Vassell v. U.S. Attorney Gen.

• Decision Date: 21 October 2016
• Docket Number: No. 15-11156,15-11156
• Citation: 839 F.3d 1352
• Parties: Winsome Elaine Vassell, Petitioner, v. U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

839 F.3d 1352

Winsome Elaine Vassell, Petitioner,

v.U.S. Attorney General, Respondent.

No. 15-11156

United States Court of Appeals, Eleventh Circuit.

Date Filed: October 21, 2016

Benjamin J. Osorio, Murray Osorio, Fairfax, VA, for Petitioner.

Anthony W. Norwood, Manuel A. Palau, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel—ATL, Atlanta, GA, for Respondent.

Before WILSON and MARTIN, Circuit Judges, and RODGERS,^* District Judge.

MARTIN

, Circuit Judge:

The opinion issued by this panel in this case on June 13, 2016 is withdrawn, and this opinion is issued in its place. In our earlier opinion, this Court reversed the holding of the Board of Immigration Appeals (BIA) that Winsome Vassell's conviction under O.C.G.A. § 16–8–2

was a “theft offense” as that term is defined under 8 U.S.C. § 1101(a)(43)(G). The panel opinion expressly granted Ms. Vassell's Petition for Review, but the panel is now advised that the BIA does not deem this Court's June 13, 2016 opinion sufficient to require it to accept Ms. Vassell's case on remand. The panel is therefore reissuing this opinion to make clear that in addition to granting Ms. Vassell's petition, we are REMANDING this case to the BIA for further proceedings consistent with this Court's ruling in its June 13, 2016 opinion, which is restated in this opinion reissued today.

The BIA ruled that Ms. Vassell is deportable because she pleaded guilty to “theft by taking” in violation of Georgia Code § 16–8–2

. Mrs. Vassell filed a petition for review saying that this crime is not “a theft offense” as that term is used in the Immigration and Nationality Act's (INA) list of grounds for deportation. Whether a state theft conviction is “a theft offense” for the INA turns on whether the state offense contains the elements of the generic definition of theft. Mrs. Vassell says Georgia “theft by taking” doesn't require property to be taken “without consent,” as is required for generic theft. The BIA initially took this view too, so it ruled that Mrs. Vassell's § 16§8–2 violation was not “a theft offense.” The BIA had held the same about § 16–8–2 in cases before Mrs. Vassell's, and it has continued to do so after. But after its initial ruling, a BIA official granted a motion to reconsider in Mrs. Vassell's case and ruled the second time around that the crime is generic theft. Mrs. Vassell's appeal therefore requires us to consider how to treat inconsistent rulings by the BIA on the same question presented in different cases.

The government defends the BIA's last ruling in Mrs. Vassell's case, though it concedes nearly everything that we need to know to decide this view is wrong. First, the government concedes that generic theft contains a “without consent” element. The government also concedes that the Georgia offense “criminalizes the conduct of obtaining another's property by consent fraudulently obtained.” All the government disputes is whether theft based on taking property through fraudulently obtained consent is “without consent.” This isn't much of an open question though, because the BIA answered no to it years ago in a published opinion. We thus grant Mrs. Vassell's petition.

I.

Mrs. Vassell is a citizen of Jamaica who became a lawful permanent resident of the United States in 1990. In 2013, Mrs. Vassell pleaded guilty to “theft by taking” in violation of Georgia Code § 16–8–2

based on charges that she took merchandise from a department store while working at the store. An immigration judge held that this crime made her deportable because it was “a theft offense” as that term is used in the INA. The BIA first reversed that decision, holding that Georgia “theft by taking” is not generic theft because it doesn't require “lack of consent of the victim.” The government then asked the BIA to reconsider. This second time around, the BIA ruled that Georgia “theft by taking” does require lack of consent of the victim. The BIA ordered Mrs. Vassell to return to Jamaica.

II.

“[W]e have jurisdiction to decide in a petition for review proceeding whether the BIA erred in determining that a petitioner's conviction is an aggravated felony.” Balogun v. U.S. Att'y Gen., 425 F.3d 1356, 1360 (11th Cir. 2005)

. When deciding this question we owe deference to the BIA's interpretations of the INA to the extent its readings are reasonable. See id. at 1361. However, we owe no deference to unpublished single-member BIA decisions (like the BIA's final order in this case) unless they are “consistent with other decisions rendered by the BIA.” Donawa v. U.S. Att'y Gen., 735 F.3d 1275, 1279 n.2 (11th Cir. 2013). We also owe no deference to the BIA's views on state law. Instead we “are bound to follow any state court decisions that define or interpret the statute's substantive elements.” United States v. Howard, 742 F.3d 1334, 1346 (11th Cir. 2014).

