Introduction: Matter of Diaz-Lizarraga, 26 I&N Dec. 846 (BIA 2016)

On November 16, 2016, the Board of Immigration Appeals (BIA) issued two important precedent decisions regarding when a criminal conviction is for a crime involving moral turpitude (CIMT). The first of these decisions is titled the Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016) [PDF version], and it was followed by the Matter of Obeya, 26 I&N Dec. 856 (BIA 2016) [PDF version]. In this article, we will focus on the Board’s decision in the Matter of Diaz-Lizarraga. Please see our full article on the Matter of Obeya to learn more about that decision and how it follows Diaz-Lizarraga [see article].

In the Matter of Diaz-Lizarraga, the Board held that a theft offense is a CIMT if “it involves a taking or exercise of control over another’s property without consent and with an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded.” In accordance with its holding, the Board held that a conviction for shoplifting in violation of section 13-1805(A) of the Arizona Revised Statutes is categorically a CIMT. The decision has the effect of overruling any past precedent decisions that suggested that a “literal intent to permanently deprive” an owner of his or her property is required for a theft offense to be a CIMT. In this article, we will examine the facts of the case, the Board’s analysis, and the broader effect of this new precedent.

To read about recent Board precedent setting forth an analytical framework for determining when a criminal conviction is for a CIMT, please see our article on the Board’s precedent decision in the Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016) [PDF version] [see article].

Facts and Procedural History: 26 I&N Dec. 846-48

The respondent in the Matter of Diaz-Lizarraga was a native and citizen of Mexico and lawful permanent resident (LPR) of the United States. The following are the facts of the case:

On three separate occasions — in 2010, 2011, and 2012 — the respondent was convicted of shoplifting property worth less than $1,000 in violation of section 13-1805(A) of the Arizona Revised Statutes.
In July of 2015, the Department of Homeland Security (DHS) charged the respondent with removability under section 237(a)(2)(A)(ii) of the Immigration and Nationality Act (INA) as an alien convicted of two or more CIMTs not arising out of a single scheme of criminal misconduct [see section]. The removability charge was based on the respondent’s three unrelated convictions under section 13-1805(A) of the Arizona Revised Statutes.
The Immigration Judge (IJ) presiding over the case dismissed the removal charge against the respondent, finding that the use of the word “deprive” in the Arizona statute of conviction did not require proof that the individual have intended to “permanently” deprive the owner of property. In the opinion of the IJ, such intent is required in order for the statute to be a CIMT. Additionally, the IJ found that the statute was not “divisible,” thus meaning that the IJ could not assess the record of conviction to determine if the defendant had, in fact, intended to permanently deprive the owner of the stolen property, and was restricted to determining whether the minimum conduct that could theoretically lead to a conviction under the statute would constitute a CIMT.
The DHS appealed the decision to the BIA, arguing that shoplifting under section 13-1805(A) of the Arizona Revised Statutes is a categorical CIMT, and that the IJ erred in finding otherwise.

Language of the Arizona Statute and Issue: 26 I&N Dec. 846-48

In order to understand the issue at hand in this case, we must examine the relevant provisions. In its decision, the Board quoted from the pertinent portion of section 13-1805(A) of the Arizona Revised Statutes:

A. A person commits shoplifting if, while in an establishment in which merchandise is displayed for sale, the person knowingly obtains such goods of another with the intent to deprive that person of such goods by:

1. Removing any of the goods from the immediate display or from any other place within the establishment without paying the purchase price; or
2. Charging the purchase price of the goods to a fictitious person or any person without that person’s authority; or
3. Paying less than the purchase price of the goods by some trick or artifice such as altering, removing, substituting or otherwise disfiguring any label, price tag or marking; or
4. Transferring the goods from one container to another; or
5. Concealment.

