C ite as 27 I&N Dec. 100 (BIA 2017 ) Interim Decision # 3901

100 

### Matter of Juan DELGADO

, Respondent

Decided September 7, 2017

U.S. Department of Justice Executive Office for Immigration Review
Board of Immigration A ppeals

Robbery under section 211 of the California Penal Code, which includes the element of asportation of property, is categorically an aggravated felony theft offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), regardless of whether a violator merely aided or abetted in the asportation of property stolen by a principal.

FOR RESPONDENT: J. Elle Cox

, E squire, Las Vegas, Nevada

FOR THE DEPARTMENT OF HOMELAND SECURITY : Jonathan Grant

, Assistant

Chief Counsel

BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and MALPHRUS, Board

Members

.

PAULEY

, Board Member :

In a decision dated March 1, 2017, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien who w a s convicted of an aggravated felony theft offense under section 101(a)(43)(G)

of the Act, 8 U.S.C. §§ 1101(a)(43)(G) (2012)

, and denied his applications

for relief from removal. The respondent has appealed fro m th at decision. The appeal will be dismissed. The respondent is a native and citizen of Mexico and a lawful permanent

resident of the United States . On December 15, 2005, he was convicted of

five counts of robbery in violation of section 211 of the California Penal

Code

. 1 H e was sentenced to 5 years of incarceration on the first count and

an additional 1 year on each of the other four counts, to run consecutively.

To determine whether the respondent’s crime is an aggravated felony

theft offense under the Act

, “ we must apply the categorical approach outlined by the Supreme Court in Taylor v. United States , 495 U.S. 575 (1990).” Matter of Ibarra , 26 I&N Dec. 809, 810 (BIA 2016). The categorical

1 S ection 211 of California Penal Code define s the crime of robbery as “ the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. ”C ite as 27 I&N Dec. 100 (BIA 2017 ) Interim Decision # 3901

101 approach ignores the particular facts of the respondent’s crime and focuses on whether the elements of his State statute of conviction proscribe conduct that categorically falls within the Federal definition of the offense

. See

Mathis v. United States , 136 S. Ct. 2243, 2248 (2016). “ Under this categorical approach, if ‘the elements of the state crime are the same as or

narrower than the elements of the federal offense, then the state crime is a categorical match and every conviction under that statute qualifies as an aggravated felony. ’ ” Diego v. Sessions , 857 F.3d 1005, 1009 (9th Cir. 2017) (emphasis added) (citation omitted)

. Whether the respondent’s crime is categorically an aggravated felony theft offense is a question of law we

rev iew de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2017).

G eneric theft under section 101(a)(43)(G) of the Act is defined as the “taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” 2 Matter of Ibarra

, 26 I&N Dec. at 811 (quoting Gonzales v. Duenas

- Alvarez , 549 U.S. 183, 189 (2007)). I n Matte r of Ibarra , we addressed whether the generic

theft element of taking “without consent” encompasse s extortionate takings

— those accomplished by force or fear

— under section 211 of the Cal ifornia

Pen al Code. After examining the relevant case law, we concluded that such takings fall within the generic definition of aggravated felony theft and

therefore held that a robbery offense in violation of section 211 is categorically an aggravated felony under section 101(a)(43)(G) of the Act

. T h e issue in Ibarr a is different from the question raised by the respondent

— namely, whether the “taking of property ” element of aggravated felony theft encompasses the “taking” contemplated by section

211 of the California Penal Code

. T he respondent argues that section 211 is

overbroad with respect to the Federal definition of theft because a “taking”

under California law require s a perpetrator to carry property away (also

known as “ asportation ” )

. See , e.g.

, People v. Hill , 952 P.2d 673 , 703 (Cal. 1998) ( stat ing that the “taking” element of section 211 has two components: (1) gaining control over the property; and (2) asportation)

. Asportation wa s an element of common law larceny and it remains a

feature of several States’ robbery statutes

. See, e.g.

