Safe Havens

 

(C)  Safe Havens Specific to this Category.  There are a number of safe havens specific to this aggravated felony category:

 

            (1)  Divisible State Statutes.  If the state statute of conviction is overbroad, in the sense that it contains offenses that would not fall into the federal aggravated felony definition of a theft offense, it is considered a divisible statute.  The record of conviction in that case must unequivocally establish that the particular offense of conviction, within the divisible statute, fell within the federal theft category before the conviction will trigger deportation. [903]

 

(2)  State Statute Includes Nontraditional Offenses.  The Ninth Circuit in Corona-Sanchez held California’s basic theft statute[904] was an overbroad divisible statute, with respect to the generic definition of “theft” employed in the aggravated felony definition,[905] because it included a number of nontraditional grounds of conviction, including (a) theft of services,[906] and (b) causing another to produce a false credit report.[907]

(3)  State Statute Includes Intent to Deprive Temporarily.  Even though some circuits have adopted the Model Penal Code test of theft that includes some instances in which the intent to deprive is less than permanent or total, some state statutes may have an intent element that nonetheless does not arise to the necessary level of intent.  An Arizona conviction of unlawful use of a means of transportation, or joyriding,[908] did not constitute a “theft offense” for purposes of constituting an “aggravated felony” to enhance an illegal re-entry sentence,[909] since the offense could be accomplished without the intent to deprive the vehicle owner of the use or possession of the property.[910]

The Board of Immigration Appeals appears to be mistaken in including offenses lacking intent to permanently deprive within the definition of a “theft offense.”  Common-law terms such as theft that appear in the aggravated felony definition should be interpreted according to their “ordinary, contemporary, and common meaning.”[911]  The definition of theft universally requires as an element the intent to permanently deprive the owner of property, or to approximate a permanent deprivation, under common law, the Model Penal Code, and generally under state law.[912]  To support its conclusion that joyriding can amount to theft, the majority decision relied not upon common law sources, state laws, or treatises on the definition of theft, but on a particular federal statute that relates to taking stolen cars across state borders.  This ruling therefore appears to be in error.

 

If theft in fact must involve a permanent taking, a conviction under a statute that allows conviction for temporary or permanent taking would not qualify as an aggravated felony under a theft theory.  Such statutes would therefore be divisible: the portion that forbids permanent taking (or taking with intent to permanently deprive the owner) would constitute “theft”; the portion that is violated even if the intent is only temporarily to deprive the owner, i.e., where there is a borrowing only with intent to return, would not constitute “theft.”  The record of conviction would be consulted to determine whether the conviction was under the permanent or temporary intent element.  If the record did not specify which, the INS would not be able to sustain its burden of proving “theft” by clear and convincing evidence, and the defendant would not be deportable.

            For example, the California theft statute encompasses various types of offenses under the heading of theft, such as false pretenses, fraud and embezzlement, for example.[913]  The statute does not contain as a required element the intent to permanently deprive the owner of property.  A conviction of some of the offenses listed in the statute appears to be possible even where the intent is to deprive only temporarily.[914]  As a divisible statute allowing some convictions under it to require intent to deprive the owner permanently and others with intent to deprive the owner only temporarily of property, the theft statute is similar to some “joyriding” statutes, such as California Vehicle Code § 10851, which involve the taking of a vehicle “with intent either to permanently or temporarily deprive the owner therefore of his or her title to or possession of the vehicle . . . .”  A conviction under such a statute has been found insufficient to establish theft for purposes of determining whether a conviction constitutes a crime involving moral turpitude.[915]

 

            (4)  State Statute Fails to Require Act of Taking.  In Lopez-Elias v. Reno,[916] the Fifth Circuit held that a petitioner’s conviction for burglary of a vehicle with the intent to commit theft therein[917] did not constitute an aggravated felony “theft offense” because the petitioner was only convicted of having the intent to commit theft rather than for actually having committed theft.  The aiding and abetting decisions of the Ninth Circuit can also be read as being in agreement with this Fifth Circuit decision.  See § 7.103(D)(2), infra.

 

[903] United States v. Corona-Sanchez, 291 F.3d 1201, 1207-1208 (9th Cir.2002) (en banc).

[904] California Penal Code § 484(a).

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

[906] Macapagal v. INS, 2003 WL 21418375 (9th Cir. June 19, 2003) (No. 02-71167 unreported) (California conviction of theft from elder, in violation of Penal Code § 368(d), held not to be an aggravated felony, since it penalizes theft of labor which lies outside the federal definition of a theft offense).

[907] United States v. Corona-Sanchez, 291 F.3d 1201, 1207-1208 (9th Cir. 2002) (en banc).

[908] A.R.S. § 13-1803.

[909] U.S.S.G. § 2L1.2(b)(1)(A).

[910] United States v. Perez-Corona, 295 F.3d 996 (9th Cir. July 8, 2002).

[911] See, e.g, United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999); Taylor v. United States, 495 U.S. 575, 598 (1990); Matter of LG, 21 I. & N. Dec. 89 (BIA 1995) (federal, not state, definition applies to determine whether a state drug offense is a “felony”); Kahn v. INS, 37 F.3d 1412 (9th Cir. 1994) (the INA “was designed to implement a uniform federal policy, and the meaning of concepts important to its application are ‘not to be determined according to the law of the forum, but rather require a uniform federal definition’”) (citation omitted).

[912] See, e.g., black’s law dictionary (6th Ed., West Publishing Company 1990); model penal code and commentaries, pt. II, art. 223.9, comment 4 (1980) (while some temporary takings at critical times or of great length could amount to theft, casual joyriding does not).  See excellent discussion in Matter of VZS, 22 I. & N. Dec. 1338, Concurrence and Dissent, pp. 25-29 (BIA 2000).

[913] See, e.g., People v. Turner, 73 Cal.Rptr. 263 (1968) (offense of theft includes offense formerly known as larceny, obtaining property by false pretenses and embezzlement).

[914] People v. Britz, 95 Cal.Rptr. 823 (1968); People v. Silver, 212 Cal.Rptr. 153 (1975).

[915] Matter of T, 2 I. & N. Dec. 22 (BIA 1944); Matter of M, 2 I. & N. Dec. 686 (BIA 1946).

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

[917] Texas Penal Code Ann. § 30.04(a).