FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 December 19, 2005 

 THOMAS K. KAHN 

 CLERK

Honorable Lloyd D. George, United States District Judge for the District of Nevada,

*

sitting by designation. 

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-16317

________________________

Agency No. A35-557-998

MARLENE JAGGERNAUTH, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(December 19, 2005)

Before BARKETT and MARCUS, Circuit Judges, and GEORGE , District Judge. *
2

PER CURIAM:

Marlene Jaggernauth petitions for review of the Board of Immigration

Appeals’ (“BIA”) November 14, 2003 order affirming the Immigration Judge’s

(“IJ”) order of removal based on a finding that Jaggernauth’s conviction in 2001

for grand theft under Florida Statutes § 812.014(1) constituted an aggravated

felony under § 101(a)(43)(G) of the Immigration and Nationality Act (“INA”), 8

U.S.C. § 1101(a)(43)(G) (2000), subjecting her to deportation under §

237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii). 

Jaggernauth argues that Florida Statutes § 812.014(1) is a divisible statute

encompassing some offenses that constitute deportable aggravated felonies and

some that do not, and that because the record is unclear as to whether she was

convicted under the portion of § 812.014(1) that encompasses deportable felonies,

the BIA erred in finding her removable. Jaggernauth further argues that the BIA

erred in failing to reverse the IJ’s finding that she had been convicted of two or

more crimes involving moral turpitude, subjecting her to deportation under §

237(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii). 

The government has moved to dismiss the appeal, arguing that we lack

jurisdiction to review the BIA’s November 14, 2003 order of removal because it is

no longer “final.” The government maintains that the order of removal was

rendered non-final by a January 21, 2004 BIA order granting Jaggernauth’s motion
3

for reconsideration. The government argues that the grant of reconsideration

“implicitly vacated” the order of removal, and that because Jaggernauth failed to

appeal the order granting reconsideration, we must refuse to hear this appeal.

For the reasons explained below, we conclude that we have jurisdiction to

consider this appeal, as the BIA’s reconsideration order does not alter the

November 14, 2003 order of removal or affect its finality. Thus, the November 14,

2003 order is a “final order of removal” for jurisdictional purposes. In addition,

we agree with Jaggernauth that the BIA erred in concluding that she was

removable because she had been convicted of an “aggravated felony” as defined by

the INA. 

I. Relevant Facts and Procedural History

Jaggernauth is a 39-year-old native and citizen of Trinidad and Tobago who

lawfully entered the United States on November 18, 1977 when she was twelve

years old. She was a lawful permanent resident until 2003, when she was ordered

removed in the present proceedings. The removal order at issue concerns

Jaggernauth’s April 1997 nolo contendere plea and conviction for grand theft

under Florida Statutes § 812.014(1). That section provides that:

A person commits theft if he or she knowingly obtains or uses, or

endeavors to obtain or use, the property of another with intent to,

either temporarily or permanently:
4

(a) Deprive the other person of a right to the property or a benefit

from the property.

(b) Appropriate the property to his or her own use or to the use of any

person not entitled to the use of the property.

Fla. Stat. § 812.014(1). For this conviction, Jaggernauth was initially sentenced

to probation, though she was later sentenced to six months’ imprisonment after a

probation violation.

On May 29, 2001 Jaggernauth pleaded nolo contendere and was again

convicted of grand theft under Florida Statutes § 812.014(1) as well as the

misdemeanor offense of resisting a merchant under Florida Statutes § 812.015(6). 

The 2001 Information charging Jaggernauth with grand theft tracked the general

language of § 812.014(1). The Information did not specify under which subsection

Jaggernauth was charged or whether the alleged deprivation was temporary or

permanent.

For her grand theft conviction, Jaggernauth was sentenced to a suspended

one-year term of imprisonment as well as probation. For her misdemeanor

conviction for resisting a merchant, she was sentenced to 132 days of

imprisonment. Jaggernauth has no other convictions. 

The INS instituted removal proceedings against Jaggernauth on January 16,

2003 based on her 1997 conviction for grand theft and her 2001 conviction for

grand theft and resisting a merchant. The INS charged that Jaggernauth’s 2001
5

grand theft conviction rendered her removable under 8 U.S.C. § 1227(a)(2)(A)(iii),

as an alien convicted of an aggravated felony as that term is defined in 8 U.S.C. §

1101(a)(43)(G). As a separate basis for removal, the INS also charged that

Jaggernauth was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien

convicted of two crimes of moral turpitude not arising out of a single scheme of

criminal misconduct. Jaggernauth, appearing pro se before the IJ, admitted that

she had been convicted of and sentenced for the crimes forming the basis of the

removal proceedings. However, she did not concede that she was removable from

the United States on account of these convictions. 

