Cite as 26 I&N Dec. 288 (BIA 2014) Interim Decision #3799
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Matter of Siegfred Ara SIERRA, Respondent
Decided April 8, 2014
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Under the law of the United States Court of Appeals for the Ninth Circuit, the offense
of attempted possession of a stolen vehicle in violation of sections 193.330 and 205.273
of the Nevada Revised Statutes, which requires only a mental state of “reason to believe,”
is not categorically an aggravated felony “theft offense (including receipt of stolen
property)” under sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act,
8 U.S.C. §§ 1101(a)(43)(G) and (U) (2012).
FOR RESPONDENT: Xavier Gonzales, Esquire, Las Vegas, Nevada
FOR THE DEPARTMENT OF HOMELAND SECURITY: Patrick W. Lindemann,
Assistant Chief Counsel
BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and GREER, Board
Members.
PAULEY, Board Member:
In a decision dated October 29, 2012, an Immigration Judge found the
respondent removable under sections 237(a)(2)(A)(ii) and (iii) of the
Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(ii) and (iii)
(2006), as an alien convicted of two crimes involving moral turpitude and
an aggravated felony, and ordered him removed from the United States.
The respondent has appealed from that decision. The appeal will be
sustained and the record will be remanded for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of the Philippines who was
admitted to the United States as a lawful permanent resident in August
1997. On October 17, 2003, he was convicted in the District Court for
Clark County, Nevada, of attempted forgery in violation of sections
193.330, 205.090, and 205.110 of the Nevada Revised Statutes. On
February 22, 2010, he was also convicted of attempted possession of a
stolen vehicle in violation of sections 193.330 and 205.273 of the Nevada
Revised Statutes.Cite as 26 I&N Dec. 288 (BIA 2014) Interim Decision #3799
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Before the Immigration Judge, the respondent conceded that he is
removable under section 237(a)(2)(A)(ii) of the Act, but he denied the
charge under section 237(a)(2)(A)(iii) that he was convicted of an
aggravated felony. The Immigration Judge found the respondent
removable as charged and ordered him removed from the United States to
the Philippines.
For the reasons that follow, we conclude that attempted possession of
a stolen vehicle under the Nevada statute is not categorically an aggravated
felony under sections 101(a)(43)(G) and (U) of the Act, 8 U.S.C.
§§ 1101(a)(43)(G) and (U) (2012). We will therefore sustain the
respondent’s appeal in part and remand the record to the Immigration Judge
for further proceedings.
II. ISSUE
The question in this case is whether the offense of attempted possession
of a stolen vehicle in violation of sections 193.330 and 205.273 of
the Nevada Revised Statutes categorically qualifies as a “theft offense
(including receipt of stolen property)” within the meaning of sections
101(a)(43)(G) and (U) of the Act.
III. ANALYSIS
The respondent argues that the offense of attempted possession of a
stolen vehicle under Nevada law is not an aggravated felony because it does
not meet the generic definition of attempt to receive stolen property. In
particular, he claims that the Nevada statute criminalizes possession of a
stolen vehicle with the mens rea of a “reason to believe” that the vehicle
has been stolen, which is not sufficient to establish that the crime is a theft
offense.
The respondent pled guilty to attempted possession of a stolen vehicle
under section 205.273 of the Nevada Revised Statutes, which, at the time of
his offense, stated the following in pertinent part:
(1) A person commits an offense involving a stolen vehicle if the person:
(a) With the intent to procure or pass title to a motor vehicle which he knows or
has reason to believe has been stolen, receives or transfers possession of the vehicle
from or to another person; or
(b) Has in his possession a motor vehicle which he knows or has reason to
believe has been stolen.
Nevada has specifically provided by statute that a person can be
convicted of possession of stolen property without actual knowledge of its
stolen nature if it is shown that the property was possessed “[u]nder suchCite as 26 I&N Dec. 288 (BIA 2014) Interim Decision #3799
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circumstances as should have caused a reasonable person to know that it
is stolen property.” Nev. Rev. Stat. Ann. § 205.275(1)(b) (West 2013);
see also Gray v. State, 688 P.2d 313, 314 (Nev. 1984).
Assuming, without deciding, that section 205.273 of the Nevada
Revised Statutes is a divisible statute, a modified categorical approach does
not resolve the question before us, since the record of conviction does not
establish whether the respondent was convicted under the “knowing” or
“reason to believe” portion of the statute. We are therefore presented with
a pure question of law, that is, whether a person convicted under Nevada
law of attempted possession of a stolen motor vehicle under either
prescribed mental state with regard to the stolen character of the property
has been convicted of an aggravated felony “theft offense (including receipt
of stolen property)” within the meaning of sections 101(a)(43)(G) and (U)
of the Act.
In Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000), we addressed
whether a similar offense under Nevada law, attempted possession of stolen
property in violation of sections 193.330 and 205.275, was an aggravated
felony under sections 101(a)(43)(G) and (U) of the Act. The focus of our
inquiry in that decision was not on the applicable mens rea but rather on the
issue raised, which was whether the reference to “receipt of stolen property”
in section 101(a)(43)(G) was intended to encompass a broad range of
offenses “involving knowing receipt, possession, or retention of property
from its rightful owner.” Id. at 1391. We concluded that the reference was
intended to clarify that the term “theft” was not being used in its limited
traditional sense to require proof that the offender was involved in the
actual taking of the property at issue. Id. at 1390. We therefore held that
the parenthetical was intended to include the category of offenses involving
knowing receipt, possession, or retention of property from its rightful
owner. Id. at 1391.
