Criminal Defense of Immigrants

(C)  Nontraditional Offenses.  The Ninth Circuit, in Corona-Sanchez, held California’s basic theft statute[1151] was an overbroad divisible statute, with respect to the generic definition of “theft” employed in the aggravated felony definition,[1152] because it included a number of nontraditional grounds of conviction, including (a) theft of services,[1153] and (b) causing another to produce a false credit report.[1154]  Even where the circuit court has held that theft of services is included, there may be other nontraditional theft offenses included in a statute (such as “appropriation”), that arguably do not meet the generic definition of theft.

[1151] California Penal Code § 484(a).

[1152] INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[1153] Macapagal v. INS, No. 02-71167 (9th Cir. June 19, 2003) (unpublished) (California conviction of theft from elder, in violation of Penal Code § 368(d), held not to be an aggravated felony, since it penalizes theft of labor which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).

[1154] United States v. Corona-Sanchez, 291 F.3d 1201, 1207-1208 (9th Cir. 2002) (en banc).