constitutes aggravated felony as a “theft offense” for purposes of eight-level sentence enhancement[885] for an illegal re-entry conviction.[886]  This decision is very poorly reasoned, and should not be followed.  It contradicts authority holding that the state label of an offense (e.g., as identity “theft”) is not determinative of whether the conviction falls within an aggravated felony category.  For example, auto “burglary” does not constitute “burglary” for aggravated felony purposes.  See § 7.37(c), supra.  It also ignores the traditional boundaries of the offense of theft that should be applied in this context.  See § 7.103(A), supra.

 

Ninth Circuit.  The Ninth Circuit in United States v. Corona-Sanchez[887] held that a defendant’s conviction under California Penal Code § § 488 and 666 for “petit larceny with a prior” was a “theft offense” because it fit the definition under the Model Penal Code.  The court noted that the Fifth Circuit in Dabeit adopted the Black’s Law Dictionary definition,[888] and concluded that the Model Penal Code definition[889] was consistent with that definition.[890]

In Huerta-Guevara v. Ashcroft,[891] the Ninth Circuit granted a petition for review and vacated a removal order predicated on an Arizona conviction of possession of a stolen vehicle,[892] holding the conviction did not fall within the generic definition of “theft offense” necessary to constitute an aggravated felony[893] adopted by the circuit en banc in Corona-Sanchez v. INS.[894]  The court held under the categorical approach, that the Arizona statute was overbroad, with respect to the generic definition of “theft offense,” in three respects.  The Arizona statute prohibited “theft of services,” which are not considered property and therefore fall outside the generic definition of theft.[895]  The statute prohibited aiding and abetting, which also falls outside the generic definition of theft.[896]  Third, the Arizona statute “is a divisible statute, four subparts of which do not require intent.”[897]  Therefore, “the conduct proscribed by § 13-1802 extends beyond the term ‘theft offense.’  Accordingly, a conviction under A.R.S. § 13-1802 does not facially qualify as a theft offense that is an aggravated felony under the INA.”[898]

 

Similarly, the Ninth Circuit held that an Arizona conviction of “theft of a means of transportation” did not constitute an aggravated felony, since the record of conviction did not specify which of five subdivisions of the statute constituted the offense of conviction, and three of the five did not require, as an essential element, the intent to deprive the owner that is required to constitute an aggravated felony theft offense.  Where the statute of conviction has distinct, numbered subdivisions, and the record of conviction does not establish which subdivision constitutes the statute of conviction, the conviction will not be considered deportable unless each of the subdivisions triggers deportation.[899]  The court stated:

On examination, it is evident that neither section (2) nor section (4) nor section (5) constitutes theft in the generic sense of “a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership even if such deprivation is less than total or permanent.” United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc).

 

What is critical in the generic definition is the criminal intent to deprive the owner. The Arizona statute requires knowledge, but the statute does not require intent for violation of (2), (4) or (5). Section (2), for example, could be violated by the renter of a rental car keeping the car beyond the date of return specified in the contract or by returning the car to an airport not identified in the contract. The section could also be violated by a college student driving his dad’s car to a destination other than that for which his dad had given permission. Section 4 could be violated by a person at a hotel taking delivery from a valet of a rental car, not the one that he had parked, and keeping the car for the evening on the theory that rental cars are fungible (a case familiar to the author of this opinion). The examples could be multiplied. Three sections of the statute cover more than generic theft.[900]

 

The court therefore granted the petition for review. 

The Ninth Circuit held a federal conviction for possession of stolen mail, in violation of 18 U.S.C. § 1708, constitutes a theft offense and is therefore an aggravated felony for purposes of triggering deportation.[901]

 

Tenth Circuit.  The Tenth Circuit has reached the same result as the Seventh Circuit.[902]

[874] Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. 2001).

[875] Matter of VZS, 22 I. & N. Dec. 1338 (BIA 2000).

[876] Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. Aug. 5, 2004) (definition of the “theft” for purposes of INA § 101(a)(43)(G) includes theft of services).  But see United States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. 2002) (en banc).

[877] United States v. Pacheco, 225 F.3d 148 (2d Cir. 2000).

[878] Lopez-Elias v. Reno, 209 F.3d 788, 792 (5th Cir. 2000).

[879] United States v. Dabeit, 231 F.3d 979, 983-84 (5th Cir. 2000).

[880] See id. at 983.

[881] United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001).

[882] INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U).

[883] Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. 2001).

[884] Iowa Code § 715A.8.

[885] United States Sentencing Guideline § 2L1.2(b)(1)(C).

[886] United States v. Mejia-Barba, 327 F.3d 678 (8th Cir. May 5, 2003).

[887] United States v. Corona-Sanchez, 234 F.3d 449, 455 (9th Cir. 2000).

