Introduction: Matter of Deang, 27 I&N Dec. 57 (BIA 2017)

On June 16, 2017, a split Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Deang, 27 I&N Dec. 57 (BIA 2017) [PDF version]. In Matter of Deang, the Board 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 have received the stolen property with the “knowledge or belief” that it was stolen. In short, the Board determined the minimum mens rea (state of mind) required for a receipt of stolen property offense to qualify as aggravated felony receipt of stolen property offense under section 101(a)(43)(G). The Board’s definition excludes offenses that proscribe receiving stolen property while merely having a “reason to believe,”a lesser mens rea than “knowledge or belief,” that the property was stolen. The distinction is subtle but significant: if a statute allows proof of only a “reason to believe” as opposed to an actual belief that the property was stolen, it is not an aggravated felony receipt of stolen property offense under section 101(a)(43)(G).

In accordance with its reasoning, the Board held that a conviction for receipt of 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 under section 101(a)(43)(G) because it is indivisible with regard to the mens rea of the individual receiving the stolen motor vehicle in that it requires that the individual have had at a minimum a “reason to believe” that the vehicle was stolen.

The opinion of the Board was written by Judge Roger Pauley. In this article, we will examine the facts and procedural history of Matter of Deang, the Board’s reasoning and decision, and what the new precedent may mean going forward. A dissenting opinion was authored by Judge Garry D. Malphrus. Please see our full post to read about Judge Malphrus’ dissent [see blog].

Interestingly, Matter of Deang represents the third precedent decision by the Board on section 101(a)(43)(G) in the last nine months. Please see our full articles on the other two recent decisions on the subject to learn more about aggravated felony receipt of stolen property:

Matter of Ibarra, 26 I&N Dec. 809 (BIA 2016) [PDF version] [see article] (section 101(a)(43)(G) includes within its scope extortionate takings where “consent” is obtained through the wrongful use of force, fear, or threats); and
Matter of Alday-Dominguez, 27 I&N Dec. 48 (BIA 2017) [PDF version] [see article] (section 101(a)(43)(G) does not require that the unlawfully received property have been obtained by means of common law theft or larceny).

Factual and Procedural History: 27 I&N Dec. at 57-58

The respondent, a native and citizen of Sudan, was a lawful permanent resident (LPR) of the United States.

On March 9, 2016, the respondent was convicted in South Dakota of violation of section 32-4-5 of the South Dakota Codified Laws. Section 32-3-5 provides, in the pertinent part:

Any person who … shall have in his possession any motor vehicle which he knows, or has reason to believe, has been stolen … shall be guilty of a Class 5 felony.

As a result of the respondent’s conviction, he was sentenced to a term of imprisonment of 5 years.

The respondent was placed in removal proceedings. The Immigration Judge terminated removal proceedings against the respondent after determining that he was not removable as charged under section 237(a)(2)(A)(iii) of the INA as an alien convicted of an aggravated felony, which in this case would have been section 101(a)(43)(G). Section 101(a)(43)(G) defines aggravated felony receipt of stolen property as:

a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year.

The Department of Homeland Security (DHS) appealed the decision to the BIA. The DHS argued that the Immigration Judge had improperly relied on the Board’s precedent decision in the Matter of Sierra, 26 I&N Dec. 288 (BIA 2014) [PDF version]. In Matter of Sierra, the Board had held that the offense of attempted possession of a stolen vehicle in violation of sections 193.330 and 205.275 of the Nevada Revised Statutes was not categorically an aggravated felony theft offense under section 101(a)(43)(G) or (U) of the INA (section 101(a)(43)(U) does not arise in the instant case). The Board’s reasoning was that the two Nevada statutes only required a mens rea of “reason to believe.” However, it is important to note that the Board explicitly decided Matter of Sierra in accord with the controlling precedent of the United States Court of Appeals for the Ninth Circuit, and it reserved the question of what Congress meant by “receipt of stolen property” until presented with that issue in a case from a circuit that had not yet addressed the question (see 26 I&N Dec. at 292 n.1). The DHS noted the limitations of the Board’s ruling in Matter of Sierra in arguing that it was limited to cases arising from the Ninth Circuit, and that the instant case arose from the jurisdiction of the United States Court of Appeals for the Eighth Circuit.

The Board would review the question of whether section 32-4-5 of the South Dakota Codified Laws was an aggravated felony under section 101(a)(43)(G) de novo (from the beginning).

