Introduction: Matter of Deang, 27 I&N Dec. 57, 64-66
On June 16, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Deang, 27 I&N Dec. 57 (BIA 2017) [PDF version], in which it held that an essential element of an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Immigration and Nationality Act (INA) is that the offender must receive the stolen property with the “knowledge or belief” that it has been stolen. Significantly, this excludes offenses that require proof of a mens rea (mental state) of only a “reason to believe” and not actual knowledge or an actual belief that the property has been stolen from the scope of aggravated felony receipt of stolen property under section 101(a)(43)(G) receipt of stolen property. As a result of its reading of section 101(a)(43)(G), the Board held that the offense receipt of a stolen vehicle under section 32-4-5 of the South Dakota Codified Laws does not categorically define an aggravated felony receipt of stolen property offense because it requires a minimum mens rea of “reason to believe.”
However, Judge Garry Malphrus, who was a member of the three-judge panel considering the case, dissented from the opinion of the Board. Although Judge Malphrus's dissent is not controlling — and the majority's decision now constitutes binding precedent — it evinces that there may be members of the Board open to reassessing Matter of Deang in the future.
In this post, we will examine Judge Malphrus's dissenting opinion. This post presumes familiarity with the facts of the case and the majority's reasoning and decision in Matter of Deang. This post picks up from where our main article leaves off. Accordingly, if you have not already, please see our full article on the precedent majority opinion in Matter of Deang [see article].
Judge Malphrus's Dissenting Opinion: 27 I&N Dec. at 64-66
Judge Malphrus agreed with the majority that the task of the Board was “to determine the generic, contemporary meaning of the phrase 'receipt of stolen property' as used in section 101(a)(43)(G) by surveying the Federal and State statutes as they existed in 1994, when Congress added the phrase 'receipt of stolen property' to section 101(a)(43)(G) of the [INA]…”
However, Judge Malphrus disagreed with what the majority concluded from its survey. Instead, he took the position that “there was simply no consensus regarding the mens rea standard for receipt of stolen property offenses in 1994.” He added that he could not “conclude that Congress intended to adopt a mens rea that, according to the majority, would preclude offenses in 21 jurisdictions, as well as a Federal offense…”
Judge Malphrus agreed with the majority that “particular importance” should be paid to Federal law in 1994. However, he focused on the point that Federal law itself had not been uniform with respect to the minimum mens rea in Federal receipt of stolen property offenses. Although the majority of Federal receipt of stolen property offenses required a knowing mens rea, 18 U.S.C. 922(j) (1994), which was a receipt of stolen firearms offense, had a minimum mens rea of “reason to believe.” Furthermore, Judge Malphrus noted, the penalty for violating 18 U.S.C. 922(j) (1994) was a term of imprisonment of up to 10 years, making it one of the most strongly punished Federal receipt of stolen property offenses on the books at the time. However, Judge Malphrus explained, a conviction under that statute would now not qualify as an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) under the majority's reading of the provision.
Judge Malphrus listed other similar statutes that used a lower mens rea standard than that which was required by the majority. 18 U.S.C. 842(h) (1994), which criminalized receipt of stolen explosive materials, required that the Government prove beyond a reasonable doubt that the defendant had received such stolen materials while “knowing or having reasonable cause to believe” that they were stolen. 18 U.S.C. 231(a)(2) (1994) criminalized the transportation of firearms while “knowing or having reason to know” that the firearms would be used unlawfully. 21 U.S.C. 841(d)(2) (1994) criminalized the possession or distribution of certain chemicals while “knowing or having reasonable cause to believe” that the chemical or chemicals would be used to manufacture a controlled substance.
Judge Malphrus noted that the majority's survey of State laws found that 29 jurisdictions used the standard required by the majority whereas 21 used a lower standard regarding the requisite mens rea for receipt of stolen property offenses. Judge Malphrus stated that “there were different approaches among the States as to their general receipt of stolen property statutes.”
Judge Malphrus also noted that the statute in question in the Matter of Deang was not a general receipt of stolen property offense, but rather a specific kind — that is, receipt of a stolen motor vehicle. He referenced the majority's point that States used different mens rea standards with respect to statutes covering stolen motor vehicles. In fact, most States used the “reason to believe” standard for such offenses. Additionally, Judge Malphrus took the position that the majority did not assess how each State applies its receipt of stolen property statutes. As an example, he noted that the text of 5/4-103 of Chapter 625 of the Illinois Compiled Statutes required proof in 1994 that the violator had “knowledge” that a motor vehicle had been stolen. However, in People v. Whitfield, 573 N.E.2d 1267, 1272 (Ill. App. Ct. 1991), an Illinois appellate court held that the “knowledge” requirement could be established “by proof of circumstances that would cause a reasonable person to believe property had been stolen.”
In addition to there being no consensus among the states of the minimum mens rea required for convictions for receipt of stolen property, Judge Malphrus cited to H.R. Re. No. 104-22, at 18 (1995) as evidence that the intent of Congress at the time was to expand the classes of aliens deportable for aggravated felonies. Citing to Taylor v. United States, 495 U.S. 575, 598 (1990) [PDF version], Judge Malphrus took the position that Congress intended for section 101(a)(43)(G) to encompass theft of stolen property offenses that required only that the offender have had a reason to believe the property was stolen due to the prevalence of such similarly constructed statutes in 1994.
Judge Malphrus recognized that the United States Courts of Appeals for the Fifth and Ninth Circuits had previously reached the same conclusions as the majority with respect to the proper reading of section 101(a)(43)(G). However, he explained, neither had conducted a comprehensive survey of Federal and State laws in effect in 1994. Having conducted the analysis, and in consideration of the fact that the United States Court of Appeals for the Eighth Circuit had not issued any rulings on the issue binding the Board, Judge Malphrus stated that “[f]or the benefit of circuits that have yet to address this issue, I would conclude that a receipt of stolen property conviction in which the defendant knew, should have known, or had reason to believe that the property was stolen falls within the generic definition of an aggravated felony under section 101(a)(43)(G) of the [INA].” For this reason, he would have sustained the Department of Homeland Security's (DHS's) appeal.
Judge Malphrus issued an interesting dissenting opinion that was not only contrary to the majority in Matter of Deang, but also to the precedent of the Fifth and Ninth Circuits. At the present, Judge Malphrus's dissent has no effect. The majority opinion in Matter of Deang now constitutes binding precedent on Immigration Judges nationwide and, even if the Board had agreed with Judge Malphrus, it would still be bound in cases arising from the Fifth and Ninth Circuits.
However, Judge Malphrus's dissent is worth watching in two areas. First, it is worth noting that most Federal circuit courts have not addressed the issue directly. It is quite likely that Judge Malphrus put his dissent on record in order that Federal courts may consider it in the event that a case presenting similar issues comes before it. Indeed, Judge Malphrus revealed that to be one of his objectives in the following passage:
“For the benefit of the circuits that have yet to address this issue, I would conclude…”
Second, it is always possible that in a different case a BIA panel may opt to reconsider Matter of Deang and, in so doing, consider adopting Judge Malphrus's dissent. Furthermore, his dissent may cause Congress to consider whether it agrees with the Board's reading of the statute.
We will update the site with any information regarding the interpretation of section 101(a)(43)(G) as it becomes available.