The IJ ordered Jaggernauth removed and deported to Trinidad and Tobago

on the grounds that she had been convicted of: (1) an aggravated felony under 8

U.S.C. § 1101(a)(43)(G), which was based on her 2001 grand theft conviction; and

(2) two crimes involving moral turpitude based on her 1997 and 2001 grand theft

convictions. 

Jaggernauth timely appealed the IJ’s decision to the BIA. On November 14,

2003 the BIA dismissed the appeal, affirming the IJ’s conclusion that Jaggernauth

is an aggravated felon and upholding the IJ’s order of removal. The BIA order

stated that § 812.014(1) appeared to be a divisible statute, encompassing some

offenses that constitute deportable aggravated felonies and some that do not, but

concluded that the record of conviction established that the grand theft offense
The record of conviction includes the charging document, plea, verdict or judgment, and 1

sentence. See In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999). In this case, the BIA looked to

the 1998 Information for grand theft and resisting a merchant, which alleges that Jaggernauth

“did unlawfully, while committing or after committing theft of property, resist the reasonable

effort of a merchant or merchant’s employee to recover the property which the merchant or

merchant’s employee had probable cause to believe the said defendant had concealed or

removed from its place of display or elsewhere.” Nov. 14, 2003 Order, at 2. 

6

with which she was charged was in fact an aggravated felony. The BIA did not 1

address the issue of whether or not Jaggernauth was independently removable as an

alien convicted of two crimes of moral turpitude.

On December 12, 2003 Jaggernauth filed the instant petition for review of

the BIA’s November 14, 2003 order upholding the IJ’s order of removal in this

court. On December 13, 2003 Jaggernauth also filed a timely motion to reconsider

the November 14, 2003 order to the BIA. On January 21, 2004 the BIA granted

Jaggernauth’s motion to reconsider, and upheld and affirmed the IJ’s order of

removal and the BIA’s November 14, 2003 order, without changing the legal basis

for the decision: that Jaggernauth had committed an aggravated felony. The BIA

again did not address the IJ’s determination that Jaggernauth had been convicted of

two crimes of moral turpitude. 

On February 27, 2004 Jaggernauth was physically deported from the United

States. 

II. Standards of Review
7

We review questions concerning our jurisdiction de novo. Ortega v. U.S.

Att’y Gen., 416 F.3d 1348, 1350 (11th Cir. 2005). We review the BIA’s statutory

interpretation de novo, but will defer to the BIA’s interpretation of a statute if it is

reasonable and does not contradict the clear intent of Congress. Chevron U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984); Al Najjar v.

Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).

III. Discussion

A. Subject Matter Jurisdiction 

Before reaching the merits of Jaggernauth’s claim on appeal, we must first 

address whether or not we have jurisdiction to review the order on appeal. Under

INA § 242(a)(1), 8 U.S.C. § 1252(a)(1), we are limited to reviewing “final order[s]

of removal.” See Balogun v. U.S. Att’y Gen., 304 F.3d 1303, 1307 (11th Cir.

2002). The government does not dispute that the IJ’s removal order became

“final” when it was affirmed by the BIA on November 14, 2003. See also 8 C.F.R.

§ 1241.1 ( “An order of removal made by the immigration judge at the conclusion

of proceedings under section 240 of the [INA] shall become final: (a) Upon

dismissal of an appeal by the Board of Immigration Appeals”). The issue of

contention between the parties is whether that final order of removal remained final

once the BIA issued a second order granting reconsideration and affirming the

removal order.
8

To seek judicial review of an order of removal, an alien must file a petition

for review with the federal appellate court within 30 days of the BIA’s issuance of

the final order. See 8 U.S.C. § 1252(b)(1)-(2). In addition, and as occurred in the

present case, the petitioner may simultaneously move for reconsideration before

the BIA within 30 days of the BIA’s issuance of the final order of removal. See 8

C.F.R. § 1003.2(b). According to statute, “[w]hen a petitioner seeks review of an

order [of removal], any review sought of a motion to reopen or reconsider the order

shall be consolidated with the review of the order.” 8 U.S.C. § 1252(b)(6). 

