Lewin v. Attorney Gen. of the U.S.

• Decision Date: 20 March 2018
• Docket Number: No. 17-1846,17-1846
• Citation: 885 F.3d 165
• Parties: Omar Norvil Whylie LEWIN, aka Omar Lewin, aka Omar N. Lewin, aka Lewin Omard, aka Lewin N. Oman, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

885 F.3d 165

Omar Norvil Whylie LEWIN, aka Omar Lewin, aka Omar N. Lewin, aka Lewin Omard, aka Lewin N. Oman, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES of America, Respondent.

No. 17-1846

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1a January 11, 2018

Filed: March 20, 2018

Joseph C. Hohenstein, 190 N. Independence Mall West, Suite 602, Philadelphia, PA 19106, Counsel for Petitioner

Jefferson B. Sessions, III, Anna Juarez, Anthony J. Messuri, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: JORDAN, ROTH, Circuit Judges and MARIANI^* , District Judge.

OPINION OF THE COURT

JORDAN, Circuit Judge.

This immigration case raises a single question: whether the petitioner’s conviction under New Jersey’s Receiving Stolen Property Statute, N.J. Stat. Ann. § 2C:20–7(a), constitutes an "aggravated felony" under the Immigration and Nationality Act ("INA"), 66 Stat. 163, as amended. 8 U.S.C. § 1101(a)(43)(G). We conclude that it does and, accordingly, will deny the petition for review.

I. BACKGROUND

Omar Norvil Whylie Lewin, a native and citizen of Jamaica, was admitted to the United States in 1987 as a legal permanent resident. In 2000, Lewin was convicted of receiving stolen property in the third degree, in violation of New Jersey law, N.J. Stat. Ann. § 2C:20–7(a), and was sentenced to five years of probation. Seven years later, following a finding that he violated the terms of his probation, Lewin was resentenced to a term of four years of imprisonment.¹ Another seven years later, Lewin received a Notice to Appear, charging him as removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii)–(iii).

An Immigration Judge ("IJ") concluded that Lewin is removable for having been convicted of an aggravated felony under § 1101(a)(43)(G), based on his 2000 New Jersey conviction for receipt of stolen property and later resentencing, and that the conviction also barred him from relief in the form of cancellation of removal. The IJ therefore pretermitted Lewin’s application for cancellation of removal. Lewin then filed a motion for reconsideration, which was denied. His case was ultimately transferred to a second IJ, who adopted the original IJ’s conclusions regarding Lewin’s removability and ineligibility for cancellation of removal.

Lewin appealed that decision to the Board of Immigration Appeals ("BIA"), arguing that his New Jersey conviction did not categorically constitute an aggravated felony under § 1101(a)(43)(G) and that the IJ had prematurely pretermitted his application for cancellation of removal under 8 U.S.C. § 1229b(a). The BIA affirmed the IJ’s decision. It too concluded that, because Lewin’s New Jersey receipt of stolen property conviction categorically constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), he is ineligible for cancellation of removal. It thus dismissed Lewin’s appeal. He responded with this petition for review.²

II. DISCUSSION³

Lewin’s petition challenges only the sufficiency of the mens rea element of his New Jersey offense: he says that the minimum mens rea under New Jersey’s § 2C:20–7(a) —"believing that [the property] is probably stolen"—renders that offense insufficient to categorically constitute an aggravated felony under the INA, specifically under § 1101(a)(43)(G). He argues that, although the BIA properly applied a "strict categorical approach" when determining whether his conviction constituted an aggravated felony under the INA, it reached the wrong result. (Opening Br. at 7.)

We apply the categorical approach’s element-by-element analysis to determine whether Lewin’s New Jersey receiving stolen property conviction "fits" the generic definition of receiving stolen property that is contemplated by the INA under § 1101(a)(43)(G). Rojas v. Att’y Gen. , 728 F.3d 203, 214 (3d Cir. 2013) ; see also Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (employing categorical approach for aggravated felony determination). Lewin’s "actual conduct is irrelevant to the inquiry," and we must "presume that the conviction rested upon nothing more than the least of the acts criminalized under the [New Jersey] statute." Mellouli v. Lynch , ––– U.S. ––––, 135 S.Ct. 1980, 1986, 192 L.Ed.2d 60 (2015) (quotation marks and citation omitted). However, "our focus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’ " Moncrieffe , 569 U.S. at 191, 133 S.Ct. 1678 (citation omitted).