The IJ keyed in on an analysis of the meaning of the term “deprive” in clause A. The Board cited to section 13-1801(A)(4) of the Arizona Revised Statutes:

“Deprive” means to withhold the property interest of another either permanently or for so long a time period that a substantial portion of its economic value or usefulness or enjoyment is lost, to withhold with the intent to restore it only on payment of any reward or compensation or to transfer or dispose of it so that it is unlikely to be recovered.

The IJ interpreted Board precedent regarding CIMT theft offenses to require that the intent to “deprive” involve the intent to “deprive” permanently. The IJ accordingly read the definition of “deprive” found in the Arizona Revised Statutes at section 13-1801(A)(4) — as applied to the statute of conviction in section 13-1805(A) — to fall outside the scope of a CIMT theft offense because it included alternative language aside from the simple intent to withhold permanently. On appeal, the DHS argued that the definition of “deprive” found in section 13-1801(A)(4) did not apply to the statute of conviction in section 13-1805(A). The Board disagreed, finding that this definition of “deprive” was applicable. However, for reasons that we will examine, the DHS ultimately prevailed in its appeal, notwithstanding having this claim rejected.

The question before the Board was whether section 13-1801(A)(4) is a categorical CIMT — as the DHS argued — or whether it is not, as the respondent argued and the IJ had found. The Board reviewed the question under 8 C.F.R. 1003.1(d)(3)(ii).

Analysis and Decision: 26 I&N Dec. at 849-55

Under the precedent of the U.S. Court of Appeals for the Ninth Circuit found in Almanza-Arenas v. Lynch, 815 F.3d 469, 475 (9th Cir. 2016) (en banc) [PDF version], and its own precedent decision in the Matter of Silva-Trevino, 26 I&N Dec. at 831-33, the Board employed the categorical approach in determining whether section 13-1805(A) of the Arizona Revised Statutes was a CIMT. This means that the Board would apply the same approach to statutory analysis as the IJ had. The categorical approach required the Board to focus on the elements of the crime necessary for a conviction under the statute rather than on evidence of the actual conduct or intent of the respondent.

The Board explained that it has held consistently that a theft offense categorically involves moral turpitude “if-and only if-it is committed with the intent to permanently deprive an owner of property. To this effect, the Board cited to a number of published decisions (direct quotes from the decision used in instant decision at 849-50):

The Matter of Grazley, 14 I&N Dec. 330, 333 (BIA 1973) [PDF version] (“Ordinarily, a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended.”);
The Matter of P-, 2 I&N Dec. 887, 887 (BIA 1947) (the Board held that a theft statute that did not require an intent to permanently deprive the owner of his or her property did not involve moral turpitude);
The Matter of H-, 2 I&N Dec. 864, 865 (Central Office, BIA 1947) (“[T]he element which must exist before the crime of theft or stealing is deemed one involving moral turpitude is that the offense must be one which involves a permanent taking as distinguished from a temporary one.”);
The Matter of T-, 2 I&N Dec. 22, 27 (BIA, AG, 1944) (holding that theft under Canadian law is a CIMT even though the intent to deprive may be permanent or temporary; the AG reversed the Board’s decision regarding its interpretation of Canadian law, but because the Canadian law encompassed offenses that would not be considered “theft” under U.S. law rather than the Board’s determination that a theft offense could be a CIMT whether the “intent to deprive” was permanent or temporary);
The Matter of D-, 1 I&N Dec. 143, 145-46 (BIA 1941) (held that an offense for driving an automobile without the consent of the owner did not involve moral turpitude because the statute encompassed cases where there was only an intent to temporarily deprive, which might involve mere prankishness).

