In re V-Z-S
| Decision Date | 01 August 2000 |
| Docket Number | Interim Decision No. 3434. |
| Citation | 22 I&N Dec. 1338 |
| Parties | In re V-Z-S-, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated August 19, 1998, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. IV 1998), as an alien convicted of an aggravated felony. The Immigration Judge further determined that the respondent is ineligible for any relief from removal and ordered him removed from the United States to Lebanon. The respondent has filed a timely appeal from that decision. The appeal will be dismissed.2
The respondent is a 27-year-old male who was born in Lebanon, but who claims that he was never given citizenship in that country. On June 22, 1974, the respondent was admitted to the United States as a lawful permanent resident. The record reflects that on February 8, 1996, the respondent was convicted of grand theft of an automobile ("grand theft auto") in violation of section 487h(a) of the California Penal Code and was sentenced to 2 years' imprisonment. Based on this conviction, the Immigration and Naturalization Service issued and personally served the respondent with a Notice to Appear (Form I-862), charging him with removability pursuant to section 237(a)(2)(A)(iii) of the Act, as an alien convicted of an aggravated felony as defined in section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1994 & Supp. IV 1998). Subsequently, the Immigration Judge found the respondent subject to removal as charged.
The Immigration Judge also determined that the respondent is ineligible for relief from removal because he was convicted of an aggravated felony. See sections 208(b)(2)(A)(ii), (B)(i) (asylum); 240A(a)(3) (cancellation of removal); 240B(b)(1)(C) (voluntary departure) of the Act, 8 U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i); 1229b(a)(3); 1229c(b)(1)(C) (Supp. IV 1998). In addition, the Immigration Judge concluded that the respondent is ineligible for withholding of removal under section 241(b)(3)(B) of the Act, 8 U.S.C. § 1231(b)(3)(B) (Supp. IV 1998), because he was convicted of aggravated felonies for which he was sentenced to an aggregate term of imprisonment of at least 5 years.
At his removal hearing, the Service presented evidence that the respondent had been convicted of the following crimes. On May 20, 1993, the respondent was convicted of burglary in the second degree and received a prison sentence of 16 months. On June 17, 1993, he was convicted of grand theft auto and commercial burglary, for which he received concurrent prison sentences of 16 months. On August 31, 1995, the respondent was convicted of unlawful driving and taking of a vehicle and was sentenced to 5 years' imprisonment. On January 23, 1996, he was again convicted of unlawful driving and taking of a vehicle, for which he received a 2-year prison sentence. On the same day, the respondent was also convicted of grand theft auto, but his sentence was stayed. Finally, on February 8, 1996, the respondent was convicted of grand theft auto and receiving stolen property. For these convictions he received concurrent 2-year sentences of imprisonment, which were also to run concurrently with his 1995 and 1996 sentences.
In arriving at his conclusion that the respondent had been sentenced to an aggregate term of imprisonment of at least 5 years, the Immigration Judge calculated that the 16-month sentence for the grand theft auto conviction that was imposed on June 17, 1993, plus the 2-year sentence for the grand theft auto conviction that was imposed on February 8, 1996, plus the 2-year sentence for the receiving stolen property conviction that was imposed on February 8, 1996, add up to an excess of 5 years in the aggregate. Consequently, the Immigration Judge found that the respondent had been convicted of a particularly serious crime, rendering him ineligible for withholding of removal. See section 241(b)(3)(B)(ii) of the Act. The respondent appealed this decision, arguing that the Immigration Judge erred in pretermitting all applications for relief from removal.
The ultimate issue on appeal is whether the respondent's criminal convictions render him ineligible for withholding of removal under section 241(b)(3) of the Act. To resolve this question, we must first address two issues: (1) whether the Immigration Judge correctly calculated the respondent's multiple sentences to imprisonment for his aggravated felonies, which he found added up to 5 years in the aggregate and rendered the respondent automatically ineligible for withholding of removal; and (2) whether the respondent's conviction under section 10851 of the California Vehicle Code, for which he was sentenced to 5 years' imprisonment, is a theft offense and therefore an aggravated felony under section 101(a)(43)(G) of the Act, rendering him automatically ineligible for withholding of removal as an alien convicted of a particularly serious crime.
We find (1) that under Matter of Aldabesheh, 22 I&N Dec. 983 (BIA 1999), the Immigration Judge's calculation of the time for which the respondent was sentenced was incorrect; and (2) that the respondent's conviction under section 10851 of the California Vehicle Code is a "theft offense" as defined in section 101(a)(43)(G) of the Act. Therefore, we conclude that the respondent's convictions render him ineligible for withholding of removal under section 241(b)(3) of the Act.
Section 241(b)(3)(B) of the Act provides that an alien is ineligible for withholding of removal for having committed a particularly serious crime, if he has been convicted of an aggravated felony (or felonies) for which he was sentenced to an "aggregate term of imprisonment" of at least 5 years. As noted above, the Immigration Judge determined that the respondent was sentenced to an aggregate term of imprisonment of at least 5 years. The Immigration Judge calculated this aggregate term by adding together the sentences imposed on the respondent for both of his convictions for grand theft auto on June 17, 1993, and on February 8, 1996, and for his conviction for receipt of stolen property on February 8, 1996. The Immigration Judge did not include the respondent's sentence for his burglary conviction on May 20, 1993.3
Subsequent to the Immigration Judge's decision, we determined in Matter of Aldabesheh, supra, that where an alien has been convicted of two or more aggravated felonies and has received concurrent sentences to imprisonment, the alien's aggregate term of imprisonment, for purposes of determining eligibility for withholding of removal under section 241(b)(3) of the Act, is equal to the length of the alien's longest concurrent sentence. The record reflects that the 2-year sentences imposed for the respondent's February 8, 1996, convictions for grand theft auto and receipt of stolen property were ordered to run concurrently. Consequently, these sentences cannot be added together to calculate an aggregate term of imprisonment.
If the respondent's sentences to imprisonment were properly added for the convictions that the Immigration Judge found to be aggravated felonies, the respondent would have an aggregate term of imprisonment of only 4 years and 8 months. This calculation includes 2 years for the concurrent sentences imposed for the February 8, 1996, convictions for receipt of stolen property and grand theft auto, plus 16 months for the concurrent sentences imposed for the June 17, 1993, convictions for grand theft auto and commercial burglary, plus the 16-month sentence for the May 20, 1993, conviction for burglary in the second degree. In light of the concurrent sentences imposed on the respondent and the Immigration Judge's finding that the convictions for unlawful driving and taking of a vehicle are not aggravated felonies, we find that the Immigration Judge erred in concluding that the respondent was sentenced to an aggregate term of imprisonment equal to at least 5 years. See Matter of Aldabesheh, supra.
We have not previously addressed in a precedent decision what constitutes a "theft offense" for purposes of section 101(a)(43)(G) of the Act. However, this question does not come to us on a clean slate.
First, we generally apply a federal standard in determining whether a state offense fits within the aggravated felony definition. See Matter of Rodriguez-Rodriguez, Interim Decision 991 (BIA 1999). In addition, the term "theft offense" in section 101(a)(43)(G) of the Act should be given a "uniform definition independent of the labels employed by the various States' criminal codes." Taylor v. United States, 495 U.S. 575, 592 (1990) ().
Second, in addressing terms in the aggravated felony definition that are not defined by reference to a specific statute, we look to several sources for guidance. Our analysis begins with the principles of statutory construction.
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