, Gutierrez v. State

, 723 S.E.2d 658, 659 (Ga. 2012) ; Hill

, 952 P.2d at 703; State v. Johnson

, 558 N.W.2d 375, 377 (Wis. 1997) ; see also 3 Wayne R. LaFave, Substantive

Criminal Law § 20.3 (2d ed. ), Westlaw (database updated Oct. 2016)

. However, the asportation element of section 211 does not expan d the reach

2 Section 101(a)(43)(G) of the Act defines an aggravated felony

, in relevant part

, as “a theft offense (including receipt of stolen property) . . . for which the term of impris onment [is] at least one year.”C ite as 27 I&N Dec. 100 (BIA 2017 ) Interim Decision # 3901

102 of the statute beyond the range of conduct encompassed by the definition of aggravated felony theft . Instead, it narrows it

. T he definition s of b oth robbery in section 211 and aggravated f elony theft

in section 101(a)(43)(G) of the Act reach “takings” committed by gaining

control o ver the property of another

. Compare Hill , 952 P.2d at 703

, with Matter of Ibarra , 26 I&N Dec. at 811

. The only difference between the

statutes is that section 211 criminalizes a narrower subset of “takings ” within

the broader universe of those encompassed by the generic offense . In other
words, the presence of the asportation element of section 211 narrows the

reach of the State statute to only some, but not all, “takings” included i n the definition of aggravated felony theft

. See LaFave

, supra

, § 20.3(a)(2) (“[R]obbery under the traditional view requires both a taking and an asportation . . . of the property. Modern statutes, however, are frequently less demanding , often reflecting the . . . position that asportation is not required for the underlying theft . . . .” (emphasis added) (footnotes omitted)).

Because the elements of robbery in section 211 are the same as or narrower than the elements of aggravated felony theft, all of the conduct proscribed by

the State statute necessarily falls within the Federa l defini tion

. See Diego

, 857 F.3d at 1009. W e therefore hold that the respondent’s robbery offense is categorically an aggravated felony under section 101(a)(43)(G) of the Act.

T he respondent r eli es on unpublished decisions from the United States

District Court for the Southern District of California to support his claim that

section 211 could be used to successfully prosecute a n aider and abettor

who se o nly conduct involved the asportat ion of property after it had been taken by a principal violator

— conduct that falls outside the Federal

definition of generic theft. See United States v. Alonso

- Sepulveda , No.

15CR3084 WQH, 2016 WL 1223355 , at *2

– 4 (S.D. Cal. Mar

. 29, 2016) ; United States v. Bernal

- Sanchez , No. 15CR1689 WQH, 2016 WL 727070

, *4

– 7 (S.D. Cal. Feb. 24, 2016). We find no merit to this argument.

In Bernal

- Sanchez , the court concluded that a conviction involv ing only the asportation of stolen property would not fall within the definition of an aggravated felony . The court reasoned that “[n]o aspect of the generic theft offense covers conduct limited solely to participation in the asportation of the stolen property.” See Bernal

- Sanchez , 2016 WL 727070, at *7. The

court further observed that the asportation requirement of section 211 “is not confined to a fixed point in time. The asportation continues thereafter as long as the loot is being carried away to a place of temporary safety.” Id. (citation omitted) (internal quotatio n mark omitted). We understand the reasoning in Bernal

- Sanchez and similar cases

. However, we respectfully point out the Supreme Court’s statement that “ a person aids and abets a crime when (in addition to taking the requisite act)

he intends to facilitate that offense’s commission. An intent to advance someC ite as 27 I&N Dec. 100 (BIA 2017 ) Interim Decision # 3901

103 different or lesser offense is not

. . . sufficient: Instead, the intent must go to

the specific and entire crime charged

. . . . ” Rosemond v. United States , 134 S. Ct. 1240, 1248 (2014) (emphasis added) (citation omitted)