Upon studying the above list, one may note that the decision in the Matter of T-, 2 I&N Dec. 22 (BIA, AG, 1944), seems to stand out in that the Board there held that a theft statute may involve moral turpitude where it proscribes the intent to deprive one of property permanently or temporarily. The Board noted as significant in footnote 2 that the Attorney General’s reversal of the BIA decision did not rely upon the Board allowing for “temporary” deprivations of property to be CIMTs. Had then-Attorney General Francis Biddle done so, the Board may been likely precluded from reaching the decision it did in the Matter of Diaz-Lizarraga. The Board interpreted the Attorney General’s decision as being based on the fact that Canadian law encompassed de minimis takings that would not be regarded as “theft” under U.S. law, a decision that would inform the Board’s new precedent in the instant case (discussed in two paragraphs).

The Board further noted that in both the Matter of Jurado, 24 I&N Dec. 29, 33-34 (BIA 2006) [PDF version], and the Matter of Grazley, 14 I&N Dec. at 333, it had held that it is appropriate to presume (absent evidence to the contrary) that retail theft and theft of cash involve the intent to permanently deprive the owner of the merchandise or cash without the necessity of affirmative proof.

The Board explained that a careful examination of its early decisions regarding moral turpitude and theft offenses shows that it had adopted the “intent to permanently deprive” requirement in order “to distinguish between substantial and reprehensible deprivations of an owner’s property on the one hand and, on the other, mere de minimis takings in which the owner’s property rights are compromised little, if at all.” This is significant in that a CIMT describes a class of offenses involving “reprehensible conduct” that is committed with a culpable mental state (see e.g., the Matter of Silva-Trevino, 26 I&N Dec. 826, 828 n.2, 833-34). Thus, the Board interprets the “intent to permanently deprive” requirement in its precedent as pertaining to gravity of the theft and the nature of it rather than setting a literal requirement that the theft must be intended to be “permanent.”

To support is analysis of its early precedent, the Board explains that all of its early cases involved theft statutes that were phrased or interpreted to include “’joyriding’-the nonconsensual taking of a motor vehicle with the intent to return it to the owner shortly thereafter-or other short-term takings of property.” For example, the Board cited to the Matter of P-, 2 I&N Dec. at 887-88, where it found both that a Canadian theft statute encompassed joyriding and that the appellant in that case testified that he had entered a home to procure a vehicle to drive to a party without securing permission to do so, but that he had intended to return the vehicle after the party (finding that conviction was not a CIMT).

The Board held that it remained appropriate to distinguish between substantial and de minimis (too trivial to be considered) takings in evaluating whether a theft offense is a CIMT. However, the Board noted that “criminal law has evolved significantly” since its first decisions on the issue in the 1940s. The Board explained that legislation and judicial opinions have, in most jurisdictions, “refined the distinction between substantial and de minimis takings,” such that the “traditional dichotomy of permanent versus temporary takings has become anachronistic.” Specifically, the Board explained that “lawmakers and judges across the country have come to recognize that many temporary takings are as culpable as permanent ones.” The Board traces the origin of this trend to the Model Penal Code (MPC), a text first created in 1962 to help standardize U.S. criminal law across the several States. The Board cites to section 223.0(1) of the MPC, which defines “deprive” in the context of general theft offenses as meaning:

(a) to withhold property of another permanently or for so extended a period as to appropriate a major portion of economic value, or with intent to restore only upon payment of reward or compensation; or
(b) to dispose of the property as to make it unlikely that the owner will recover it.

The language of section 223.0(1) of the MPC is nearly exactly the same as the statute of conviction in the instant case, section 13-1805(A) of the Arizona Revised Statutes. This is because, according to the Board, Arizona is one of the 19 states to have adopted the MPC’s definition of the term “deprive.”1 The Board adds that five additional states “essentially track” the MPC on this point, but omit the mental state.2 We discuss the Board’s handling of a similar case from one of these five states, New York, in our article on the Matter of Obeya [see article]. The Board explains that 18 states define “theft or larceny by statute” without including any provision regarding the duration of the intended deprivation. However, the Board notes that 15 of these states have adopted variants of the MPC’s definition of “deprive” through case law. The Board notes that only five states “retained the intent to permanently deprive an owner of property as an explicit statutory requirement.”3 Finally, according to the Board, both Florida and Colorado permit theft convictions on showing of intent to temporarily deprive an owner of property.