The Supreme Court has held that a petitioner’s filing to the BIA of a motion

to reconsider a final deportation order does not render the order non-final. Stone v.

INS, 514 U.S. 386 (1995). In Stone, the petitioner waited to appeal the BIA’s final

deportation order until after the BIA denied the petitioner’s motion for

reconsideration, at which time he appealed both orders. The petitioner argued that

the filing of the reconsideration motion tolled the statutory time period for filing for

review of the final deportation order, and thus his appeal of both orders was timely. 

The Court disagreed. The Court explained that section 106(a)(1) of the INA, 8

U.S.C. § 1105a(a)(1), contemplated two petitions – one of the BIA’s final

deportation order and another of the BIA’s order on a motion for reconsideration –

which are to be consolidated for review. The Court then concluded: 
 Stone was decided prior to the Illegal Immigration Reform and Immigrant 2

Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (“IIRAIRA”). However, like

its predecessor, the INA post- IIRAIRA provides for an alien to seek judicial review of the

BIA’s final removal order as well as of the BIA’s ruling on reconsideration, and further provides

for the consolidation of those two petitions for review on appeal. See 8 U.S.C. § 1252(b)(1)-(2),

(6). 

9

The consolidation provision in § 106(a)(6) reflects Congress’

understanding that a deportation order is final, and reviewable, when

issued. Its finality is not affected by the subsequent filing of a motion

to reconsider. The order being final when issued, an alien has 90 days

from that date to seek review. The alien, if he chooses, may also seek

agency reconsideration of the order and seek review of the disposition

upon reconsideration within 90 days of its issuance. Where the

original petition is still before the court, the court shall consolidate the

two petitions. 

Stone, 514 U.S. at 405-06. 

Stone does not resolve the present case. While it makes clear that the 2

finality of the November 14, 2003 order of removal was not disturbed by

Jaggernauth’s filing of a motion for reconsideration, and thus that Jaggernauth’s

appeal of the November 14, 2003 order was properly brought before this Court, the

question before us here is what effect the BIA’s grant of reconsideration and

affirmance of its initial order had on the finality of that order. The government

argues that the grant of reconsideration rendered the November 14 order non-final,

and therefore that Jaggernauth was required to appeal the ruling on the motion for

reconsideration in order to obtain judicial review in this case. For several reasons,

we disagree.
10

8 C.F.R. § 1003.2(i) instructs that when the BIA grants reconsideration, “the

decision upon . . . reconsideration shall affirm, modify, or reverse the original

decision made in the case.” The BIA’s January 21, 2004 order stated, “We will

grant the respondents’ motion, but we will uphold our earlier finding [that

Jaggernauth is removable as having been convicted of an ‘aggravated felony’].”

The January 21, 2004 order included some additional commentary:

Even if [our reliance on Jaggernauth’s simultaneous conviction for

Resisting a Merchant while engaged in theft] was in error, as the

respondent claims, the case law of Florida shows that a conviction for

grand theft under Fla. Stat. § 812.014(1) necessarily constitutes a theft

offense for the purposes of section 101(a)(43)(G) of the [INA]. 

According to the case law, the intent to steal or deprive the victim of

the victim’s property is a necessary element of grand theft.

We do not believe the BIA intended its second order to incorporate this new

commentary into its original order or otherwise change the substance of the original

order. The January 21 order explicitly upholds the November 14 order and

concludes that the BIA “acted properly” when it issued the November 14 order,

suggesting the BIA’s intent was to leave the November 14 order, as well as the

reasoning underlying the order, intact and unmodified.

We note that there is nothing in the INA that requires Jaggernauth to seek

judicial review of the BIA’s reconsideration order. As explained by the Second

Circuit in Khouzam v. Ashcroft, 361 F.3d 161, 167 (2d Cir. 2004), “[a]lthough §

1252(b)(6) would have allowed [the petitioner] to petition us to review the [BIA’s
11

ruling on reconsideration] along with the [final order of removal], it does not

require him to follow that course.” See also Desta v. Ashcroft, 329 F.3d 1179,

1183-84 (10th Cir. 2003) (“An unchallenged ruling by the BIA on a motion to

reconsider is final in that it is separately appealable. But it is not res judicata with

respect to an issue pending on judicial review of the original decision of the BIA.”). 