[888] Black’s Law Dictionary defines “theft” as:  “A popular name for larceny. The act of stealing. The taking of property without the owner’s consent. The fraudulent taking of personal property belonging to another, from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.  [Para.]  It is also said that theft is a wider term than larceny and that it includes swindling and embezzlement and that generally, one who obtains possession of property by lawful means and thereafter appropriates the property to the taker’s own use is guilty of a ‘theft’.  Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property: (a) Obtaining or exerting unauthorized control over property; or (b) Obtaining by deception control over property; or (c) Obtaining by threat control over property; or (d) Obtaining control over stolen property knowing the property to have been stolen by another.” Black’s Law Dictionary 1477 (6th ed. 1990) (citations omitted).  “Larceny” is defined as: “Felonious stealing, taking and carrying, leading, riding, or driving away another’s personal property, with intent to convert it or to deprive owner thereof. . . . The essential elements of a ‘larceny’ are an actual or constructive taking away of the goods or property of another without the consent and against the will of the owner or possessor and with a felonious intent to convert the property to the use of someone other than the owner.” Id. at 881.  “Possession” entails “[h]aving control over a thing with the intent to have and to exercise such control.” Id. at 1163. “Receiving stolen goods or property” means acquiring “physical dominion or apparent legal power to dispose of property and envisages possession or control as an essential element.” Id. at 1269.

[889] The Model Penal Code sets forth a “[c]onsolidation of theft offenses.” Model Penal Code sec. 223.1; see Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § § 8.1, 8.8 (West 1986 & 1999). The consolidation subsumes eight offenses, namely: (1) theft by unlawful taking or disposition; (2) theft by deception; (3) theft by extortion; (4) theft of property lost, mislaid, or delivered by mistake; (5) receiving stolen property; (6) theft of services; (7) theft by failure to make required disposition of funds received; and (8) unauthorized use of automobiles and other vehicles.  See Model Penal Code § § 223.2-223.9. 

[890] United States v. Corona-Sanchez, 234 F.3d 449, 455 n.4 (9th Cir. 2000).  See also Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. March 4, 2003).

[891] Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. March 4, 2003).

[892] A.R.S. § 13-1802(A) provides:  “A person commits theft if, without lawful authority, the person knowingly:

            1. Controls property of another with the intent to deprive the other person of such property; or

            2. Converts for an unauthorized term or use services or property of another entrusted to the defendant or placed in the defendant’s possession for a limited, authorized term or use; or

            3. Obtains services or property of another by means of any material misrepresentation with intent to deprive the other person of such property or services; or

            4. Comes into control of lost, mislaid or misdelivered property of another under circumstances providing means of inquiry as to the true owner and appropriates such property to the person’s own or another’s use without reasonable efforts to notify the true owner; or

            5. Controls property of another knowing or having reason to know that the property was stolen; or

            6. Obtains services known to the defendant to be available only for compensation without paying or an agreement to pay the compensation or diverts another’s services to the person’s own or another’s benefit without authority to do so.”

[893] INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[894] Corona-Sanchez v. INS, 3079-291 F.3d 1201, 1205 (9th Cir. 2002) (en banc).

[895] Id. at 887, citing Corona-Sanchez, 291 F.3d at 1208.

[896] Id., citing Corona-Sanchez, 291 F.3d at 1208.

[897] Id. at 887.

[898] Id. at 887.

[899] Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. April 16, 2003) (Arizona conviction of “theft of a means of transportation,” in violation of Arizona Revised Statute § 13-1814, did not constitute a theft offense aggravated felony, under 8 U.S.C. § 1101(a)(43)(G), where the record of conviction did not establish that the noncitizen had been convicted of violating a portion of the statute of conviction that required intent).

[900] Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. April 16, 2003).

[901] Randhawa v. Ashcroft, 298 F.3d 1148 (9th Cir. Aug. 13, 2002).

[902] United States v. Vasquez-Flores, 265 F.3d 1122 (10th Cir. 2001) (Utah conviction of attempted receiving or transferring a stolen motor vehicle in violation of U.C.A. § 41-1a-1316 falls within a generic aggravated-felony definition of “theft offense” and thus merits a 16-level increase in sentence for illegal re-entry).

AGGRAVATED FELONY - THEFT OFFENSE - AUTO THEFT - AIDING AND ABETTING
Gonzales v. Duenas-Alvarez, ___ U.S. ___, 2007 WL 98723 (Jan. 17, 2007) (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code 10851(a), constituted theft offense aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), since the crime of "aiding and abetting" a theft offense is included within the substantive offense).

SAFE HAVEN " AGGRAVATED FELONY " THEFT OFFENSE " AGGRAVATED IDENTITY THEFT
United States v. Kasenge, 660 F.3d 537 (1st Cir. Nov. 2, 2011) (federal offense of aggravated identity theft, in violation of 18 U.S.C. 1028A, does not require theft, or any other illicit method of procurement, of the means of identification).

