Ramos v. U.S. Attorney Gen.

• Decision Date: 19 February 2013
• Docket Number: 11–15945.,Nos. 11–14829,s. 11–14829
• Citation: 709 F.3d 1066
• Parties: Ronel RAMOS, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

709 F.3d 1066

Ronel RAMOS, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

Nos. 11–14829, 11–15945.

United States Court of Appeals, Eleventh Circuit.

Feb. 19, 2013.

John Patrick Pratt, Kurzban, Kurzban, Weinger, Tetzeli & Pratt, PA, Miami, FL, for Petitioner.

Benjamin Mark Moss, Jennifer Paisner Williams, David V. Bernal, Krystal Samuels, U.S. Dept. of Justice, OIL, Eric Holder, Jr., U.S. Atty. Gen.'s Office, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel, Atlanta, GA, for Respondent.

Petitions for Review of a Decision of the Board of Immigration Appeals.

Before CARNES and COX, Circuit Judges, and RESTANI,^* Judge.

COX, Circuit Judge:

Ronel Ramos was charged with removability for committing an “aggravated felony” within the meaning of 8 U.S.C. § 1227(a)(2)(A)(iii) when he pled guilty to violating Georgia Code § 16–8–14, a statute that criminalizes shoplifting. An Immigration Judge sustained the charge, denied Ramos's application for cancellation of removal, and ordered Ramos deported. Ramos appealed to the Board of Immigration Appeals. The Board dismissed his appeal, reasoning that a § 16–8–14 conviction necessarily qualifies as an aggravated felony. The Board then denied Ramos's motion to reconsider. Ramos petitioned this court to review both of the Board's rulings. We conclude that a § 16–8–14 conviction does not categorically qualify as an aggravated felony. We also conclude that Ramos's record of conviction does not establish that he committed an aggravated felony. We therefore grant Ramos's petition and reverse the Board's rulings.

I. FACTS

Georgia Code § 16–8–14 (hereinafter the “Georgia statute”) reads as follows, in relevant part:

(a) A person commits the offense of theft by shoplifting when [he] ..., with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part ...:

(1) Conceals or takes possession of the goods or merchandise of any store or retail establishment[.]

Ga.Code Ann. § 16–8–14 (2004) (emphasis added).

Ramos, a citizen of the Philippines and a lawful permanent resident of the United States, was charged under the Georgia statute for taking three video games from a Costco “with the intent of appropriating [the] merchandise to his own use without paying for same.” (Admin. R. at 000164.) He pled guilty to this charge and was sentenced to twelve months' imprisonment to be served on probation.

The U.S. Attorney General then served Ramos with a notice to appear for removal proceedings, listing two charges of removability. One charge involved three additional convictions (Burglary from an Unoccupied Dwelling, Grand Theft, and Theft from a Dwelling) that, the Government claimed, together rendered Ramos removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for committing “two or more crimes involving moral turpitude.” The other charge: Ramos's conviction under the Georgia statute rendered him removable because it constituted an “aggravated felony” within the meaning of § 1227(a)(2)(A)(iii).

II. PROCEDURAL HISTORY

After a hearing, an Immigration Judge sustained the Government's charge of removability and denied Ramos's application for cancellation of removal. The Immigration Judge's rulings were based only on Ramos's shoplifting conviction under the Georgia statute and did not address the Government's § 1227(a)(2)(A)(ii) charge. The Immigration Judge then ordered Ramos removed. Ramos appealed to the Board of Immigration Appeals. The Board dismissed his appeal, reasoning that a conviction under the Georgia statute necessarily constitutes an aggravated felony within the meaning of § 1227(a)(2)(A)(iii), so Ramos had committed an aggravated felony and was removable. Ramos petitioned this court to review the dismissal and, on the same day, moved the Board to reconsider. The Board denied his motion on the same basis that it dismissed his appeal. Ramos then petitioned this court to review the Board's denial of his motion for reconsideration.

This court granted the parties' joint motion to consolidate the two appeals.

III. ISSUE ON APPEAL

Section 1227(a)(2)(A)(iii) renders an alien removable if he “is convicted of an aggravated felony at any time after admission.” Though the section does not define “aggravated felony,” that term is defined in 8 U.S.C. § 1101(a)(43)(G) to include “theft offense[s] ... for which the term of imprisonment [is] at least one year.”¹ In charging Ramos with removability under § 1227(a)(2)(A)(iii), the Government alleged that his conviction under the Georgia statute constituted a “theft offense” within the meaning of § 1101(a)(43)(G). If Ramos's conviction constituted a theft offense, it qualifies as an aggravated felony and Ramos is removable. The issue on appeal, then, is whether Ramos's convictionunder the Georgia statute constituted a theft offense.

