In re Bahta
| Decision Date | 04 October 2000 |
| Docket Number | Interim Decision No. 3437.,File A25 305 035. |
| Citation | 22 I&N Dec. 1381 |
| Parties | In re Awat Mengisteab BAHTA, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
The Immigration and Naturalization Service appeals from an Immigration Judge's July 1, 1999, decision, which found that the respondent's conviction for attempted possession of stolen property was not a conviction for an aggravated felony and terminated removal proceedings. The appeal will be sustained, and the record will be remanded for further proceedings.
The issue in this case is whether the respondent's Nevada conviction for attempted possession of stolen property is a conviction for an attempted "theft offense (including receipt of stolen property)" within the definition of an aggravated felony set forth in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (Supp. IV 1998).
The Service charged that the respondent is subject to removal from the United States under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. IV 1998), as an alien convicted of an aggravated felony. The charge was based on the respondent's February 6, 1997, conviction for attempted possession of stolen property, in violation of sections 193.330 and 205.275 of the Nevada Revised Statutes, for which he received a suspended 36-month sentence to confinement. The Immigration Judge determined that this conviction was not a conviction for an aggravated felony as that term is defined in section 101(a)(43)(G) of the Act, because it failed to "establish the elements of 18 U.S.C. § 2315," a federal provision criminalizing sale or receipt of stolen goods. Accordingly, the Immigration Judge terminated the proceedings. The Service appealed from this decision.
The Nevada "Buying or Receiving Stolen Goods" criminal provision under which the respondent was convicted provides, in pertinent part, as follows:
Offense involving stolen property: Definition; penalty; restitution; prima facie evidence; determination of value of property.
1. A person commits an offense involving stolen property if the person, for his own gain or to prevent the owner from again possessing his property, buys, receives, possesses
2 The Immigration Judge also terminated the proceedings on the ground that the Service failed to demonstrate that the respondent's refugee status had been terminated after notice and hearing. The record indicates, however, that the respondent adjusted his status to that of a lawful permanent resident on November 4, 1982. The respondent's former status as a refugee, therefore, does not provide a basis for terminating the proceedings or withholds property:
(a) Knowing that it is stolen property; or
(b) Under such circumstances as should have caused a reasonable person to know that it is stolen property.
Nev. Rev. Stat. § 205.275(1) (1997) (emphasis added).3
Section 101(a)(43)(G) of the Act classifies as an aggravated felony "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least 1 year." (Emphasis added.)
The Service argues on appeal that a state offense need not necessarily match the elements of an analogous federal offense to be adjudged an aggravated felony under section 101(a)(43) of the Act. Although some of the subdivisions of the aggravated felony definition specifically refer to federal definitions of offenses, the Service notes that the description of theft and burglary offenses at section 101(a)(43)(G) contains no explicit reference to a federal definition or statute. The Service argues that the term "theft" has been broadly construed under Nevada law and the law of other jurisdictions to include both receipt and possession of stolen property. The Service notes further that the definitions in section 101(a)(43) apply to an offense "whether in violation of Federal or State law." Section 101(a)(43) of the Act.
The respondent contends that his Nevada conviction for attempted possession of stolen property is not an aggravated felony under section 101(a)(43)(G) because it does not satisfy a uniform federal definition of that crime, as embodied in an analogous federal statute, 18 U.S.C. § 2315 (1994). He also argues that his conviction is not for an aggravated felony because possession of stolen property is not a "theft offense" and falls short of "receipt of stolen property."
The respondent acknowledges that some state criminal codes now include all receipt and possession offenses under the broad heading of "theft offenses," but he argues that we should read the parenthetical, "including receipt of stolen property," as an indication that Congress drew the line on aggravated felony theft offenses at receipt of stolen property as that offense has historically been defined.
The respondent notes that receipt of stolen property has been distinguished from possession of stolen property, in that the receipt offense generally required proof that the perpetrator had knowledge, at the time of receipt, that the property was stolen. See, e.g., Lewis v. Hudspeth, 103 F.2d 23 (10th Cir. 1939) (); People v. Allen, 96 N.E.2d 446 (Ill. 1950) (); see also Williams v. State, 154 S.W.2d 809 (Ark. 1941); State v. Lisena, 30 A.2d 593 (N.J. 1943); Reade v. State, 236 S.W.2d 798 (Tex. Crim. App. 1951). The respondent raises two additional constitutional arguments, to "preserve them, if necessary, for appeals."
The issue in this case turns on the meaning of the phrase, "a theft offense (including receipt of stolen property)" in section 101(a)(43)(G) of the Act. Does inclusion of the parenthetical mean, as the respondent argues, that Congress only intended to include within the scope of theft offenses a receipt of stolen property crime that meets the historical elements of that distinct offense? Or is the parenthetical properly read as incorporating into the term "theft" the more contemporary understanding of "receipt of stolen property" offenses?
The respondent pled guilty to "attempt[ed] possession of stolen property." In so doing, he admitted the charges in Count II of his Criminal Complaint, that he attempted "wilfully, unlawfully, and feloniously, for his own gain, [to] possess property [he] . . . knew, or had reason to believe, had been stolen." Although the Nevada statute defines four ways in which the section 205.275 offense may be committed (i.e., buying, receiving, possessing, or withholding), the respondent was charged and convicted only of attempted possession.4
The respondent argues that a federal uniform standard should be applied in determining whether a conviction is for a "theft offense" under section 101(a)(43)(G) of the Act. In this regard, he urges that we recognize the elements of the federal statute at 18 U.S.C. § 2315 as the bench-mark for identifying theft offenses under section 101(a)(43)(G). Section 2315 provides, in pertinent part, punishment for anyone who "receives, possesses, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise, securities, or money of the value of $5,000 or more, . . . knowing the same to have been stolen, unlawfully converted, or taken." 18 U.S.C. § 2315.
The respondent identifies two differences in the elements that are required for a conviction under section 205.275 of the Nevada Revised Statutes and for a conviction under 18 U.S.C. § 2315. Under the federal statute, an individual may be convicted of felony possession of stolen property only if the property is worth more than $5,000; under the Nevada statute, the stolen goods must only be worth more than $2,500. In addition, the federal statute requires actual knowledge, whereas the Nevada statute requires either actual knowledge or evidence demonstrating that a reasonable person would have realized that the goods had been stolen. Because of such differences, the respondent argues that the Nevada statute under which he was convicted falls short of the federal standard for a "theft offense" as defined in section 101(a)(43)(G) of the Act.
We have recognized the importance of a categorical approach to defining crimes constituting aggravated felonies in order to assure uniform treatment from state to state. See, e.g., Matter of K-V-D-, 22 I&N Dec. 1163 (BIA 1999); Matter of L-G-, 21...
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Mena v. Lynch
...of offenses involving knowing receipt, possession, or retention of property from its rightful owner,” J.A. 5 (citing In re Bahta, 22 I. & N. Dec. 1381, 1391 (BIA 2000) ). Given the purported distinction between the two § 1101(a)(43)(G) offenses, the BIA reasoned that it “need not establish ......