BIA

AGGRAVATED FELONY " THEFT " RECEIPT OF STOLEN PROPERTY
Matter of Sierra, 26 I&N Dec. 288 (BIA 2014) (Nevada conviction for violation of NRS 193.330, 205.273, possession of a stolen vehicle, is not a categorical aggravated felony theft offense under INA 101(a)(43)(G), for immigration purposes, since the statute only requires reason to believe that the property received was stolen, but the generic definition of receipt of stolen property applicable to the aggravated felony definition requires knowledge).

AGGRAVATED FELONY " RECEIPT OF STOLEN PROPERTY
Matter of Sierra, 26 I & N Dec. 288, 292 (BIA 2014) (Nevada conviction of attempted possession of a stolen vehicle, in violation of Nevada Revised Statute 193.330 and 205.273, was not categorically an aggravated felony as an attempted theft offense, because Nevada law does not require actual knowledge that the property had been stolen, but only reason to believe; aggravated felony theft ground requires intent to deprive, which can be inferred from actual knowledge, but not from reason to believe); citing Matter of Garcia-Madruga, 24 I & N Dec. 436 (BIA 2008). NOTE: For any theft offense in which the mental state can be either knowledge or reason to know or believe, if the record shows that the defendant pled to the latter element, the defendant may be protected against the conviction being considered an aggravated felony. E.g., Massachusetts offense receiving a stolen motor vehicle, under M.G.L. ch. 266 28, only requires a reason to believe mental state.

AGGRAVATED FELONY " RECEIPT OF STOLEN PROPERTY
Matter of Sierra, 26 I & N Dec. 288, 292 (BIA 2014) (Nevada conviction of attempted possession of a stolen vehicle, in violation of Nevada Revised Statute 193.330 and 205.273, was not categorically an aggravated felony as an attempted theft offense, because Nevada law does not require actual knowledge that the property had been stolen, but only reason to believe; aggravated felony theft ground requires intent to deprive, which can be inferred from actual knowledge, but not from reason to believe); citing Matter of Garcia-Madruga, 24 I & N Dec. 436 (BIA 2008). NOTE: For any theft offense in which the mental state can be either knowledge or reason to know or believe, if the record shows that the defendant pled to the latter element, the defendant may be protected against the conviction being considered an aggravated felony. E.g., Massachusetts offense receiving a stolen motor vehicle, under M.G.L. ch. 266 28, only requires a reason to believe mental state.

AGGRAVATED FELONY - THEFT - WELFARE FRAUD
Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA Jan. 17, 2008) (Rhode Island conviction of welfare fraud, in violation of R.I. 40-6-15, is not an aggravated felony theft offense, because a "theft" offense, for aggravated felony purposes, requires "the taking of, or exercise of control over, property without consent, and with the criminal intent to deprive the ownership of the rights and benefits of ownership, even if such deprivation is less than total or permanent" (emphasis added); welfare fraud is a fraud offense, in that it requires a taking with consent, obtained by fraud).

NOTE: When faced with a plea to a fraud offense involving a loss of over $10,000, counsel may wish instead to plea to a "theft" offense with a sentence imposed of 364 days or less. This may avoid issues regarding a finding of loss and "extra element" analysis under Matter of Babiaskov.

Fourth Circuit

AGGRAVATED FELONY " THEFT OFFENSE " RECEIVING STOLEN OR EMBEZZLED PROPERTY
This file summarizes developments occurring from Apr. 1-30, 2016. Mena v. Lynch, ___ F.3d ___, 2016 WL 1660166 (4th Cir. Apr. 27, 2016) (federal conviction of violating 18 U.S.C. 659, second paragraph (purchase, receipt, or possession of property that has moved in interstate or foreign commerce knowing the same to have been embezzled or stolen), was not categorically an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for immigration purposes, because the crime of embezzlement necessarily involves a taking of property with the owner's consent, and a taking of property without consent is an essential element of aggravated felony theft); see Soliman v. Gonzales, 419 F.3d 276, 282 (4th Cir. 2005) ([w]hen a theft offense has occurred, property has been obtained from its owner without consent; but in a fraud scheme, the owner has voluntarily surrendered his property, because of an intentional perversion of truth, or otherwise act [ed] upon a false representation to his injury. . . . [The] key and controlling distinction between these two crimes is ... the consent element"theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained.); accord, Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014).

AGGRAVATED FELONY " THEFT OFFENSES " UNAUTHORIZED USE OF A MOTOR VEHICLE " DEFINITION OF THEFT
Castillo v. Holder, ___ F.3d ___, ___, 2015 WL 161952 (4th Cir. Jan. 14, 2015) (Virginia conviction of unauthorized use of a motor vehicle, in violation of Virginia Code 18.2"102 [take, drive or use any ... vehicle ... not his own, without the consent of the owner [ ] and in the absence of the owner, and with intent temporarily to deprive the owner [ ] of his possession [ ], without intent to steal the same, shall be guilty], did not categorically qualify as an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because the full range of conduct covered by the Virginia crime of unauthorized use can and do arise based on circumstances in which the defendant's use of property deviates only slightly from the specific scope of consensual use, resulting in an insignificant effect on ownership interests. [Footnote omitted] These circumstances stand in stark contrast to crimes involving the intentional, nonconsensual takings that typically involve significant impairment of ownership rights and damage to the property as described by the BIA in its elaboration of the term theft offense. See VZS, 22 I. & N. Dec. at 1349.); quoting Overstreet v. Commonwealth, 17 Va.App. 234, 435 S.E.2d 906, 908 (Va.Ct.App.1993).

