PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1009

FRANCISCO ALBERTO MENA,

 Petitioner,

v.

LORETTA E. LYNCH, Attorney General,

 Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Argued: January 27, 2016 Decided: April 27, 2016

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Petition for Review granted by published opinion. Judge Shedd 

wrote the opinion in which Judge Agee joined. Judge Wilkinson 

wrote a dissenting opinion.

ARGUED: David Kendall Roberts, O'MELVENY & MYERS LLP, 

Washington, D.C., for Petitioner. Benjamin Mark Moss, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. 

ON BRIEF: Joyce R. Branda, Acting Assistant Attorney General, 

Civil Division, Douglas E. Ginsburg, Assistant Director, Office 

of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Respondent.
2

SHEDD, Circuit Judge:

Francisco Mena petitions for review of the Board of 

Immigration Appeals’ (“BIA”) decision finding him to be 

ineligible for cancellation of removal under the Immigration and 

Nationality Act (“INA”) because he is an aggravated felon. For 

the following reasons, we grant the petition.

I

Mena is a native and citizen of the Dominican Republic who 

was admitted to the United States as a lawful permanent 

resident. An immigration judge (“IJ”) ordered Mena’s removal 

based on his two convictions of crimes involving moral turpitude 

not arising out of the same criminal scheme. See 8 U.S.C. § 

1227(a)(2)(A)(ii). Mena did not appeal the removal order to the 

BIA, and he does not contest it in his petition for review. 

During his immigration proceedings, Mena applied for

cancellation of removal, a form of discretionary relief that is 

available to certain aliens who have not been convicted of an 

“aggravated felony.” See 8 U.S.C. § 1229b(a)(3). For purposes of 

the INA, an aggravated felony is, among other things, a “theft 

offense (including receipt of stolen property) . . . for which 

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

1101(a)(43)(G).
3

Mena has a prior conviction for violating 18 U.S.C. § 659, 

which creates four offenses, each set forth in a separate 

paragraph. Pertinent here, the first paragraph of § 659 

proscribes the illegal taking by embezzlement or theft of 

certain property that has moved in interstate or foreign 

commerce. The second paragraph proscribes the purchase, receipt, 

or possession of such property “knowing the same to have been 

embezzled or stolen.” Mena was convicted under the second 

paragraph and was sentenced to a 60-month imprisonment term. 

The IJ concluded that Mena is an aggravated felon based on 

his finding that the § 659 conviction falls within the scope of 

§ 1101(a)(43)(G). Accordingly, the IJ pretermitted Mena’s

cancellation of removal application. Thereafter, in a singlemember panel decision, the BIA dismissed Mena’s appeal of the 

IJ’s order.1 As we discuss below, the BIA primarily based its 

decision on its view that § 1101(a)(43)(G) contains two separate 

types of offenses that qualify as an INA “aggravated felony”: a 

“theft offense,” which is the base offense listed in the 

statutory section, and “receipt of stolen property,” which is 

contained in the parenthetical appended to the term “theft 

offense.” 

 1Consistent with the BIA’s analysis, the parties agree that 

§ 659 is divisible and that Mena was convicted under the second 

paragraph.
4

II

Because the BIA issued its own opinion without adopting the 

IJ’s reasoning, we review only the BIA decision. HernandezAvalos v. Lynch, 784 F.3d 944, 948 (4th Cir. 2015). We review de 

novo the BIA’s determination that an offense is an INA 

aggravated felony, Omargharib v. Holder, 775 F.3d 192, 196 (4th 

Cir. 2014), affording “appropriate deference” to the BIA’s 

statutory interpretation of the INA, Espinal-Andrades v. Holder, 

777 F.3d 163, 166 (4th Cir. 2015).

A.

When the Government alleges that a prior conviction 

qualifies as an INA aggravated felony, we must employ the 

“categorical approach” to determine whether the offense is 

comparable to an offense listed in the INA. Omargharib, 775 F.3d 

at 196. “Under that approach, we consider only the elements of 

the statute of conviction rather than the defendant’s conduct 

underlying the offense.” Id. The prior conviction constitutes an 

aggravated felony if it has the same elements as the generic INA 

crime. Id. However, if the statute of conviction “sweeps more 

broadly” and criminalizes more conduct than the generic federal 

crime, the prior conviction cannot count as an aggravated 

felony. Id. This is so even if the defendant actually committed 

the offense in its generic form. Id.
5

Because we examine what the prior conviction necessarily 

involved, not the facts underlying the case, we must presume 

that the prior conviction rested upon nothing more than the 

least of the acts criminalized and then determine whether even 

those acts are encompassed by the generic federal offense.

Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013). Our focus on 

the minimum conduct criminalized by the statute of conviction is 

not an invitation to apply “legal imagination” to the prior

offense; rather, there must be “a realistic probability” that 

the government would apply its statute to conduct that falls 

outside the generic definition of a crime. Id. at 1684-85.

B.

Applying the categorical approach, we addressed the meaning 

of the § 1101(a)(43)(G) term “theft offense” in Soliman v. 

Gonzales, 419 F.3d 276 (4th Cir. 2005). In that case, the BIA

held that the alien’s Virginia credit card fraud conviction 

constituted an INA theft offense and, therefore an aggravated 

felony, based on its determination that a conviction for fraud 

may also constitute “theft” for purposes of the INA. We 

disagreed. We first noted that the “plain text of § 1101(a)(43)

shows that Congress specifically distinguished fraud from theft, 

and that it meant for the two offenses to be treated 
6

differently.” Id. at 282.2 We then observed that “[w]hen a theft 

offense has occurred, property has been obtained from its owner 

‘without consent;’” but “in a fraud scheme, the owner has 

voluntarily ‘surrendered’ his property, because of an 

‘intentional perversion of truth,’ or otherwise ‘act[ed] upon’ a 

false representation to his injury.” Id. We thus explained that 

the “key and controlling distinction between these two crimes is 

. . . the ‘consent’ element — theft occurs without consent, 

while fraud occurs with consent that has been unlawfully 

obtained.” Id. Accordingly, we held that “a taking of property 

‘without consent’ is an essential element” of a § 1101(a)(43)(G)

theft offense. Id. at 283.3 Consequently, we found that the 

alien’s credit card fraud offense was not an INA “theft offense” 

– i.e., an “aggravated felony.”

We reiterated this holding in Omargharib. There, we 

considered whether the BIA properly concluded that the alien’s 

 2In addition to the § 1101(a)(43)(G) “theft offense,” an 

offense that “involves fraud or deceit in which the loss to the 

victim or victims exceeds $10,000” is also an aggravated felony.

See 8 U.S.C. § 1101(a)(43)(M)(i). 

3Consistent with Soliman, the BIA now defines “theft 

offense” for purposes of § 1101(a)(43)(G) as “the taking of, or 

exercise of control over, property without consent 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 Garcia-Madruga, 24 I. & N. Dec. 436, 

440-41 (BIA 2008) (emphasis added).
7

Virginia larceny conviction was an INA theft offense. Finding 

that the BIA erred, we explained that “Virginia law treats fraud 

and theft as the same for larceny purposes, but the INA treats 

them differently. As such, Virginia larceny ‘sweeps more 

broadly’ than the INA’s theft offense.” 775 F.3d at 197 

(citation omitted). We therefore held that a Virginia larceny 

conviction “does not constitute an aggravated felony for 

purposes of the INA under the categorical approach.” Id.

C.

Mena’s challenge to the BIA’s decision is primarily based 

on our holding in Soliman. Mena argues that a person can be 

convicted under the second paragraph of § 659 for receipt of 

embezzled property, and the crime of embezzlement necessarily

involves a taking of property with the owner’s consent. 

Therefore, according to Mena, because “a taking of property 

‘without consent’ is an essential element” of a § 1101(a)(43)(G) 

theft offense, Soliman, 419 F.3d at 283, a conviction under the 

second paragraph of § 659 is not a § 1101(a)(43)(G) “theft 

offense” under the categorical approach.

The BIA rightly did not dispute this interpretation of the 

second paragraph of § 659 or the crime of embezzlement, see J.A. 

5, because the second paragraph of § 659 plainly criminalizes

the receipt of certain embezzled property. Moreover, in what we 

have described as the “the classic definition,” United States v. 
8

Smith, 373 F.3d 561, 565 (4th Cir. 2004), the Supreme Court long 

ago explained that embezzlement “is the fraudulent appropriation 

of property by a person to whom such property has been intrusted 

[sic], or into whose hands it has lawfully come,” Moore v. 

United States, 160 U.S. 268, 269 (1895); see also United States 

v. Stockton, 788 F.2d 210, 216 (4th Cir. 1986) (explaining that 

the crime of embezzlement requires that “the embezzled property 

must have been in the lawful possession of the defendant at the 

time of its appropriation”). This classic definition applies to 

the term as it is used in § 659. See, e.g., United States v. 