IV. DISCUSSION

In deciding whether a conviction constitutes a theft offense, this court “first look[s] to the fact of conviction and the statutory definition of the offense.” Jaggernauth v. U.S. Att'y Gen., 432 F.3d 1346, 1353 (11th Cir.2005). If a conviction under a particular statute does not categorically qualify as a theft offense, we then look to the record of conviction—including documents involving the charge, plea agreement, or sentence—to determine whether it clearly establishes that the alien's conviction qualifies as a theft offense. See id. at 1355.

The Government argues that Ramos was convicted of a theft offense because the Georgia statute is categorical: any conviction under that statute constitutes a theft offense. But Ramos argues that the Georgia statute is “divisible.” That is, the Georgia statute punishes some conduct that qualifies as a theft offense and some conduct that does not qualify as a theft offense. Because the statute is divisible, Ramos contends, the mere fact of his conviction is insufficient to establish that he committed a theft offense, and the court must look to the record of conviction.

A.

The initial inquiry on appeal is whether the Georgia statute is categorical or divisible. To conclude that the Georgia statute is divisible, we must determine that it punishes conduct that does not qualify as a theft offense within the meaning of § 1101(a)(43)(G). The parties agree that we review the interpretation of the Georgia statute de novo.²

This inquiry first prompts the question of how “theft offense” is defined. The Supreme Court has held that when Congress has listed a specific crime, it means to refer to that crime in “the generic sense in which the term is now used in the criminal codes of most States.” Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990). The Court later applied this principle to acknowledge that the term “theft offense,” as § 1101(a)(43)(G) uses it, denotes the “generic definition of theft.” Gonzales v. Duenas–Alvarez, 549 U.S. 183, 188–89, 127 S.Ct. 815, 819–20, 166 L.Ed.2d 683 (2007). That “generic definition,” the Court recognized, has been stated by the Board and by many of our sister circuits as “the taking of property ... with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” Id. at 189, 127 S.Ct. at 820 (quoting Penuliar v. Gonzales, 435 F.3d 961, 969 (9th Cir.2006)) (emphasis added) (internal quotation marks omitted); see also United States v. Vasquez–Flores, 265 F.3d 1122, 1125 (10th Cir.2001) (recognizing verbatim this “generic definition”); Hernandez–Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir.2001) (same); In re V–Z–S–, 22 I. & N. Dec. 1338, 1346 (BIA 2000) (same).

In Jaggernauth v. U.S. Attorney General, 432 F.3d 1346, we accepted this generic definition and held that a theft statute that included two disjunctive intent requirements—an intent to deprive and an intent to appropriate—was divisible. Because we conclude that Jaggernauth controls the result in this case, we discuss it in detail here.

In Jaggernauth, we considered whether a lawful permanent resident of the United States had committed a theft offense within the meaning of § 1101(a)(43)(G) when she was convicted of grand theft under Florida Statutes § 812.014(1) (hereinafter the “Florida statute”). The Florida statute reads as follows:

A person commits a theft if he or she knowingly obtains or uses, or endeavors to obtain or use, the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit from the property.

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

Fla. Stat. § 812.014(1). The charging document submitted against the alien “tracked the general language” of the statute but “did not specify under which subsection [she] was charged.” Jaggernauth, 432 F.3d at 1349.

The Attorney General then charged her with removability under § 1227(a)(2)(A)(iii). An Immigration Judge sustained the charge and ordered her deported. The Board dismissed the alien's appeal, but it granted her motion to reconsider the dismissal. On reconsideration, the Board affirmed the Immigration Judge's ruling on the grounds that, although the Florida statute appeared to be divisible, the record of conviction established that the alien was charged with a theft offense.

We reversed the Board's holding. On de novo review, we concluded that the Florida statute encompassed two distinct mens rea: an intent to deprive and an intent to appropriate. Id. at 1353–54. We then determined that the Florida statute's intent-to-appropriate clause (subpart (b)) could not include a “criminal intent to deprive the owner of the rights and benefits of ownership,” as the generic definition of theft requires. Id. at 1353. To interpret both subparts to involve an intent to deprive, we reasoned, “would make subpart (b) superfluous, thereby violating the...