Introduction: Matter of Ibarra, 26 I&N Dec. 797 (BIA 2016)
On September 15, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Ibarra, 26 I&N Dec. 809 (BIA 2016) [PDF version]. Ibarra addressed the scope of the immigration aggravated felony for a “theft offense” found in section 101(a)(43)(G) of the Immigration and Nationality Act (INA). The Board found that section 101(a)(43)(G) includes within its scope extortionate takings where “consent” is obtained through the through the wrongful use of force, fear, or threats.
In this article, we will examine the facts of the case, the Board's analysis and decision, and what the new precedent decision means for similar situations going forward.
Facts and Procedural History: 26 I&N Dec. 809-810
The respondent, a lawful permanent resident (LPR) and a native and citizen of Nicaragua, was convicted in California “of two counts of second-degree robbery “by force or fear” in violation of section 211 of the California Penal Code, with use of a deadly or dangerous weapon as an aggravating factor under section 12022.53(b).” The respondent was sentenced to 3 years' imprisonment along with an additional 10 years' imprisonment for a firearm enhancement.
In removal proceedings, the Immigration Judge held that a violation of section 211 of the California Penal Code is not an aggravated felony under section 101(a)(43)(G). In so finding, the Immigration Judge applied the categorical approach in analyzing the statute, and concluded that the provision was not categorically an offense under section 101(a)(43)(G) because the California statute included “generic extortion,” in which the victim has been induced to consent to the taking, in addition to “generic theft” offenses, which require proof that the taking was accomplished without the victim's consent.
Because the case arose in the jurisdiction of the Ninth Circuit, in reaching this decision the Immigration Judge relied on U.S. v. Becerril-Lopez, 541 F.3d 881, 891-92 (9th Cir. 2008) [PDF version], wherein the Ninth Circuit had held that the California statute at issue includes generic extortion. The Immigration Judge found, in defining a “theft offense,” 101(a)(43)(G) of the INA requires an “element of taking” that must be done without the victim's consent. The Immigration Judge found that section 211 of the California Penal Code is categorically broader than generic theft accomplished without the consent of the victim because it also includes the unlawful taking of property by inducing consent through “force or fear.”
The Immigration Judge held accordingly that the Department of Homeland Security (DHS) had failed to meet its burden of establishing that the respondent was removable by “clear and convincing” evidence because he had committed a theft offense under 101(a)(43)(G) of the INA, and thus terminated removal proceedings.
Before we examine the Board's analysis and decision, it is important to understand the two pertinent statutes in the Matter of Ibarra.
First, section 101(a)(43)(G) defines as an immigration aggravated felony:
[A] theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year.
In footnote 2 of its decision, the Board explained that Section 211 of the California Penal Code provides the following:
Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.
Board's Analysis and Decision: 26 I&N Dec. 810-13
First, the Board determined that it must apply the “categorical approach” under Supreme Court precedent found in Taylor v. United States, 495 U.S. 575 (1990) [PDF version]. On this point, the Board agreed with the Immigration Judge. The Board explained that Taylor requires that it only look at the fact of the conviction and the statutory definition of the prior offense. Citing to the recent Supreme Court decision in Mathis v. United States, 136 S.Ct. 2243, 2248 (2016) [PDF version], the Board explained that the question would be whether “the elements of Section 211 of the California Penal Code match the elements of generic theft under section 101(a)(43)(G) of the INA” [see article on Mathis].
In short, in order to find that a conviction in violation section 211 of the California Penal Code is categorically for an aggravated felony theft offense, the Board would have to find that all of the conduct proscribed by section 211 falls under the definition of “theft offense” found in section 101(a)(43)(G) of the INA (such that a conviction under Section 211 is necessarily for an aggravated felony “theft offense” under the INA). To learn more about the categorical approach and when it must be used, please see our recent article that both discusses the categorical approach and includes links to other articles we have written about this important subject [see article].
The Board first looked to define the scope of section 101(a)(43)(G) of the INA. After this step, the Board next looked to determine whether any conviction in violation of Section 211 of the California Penal Code “falls within the definition of a generic theft offense.” The Board quoted from the Supreme Court decision in Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007) [PDF version], which described section 101(a)(43)(G): “[the] taking of property or an exercise of control over property without consent and with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent” (quoting Penuliar v. Gonzales, 435 F.3d 961, 969 (9th Cir. 2006) [PDF version]).” This definition was also accepted by the Board in its precedent decision in the Matter of Garzia-Madruga, 24 I&N Dec. 436 (BIA 2008) [PDF version].