While we have found little caselaw discussing motions for reconsideration in

immigration proceedings from this Circuit, our decision today is supported by

precedent from two of our sister Circuits. In Khouzam and Desta, the Second and

Tenth Circuits, respectively, held that they retained jurisdiction to review the BIA’s

final orders of removal notwithstanding the BIA’s subsequent orders on 

reconsideration. The Desta Court explained: 

Once an issue is properly raised by a petition for review of the original

decision, no purpose would be served by requiring the petitioner to

raise the identical issue again in a petition to review the BIA’s decision

on the motion to reconsider. Thus, petitioners’ filing of a motion to

reopen or reconsider does not affect this court’s jurisdiction.

329 F.3d at 1184; see also Khouzam, 361 F.3d at 167 (court had jurisdiction to

review BIA’s final order of removal notwithstanding petitioner’s failure to seek

judicial review of BIA’s ruling denying reconsideration and clarifying the reasoning

behind the prior order). Although both Desta and Khouzam dealt with denials of

reconsideration, the reasoning is nevertheless applicable here, where the grant of

reconsideration actually upheld and affirmed the conclusions of the prior order. Cf.
12

Khouzam, 361 F.3d at 167 (where BIA’s denial of reconsideration upheld previous

final order of removal but clarified its legal reasoning).

Because the November 14, 2003 order of removal, having been affirmed by

the January 21, 2004 order, is final, we have limited jurisdiction over the petition

for review in this case.

B. Is a Violation of Florida Statutes § 812.014(1) an Aggravated Felony

 for Purposes of the INA?

In order to find that Jaggernauth was convicted of an aggravated felony based

on her 2001 conviction under § 812.014(1), the BIA was required to find that the

INS established by “clear, unequivocal, and convincing evidence” that she

committed a “theft offense” as that term is used in the INA – specifically, that she

took property with the criminal intent to deprive another of rights to and benefits of

the property. See Woodby v. INS, 385 U.S. 276, 286 (1966). Jaggernauth argues

that the BIA erred in determining that her 2001 conviction for grand theft was an

“aggravated felony,” because the Florida grand theft statute encompasses both

aggravated felonies and non-aggravated felonies, and there was no clear and

convincing evidence to support the conclusion that she was convicted under the

subsection dealing with aggravated felonies. The government did not respond to

these arguments in its initial brief, instead relying exclusively on its jurisdictional
13

argument discussed above. However, the government was asked at oral argument

to submit supplemental briefs on this issue, and we now resolve it.

The term “aggravated felony” is defined in the INA to include “a theft

offense . . . for which the term of imprisonment [is] at least one year.” 8 U.S.C. §

1101(a)(43)(G). It is undisputed that the length of the sentence for Jaggernauth’s

2001 grand theft conviction was one year. Therefore, if it is a theft offense, it is an

aggravated felony. See United States v. Christopher, 239 F.3d 1191, 1193 (11th

Cir. 2001) (a theft offense is an aggravated felony if the “term of imprisonment is at

least one year” regardless of any suspension of the sentence imposed). 

We have never before addressed whether a conviction under Fla. Stat. §

812.014(1) necessarily constitutes a theft offense for purposes of the aggravated

felony definition. Congress has not defined a “theft offense” in the INA, and a

plain reading of 8 U.S.C. § 1101(a)(43)(G) does not reveal its meaning. However,

the BIA has stated that “a taking of property constitutes a ‘theft’ whenever 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.” In re V-Z-S-, 22 I. & N. Dec.

1338, 1346 (BIA 2000). Other Circuits have adopted similar definitions. See, e.g.,

United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (defining

theft offense as “a 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
Jaggernauth was convicted of grand theft in the third degree, a third degree felony. 

3

Florida Statutes § 812.014(2)(c)(1) defines grand theft in the third degree as offenses where the

property stolen is valued at $300 or more. 

14

ownership, even if such deprivation is less than total or permanent”); United States

v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir. 2001) (same); 

Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir. 2001) (same).

To determine whether Jaggernauth’s conviction was for a “theft”

encompassed in the INA’s definition of an aggravated felony, we first look to the

fact of conviction and the statutory definition of the offense. See In re BatistaHernandez, 21 I. & N. Dec. 955, 970 (BIA 1997) (citing Taylor v. United States,

495 U.S. 575 (1990)). Florida Statutes § 812.014 (1) provides that:

(1) A person commits theft if he or she knowingly obtains or uses, or

endeavors to obtain or to use, the property of another with intent to,

either temporarily or permanently:

(a) Deprive the other person of a right to the property or a

benefit from the property.