Analysis of “Receipt of Stolen Property”: 27 I&N Dec. at 58-63

The Board began by agreeing with the DHS that the outcome of Matter of Deang was not controlled by Matter of Sierra. The reason for this is that Matter of Sierra was limited to the Ninth Circuit whereas Matter of Deang arose from the jurisdiction of the Eighth Circuit. As we noted, in Matter of Sierra, the Board reserved the question of the definition of “receipt of stolen property” under section 101(a)(43)(G) for a case arising in a circuit that had not directly addressed the question. The Board stated that it was not aware of any cases from the Eighth Circuit that addressed this issue.

Nevertheless, despite agreeing that Matter of Sierra was not controlling, the Board would ultimately find that the Immigration Judge’s decision to terminate proceedings “should [not] be disturbed.” To this effect, the Board noted that, subsequent to the publication of Matter of Sierra, the United States Court of Appeals for the Fifth Circuit had reached the same conclusion as the Ninth Circuit with regard to the minimum mens rea required under section 101(a)(43)(G) in United States v. Sanchez-Rodriguez, 830 F.3d 168, 174 (5th Cir. 2016) [PDF version].

The Board concluded that both the Fifth and Ninth Circuits were correct in reading section 101(a)(43)(G) as requiring that the intent to deprive the owner of his or her property is a necessary element of aggravated felony receipt of stolen property. The Board took the position that this “shared element” explains why Congress grouped various theft and stolen property offenses together in section 101(a)(43)(G). The Board noted that, in Matter of Alday-Dominguez, 27 I&N Dec. at 50, it had held that “receipt of stolen property” under section 101(a)(43)(G) is not a “subset of theft,” but rather something that can be considered a “separate and distinct offense.”

The Board explained that it could not conclude that an individual who received stolen property with only a “reason to believe” (or similar mens rea) that the property was stolen intended to deprive the true owner of the property of his or her rights of ownership. The Board reasoned that a minimum mens rea of “reason to believe” requires only that it be proven that the offender should have been aware of the stolen nature of the property, not that he or she was actually aware. The Board agreed with the Fifth Circuit that, because the intent to deprive the true owner of his or her property is an element of both generic theft and receipt of stolen property offenses, the “reason to believe” mens rea is insufficient (see Sanchez-Rodriguez, 830 F.3d at 172-73).

The Board noted that Congress did not define the term “receipt of stolen property” in the INA. Furthermore, the provision does not cross-reference another Federal statute. For this reason, the Board opted to examine the Federal and State statutes in existence in 1994, the year in which section 101(a)(43)(G) was added to the INA, to determine requisite mental state for a receipt of stolen property aggravated felony.

First, the Board found that there were 11 Federal statutes in effect in 1994 which proscribed receipt of stolen property and that required the Government to prove that the offender had received the stolen property while knowing that it was stolen. There was only one exception, 18 U.S.C. 922(j) (1994), which criminalized the receipt of stolen firearms or ammunition and did not require an actual knowledge mens rea. The Board cited to its decision in the Matter of Alvarado, 26 I&N Dec. 895, 900 (BIA 2016) [PDF version] [see article], in explaining that Federal law is particularly important in this context of interpreting a law enacted by Congress.

Second, the Board found that 15 states required proof that an offender had knowingly received stolen property.

Third, the Board explained that section 223.6(a) of the Model Penal Code defines the offense of “receiving stolen property” as requiring that the offender had purposely received the stolen property of another and that the offender in doing so either knew or believed that it had probably been stolen. It noted that 14 states “mirrored the language of the Model Penal Code.” The Board found that the jurisdictions following the Model Penal Code definition were in the same category as the Federal definition. This is because, as the Board explained, the Model Penal Code requires a “knowing” mental state, and it only differs relating to the degree of certainty of the belief. The Board found that the Model Penal Code definition required a “knowing” mens rea in the Matter of Bahta, 22 I&N Dec. 1381, 1390 (BIA 2000) [PDF version]. The Board considered this mens rea distinguishable from the lower “reason to believe” standard found impermissible by the Fifth and Ninth Circuits.

The Board explained that an offender can violate section 32-4-5 of the South Dakota Codified Laws with one of the two following culpable mental states:

1. The offender may know that the motor vehicle has been stolen; or
2. The offender may have had a “reason to believe” that the vehicle was stolen.

The Board explained that in 21 jurisdictions” in 1994 the lower “reason to believe” standard was used “in one form or another in receipt of stolen property statutes.