AGGRAVATED FELONY " THEFT OFFENSE " FRAUD LACKS THE WITHOUT CONSENT ELEMENT OF THEFT OFFENSE
Salem v. Holder, ___ F.3d ___, 2011 WL 1998330 (4th Cir. May 24, 2011) (Virginia conviction for petit larceny under Va.Code Ann. 18.2"96, did not categorically qualify as a an aggravated felony theft offense, because the statute might encompass either fraud or theft, and fraud did not constitute a theft offense); Soliman v. Gonzales, 419 F.3d 276, 282-83 (4th Cir.2005) (theft for purposes of the INA does not include fraud, because fraud lacks the without consent element of the taking that is essential to a finding of theft).

THEFT - FRAUDULENT USE OF A CREDIT CARD
Soliman v. Gonzalez, 419 F.3d 276 (4th Cir. Aug. 22, 2005) (fraudulent use of a credit card, in violation of Virginia Code 18.2-195, where the actor uses a credit card belonging to a different person without that persons authorization to obtain something of value is not an aggravated felony theft offense, but a fraud offense).

AGGRAVATED FELONY - THEFT - DIFFERS FROM FRAUD
Soliman v. Gonzales, __ F.3d __ (4th Cir. Aug. 22, 2005) (fraudulent use of a credit card," in violation of Virginia Code 18.2-195, with intent to obtain $200.00 in property, is not an aggravated felony theft offense; the BIA erred in finding that fraud offenses necessarily included theft; theft is distinguishable from fraud, in that theft requires the taking of property without consent, while fraud requires an intent to deprive through consent obtained through misrepresentation).
http://caselaw.lp.findlaw.com/data2/circs/4th/041990p.pdf

AGGRAVATED FELONY THEFT - FRAUD IS NOT ALWAYS THEFT
Soliman v. Gonzalez, 419 F.3d 276 (4th Cir. Aug. 22, 2005) (although not mutually exclusive, it is not the case that all fraud offenses are necessarily also theft offenses; "theft" is a taking without the consent of the owner, "fraud" is a taking with consent that has been unlawfully obtained).

AGGRAVATED FELONY - THEFT - FRAUD - DIVISIBILITY - NUGENT ARGUMENT
California Penal Code 484(a) is a divisible statute covering both fraud and theft offenses, which are nearly mutually exclusive. If a fraud victims loss did not exceed $10,000, but a sentence of a year or more was imposed, the government might charge a fraud offense as an aggravated felony under the theft category. The government should be required to prove that the record clearly establishes the elements of theft, the definition of which includes a taking of property without consent. For a useful discussion of the difference between the elements of fraud and theft, see Soliman v. Gonzales, 419 F.3d 276, 282-284 (4th Cir. 2005). There the Court observed that: When a theft offense has occurred, property has been obtained from its owner "without consent"; in a fraud scheme, the owner has voluntarily "surrendered" his property, because of an "intentional perversion of truth," or otherwise "acted upon" a false representation to his injury. The key and controlling distinction between these two crimes is therefore the "consent" element -- theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained. Id. at 282.      Under this definition Cal. P.C. 484(a) would be held divisible, since it includes both fraud and theft offenses.      The Third Circuit held that where an offense constitutes both theft and fraud, it must meet both requirements in order to be an aggravated felony: a years sentence must be imposed and loss to the victim must be greater than $10,000. Nugent v Ashcroft, 367 F.3d 162 (3rd Cir. 2004).

Ninth Circuit

AGGRAVATED FELONY " THEFT OFFENSE
Lopez-Valencia v. Lynch, ___ F.3d ___ (9th Cir. Aug. 17, 2015) (California theft conviction, including any offense for which the underlying substantive offense charged was a violation of Penal Code 484, is not aggravated felony theft, since because the California definition of theft includes theft of labor, false credit reporting, and theft by false pretenses, which do not fall within the definition of aggravated felony theft).

AGGRAVATED FELONY " THEFT OFFENSE " THEFT
Garcia v. Lynch, ___ F.3d ___, ___, 2015 WL 2385402 (9th Cir. May 20, 2015) (California conviction of theft, under Penal Code 487(a), is not categorically a theft aggravated felony because the California offense includes theft of labor, and because the California statute may be violated even if the victim consented to transfer his property by false pretenses), citing Carrillo"Jaime v. Holder, 572 F.3d 747, 751"53 (9th Cir. 2009).