. California case law similarly reflects that “an aider and abettor must share

the specific intent of the perpetrator ,” which occur s “ when he or she knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s

commission of the crime.” People v. Beeman

, 674 P.2d 1318, 1326 (Cal. 1984). U nder sect ion 31 of the California Penal Code, “[a]ll persons

concerned in the commission of a crime

, . . . whether they directly commit the act constituting the offense, or aid and abet its commission

, . . . are principals in any crime so committed .” ( E mphasis add ed

. ) Thus, a s the California courts have recognized, “The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices’ actions as well as their own. It obviates the necessity to decide who was the aider and abettor and

who th e direct perpetrator or to what extent each played which role.” People

v. Delgado , 297 P.3d 859, 86 3 (Cal. 2013) (quoting People v. McCoy

, 24 P.3d 1210, 1216 (Cal. 2001) ). For this reason, the Supreme Court has concluded that under California law, “one who aids and abets a theft falls, like a principal, within the scope

of [ the ] generic definition” of theft. Duen a s

- Alvarez

, 549 U.S. at 1 8 9

. T he United States Court of Appeals for the Ninth Circuit, in whose jurisdiction
this case arises, relied on Duenas

- Alvarez in holding that aiding and abetting

a crime of violence was an aggr avated felony. Ortiz

- Magana v. Mukasey

, 542 F.3d 653, 65 8 (9th Cir. 2008). T he court reasoned that aiders and abettors and princip als are convicted under the same statute in California and

that “ there is no material distinction between an aider and abettor and principals in any jurisdiction of the United States including California and

federal courts: aiding and abetting [any crime] is the functional equivalent of personally committing that offense. ” Id. at 65 9. Accordingly , since a violation of section 211 falls squarely within the Federal definition of theft,

a conviction for aiding and abetting such a crime must also fall within th is

definition. See id. ; see also Sales v. Sessions , No. 15

- 70885, 2017 WL 3567831, at *4 (9th Cir. Aug. 18, 2017) (holding that the offense of aid ing

and abett ing second degree murder under California law was an aggravated felony).

Furthermore

, while we recognize that the asportation requirement of

section 211 is not fixed in time and may continue after a principal perpetrator has gained control over stolen property , we conclude that t he time for assessing whether a violation of section 211 is categorically an aggravated felony theft offense is at the completion of the crime

. A t that time, a California robbery offense necessarily contains all of the elements of genericC ite as 27 I&N Dec. 100 (BIA 2017 ) Interim Decision # 3901

104 theft

. For example, a hypothetical aider and abettor who claims to have

assisted in just the asportation of stolen property can only be convicted

of a complet ed violation of section 211 if he or she had knowledge of the perpetrator’s unlawful purpose and acted with the specific intent and purpose of facilitating the commission of the entire crime

. 3
As a consequence, a person who is convicted as an aider and abettor in a robbery under section 211 of the California Penal Code, but who has assisted

in only the asportation aspect of the offense, is ju st as culpable of the “taking” as the principal. W e therefore conclude that the respondent’s conviction for robbery under section 211 of the Cal ifornia Pen al Code is categorically a conviction for an aggravated felony theft offense

, regardless of whether he

committed the offense as an aider and abettor. Accordingly, the respondent’s appeal will be dismissed

. 

### ORDER: The appeal is dismissed.

3 California Criminal Jury Instruction 3.01 provides

, in pertinent part, t he following jury

instructions for aiding and abetting:

A person aids and abets the [commission] [or] [attempted commission] of a crime

when he or she:
(1) With knowledge of the unlawful purpose of the perpetrator, and
(2) With the intent or purpose of committing or encouraging or facilitating the

commission o f the crime, and

(3) By act or advice, [or, by failing to act in a situation where a person has a legal duty to act,] aids, promotes, encourages or instigates the commission of the

crime.

These instructions must be given in any case in which a defendan t is prosecuted as an aider

and abettor. Delgado , 297 P.3d at 864

− 65

.