(b) Appropriate the property to his or her own use or to the use

of any person not entitled to the use of the property. 

3

The plain language of § 812.014(1) does not explicitly state whether the

requirement of an intent to deprive another of the rights and benefits of property,

under subpart (a) of § 812.014(1), and the intent to appropriate property for one’s

own use, under subpart (b) of § 812.014(1), are to be read conjunctively or

disjunctively. Florida courts, however, have consistently interpreted the section in
15

the disjunctive, to articulate two distinct levels of intent. For example, in T.L.M. v.

State, 755 So. 2d 749, 751 (Fla. Dist. Ct. App. 2000), the court stated that “Section

812.014 requires a finding of specific criminal intent to either (a) ‘deprive’ the other

person of a right to the property or a benefit therefrom or (b) ‘appropriate’ the

property to his own use or to the use of any person not entitled thereto.” Id. at 751

(emphasis added). See also Canady v. State, 813 So. 2d 161, 161 (Fla. Dist. Ct.

App. 2002) (“The evidence was insufficient to prove [the defendant’s] criminal

intent to deprive another person of property, or to appropriate the property, as

required under section 812.014”) (emphasis added); Allen v. State, 690 So. 2d

1332, 1333-34 (Fla. Dist. Ct. App. 1997) (“The evidence, therefore, was sufficient

to allow the jury to find the appellant guilty of grand theft because he knowingly

used the property of another with intent to either temporarily or permanently

deprive the owner of a right to his property or to appropriate the property to his own

use in violation of sections 812.014(1) and 812.014(2)(c))” (emphasis added). In

this Circuit, we have similarly read an “or” into § 812.014(1) between subpart (a)

and subpart (b), and have interpreted the section as encompassing two separate

levels of intent. See Messer v. E.F. Hutton & Co., 833 F.2d 909, 921 (11th Cir.

1987) (“[Section 812.014(1)] provides for liability only if the property is used or

obtained ‘with intent to, either temporarily or permanently, . . . deprive the other

person of a right to the property or the benefit therefrom . . . [or] appropriate the
The Information filed against Jaggernauth for her 2001 grand theft charge likewise 4

acknowledges the disjunctive character of the intent elements of § 812.014(1). The Information

alleges that Jaggernauth:

[D]id unlawfully and knowingly obtain or endeavor to obtain or to use the

property of another, to wit: merchandise, the property of Beall’s Department

Store and/or Randy Denniston as owner or custodian, of the value of $300 or

more, but less than $5,000 with the intent to either permanently or temporarily

deprive the true owner of a right to the property or a benefit therefrom or to

appropriate the property to the use of the taker or to the use of any person not

entitled thereto. 

Information at 1 (emphasis added). 

16

property to his own use or to the use of any person not entitled thereto.’” (quoting

§812.014(1)).4

Because two distinct intent standards exist in § 812.014(1), we cannot say

that both subparts would necessarily involve an intent to deprive another person of a

right to the property or a benefit from the property. To interpret the statute in this

way would make subpart (b) superfluous, thereby violating the well-established rule

of statutory construction that courts must give effect, if possible, to every clause and

every word of a statute. See Williams v. Taylor, 529 U.S. 362, 404 (2000) (holding

that 28 U.S.C. § 2254(d)(1), which includes two disjunctive clauses, must be read

so as to give independent meaning to both clauses). Moreover, it would ignore the

plain meaning of “appropriation,” which is defined as the “exercise of control over

property; a taking of possession,” see Black’s Law Dictionary at 98 (7th ed. 1990),
We note that the BIA found that the statute was divisible in its November 14, 2003 5

order, but then concluded that the record of conviction sufficiently established that Jaggernauth

intended to deprive the owner of the property, and not merely temporarily use the property and

return it to its owner. See Nov. 14, 2003 Order at 2. 

17

and which would not necessarily entail that the property owner be deprived his or

her rights to the property’s use or benefits.