AGGRAVATED FELONY " THEFT OFFENSE " DEFINITION
United States v. Rivera, 658 F.3d 1073 (9th Cir. Sept. 23, 2011)(California conviction of theft, in violation of Penal Code 484(a), does not categorically constitute an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because it penalizes additional conduct that is not encompassed within the aggravated felony theft definition, such as theft of labor, false credit reporting, and theft by false pretenses); citing Carrillo"Jaime v. Holder, 572 F.3d 747, 751, 753 (9th Cir.2009) (California conviction of theft, under Penal Code 484(a), is not a categorical match to theft as defined in INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because the state statute also expressly criminalizes certain conduct"such as theft of labor, false credit reporting, and theft by false pretenses-that do not satisfy the generic definition); see United States v. Corona"Sanchez, 291 F.3d 1201, 1208 (9th Cir.2002) (en banc) (California conviction of petty theft conviction, under Penal Code 484(a), cannot qualify as an aggravated felony because it prohibits a broader range of conduct than is prohibited by the generic theft offense referred to in INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G)).

AGGRAVATED FELONY " THEFT OFFENSE " GENERIC DEFINITION
United States v. Rivera, 658 F.3d 1073 (9th Cir. Sept. 23, 2011) (the generic definition an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), is [1] a taking of property or an exercise of control over property [2] without consent [3] with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent. ); quoting Carrillo"Jaime v. Holder, 572 F.3d 747, 750 (9th Cir.2009) (quoting United States v. Corona"Sanchez, 291 F.3d 1201, 1205 (9th Cir.2002) (en banc).

AGGRAVATED FELONY " THEFT OFFENSE " COMMERCIAL BURGLARY
Hernandez-Cruz v. Holder, ___ F.3d ___ (9th Cir. Jul. 7, 2011) (California conviction of second-degree commercial burglary, in violation of Penal Code 459, did not categorically constitute an attempted theft aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because 459 criminalizes conduct beyond generic attempted theft offenses"for example, entering a locked vehicle with the intent to commit not theft, but arson or vandalism. . . . Because one can be convicted under 459 for a crime that does not qualify as generic attempted theft, the statute is not a categorical match for the generic aggravated felony offense.); Ngaeth v. Mukasey, 545 F.3d 796, 800, 801 (9th Cir. 2008) (per curiam).

AGGRAVATED FELONY " THEFT OFFENSE " ATTEMPTED THEFT OFFENSE " DEFINITION
Hernandez-Cruz v. Holder, ___ F.3d ___, ___ (9th Cir. Jul.7, 2011) (Ngaeth defined a generic attempted theft offense as having two elements: [1] an intent to commit a theft offense, of the sort generically defined by [our precedent], coupled with [2] an overt act constituting a substantial step towards the commission of the offense.); quoting Ngaeth v. Mukasey, 545 F.3d 796, 800, 801 (9th Cir. 2008) (per curiam). The Ninth Circuit described the test for determining when conduct crosses the line between mere preparation to commit a crime, and a substantial step towards its commission: Mere preparation to commit a crime does not constitute a substantial step. United States v. Buffington, 815 F.2d 1292, 1301 (9th Cir. 1987); see also United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010), cert. denied, 131 S. Ct. 364 (2010); Walters v. Maass, 45 F.3d 1355, 1359 (9th Cir. 1995); Ninth Circuit Model Criminal Instruction 5.3 (2010) (Mere preparation is not a substantial step toward committing the crime.). The difference between making preparations and taking a substantial step toward the commission of a crime is one of degree. Walters, 45 F.3d at 1359. [I]dentifying the point at which the defendants activities ripen into an attempt can be difficult, and is rarely an analytically satisfying enterprise. United States v. Harper, 33 F.3d 1143, 1148 (9th Cir. 1994). What is clear, however, is that it is not enough that the defendant have intended to commit a crime. There must also be an act, and not any act will suffice. Wayne R. LaFave, 2 Subst. Crim. L. 11.4 (2d ed. 2003); see also United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192-93 (9th Cir. 2000) (en banc) (explaining the common law of attempt liability). We have explained that a suspect crosses the line separating preparation from attempt when his actions unequivocally demonstrat[e] that the crime will take place unless interrupted by independent circumstances. United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995) (internal quotation marks omitted)); see also United States v. Saavedra-Velazquez, 578 F.3d 1103, 1107 (9th Cir. 2009) ([W]e have held that the step toward commission of the crime must be of such substantiality that, unless frustrated, the crime would have occurred. (citation omitted)); Ninth Circuit Model Criminal Instruction 5.3 (2010) (To constitute a substantial step, a defendants act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.). Although the suspects conduct need not be incompatible with innocence to be punishable as an attempt, it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context, could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to commit the [substantive offense]. Walters, 45 F.3d at 1359 (citation, alteration, and quotation marks omitted). To put it in slightly different terms, to constitute a substantial step, the action in question must be strongly corroborative of the firmness of a defendants criminal intent. United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir. 2006) (citation and quotation marks omitted); see also Model Penal Code 5.01(2) (Conduct shall not be held to constitute a substantial step . . . unless it is strongly corroborative of the actors criminal purpose.). Hernandez-Cruz v. Holder, ___ F.3d ___, ___ (9th Cir. Jul.7, 2011).