The Immigration Judge's finding that the respondent's conviction was not categorically for a theft offense as defined in the INA hinged on the conclusion that its coverage of extortion offenses was outside the scope of section 101(a)(43)(G) of the INA. As the Immigration Judge reasoned, extortion offenses involve “consent,” whereas section 101(a)(43)(G) requires the taking to occur without consent. However, the Board disagreed with the implications the Immigration Judge drew from finding that the California statute encompassed extortion. Rather, the Board explained that “theft refers more broadly to offenses that involve a taking against the voluntary assent of the victim-meaning offenses that necessarily involve conduct that coerces compliance.” To this effect, the Board cited to its precedent decision in the Matter of Cardiel, 25 I&N Dec. 12, 20 (BIA 2009) [PDF version], where it held that “the concept of 'consent' used in the law of extortion is highly unconventional and does not connote a voluntary or elective conferral of property.” In short, this means that the Board had previously held that extortion offense does not imply that the victim voluntarily relinquished property.
The Board explained that under California law, extortion requires that the offender have the victim's “coerced and unwilling consent” through “force, fear, or threats” (citing to People v. Goodman, 323 P.2d 536, 541 (1958) [PDF version]). Referring back to its own decision in the Matter of Cardiel, 25 I&N Dec. at 20-21, the Board stated that there is “no meaningful difference between a taking of property accomplished against the victim's will” and one where his or her “consent” is induced through “force, fear, or threats.” Significantly, even in the Ninth Circuit decision that the Immigration Judge had relied upon, U.S. v. Becerril-Lopez, 541 F.3d 881, 892 n.9 (9th Cir. 2009), the Ninth Circuit had held that the “with consent” element of generic extortion is not inconsistent with the element of Section 211 of the California Penal Code that requires that robbery be undertaken or accomplished “without consent” by the victim. As an additional note, the Board highlighted that the jury instructions for section 211 of the California Penal Code state explicitly that in order to “consent,” a person must act freely and voluntarily as well as know the nature of the act.
For these reasons, the Board explained that a victim's facial “consent” “induced by means of … fear” to an extortionate taking does not “connote a voluntary conferral of property.” Accordingly, the Board found that involuntary consent induced through extortion is distinguishable from perhaps unwittingly but nevertheless actually given “consent obtained through fraud or deceit.” The Board had held in 2008 in the Matter of Garcia-Madruga, 24 I&N Dec. at 440 n.5 that embezzlement offenses are not covered by section 101(a)(43)(G), but at that time did not address whether the INA provision for theft offenses may include “consent induced by coercion.” The Board also cited to a recent Fourth Circuit decision titled Mena v. Lynch, 820 F.3d 114, 119-20 (4th Cir. 2016) [PDF version], wherein the Fourth Circuit distinguished “consent” required for an extortion offense to the “consent” underlying an embezzlement offense.
For the reasons above, the Board held that the generic definition of aggravated felony theft under section 101(a)(43)(G) “encompasses extortionate takings, in which consent is coerced through the wrongful use of force, fear, or threats.” Accordingly, the Board held that the respondent's conviction was categorically for an immigration aggravated felony theft offense, sustained the appeal of the DHS, and remanded the record to the Immigration Judge for further proceedings to consider the respondent's eligibility for relief from removal.
The Matter of Ibarra, 26 I&N Dec. 809 (BIA 2016) is an important decision for defining the scope of section 101(a)(43)(G) of the INA. With this decision, immigration adjudicators will be required to find that extortion offenses fall under the definition of generic definition of aggravated felony theft under section 101(a)(43)(G). However, as we discussed in the Board's analysis, it is important to distinguish “extortion” from “embezzlement,” the latter of which the Board has found is not included in section 101(a)(43)(G). An alien facing criminal charges or dealing with a conviction should consult with an experienced immigration attorney immediately for guidance on how his or her criminal situation may affect immigration status. Whether a specific state statute will result in a finding that the alien was convicted of an immigration aggravated felony for theft under section 101(a)(43)(G) will depend on the language of the specific statute and whether the alien was sentenced to one year's imprisonment or more. An experienced immigration attorney will be able to assess the case and determine whether there exist any avenues for relief from removal and/or inadmissibility.