Lewin was convicted of receiving stolen property in the third degree. Following the Model Penal Code’s pattern definition, M.P.C. § 223.6, New Jersey defines receiving stolen property as follows: "A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen." N.J. Stat. Ann. § 2C:20–7(a).

The INA includes a generic theft offense within its list of specified aggravated felonies, and it requires that, to fit the definition of aggravated felony, the "theft offense (including receipt of stolen property) ... [must be one] for which the term of imprisonment [is] at least one year[.]"⁴ 8 U.S.C. § 1101(a)(43)(G). The INA itself does not define "theft" or "receipt of stolen property," but an accepted generic definition of a "theft offense" is 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, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007).

The BIA has issued published decisions interpreting the requisite "criminal intent" inherent in § 1101(a)(43)(G) ’s generic receipt of stolen property offense, most recently in Matter of Deang , 27 I. & N. Dec. 57 (2017), which post-dated the BIA’s decision in Lewin’s case. In Matter of Deang , the BIA addressed whether a state statute governing the receipt of certain stolen property (specifically motor vehicles), and providing a minimum mens rea of "reason to believe" the property at issue was stolen, was sufficient to satisfy the criminal intent element of the generic receipt of stolen property offense contemplated by the INA. Construing the INA’s generic offense to include as "a necessary element" an "intent to deprive the owner of his or her property, " id. at 59, the BIA concluded that a mens rea amounting only to a "reason to believe" the property was stolen did not satisfy that intent element. Id. at 63. It said, "[w]e cannot infer that a violator who received property with a ‘reason to believe’ that the property was stolen (or a similar mens rea) intended to deprive the true owner of the rights and benefits of ownership[,]" because a violator "need not be actually aware" of an item’s stolen character; rather, the state need only prove that a person "should have been aware" that the property was stolen, based on the circumstances. Id. at 59. The BIA then considered other intent elements used in similar federal and state statutes, and it held that "the mens rea of ‘knowledge or belief’ is an essential element of an aggravated felony receipt of stolen property offense under [ § 1101(a)(43)(G).]"⁵ Id. at 63.

The government argues that Matter of Deang forecloses Lewin’s argument that New Jersey’s receipt of stolen property statute, with its "knowing ... or believing" mens rea, N.J. Stat. Ann. § 2C:20–7(a), is insufficient to constitute an aggravated felony under the INA. Lewin counters that Matter of Deang is not dispositive and that we should not afford it any deference under the principles laid out in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). While the issue of Chevron deference to the BIA’s evaluation of criminal statutes in light of the INA has generated some controversy and confusion,⁶ we do not need to resolve that issue here. See Rojas , 728 F.3d at 207 (citing Denis v. Att’y Gen. , 633 F.3d 201, 208–09 (3d Cir. 2011) (declining to resolve Chevron dispute because it would not affect the outcome)). We agree with the BIA’s conclusion that the mens rea element of New Jersey’s receiving stolen property statute is categorically sufficient to constitute an aggravated felony under § 1101(a)(43)(G). Cf. De Leon–Reynoso v. Ashcroft , 293 F.3d 633, 637 (3d Cir. 2002) (rejecting mens rea challenge to similar Pennsylvania receiving stolen property statute, reasoning that "[a]t a minimum, [the petitioner] was convicted of possessing stolen property that he believed probably was stolen, a crime that is barely removed from possessing stolen property with knowledge that it is stolen").

Lewin argues that New Jersey’s statute does not meet the generic INA definition because it criminalizes conduct "that would not result in any deprivation (i.e. a mistaken belief in a probable fact that an item was stolen)[,]" but his concern is misplaced. (Opening Br. at 14.) New Jersey law makes it clear that "the State ... must prove that the property in question was actually stolen." State v. Hodde , 181 N.J. 375, 858 A.2d 1126, 1129 (2004). So too is his concern that a defendant’s "belief" that the property is probably stolen need not be proved beyond a reasonable doubt. "It is well settled that due process requires the State to prove each element of a charged crime beyond a reasonable doubt." State v. Hill , 199 N.J. 545, 974 A.2d 403, 411 (2009) ; see also id. at 418 (stating that "it was the State’s exclusive burden to prove, beyond a reasonable doubt" the defendant’s mens rea); N.J. Model Crim. Jury...