Waronek, 582 F.2d 1158, 1161 (7th Cir. 1978) (explaining in the 

context of a § 659 embezzlement conviction that although larceny 

“involves an unlawful trespass to the possessory interest of the 

owner in the property,” where “the taker has been entrusted with 

possession of the property, the taking is more aptly described 

as embezzlement”); see generally Boone v. United States, 235 

F.2d 939, 941 (4th Cir. 1956) (explaining that the § 659 “crime 

of receiving include[s] a receipt of property founded on an 

antecedent capture of it through fraud and deception”).

Despite its acceptance of Mena’s characterization of § 659 

and the crime of embezzlement, the BIA applied the categorical 

approach and concluded that Mena’s conviction under the second 

paragraph of § 659 categorically falls within § 1101(a)(43)(G).

The key to the BIA’s decision is its view that § 1101(a)(43)(G)
9

creates two “‘distinct and separate offenses’” – “theft offense” 

(the base offense) and “receipt of stolen property” (the 

appended parenthetical offense) – which have “different generic 

definitions composed of different elements.” J.A. 6 (quoting In 

re Cardiel-Guerrero, 25 I. & N. Dec. 12, 14 (BIA 2014)). As the 

BIA explained, this case involves “receipt of stolen property,” 

a term it has interpreted “to include the category of offenses 

involving knowing receipt, possession, or retention of property 

from its rightful owner,” J.A. 5 (citing In re Bahta, 22 I. & N. 

Dec. 1381, 1391 (BIA 2000)). Given the purported distinction

between the two § 1101(a)(43)(G) offenses, the BIA reasoned that 

it “need not establish the elements of a ‘theft’ offense to 

demonstrate that a conviction for ‘receipt of stolen property’ 

qualifies as an aggravated felony” under § 1101(a)(43)(G). J.A. 

6. For this reason, the BIA found our holding in Soliman – that 

a “theft offense” requires a nonconsensual taking of property 

from its owner - to be inapplicable.

The BIA supported its decision by pointing to its prior 

opinion in Cardiel-Guerrero, where it observed that receipt of 

extorted property falls within the generic definition of 

“receipt of stolen property” under § 1101(a)(43)(G). The BIA 

noted that in Cardiel-Guerrero, it “reasoned that although the 

owner may have ‘consented in some aberrant sense’ during the 

initial taking, ‘it can hardly be argued that the victim of 
10

extortion has also consented to having his property ‘fenced,’

concealed, or otherwise withheld from him against his will by 

third parties.’” J.A. 6 (quoting Cardiel-Guerrero, 25 I. & N. 

Dec. at 23-24). Analogizing extortion with embezzlement, the BIA 

explained that “although the initial taking under the second 

paragraph of 18 U.S.C. § 659 may have involved embezzlement or 

fraud, [Mena] cannot argue that an owner also consented to a 

third party buying or possessing his or her embezzled property.” 

J.A. 6.

Additionally, the BIA stated that “a survey of State theft 

statutes supports [its] view that receipt of embezzled property 

is included in the generic definition of a ‘theft offense 

(including receipt of stolen property)’” under § 1101(a)(43)(G). 

J.A. 6. The BIA noted that when § 1101(a)(43)(G) was added to 

the INA, most states had adopted the Model Penal Code’s approach 

of consolidating the various common law offenses of larceny, 

embezzlement and false pretenses, receiving stolen property, and 

extortion into a unitary “theft” offense. J.A. 6. The BIA also 

found support for its holding in the fact that § 659 requires 

proof that the defendant received the property knowing that it 

was embezzled or stolen, and with the intent to deprive the 

owner of the rights or benefits of the property. J.A. 6.

D.
11

Common sense suggests that knowingly receiving either 

stolen or embezzled property – i.e., the offense set forth in 

the second paragraph of § 659 - is a form of theft. See, e.g., 

United States v. Johnson, 612 F.2d 843, 846 (4th Cir. 1979) 

(noting that the purpose of § 659 “is to protect goods moving in 

interstate commerce from theft”). However, we are not writing on 

a clean slate, and we may not simply rest our decision on some 

concept of common sense. Instead, we are obliged to apply the 

categorical approach, and in doing so we are guided by circuit 

precedent. Applying the categorical approach, we believe that

Soliman, combined with a straightforward reading of §§ 659 and

1101(a)(43)(G), dictates the result in Mena’s favor.

As noted, Soliman establishes that “a taking of property 

‘without consent’ is an essential element” of a § 1101(a)(43)(G) 

“theft offense.” 419 F.3d at 283. Moreover, the text of § 

1101(a)(43)(G) provides that the term “theft offense” includes

the crime of “receipt of stolen property.”4 The straightforward

 4The pertinent text of § 1101(a)(43)(G) actually reads: 

“theft offense (including receipt of stolen property).” The key 

word in this provision is “including,” which most naturally 

means that the term that follows is a part of the term that 

precedes “including.” See, e.g., P.C. Pfeiffer Co. v. Ford, 444 

U.S. 69, 77 n.7 (1979) (holding that the use of the word 

“including” in the definitional provision of the federal statute 

being reviewed there indicates an element that is “part of the 

larger group” and rejecting the argument that “including” means

“and” or “as well as”); see also Universal Maritime Serv. Corp. 