AGGRAVATED FELONY " THEFT OFFENSE " DEFINITION
Hernandez-Cruz v. Holder, ___ F.3d ___, ___ (9th Cir. Jul. 7, 2011) (A generic theft offense, in turn, is defined as: [1] a taking of property or an exercise of control over property [2] without consent [3] with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.); quoting Carrillo-Jaime v. Holder, 572 F.3d 747, 750 (9th Cir. 2009) (citation and quotation marks omitted, alterations in original).

AGGRAVATED FELONY " THEFT OFFENSE " DEFINITION
Hernandez-Cruz v. Holder, ___ F.3d ___, ___n.16 (9th Cir. Jul. 7, 2011) (There was also no dispute in Ngaeth that the immigrants intent in breaking into the locked vehicle was to commit a generic theft offense, as opposed to some other kind of theft offense included in Californias larceny statute, Cal. Penal Code 484, which criminalizes some conduct, such as theft of labor and false credit reporting, that do not meet the generic definition. See United States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. 2002) (en banc), superseded on other grounds by U.S.S.G. 2L1.2, cmt. n.4 (2002); see also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189-90 (2007).).

CRIMES OF MORAL TURPITUDE " THEFT OFFENSES " REQUIREMENT OF INTENT TO PERMANENTLY DEPRIVE THE OWNER AS DISTINGUISHED FROM DEFINITION OF AGGRAVATED FELONY THEFT OFFENSE
Hernandez-Cruz v. Holder, ___ F.3d ___, ___n.20 (9th Cir. Jul. 7, 2011) (A generic attempted theft offense for CIMT purposes is defined slightly differently than in the aggravated felony context. Whereas the latter, as we noted earlier, requires the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent, Carrillo-Jaime, 572 F.3d at 750 (citation and quotation marks omitted), a permanent taking [must be] intended for a conviction to qualify as a CIMT.); quoting Castillo-Cruz v. Holder, 581 F.3d 1154, 1160 n.8 (9th Cir. 2009) (citation, quotation marks, and emphasis omitted).

AGGRAVATED FELONY - THEFT OFFENSE - RECEIVING STOLEN PROPERTY CRIME OF MORAL TURPITUDE - RECEIVING STOLEN PROPERTY
Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. Sept. 17, 2009)

There is no inconsistency between Castillo-Cruz v. Holder, 581 F.3d 1154 9th Cir. Sept. 17, 2009), holding a California conviction of receiving stolen property, under Penal Code 496(a), is not categorically a crime of moral turpitude, and Verdugo-Gonzalez v. Holder, 581 F.3d 1059 (9th Cir. Sept. 14, 2009), holding that a California conviction for receiving stolen property, under Penal Code 496(a), does qualify as a categorical match as a theft offense aggravated felony under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G)):

In this respect, there is a clear distinction between the standard applied to determine whether a theft offense is an "aggravated felony" and the standard applied to determine whether a theft offense is a "crime of moral turpitude." As we recently held in Verdugo-Gonzalez v. Holder, 06-73733, there is a categorical match between the full range of conduct proscribed by section 496(a) of the California Penal Code and the generic definition of a theft offense aggravated felony. See Gonzalez v. Duenas-Alvarez, 549 U.S. at 189 (defining a generic theft offense as "the taking of property or an exercise of control over property ... even if such deprivation is less than total or permanent.") (emphasis added). There cannot however, be a categorical match between the full range of conduct proscribed by section 496(a) of the California Penal Code and the generic definition of a theft offense crime of moral turpitude. See Matter of Grazley, 14 I. & N. Dec. at 333 ("a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended.") (emphasis added). Thus, there is no inconsistency between Verdugo-Gonzalez and our present decision.

AGGRAVATED FELONY - FRAUD OFFENSE - AGGRAVATED FELONY FRAUD IS COMMITTED WITH THE CONSENT OF THE VICTIM
Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. Jul.15, 2009) (California conviction of owning and operating a chop shop, in violation of Vehicle Code 10801 ("premises where any person has been engaged in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud"), did not constitute a theft aggravated felony within the meaning of INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), under the categorical approach, since the offense permits exercising control over property obtained by fraud, which is necessarily committed with the consent of the owner, and the conviction therefore does not require that the exercise of control over the property be "without consent" as required by the generic definition of theft aggravated felony).