Given the above evidence that § 812.014(1) involves two different types of

intent, we agree with Jaggernauth that the statute is “divisible” – that is, it contains

some offenses that are aggravated felonies and others that are not. See In re 5

Sweetser, 22 I. & N. Dec. 709, 713-14 (BIA 1999) (where a statute includes some

offenses that are aggravated felonies and others that are not, it is treated as a

divisible statute). If Jaggernauth was convicted under subpart (a), her taking of

property would have involved an intent to “deprive the owner of the rights and

benefits of ownership,” and would therefore qualify as a “theft” as defined by the

BIA. See In re V-Z-S-, 22 I. & N. Dec. at 1346. However, if Jaggernauth was

convicted under subpart (b), which requires only an intent to “appropriate use” of

the property, her offense would not necessarily constitute a “theft” under the BIA’s

definition, because she lacked the requisite intent to deprive the owner of the rights

and benefits of ownership. Cf. Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir.

2003) (holding that certain sections of the Arizona statute for “theft of a means of

transportation” did not contain the “criminal intent to deprive the owner” and were
18

therefore not properly considered “thefts” for purposes of the aggravated felony

definition of the INA). 

Because § 812.014(1) is a divisible statute, the fact of conviction and the

statutory language alone are insufficient to establish – by “clear, unequivocal, and

convincing evidence” – under which subpart Jaggernauth was convicted. See

Woodby v. INS, 385 U.S. 276, 286 (1966) (“no deportation order may be entered

unless it is found by clear, unequivocal, and convincing evidence that the facts

alleged as grounds for deportation are true”). Accordingly, the BIA was permitted

to look to the record of conviction to determine whether her offense for “grand

theft” constitutes an aggravated felony. See In re Sweetser, 22 I. & N. Dec. at 714. 

As stated supra (see note 1), the record of conviction includes the charging

document, plea, verdict or judgment, and sentence, see In re Ajami, 22 I. & N. Dec.

949, 950 (BIA 1989), but does not include the police report. See In re Teixeira, 21

I. & N. Dec. 316, 319 (BIA 1996).

The record of conviction introduced in this case – the Information, plea,

judgment and sentence – do not provide clear, unequivocal and convincing

evidence that Jaggernauth’s 2001 grand theft conviction under § 812.014(1) was for

a taking with the intent to deprive another of their rights or benefits of property. 

First, the Information explicitly charges Jaggernauth in the disjunctive, and thus

does not support the conclusion that she was charged under subpart (a) rather than
19

subpart (b) of § 812.014(1). See Information at 1. Second, the written plea and

sentencing documents similarly reference the general statutory provision, §

812.014(1), without specific mention that Jaggernauth was convicted of either

subparts (a) or (b). 

Third, we disagree with the BIA that Jaggernauth’s simultaneous conviction

for resisting a merchant establishes that her grand theft conviction was an

aggravated felony. The BIA was permitted to look only at the record of conviction

for the offense alleged to be an aggravated felony – not to the record of a separate

misdemeanor offense. We can find no authority, and the BIA cites none in its

order, that permits the combining of two offenses to determine whether one or the

other is an aggravated felony. Cf. Matter of Short, 20 I. & N. Dec. 136, 139 (BIA

1989) (holding that IJ could not rely on a separate conviction to determine whether

the conviction at issue was a crime of moral turpitude, and stating that moral

turpitude cannot be viewed as “aris[ing] from some undefined synergism by which

two offenses are combined to create a crime involving moral turpitude, where each

crime individually does not involve moral turpitude”). In any event, the

Information on the resisting a merchant charge provides no information as to

whether Jaggernauth either intended to deprive another of the rights and benefits of

property under § 812.014(1)(a), or merely intended to appropriate property to her

own use under § 812.014(1)(b). Her alleged resistance to the merchant could have
20

been motivated by any number of factors other than an intent to deprive another of

rights and benefits of property.

Because it has not been clearly established that Jaggernauth’s 2001

conviction for grand theft is an “aggravated felony” under 8 U.S.C. §

1101(a)(43)(G), we conclude that the BIA erred in upholding Jaggernauth’s

removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Moreover, because Jaggernauth

is not removable for having been convicted of an aggravated felony, the BIA should

have addressed whether or not Jaggernauth’s 1997 and 2001 grand theft convictions

were crimes of moral turpitude that made her removable under 8 U.S.C. §

1227(a)(2)(A)(i). Accordingly, the BIA’s final order of removal is vacated insofar

as it concludes that Jaggernauth is removable under 8 U.S.C. § 1227(a)(2)(A)(iii). 

The case is remanded to the BIA to consider whether or not the IJ correctly

determined that Jaggernauth was removable for having been convicted of two

crimes of moral turpitude pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii).

PETITION GRANTED.