(Continued)
12

conclusion that follows is that a receipt crime – being an INA 

“theft offense” – requires a taking of property without consent.

By definition, embezzlement, like the closely related crime 

of fraud,5 involves property that came into the initial 

wrongdoer’s hands with the owner’s consent. This is an immutable 

fact regardless of whether the property is subsequently 

transferred to, and received by, a third party. Accordingly, a 

conviction for receipt of embezzled property under § 659 does 

not require proof that the owner did not consent to the taking 

of the property. Lacking the “without consent” element, receipt 

of embezzled property under § 659 does not fall within the § 

1101(a)(43)(G) theft offense definition. Consequently, the crime 

set forth in the second paragraph of § 659 “sweeps more broadly” 

than the generic § 1101(a)(43)(G) theft offense, and it is not 

an INA aggravated felony under the categorical approach.

In reaching this decision, we accept the government’s 

unremarkable observation – premised on the BNA’s prior Bahta

decision - that the parenthetical clause of § 1101(a)(43)(G) 

 

v. Wright, 155 F.3d 311, 319 n.10 (4th Cir. 1998) (similar 

holding).

5The Supreme Court has explained that “the word ‘embezzled’ 

itself implies fraudulent conduct on the part of the person 

receiving the money,” and “it is impossible for a person to 

embezzle the money of another without committing a fraud upon 

him.” Grin v. Shine, 187 U.S. 181, 189 (1902).
13

clarifies that the term “theft” is not limited to require proof 

that the offender was involved in the actual taking of the 

property. However, that observation simply does not support the 

BIA’s conclusion that the “without consent” element of a “theft 

offense” is inapplicable to a “receipt offense.” Section

1101(a)(43)(G) plainly applies to both “taking” and “receiving” 

offenses. Nonetheless, as we have explained, a “receipt offense” 

is one type of “theft offense” for purposes of the INA, and 

Soliman establishes that a necessary element of a “theft 

offense” is a taking from the owner without consent.

We also find the BIA’s analogy between embezzlement and 

extortion misplaced. In Cardiel-Guerrero, the BIA noted that 

although “consent” of the property owner is an element of 

extortion, “the concept of ‘consent’ used in the law of 

extortion is highly unconventional and does not connote a 

voluntary or elective conferral of property.” 25 I. & N. Dec. at 

20. Indeed, as the Second Circuit has observed, the “consent” 

element in an extortion case presents the victim with a 

“Hobson’s choice” and “is the razor’s edge that distinguishes 

extortion from robbery.” United States v. Zhou, 428 F.3d 361, 

371 (2nd Cir. 2005). This type of “consent” stands in marked 

contrast to the lawful consent underlying an embezzlement crime.

See generally Tredwell v. United States, 266 F. 350, 352 (4th 

Cir. 1920) (explaining that “[w]here one comes lawfully into the 
14

possession of property, and afterwards and while it is in his 

possession forms and carries out the purpose of appropriating it 

to his own use, the crime thus committed is the crime of 

embezzlement; but if, at the time of getting possession 

lawfully, the one to whom property is intrusted [sic] has the 

intention of appropriating it to his own use, the crime thus 

committed is the crime of larceny”).

Additionally, we find the BIA’s reliance on its survey of 

State statutes and the Model Penal Code to be unavailing.

Although the BIA pointed to the States’ “trend” to consolidate 

various common law offenses into a unitary “theft” offense, that 

trend involves, among other things, certain fraud offenses. Of 

course, we implicitly rejected that trend in Soliman and 

Omargharib by holding that fraud offenses are not 

§ 1101(a)(43)(G) “theft offenses.”

Finally, we note the anomalous result that the BIA decision 

would create.6 Under the BIA’s reasoning, an alien who is 

 6Depending on the circumstances of a given case, we accord 

various levels of deference to the BIA’s interpretation of the 

INA. Here, the parties disagree regarding the applicable level 

of deference we should apply. Our decision is based on the plain 

language of § 1101(a)(43)(G), as interpreted by Soliman, so we 

owe no deference to the BIA’s statutory interpretation. See

Espinal-Andrades, 777 F.3d at 166-67. However, even if the 

statute is ambiguous, “[w]e need not wade into the debate over 

the proper degree of deference, for it makes no difference in 

this case.” Oxygene v. Lynch, 813 F.3d 541, 548 n.3 (4th Cir. 

