On June 16, 2017, the Board of Immigration Appeals (BIA or Board), in another extended opinion, ruled on a Government (DHS) appeal of an Immigration Judge (IJ) decision terminating removal proceedings upon holding respondent not removable as one convicted of an aggravated felony receipt of stolen property offense. In initiating its opinion, the BIA found that whether receipt of a stolen motor vehicle under South Dakota law is an aggravated felony is a question of law it reviews de novo per 8 CFR §1003.1(d)(3)(ii).
Agreeing that Matter of Sierra, 26 I&N Dec. 288 (BIA 2014) does not control the instant case (DHS had argued the IJ improperly relied on Sierra), the Board noted that after Sierra was issued, the Fifth Circuit had joined the Ninth Circuit in holding that aggravated felony receipt of stolen property requires an offender to have an intent to deprive the owner “of the rights and benefits of ownership of the property” (this case arose within the jurisdiction of the Eight Circuit). Concluding that the Fifth and Ninth Circuits are correct in holding that an intent to deprive the owner of his or her property is a necessary element of a receipt of stolen property offense, the decision parsed offenses where the violator received property with only a “reason to believe” it was stolen, stating the BIA could not infer that such an actor intended to deprive the true owner of the rights and benefits of ownership. A similarly situated respondent, noted the decision, “need not be actually aware of the stolen character of the item received” to be convicted; the prosecution need only prove he or she should have been aware it was stolen. Therefore, held the Board, because an intent to deprive the owner of the rights or benefits of ownership is a necessary element of both generic theft and receipt of stolen property offenses, such a crime committed with a mens rea (mental state) of reason to believe (or a similar state of mind) “cannot fall within the generic definition” of aggravated felony receipt of stolen property under INA §101(a)(43)(G).
Further, the BIA found it significant that in 1994 (when §101(a)(43)(G) was enacted) nearly a dozen separate Federal statutes proscribing receipt of stolen property required the Government to prove the defendant had received the property knowing it was stolen. Similarly, while 21 jurisdictions, including Washington, D.C., and 1 Federal statute in 1994 allowed for conviction of receipt of stolen property using the “lesser mental state”, 29 State statutes, 11 Federal statutes and the Modern Penal Code required the “elevated standard” at that time. Thus, concluded the Board, a statute that only requires “reason to believe” the property was stolen cannot qualify as an aggravated felony receipt offense under §101(a)(43)(G). The BIA therefore held that a mens rea of “knowledge or belief” is an essential element of an aggravated felony under INA §101(a)(43)(G) and that this element excludes a mental state equivalent to “reason to believe”. The decision added that the Board’s approach is consistent with the recent U.S. Supreme Court unanimous decision in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) and that the BIA is unaware of any Supreme Court or Federal Court of Appeals decision holding that reason to believe or a similar state, “is sufficient to define any aggravated felony, much less one involving receipt of stolen”. The appeal was dismissed and the record remanded for further proceedings.
Board Member Garry D. Malphrus issued a dissenting opinion noting that Federal law was not uniform on this issue in 1994 and concluding that a receipt of stolen property conviction where the defendant knew, should have known, or had reason to believe the property was stolen falls within the generic definition of INA 101(a)(43)(G). Matter of Deang, 27 I&N Dec. 57 (BIA 2017).