Because our focus in Matter of Bahta was on the alien’s contentions in
that case, which sought to place a limiting construction on the scope of the
term “receipt,” we did not fully consider the question raised here involving
the necessary mens rea for an offense to qualify as an aggravated felony
“theft offense (including receipt of stolen property)” under section
101(a)(43)(G) of the Act. In any event, the United States Court of Appeals
for the Ninth Circuit, in whose jurisdiction this case arises, has
subsequently decided cases that we find are now controlling on this issue.
Based on those intervening decisions, we hold that under the law of the
Ninth Circuit, the mental state of “reason to believe” in section 205.273(1)
is insufficient for attempted possession of a stolen motor vehicle in
violation of the Nevada statute to qualify categorically as an aggravated
felony “theft offense (including receipt of stolen property).”Cite as 26 I&N Dec. 288 (BIA 2014) Interim Decision #3799
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The generic definition of a theft offense requires that the exercise of
control over stolen property be “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) (quoting Hernandez-Mancilla v. INS, 246
F.3d 1002, 1009 (7th Cir. 2001)) (internal quotation mark omitted),
superseded on other grounds by U.S. Sentencing Guidelines Manual
§ 2L1.2, cmt. n.4 (2002); see also Matter of Garcia-Madruga, 24 I&N Dec.
436, 438 (BIA 2008) (citing Matter of V-Z-S-, 22 I&N Dec. 1338, 1346
(BIA 2000)).
In Matter of Cardiel, 25 I&N Dec. 12 (BIA 2009), we determined that
receipt of stolen property in violation of section 496(a) of the California
Penal Code was categorically a “theft offense (including receipt of stolen
property)” under section 101(a)(43)(G) of the Act. The California statute
required that the offender received the property “knowing” that it was
stolen or obtained by theft or extortion. We concluded that under the
prevailing circuit law, although the intent to deprive was not explicitly
stated in the California statute, it was implicit or properly inferred from the
requisite scienter of knowledge in the context of a receipt offense. Id. at
24−25; see also Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1061 (9th Cir.
2009) (reaffirming that a theft offense must contain the element of criminal
intent to deprive the owner of rights and benefits of ownership in finding
that the knowing receipt of stolen property under section 496(a) of the
California Penal Code was an aggravated felony).
In this regard, we cited Randhawa v. Ashcroft, 298 F.3d 1148, 1154
(9th Cir. 2002), where the Ninth Circuit held that a conviction under
18 U.S.C. § 1708 for “knowing” possession of stolen mail inferentially
contained the element of an intent to deprive the true owner of the rights
and benefits of ownership of the mail. According to the court,
To be guilty of possession of stolen mail . . . , a hypothetical offender must know that
the mail is stolen. From this knowledge, we infer the requisite criminal intent under
our generic definition; an individual who possesses mail he or she knows to be stolen
necessarily intends to deprive the mail’s true owner of his or her rights and benefits
of ownership.
Id.; cf. Burke v. Mukasey, 509 F.3d 695 (5th Cir. 2007) (holding that the
“knowing” possession of stolen property under New York law qualifies as
an aggravated felony). The Ninth Circuit has also found that there was no
conviction for an aggravated felony theft offense under a similar Arizona
law in the absence of a showing of knowledge in Huerta-Guevara
v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003), stating that it could not “tell
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that she knew the vehicle was stolen or that the vehicle was taken or control
was exercised with the requisite criminal intent.”
Unlike the California statute in Cardiel, a conviction will lie under the
Nevada statute where the offender only has a “reason to believe” that the
property possessed was stolen. No valid inference may be drawn that the
offender intended to deprive the true owner of the rights and benefits of
ownership where he was not actually aware of the stolen character of the
item received but merely should have been aware of that fact from the
circumstances. We note in this regard that the “reason to believe” standard
is something different from, and less than, knowledge, as Nevada has
expressly provided by statute. Nev. Rev. Stat. Ann. § 205.275(1)(a)−(b)
(stating that a person commits an offense involving possession of stolen
property if he possesses it knowing that it is stolen property or under
circumstances that should have caused a reasonable person to know that it
was stolen). Otherwise, the phrase “reason to believe” in section 205.273
would be superfluous. See, e.g., United States v. Kaur, 382 F.3d 1155,
1157 (9th Cir. 2004).
Given the controlling law of the Ninth Circuit, we conclude that a
mental state of “reason to believe” is insufficient to establish that the crime
of attempted possession of a stolen motor vehicle in violation of the Nevada
statute is categorically an aggravated felony “theft offense (including
receipt of stolen property)” within the meaning of sections 101(a)(43)(G)
and (U) of the Act.1
In view of this determination, we need not address the
respondent’s other arguments on appeal.
Finally, the respondent has filed a motion asserting that he is a
derivative United States citizen because his mother has naturalized. On
remand, the Immigration Judge should address the respondent’s claim of
derivative citizenship, including making any necessary findings of fact.
Accordingly, the respondent’s appeal will be sustained in part, the
Immigration Judge’s order will be vacated, and the record will be remanded
for further proceedings.
ORDER: The appeal is sustained in part and the Immigration Judge’s
order of removal is vacated.
1 However, we reserve the question of what Congress meant by the term “receipt of
stolen property” in section 101(a)(43)(G) of the Act for a future case where circuit law
does not dictate that such an offense requires a showing that the actor had an intent
to deprive the owner of his property. We note that our survey of receipt of stolen
property statutes reveals that many State statutes included a “reason to believe” standard
at the time Congress enacted section 101(a)(43)(G) in 1994, although most Federal
statutes did not. See Taylor v. United States, 495 U.S. 575 (1990).Cite as 26 I&N Dec. 288 (BIA 2014) Interim Decision #3799
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FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.