Upon examining the receipt of stolen property statutes in effect across the United States in 1994, the Board found that “many jurisdictions broke down their receipt offenses into more specific statutes covering specific forms of property…” Relevant to the instant case, the Board found that several jurisdictions used the “reason to believe” standard for offenses involving receipt of stolen motor vehicles, while requiring a higher mens rea for various other receipt of stolen property offenses. However, the Board found that “an almost equal number of jurisdictions required proof that a violator receive a vehicle ‘knowing’ it had been stolen…” The Board concluded that “[u]nder these circumstances, we do not find these statutes particularly useful in determining the mens rea requirements for an aggravated felony receipt of stolen property offense…”

The Board concluded its survey by noting that 21 jurisdictions and the District of Columbia and one Federal statute used the “reason to believe” standard or similar as the minimum mens rea for receipt of stolen property offenses in 1994. Conversely, 29 states, 11 Federal statutes, and the Model Penal Code used the higher “knowledge or belief” standard in 1994. The Board found that its survey was not dispositive as to the minimum standard required by section 101(a)(43)(G). However, the Board took the position that the survey supported its conclusion that section 101(a)(43)(G) requires a higher mens rea for aggravated felony receipt of stolen property than “reason to believe.”

Despite the “significant minority of jurisdictions” that utilized the lower “reason to believe” standard, the Board followed Taylor v. United States, 495 U.S. 575 (1990) [PDF version], in adopting the view of a majority of jurisdictions and the wording of a majority of relevant Federal statutes at the time section 101(a)(43)(G) was enacted. It held that a mens rea of “knowledge or belief” is an “essential element” of an aggravated felony receipt of stolen property offense under section 101(a)(43)(G).

The Board took the position that its approach was consistent with that of the Supreme Court of the United States in Esquivel-Quintana v. Sessions, 137 S.Ct. 1562 (2017) [PDF version] [see article]. In that case, the Supreme Court surveyed Federal and State statutes in effect at the time of the enactment of section 101(a)(43)(A) of the INA (aggravated felony sexual abuse of a minor) in order to determine the required age of a “minor” in the context of certain aggravated felony statutory rape offenses.

The Board disagreed with the DHS’s position that section 101(a)(43)(G) aggravated felony receipt of stolen property “encompass[es] all levels of scienter [meaning knowledge] included in various State statutes…” To supplement its analysis, the Board added that it was “unaware of any Supreme Court or Federal court of appeals decision that has held that a statute containing a ‘reason to believe’ (or a similar) mens rea is sufficient to define any aggravated felony, much less one involving receipt of stolen property.”

Finally, the Board took the position that, even if there were doubt as to the minimum mens rea required, “the rule of lenity would require [it] to construe any ambiguity in favor of the respondent.” To this effect, the Board cited to the Supreme Court decision in Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) [PDF version] [see article], and to its own decision in the Matter of Tiwari, 19 I&N Dec. 875, 881 (BIA 1989) [PDF version].

Board’s Conclusion: 27 I&N Dec. at 64

The Board concluded that the respondent’s conviction in violation of section 32-4-5 of the South Dakota Codified Laws for receipt of a stolen vehicle was not a categorical aggravated felony under section 101(a)(43)(G) of the INA. The reason for this was that section 32-4-5 merely requires proof that the violator had a “reason to believe” that the vehicle was stolen, whereas section 101(a)(43)(G) requires actual knowledge or belief. For this reason, the Board dismissed the DHS’s appeal, but it remanded the record so that new charges could be lodged.

Conclusion

The Board’s decision in Matter of Deang is generally favorable to respondents in removal proceedings. In short, it requires that, in order for an alien to be found to have been convicted of an aggravated felony receipt of stolen property offense under section 101(a)(43)(G), the offense must have included as an element that the alien had either actual knowledge that the property was stolen or that the alien had actually believed — not merely a reason to believe — that it was stolen. As the Board’s survey and the South Dakota statute highlight, many State statutes do not require this stringent a mens rea. An alien charged with any criminal offense should consult with an attorney who has knowledge of the immigration laws in order to understand the potential consequences of different case outcomes. An alien who is facing removal proceedings should consult with an experienced immigration attorney immediately.

Please see our full post on an interesting dissenting opinion offered by Judge Garry Malphrus of the Board [see blog]. Although his opinion is not precedent, it evinces that the Board may reassess the holding of Matter of Deang in the future.