AGGRAVATED FELONY - THEFT - THEFT BY FALSE PRETENSES
Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. Jul. 15, 2009) ("theft by false pretenses may be accomplished with the owner's consent. Theft by false pretenses has three elements: "(1) a false pretense or representation, (2) the intent to defraud the owner of his or her property, and (3) the false pretense or representation materially influenced the owner to part with the property." People v. Levine, 2007 WL 4248775 at *10 (Cal.Ct.App. Dec. 5, 2007) (citing People v. Ashley, 42 Cal.2d 246, 267 P.2d 271, 279 (1954)). "Theft by false pretenses does not require that the defendant take the property; it requires that the defendant use false pretenses to induce the other to give the property to him." Shannon, 78 Cal.Rptr.2d at 179. . . . Under California law, a person's false pretenses do not necessarily vitiate the owner's consent.").

Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. Jul. 15, 2009) (California conviction of owning and operating a chop shop, in violation of Vehicle Code 10801 ("premises where any person has been engaged in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud"), did not constitute a theft aggravated felony within the meaning of INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), under the categorical approach, since the offense permits exercising control over property obtained by fraud, which is necessarily committed with the consent of the owner, and the conviction therefore does not require that the exercise of control over the property be "without consent" as required by the generic definition of theft aggravated felony).

AGGRAVATED FELONY - THEFT OFFENSE - IDENTITY THEFT
Mandujano-Real v. Mukasey, 526 F.3d 585 (9th Cir. May 22, 2008) (Oregon conviction of identity theft, under Oregon Revised Statute 165.800, did not categorically qualify as an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for purposes of removal, because use of a false identity does not deprive anyone of "ownership" and the statute punishes use of another persons identity even if that the use was with consent).

AGGRAVATED FELONY - THEFT OFFENSE - UNAUTHORIZED DRIVING
United States v. Vidal, 504 F.3d 1072 (9th Cir. Oct. 10, 2007) (9-6 en banc) (California conviction for unlawful driving or taking of vehicle, under Penal Code 10851(a), did not categorically qualify as an aggravated felony theft offense under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G) for purposes of enhancement of illegal reentry sentence, since the offense includes accessory after the fact, which is not listed in INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(G) as an aggravated felony inchoate offense).

AIDING AND ABETTING - ABSENCE OF CO-DEFENDANTS NOT DISPOSITIVE
The Ninth Circuit vacated its decision in Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004), vacated __ F.3d __ (9th Cir. August 3, 2005), in which the Court had wrongly assumed that since a co-defendant did not appear in the record of conviction, this necessarily meant that there was in fact no person whom the defendant may have aided and abetted in committing a theft offense. The in vacating the decision, the Court recognized that the California theft statute includes aiding and abetting offenses. The Court also recognized that the absence of codefendants is not dispositive. There is no requirement in California criminal law that codefendants be charged in the same complaint, or even the same case number. Many courts charge each in a wholly separate case while still being free to handle related cases together for purposes of judicial efficiency. It is not necessarily true that all codefendants are arrested or charged, or even identified. Even if a codefendant is acquitted, the defendant can still be convicted of aiding and abetting anyway without the verdict being overturned as an inconsistent verdict. See Model Penal Code 2.07(7)(1985) ("An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.").      Furthermore, Immigration courts cannot even consider the record of conviction of a codefendant to be part of the record of conviction of the defendant. Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (record of conviction of a noncitizen does not include the record of conviction of the persons codefendant).

Eleventh Circuit

AGGRAVATED FELONY - THEFT OFFENSE - GRAND THEFT -- DIVISIBLE STATUTE ANALYSIS - CONVICTION OF DIVISIBLE STATUTE DOES NOT CONSTITUTE AN AGGRAVATED FELONY WHERE MINIMUM INTENT WAS INTENT TO DEPRIVE OR USE, RATHER THAN THE ELEMENTS OF OWNERSHIP
Jaggerneuth v. U.S. Atty General, ___ F.3d ___, 2005 WL 3454321 (11th Cir. Dec. 19, 2005) (Florida conviction of grand theft, in violation of Fla. Stat. 812.014(1)(2001), did not constitute aggravated felony theft, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for immigration purposes, because the statute was divisible as subsection (b) required only intent to appropriate use of the property, and the record of conviction did not establish that the defendant was convicted under subsection (a)).

Other

AGGRAVATED FELONY - THEFT OFFENSE - FLORIDA STATUTE
Rebecca Sharpless, Practice Advisory, The Florida Theft Statute: Not an Aggravated Felony; Not a Crime Involving Moral Turpitude (Florida Immigrant Advocacy Center (FIAC), April 26, 2006). Summary: Convictions under Florida theft statute, F.S.S. 812.014(a) are in many cases neither aggravated felonies, nor crimes of moral turpitude because the statute defines "theft" more broadly than the "generic" definition of theft adopted by the BIA for aggravated felony purposes, since the statute includes appropriation of property, in addition to deprivation. A conviction under this statute is not necessarily a crime of moral turpitude because the offense may be committed without intent to permanently deprive.