The INA provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii)

. The term “aggravated felony” includes “a theft offense (including receipt of stolen property).” Id.§ 1101(a)(43)(G). Because the INA doesn't define “a theft offense,” courts use “the generic definition of theft.” Gonzales v. Duenas–Alvarez, 549 U.S. 183, 189, 127 S.Ct. 815, 820, 166 L.Ed.2d 683 (2007). To determine whether a state offense meets that definition, we apply what is called the “categorical approach.” Moncrieffe v. Holder, ––– U.S. ––––, ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). This approach compares the generic offense to the “minimum conduct criminalized by the state statute.” Id.“[A] state offense is a categorical match with a generic federal offense only if a conviction of the state offense necessarily involved facts equating to the generic federal offense.” Id.(quotation omitted and alterations adopted).

Generic theft is “the taking of, or exercise of control over, property without consent whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.” In re Garcia–Madruga, 24 I. & N. Dec. 436, 440–41 (BIA 2008)

. Mrs. Vassell was convicted under Georgia Code § 16–8–2, which reads: “A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” O.C.G.A. § 16–8–2. Mrs. Vassell says this crime lacks the “without consent” element required for generic theft. We must therefore answer two questions. First, what does the generic definition of theft's “without consent” require? Second, does the Georgia offense contain that element?

A.

The BIA's final order in this case simply held that § 16–8–2

requires some lack of consent, without explaining what exactly the generic “without consent” element means. However, the BIA explained years ago that this element serves to distinguish theft from fraud. See Garcia–Madruga, 24 I. & N. Dec. at 438

. Garcia–Madruga was the first published BIA opinion to include a “without consent” element in the agency's definition of “a theft offense.” Because Garcia–Madruga added this element to the BIA's definition, our analysis of what the element requires starts with that opinion.

Garcia–Madruga

explained that the BIA added the “without consent” element in order to distinguish theft offenses from fraud offenses. These two types of offenses must be kept separate because the INA has different requirements for each. See id. at 439. Fraud is a deportable offense only if it causes a loss of more than $10,000. 8 U.S.C. § 1101(a)(43)(M)(i). But theft is a deportable offense no matter the value of the stolen property. Id.§ 1101(a)(43)(G). Since fraud and theft can both involve obtaining property unlawfully, the fact that a state calls an offense “theft” doesn't mean the offense actually meets the definition of generic theft. To give meaning to the INA's distinct requirements for theft and fraud crimes, there must be an element that separates the two crimes.

The BIA thus added the “without consent” element to the generic definition of theft. According to the government's brief, this change was in response to “criticism from several courts.” Specifically, “every Federal court of appeals to have addressed the meaning of ‘theft offense’ under section 101(a)(43)(G) ha[d] determined that it necessarily includes the requirement that the property have been obtained from its owner ‘without consent.’ ” Garcia–Madruga, 24 I. & N. Dec. at 438

. The Supreme Court also applied that same definition “with apparent approval.” Id. The BIA joined those courts and explained how the “without consent” element distinguishes theft from fraud by quoting this passage from the Fourth Circuit's decision in Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005) :

When a theft offense has occurred, property has been obtained from its owner “without consent”; in a fraud scheme, the owner has voluntarily “surrendered” his property, because of an “intentional perversion of truth,” or otherwise “act[ed] upon” a false representation to his injury. The key and controlling distinction between these two crimes is therefore the “consent” element—theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained.

Id. at 282

(quoting Black's Law Dictionary(6th ed. 1951)) (emphasis added).¹

Soliman

isn't the only Court of Appeals case to stress that the “without consent” element distinguishes theft from fraud. The Fifth Circuit has endorsed Soliman's reasoning on this distinction. See Martinez v. Mukasey, 519 F.3d 532, 540 (5th Cir. 2008). And the Fourth Circuit relied on Solimon to hold that Virginia larceny is not “a theft offense” because it “treats fraud and theft as the same for larceny purposes, but the INA treats them...