BIA Holds That Larceny In The Third Degree Under Connecticut General Statutes §53a-124(a) Is Not A Theft Offense Aggravated Felony Per INA §101(a)(43)(G) Because It Incorporates By Reference A Definition Of “Larceny” Under Connecticut General Statutes §53a-119 That Is Overbroad And Indivisible With Respect To The Generic Definition Of A Theft Offense. Almeida v. Holder, 582 F. 3d 778 (2d Cir. 2009), And Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004) Not Followed.
On March 18, 2022, the Board of Immigration Appeals (BIA or Board) sustained Respondent’s appeal and remanded the record for further proceedings and the entry of a new decision in a case where the Immigration Judge (IJ) had found the applicant removable, denying his requests for relief. Respondent’s appeal contended, in part, that he was not removable based on a conviction for an aggravated felony.
The BIA first noted that Respondent, a lawful permanent resident, had 3 convictions pertinent to the instant matter: 2 convictions for narcotics possession in violation of Connecticut General Statutes §21a-279(a) and a conviction for attempt to commit larceny in the third degree in violation of Connecticut General Statutes §§53a-124 and 53a-49, to which he was sentenced to 1 year of imprisonment. DHS charged him as removable per INA §§237(a)(2)(A)(iii) and (B)(i) for having been convicted of an aggravated felony as defined by INA §§101(a)(43)(G) and (U) and for a controlled substance offense. The IJ sustained the charges; in turn, Respondent filed for asylum, withholding of removal, and CAT relief. The IJ found Respondent ineligible for asylum because of his aggravated felony conviction, per INA §§208(b)(2)(A)(ii), (B)(i), and denied his requests for withholding and CAT relief. On appeal, Respondent argued that the proceedings should be terminated, that he was not convicted of an aggravated felony, and that he should be granted relief.
Beginning its analysis, the Board – after noting that Respondent had not challenged the IJ’s holding that he was removable for his controlled substance conviction – denied his motion to terminate the proceedings in light of Pereira v. Sessions, 138 S.Ct. 2105(2018), finding that although his notice to appear did not contain the time and place information for his initial hearing, he was later served with a “compliant notice of hearing” with this data and, thus, jurisdiction properly vested with the IJ.
As to his §§53a-124 and 53a-49 conviction, Respondent claimed that it was not an aggravated felony under §101(a)(43)(G) or (U), the former defining a theft offense (including stolen property) or a burglary offense for which the term of imprisonment was at least one year, that latter an attempt or conspiracy to commit an offense defined in §101(a)(43). The decision pointed out that, regardless, the Respondent’s sentence to 1 year in prison satisfied the §(a)(43)(G) length of imprisonment requirement and that “criminal attempt” under §53a-49 qualified as an “attempt” offense under §(a)(43)(U). The issue was, therefore, whether the §53a-124 conviction constituted a “theft offense” per §101(a)(43)(G).
To determine whether a conviction is an aggravated felony, stated the BIA, it employs the “categorical approach,” comparing the elements of the state offense to the generic federal definition, per Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). A state crime is not a categorical match with a generic federal offense “if its elements are broader than those of the generic offense.” As explained by the U.S. Supreme Court in Mathis, an “element” of a statute is what the “prosecution must prove to sustain a conviction,” and what the jury must unanimously find beyond a reasonable doubt.
Further, explained the Board, to qualify as an aggravated felony “theft offense” per §101(a)(43)(G), a crime must involve a taking of property or an exercise of control over property without consent, with the criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent. And the BIA had interpreted the term “theft offense” to exclude offenses in which a person or institution is tricked into voluntarily surrendering property to another, citing Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008). Thus, fraud is often not a “theft offense” because elements of such a crime involve acquiring property with consent that has been fraudulently obtained.
As such, the Board next considered whether larceny under § 53a-124(a) and 53a-119 constitutes a generic theft offense; the IJ had relied on two Second Circuit Court of Appeals precedents, Almeida v. Holder and Abimbola v. Ashcroft, which held that larceny under Connecticut law is categorically a theft offense, in concluding that Respondent had been convicted of an aggravated felony per the INA. Yet, even acknowledging the Almeida and Abimbola holdings and the “axiomatic principle” that is it generally constrained to follow precedent from the controlling circuit court, the opinion concluded that “these cases do not control here,” as neither case considered or ruled on “the specific dispositive legal issue” found in this matter – “whether larceny, as defined under Connecticut law, distinguishes between taking property with consent that was fraudulently obtained and taking property without consent.” Both Second Circuit cases had relied on BIA precedent from 2000 but, subsequently, in an effort to distinguish a §101(a)(43)(G) “theft offense” from a §101(a)(43)(U) offense involving “fraud or deceit,” the Board had interpreted the term “theft offense” to exclude offenses where the victim is tricked into voluntarily surrendering property to another in Garcia-Madruga. The opinion emphasized that the Second Circuit had never considered in a precedent decision the modified definition of “theft” articulated in that BIA decision as it related to whether a Connecticut larceny conviction qualified as a theft offense under §101(a)(43)(G).
Having found that the particular issue raised in the instant matter is not controlled by Second Circuit authority, the Board considered the question de novo and held that “the definition of larceny under section 53a-119 is overbroad and indivisible and that a conviction under section 53a-124(a) is not a theft offense for purposes of” INA §101(a)(43)(G). Further, concluded the BIA, §53a-119 defines larceny “expansively” to include various species of fraud. Such acts do not qualify as “theft offenses” under Garcia-Madruga because they do not require the nonconsensual taking of property but, instead, “involve takings of property with consent that was fraudulently obtained.”
Finding that §53a-119’s definition of larceny is overbroad as to the generic definition of theft per §(a)(43)(G) because the scope of Connecticut larceny law includes both theft and fraud offenses in light of its holding in Garcia-Madruga, the Board next considered whether the statute is divisible, such that it could apply the modified categorical approach to search the record of conviction to ascertain which type of larceny articulated in §53a-119 Respondent was convicted of committing. Under Mathis, a statute’s divisibility depends on whether the statutory alternatives are discrete “elements” as opposed to “means” of committing an offense. To resolve the issue, the BIA looks to the statute itself and then, if necessary, to “authoritative sources of state law” to determine whether a jury must unanimously choose between the alternative methods of committing larceny when convicting a defendant under §53a-124(a). Because Connecticut larceny includes both theft and fraud offenses and the Board found that how a person committed larceny is not an element of a §53a-124(a) offense, it could not employ the modified categorical approach here “to determine whether [Respondent] was convicted of conduct that qualifies as a theft offense.” Therefore, under Matter of Garcia-Madruga, the charge of removability could not be sustained based on an aggravated felony per §§101(a)(43)(G) and (U). The appeal was sustained in part, and the record was remanded for consideration of Respondent’s eligibility for asylum and cancellation of removal. Matter of Morgan, 28 I&N Dec. 508 (BIA 2022).
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