Heard v. Barr
| Decision Date | 13 March 2019 |
| Docket Number | No. 17-9539,No. 17-9525,17-9525,17-9539 |
| Parties | GLECERIA MEJIA HEARD, a/k/a Justine Michelle Gazemen, Petitioner, v. WILLIAM P. BARR, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(Petitions for Review)
ORDER AND JUDGMENT**Before LUCERO, HOLMES, and EID, Circuit Judges.
Gleceria Mejia Heard petitions the court to reverse the immigration courts' determination that she is ineligible for cancellation of removal. The Immigration Judge (IJ) concluded, and the Board of Immigration Appeals (BIA) agreed, that Heard's 2005 theft conviction qualifies as an aggravated felony under the Immigration and Nationality Act. We affirm.
Heard, an immigrant from the Philippines, was admitted to the United States as a lawful permanent resident in 1994. In 1999, she pleaded guilty to attempted forgery in violation of Nev. Rev. Stat. § 205.090. In 2005, she pleaded guilty to theft in violation of Nev. Rev. Stat. § 205.0832(1)(b). Based on these convictions, the Department of Homeland Security (DHS) initiated removal proceedings against her in 2016. DHS asserted two grounds in support of removability. First, DHS contended that Heard's theft conviction under subsection (1)(b) is an aggravated felony under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(G). Second, it contended that both Heard's theft and attempted forgery convictions are crimes involving moral turpitude. 8 U.S.C. § 1227(a)(2)(A)(ii).
Heard applied for cancellation of removal. The IJ determined her theft conviction under subsection (1)(b) constituted an aggravated felony and that she was ineligible for cancellation because of it. To reach this conclusion, the IJ determined that Nevada's theft statute is divisible and that, under the modified categorical approach, subsection (1)(b) is not overbroad when compared to the federal generic definition of theft. Specifically, the IJ held that subsection (1)(b) "meets the generic definition of theft, as it describes conduct that involves 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 the deprivation is less than total or permanent.'" R. at 242 (citation omitted). Heard appealed to the BIA. The BIA dismissed her appeal, agreeing with the IJ's reasoning: "[l]ike the ImmigrationJudge, we conclude that section 205.0832(1)(b) defines a categorical 'theft offense' under section 101(a)(43)(G) of the Act because it requires that the defendant exercise control over the owner's property without consent and with the intent to deprive the owner of the rights and benefits of ownership." R. at 6. The BIA also denied Heard's motion to reopen and reconsider her eligibility to obtain relief from removal. Heard petitioned for review in this court regarding both BIA orders, and this court consolidated her petitions.
We review de novo the BIA's determination that Heard's theft conviction qualifies as an aggravated felony. See Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir. 2011). Generally, a lawful permanent resident is eligible for cancellation of removal if she establishes that she meets three requirements: (1) she has been "lawfully admitted for permanent residence for not less than 5 years," (2) she "has resided in the United States continuously for 7 years after having been admitted," and (3) she "has not been convicted of any aggravated felony." 8 U.S.C. § 1229b(a); see also 8 C.F.R. § 1240.8(d) (). Among other things, an aggravated felony is "a theft offense . . . for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(G).
To determine whether a state conviction qualifies as a "theft offense" under section 1101(a)(43)(G), we apply the categorical approach. Cf. Mellouli v. Lynch,135 S. Ct. 1980, 1984, 1987 (2015) (). We compare the state's definition of the offense with the generic federal offense. See Descamps v. United States, 570 U.S. 254, 257 (2013); Efagene v. Holder, 642 F.3d 918, 921 (10th Cir. 2011). We do not consider the facts of the offense when performing this comparison. See Efagene, 642 F.3d at 921. Rather, we look only to the definition of the crime of conviction. See id. Additionally, we "presume that the conviction rested upon [nothing] more than the least of th[e] acts criminalized [by the statute], and then determine whether even those acts are encompassed by the generic federal offense." De Leon v. Lynch, 808 F.3d 1224, 1230 (10th Cir. 2015) (alterations in original) (quotations omitted). If even the least of the acts criminalized by the state statute are covered by the generic federal offense, then the conviction is a categorical match. See id.
Importantly though, if the statute of conviction is divisible, we only consider whether the elements of the conviction are a categorical match to the generic federal version of the offense. See Descamps, 570 U.S. at 257. In cases involving divisible statutes, we apply the modified categorical approach to determine which elements supported the conviction. See id. The modified categorical approach permits us to look at "a limited class of documents, such as indictments and jury instructions." Id. A statute is divisible if its alternatives are elements. See Mathis v. United States, 136 S. Ct. 2243, 2248-49, 2253-54 (2016). Elements are what "the prosecution must prove to sustain a conviction," but means are just facts. Id. at 2248 (citationomitted). And "facts . . . are mere real-world things—extraneous to the crime's legal requirements." Id.
To determine whether statutory alternatives are elements or means, we first consider the statute itself and state court decisions interpreting the statute. See id. at 2256. If these sources are inconclusive, we may "peek" at the record to assist in the analysis. See id. at 2253-54, 2256-57. For example, "an indictment . . . could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements." Id. at 2257. If the "peek" indicates the statutory alternatives are elements, we then apply the modified categorical approach to determine which elements supported the conviction. See id. With these principles in mind, we turn to the Nevada statute in question.
If Nevada's omnibus theft statute is indivisible, then it plainly sweeps broader than the federal generic version of theft. But if it is divisible, then we only consider whether subsection (1)(b)—the section of the statute containing the elements of Heard's conviction—is overbroad. We conclude that the Nevada statute is divisible.
The Nevada Supreme Court has held that a prosecutor charging a defendant for commission of a theft crime must specify which subsection of the theft statute the defendant is "alleged to have violated." State v. Hancock, 955 P.2d 183, 186-87 (Nev. 1998) (); see also Walch v. State, 909 P.2d 1184, 1188 (Nev.1996) (). These cases resolve the issue. Under Nevada law "a charging document may set forth alternative means of committing a crime within a single count." Hancock, 955 P.2d at 187 (emphasis in original). But "alternative offenses must be charged in separate counts." Id. (same) (citation omitted). That it was insufficient in Hancock for the prosecutors to generally allege that the defendants violated Nev. Rev. Stat. § 205.0832 means that Nevada treats the subsections within section 205.0832 as separate offenses. In other words, the subsections are elements and not means. Finally, we note that Heard's information also supports our conclusion because it references, "to the exclusion of [the other subsections]," subsection (1)(b). Mathis, 136 S. Ct. at 2257.
Nev. Rev. Stat. § 205.0832(1)(b) (2005). We compare this language to the federal generic definition of theft: "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." Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007) (quotations omitted).
Heard contends that, even if the Nevada statute is divisible, she still prevails because subsection (1)(b) is itself overbroad. Her overbreadth argument comes in two parts. First, she argues that subsection (1)(b) is overbroad because it does not require a nonconsensual taking. Second, she argues that subsection (1)(b) is overbroad because it is satisfied by theft of services. We are not persuaded by Heard's arguments and conclude that subsection (1)(b) is not overbroad.
Heard's first overbreadth argument focuses on the fact that the definition of the generic offense specifies that the theft is "without consent." This definition excludes "the...
To continue reading
Request your trial