On July 30, 2020, U.S. Attorney General (AG) William Barr, in a case which he had directed the Board of Immigration Appeals (BIA or Board) to refer to him in November 2019, vacated the BIA’s prior order affirming the termination of removal proceedings and dismissing the DHS appeal; AG Barr concluded that a conviction is for an aggravated felony “where all of the elements of the statute of conviction, and thus all of the means of committing the offense, correspond to at least one of the aggravated-felony offense specified in section 101(a)(43) of the INA.” He further abrogated “any decision of the Board inconsistent with the accompanying opinion, remanding the case to the BIA for further proceedings.
The AG initially reviewed the current law controlling whether a Respondent has been convicted of an aggravated felony, i.e., the necessity to determine whether the particular offense of conviction corresponds to one or more of the generic offenses listed in the INA. He noted that the U.S. Supreme Court has held that making this determination generally requires resort to an analytical technique called the “categorical approach”; citing to Moncrieffe v. Holder, 569 U.S. 184 (2013), AG Barr explained that this approach disregards the facts of a particular case, focusing instead on the elements of the statute of conviction to see if they categorically map on to the elements of the aggravated felony charged in the Notice to Appear, so that “all of the means of committing the underlying offense necessarily constitute commission of that aggravated felony.”
In the instant matter, DHS had placed Respondent into removal proceedings because of her grand larceny in the 2nd degree conviction per New York Penal Law §155.40(1), arguing that the offense constituted a theft or fraud violation necessarily qualifying as either aggravated felony theft or aggravated felony fraud. Respondent moved to terminate proceedings, contending that she was not removable because her conviction did not categorically map onto either aggravated felony theft or fraud, taken individually. The Immigration Judge (IJ) agreed and ordered termination; the Board affirmed, concluding that it could compare the elements of the New York law only to one of the generic crimes in §101(a)(43) at a time. Interestingly, the AG wrote that Respondent had not contested before the IJ “that she had been convicted of either aggravated-felony theft or aggravated-felony fraud – that is, she did not dispute that her violation of the New York statute necessarily involved facts meeting the definition of an aggravated felony under one of the two generic offenses.” As such, the opinion concluded that Respondent had failed to explain why she should avoid removal simply because the IJ and BIA “could not settle on which of the two aggravated felonies she had committed.” AG Barr also stated his belief that neither the INA nor Supreme Court precedent requires such a result, holding that if all of the means of committing a crime, based on the elements of the statute of conviction, amount to one or more of the offenses listed in INA §101(a)(43), a respondent who had been convicted of that crime has necessarily been convicted of an aggravated felony.
The AG emphasized that, here, the particular types of offense at issue are aggravated felony theft and aggravated felony fraud, pointing out that the key, controlling distinction between the 2 crimes is the “consent” element, i.e., theft entails the talking of, or exercise of control over, property without consent where there is criminal intent to deprive the owner of the rights and benefits of ownership – even if such deprivation is less than total or permanent. Fraud, by contrast, involves a taking with consent that has been fraudulently obtained.
The decision noted that Respondent, a lawful permanent resident, had been placed into proceedings after her conviction for grand larceny in the 2nd degree, charged first with aggravated felony theft, then with aggravated felony fraud, with the theft charges dropped, then restored. Respondent moved to terminate because New York defines “larceny” to include both taking of property without consent and where consent was fraudulently obtained. Even if the offense constituted theft or fraud, she argued, the IJ could not use the categorical approach to determine “which particular aggravated felony that she had committed.” The IJ granted the motion and DHS appealed; the BIA invited briefing on whether DHS could establish removability by charging one as an aggravated felony under two separate aggravated felony definitions, neither of which would independently be a categorical match to the statute of conviction if all means of violating the statute fall within at least one of the two definitions. The Board affirmed the IJ’s order and, as mentioned, AG Barr then directed that the case be referred to him for review. He framed the issue as whether one who had “been convicted of a criminal offense necessarily has been convicted of an aggravated felony where all of the elements of the statute of conviction – and thus all the means of committing the offense – correspond either to aggravated-felony theft or to aggravated-felony fraud.” He concluded that Respondent’s grand larceny conviction is necessarily an aggravated felony per §101(a)(43).
The AG explained that the BIA had found Respondent not to be removable because it could not determine using the categorical approach which one of the two aggravated felonies matches the offense of conviction; this, he found to be a “wooden application” of the form of analysis. The INA does not, he concluded, require that the elements of a statute of conviction correspond to only one offense in §101(a)(43). AG Barr held that, where it is known to a “practical certainty that a respondent had been convicted of at least one such offense, “the conviction qualifies, even if the categorical approach does not permit a conclusive determination about which one…”
The opinion explicitly states that one “who indisputably was convicted of an aggravated felony” should not be allowed to “evade that conclusion simply because there is a lack of clarity about which aggravated felony the conviction reflects.” Thus, the AG agreed here with DHS that Respondent was convicted of an aggravated felony because, under New York law, her larceny conviction necessarily constitutes one of two offenses listed in 101(a)(43). And this, he found, was true “even if the strictures of the categorical approach obscure the specific offense committed.”
Next, AG Barr explained that whether Respondent was convicted of either aggravated felony theft or fraud depends on whether the applicable state law categorically fits within one or the other; here, he concluded that “larceny by acquiring lost property categorically meets the definition of aggravated felony theft.” New York law provides that one commits larceny by acquiring lost property when, with the intent to deprive another of property or appropriate it to himself or a third party, he exercises control over that property which he knows to have been lost or delivered to the wrong party by mistake, without taking reasonable measures to return such property to the owner. As such, the crime categorically fits within aggravated felony theft: 1) the offense requires the exercise of control over another’s property; 2) it requires a lack of consent; and 3) it requires an intent to deprive another of property or “appropriate the same”. Because larceny by acquiring lost property constitutes aggravated felony theft and there is “no dispute” that all other means of violating this statute correspond to either aggravated felony theft or fraud, the AG held that Respondent was convicted of an aggravated felony.
Respondent’s last claim was that, should AG Barr conclude that her larceny conviction is an aggravated felony, he cannot apply that conclusion in this case because it is a “new” rule where application would be impermissibly retroactive. The opinion found “no retroactivity problem here” as the AG held that the decision is not a “new” rule, but “setted precedent or practice.” The Board therefore erred in affirming the IJ’s order, terminating proceedings, and dismissing DHS’s appeal. The decision was thus vacated and the matter remanded. Matter of Onesta Reyes, 28 I&N Dec. 52 (A.G. 2020).