AIDING AND ABETTING - SENTENCING VS. IMMIGRATION CASES
The sentencing guidelines for illegal reentry cases were amended on November 1, 2001 to add Application Note 4, which provided: "4. Aiding and Abetting, Conspiracies, and Attempts.--Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses." This Application Note was in effect until November 1, 2003, when it was deleted from the guideline commentary. USSG, 2L1.2, 18 U.S.C.A. (Effective November 1, 1987, and amended effective January 15, 1988; November 1, 1989; November 1, 1991; November 1, 1995; November 1, 1997; November 1, 2001; November 1, 2002; November 1, 2003.) The Vidal case dealt with an offense that arose under the guidelines as they existed between November 1, 2001, and November 1, 2003, when the aiding provision was deleted from the commentary.
     The Ninth Circuits decision in United States v. Vidal, 426 F.3d 1011 (9th Cir. Oct. 24, 2005) ", decision withdrawn pending hearing en banc, United States v. Vidal, __ F.3d__, 2006 WL 1822282 (9th Cir. Jun 29, 2006)." (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code 10851, constitutes an aggravated felony under the US Sentencing Guidelines, for purposes of an eight-level increase in the base offense level for an illegal reentry sentence), is limited only to sentencing (i.e. illegal reentry) cases where the sentencing occurred between November 1, 2001 and November 1, 2003. The "aiding and abetting" language in United States v. Penuliar, 395 F.3d 1037, 1041 (9th Cir. 2005), and United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002), still control for immigration cases, and illegal reentry cases not applying the sentencing guidelines effective during the 2001-2003 window.      Arguably, Corona-Sanchez should apply regardless of the sentencing date, since the distinguishing factor in Vidal was merely the addition of a comment to the sentencing guidelines, which arguably contradicted Congressional intent. The Sentencing Reform Act did not authorize Guideline commentary. Stinson v. United States, 113 S. Ct. 1913, 1917 (1993).  In Stinson, the Supreme Court held that Guideline commentary is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." As a matter of statutory constuction, the Ninth Circuit has often held Congress did not intend to include in the aggravated felony definition inchoate crimes that were not mentioned expressly.  See, e.g., Leyva-Licea v INS, 187 F.3d 1147 (9th Cir. 1999) (involving solicitation offenses); Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005) (involving aiding and abetting).  Congress knew how to include "aiding and abetting" offenses in 8 U.S.C. 1101(a)(43)(U), but chose instead to include only attempts and conspiracies. As a result, the commentarys blanket inclusion of aiding and abetting offenses is inconsistent with 8 U.S.C. 1101(a)(43).  Vidal relies on Rodriguez-Rodriguez, which interpreted whether burglary is a crime of violence for purposes of U.S.S.G. 2L1.2, cmt. n. 1(B)(iii).  The 16-level crime of violence enhancement at issue in Rodriguez-Rodriguez is not dependent on the statutory definition of "aggravated felony" under 8 U.S.C. 1101(a)(43).  As such, Guideline commentary need not conform with the definition of aggravated felony. The panel in Vidal adopted Rodriguez-Rodriguezlanguage about Guideline commentary without noting that Rodriguez did not involve a statutory definition of aggravated felony.  Since Rodriguez-Rodriguez did not involve a comment that was inconsistent with the aggravated felony definition, Stinson was not applicable.      In Vidal, the Ninth circuit did not apply Stinson to the commentary to see whether the aiding and abetting comment exceeded the scope of the Commissions authority because it thought that Rodriguez-Rodriguez controlled and this does not appear to have been raised.  If the Ninth Circuit applied Stinson, there is a reasonably good argument that the statutory construction cases like Levya, Penuliar and Coronado-Durazo control as to Congressional intent, which arguably limits what the commentary can say, especially since in Leocal the Supreme Court held the aggravated felony statute means the same in civil and criminal cases. Thanks to Dan Kesselbrenner.

AIDING AND ABETTING - STATE VS. FEDERAL DEFINITION
In Vidal the Court recognized that the California definition of aiding and abetting includes "encouragement," which in California includes "promotion and instigation." In California, A person may be considered an aider and abettor if he/she acts "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose of either committing, or of encouraging or facilitating commission of, the offense." People v. Beeman, 35 Cal.3d 547, 560 (1984). See also, People v. Prettyman, 14 Cal. 4th 248 (1996).      This is language in not included in the Federal definition aiding and abetting, and one can argue that the California definition of aiding and abetting is broader than the federal definition.      In Vidal, the Ninth Circuit neglected to explain how the federal definition of aiding and abetting" addresses the issue of "encouraging." It only relies on the language of jury instructions related to 18 U.S.C.S. 2(a) aiding and abetting and the decision in United States v. Barnett, 667 F.2d 835 (9th Cir. 1982). However, the Barnett decisions inclusion of the words "otherwise encourages" in its definition of "abettor" is only in passing. The facts of the case do not specifically relate to an aider-abettor who only "encouraged." The defendant in Barnett gave information to the co-defendant as to where the co-defendant could obtain certain illegal substances. Arguably, this action was more than just passively supporting the co-defendant in perpetrating the crime. Thanks to Kathy Brady.