Because of changes in how theft statutes are generally written now as compared to in the 1940s when the Board created the “intent to permanently deprive” requirement, the Board saw fit to “update” its existing jurisprudence. In so doing, the Board would hold that section 13-1805(A) of the Arizona Revised Statutes defines a categorical CIMT despite not requiring proof of the intent of a “literal” permanent taking. To start, the Board held that exercising control over the property of another without consent is both potentially reprehensible and inherently base and contrary to the moral duties owed between persons and to society in general. Accordingly, the Board held that a theft offense is a CIMT if it involves the intent to deprive the owner of his or her property either:

Permanently; or
Under circumstances where the owner’s property rights are substantially eroded.

The Board cited to its decision in the Matter of T-, 2 I&N Dec. 22, which it described as involving the taking of a ring with only the intent to wear it at a party that same night. The Board suggested a hypothetical case where instead, the alien had intended to take the ring and keep it for some years until her daughter was married before returning it. The Board explained that it would consider such an offense a CIMT because it was meant to “substantially, albeit not permanently, deprive the owner of her property.” The Board held that it is not a valid defense that an alien may have intended to return stolen property after the passage of so much time that the value to the owner would have “been lost or substantially eroded.” Furthermore, the willingness to return stolen property in return for ransom or reward would also not mitigate culpability for the offense or render it a “temporary” taking.

The Board held that the “mere antiquity” of its case law was not a sound reason to adhere faithfully to it in light of the changes in how theft statutes are written and interpreted now. In short, theft statutes are generally not written like the types of statutes that the Board was addressing when the “intent to permanently deprive” requirement was created.

Because the section 13-1805(A) of the Arizona Revised Statutes requires an intent to deprive the owner of his or her property either permanently or under circumstances where the owner’s property rights are substantially eroded, the Board found that the offense was categorically a CIMT. The Board overruled any prior decisions to the extent they required a “literal intent” to permanently deprive one of his or her property in order for a theft offense to be a categorical CIMT. The Board sustained the DHS’s appeal, vacated the IJ’s decision, and reinstated removal proceedings against the respondent.

Conclusion

The Matter of Diaz-Lizarraga is a very interesting case in that the Board opted to reexamine a series of precedent decisions going as far back as 75 years in light of how criminal statutes are written and interpreted now. By examining its early decisions in light of the statutes that the Board was confronted with in the 1940s, the Board reached the conclusion that its precedent was due for an update in light of how theft statutes are drafted today.

For practical purposes, the standard for determining whether a theft offense is a CIMT, as established by the holding of Diaz-Lizarraga, sweeps far more broadly than the “intent to deprive permanently” standard that the Board had generally previously relief upon. Furthermore, given the number of states that the Board cites as either defining “deprive” the same or very similarly to Arizona by statute or through precedent judicial decisions, the decision in Diaz-Lizarraga will likely be followed broadly, as it is in its companion case in the Matter of Obeya. If an alien is charged with or convicted of any theft offense, he or she should consult with an experienced immigration attorney immediately for guidance on how immigration status may be affected. If an alien is charged as removable for two more CIMT convictions, he or she should consult with an experienced immigration attorney for guidance on what can be done in immigration proceedings.

  1. States to have adopted MPC’s definition of “deprive”: Alabama; Alaska; Arizona; Arkansas; Delaware; Hawaii; Kentucky; Maine; Maryland; Minnesota; Nebraska; New Hampshire; New Jersey; North Dakota; Ohio; Texas; Utah; and Wyoming.
  2. States to track the MPC but omit mental state: Connecticut; Idaho; Montana; New York; and Oregon.
  3. States to retain “permanent intent to deprive” as a statutory requirement: Illinois; Kansas; Louisiana; Missouri; and Wisconsin.