2016).
15

convicted under § 659 for embezzling up to $10,000 of property 

would not be an aggravated felon under § 1101(a)(43), yet 

another alien who is convicted under § 659 (and sentenced to a 

year of imprisonment) for knowingly receiving a fraction of the 

embezzled property would be. This result “makes scant sense” and 

cannot stand. Mellouli v. Lynch, 135 S.Ct. 1980, 1989 (2015) 

(rejecting BIA interpretation of the INA that treated “minor 

paraphernalia possession offenses . . . more harshly than drug 

possession and distribution offenses”); see also Castillo v. 

Holder, 776 F.3d 262, 270 n.6 (4th Cir. 2015) (in rejecting the 

BIA’s decision that the Virginia crime of unauthorized use of a 

vehicle is categorically a “theft offense” under § 

1101(a)(43)(G), we noted that “under the BIA’s decision . . . an 

anomalous and unreasonable result would occur if a conviction of 

the ‘lesser’ crime of unauthorized use formed the basis for 

removability under [§ 1101(a)(43)(G)], while the greater crime 

of larceny would not”).

III

In short, based on our application of the categorical 

approach, we hold that a conviction under the second paragraph 

of § 659 is not a “theft offense (including receipt of stolen 

property)” under § 1101(a)(43)(G). The BIA therefore erred in 

finding Mena to be an aggravated felon who is ineligible for 

cancellation of removal under § 1229b(a)(3). Accordingly, we 
16

grant the petition for review and remand for further proceedings 

consistent with this opinion.7

PETITION FOR REVIEW GRANTED

 7Our determination that Mena’s § 659 conviction is not 

categorically an INA aggravated felony does not alter the basic

nature of his offense. Mena may not have committed an INA “theft 

offense” as a technical matter, but he did commit an offense 

involving his knowing receipt of illegally obtained property. 

The government apparently feels strongly that Mena should not 

receive cancellation of removal relief, asserting that if (as we 

are ordering) the case is remanded, the BIA should be free to 

consider whether Mena is ineligible for cancellation of removal 

on another basis. Brief for Respondent, at 44. Mena disputes 

this assertion, but we decline to enter the fray. We note, 

however, that regardless of whether Mena is ultimately deemed to 

be eligible for cancellation of removal, the Attorney General’s 

decision whether to grant cancellation relief is discretionary 

and generally not subject to judicial review. See 8 U.S.C. § 

1252(a)(2)(B)(i).

We do not know if the issue of discretionary relief will 

eventually be considered in this case, and we express no opinion 

about that. However, as a general observation, it seems that a 

great deal of the effort and resources expended in appeals of 

cases of this type could potentially be preserved if the IJ or 

BIA proceeded beyond the eligibility determination and ruled 

alternatively on the discretionary cancellation decision. See, 

e.g., Ennis v. Att’y Gen. of the U.S., 617 Fed. Appx. 161, 163-

64 (3rd Cir. 2015) (“We . . . note that we would not reach the 

aggravated felony issue even if Ennis had exhausted it because 

the IJ denied cancellation of removal on the independently 

dispositive ground that cancellation was not warranted in the 

exercise of discretion. . . . [W]e generally lack jurisdiction 

to review the discretionary denial of cancellation in any 

event.”).
17

WILKINSON, Circuit Judge, dissenting: 

Embezzlement is a theft. Ask the person seated next to you. 

He or she will tell you that it is. 

The majority says not. Come again? The majority says 

embezzlement is not a form of theft. 

It is from that proposition that I respectfully dissent.

* * *

The Immigration and Nationality Act declares that any 

“theft offense (including receipt of stolen property) . . . for 

which the term of imprisonment is at least one year” is an 

aggravated felony. 8 U.S.C. § 1101(a)(43)(G). This broad, 

generic language embraces a variety of offenses, and the plain 

meaning of “theft” makes clear that Mena’s conviction under 18 

U.S.C. § 659 is a theft offense. 

The majority believes that embezzlement is not a theft 

because the owner of the funds voluntarily entrusts them to the 

embezzler. That totally ignores the fact that the whole purpose 

of the entrustment is for an honest stewardship of the funds. 

The betrayal of that purpose through embezzlement is purely and 

simply theft. 

Theft is defined as “[b]roadly, any act or instance of 

stealing, including larceny, burglary, embezzlement, and false 

pretenses.” Theft, Black’s Law Dictionary (10th ed. 2014) 

(emphasis added). In common parlance, theft means “the action or 
18

crime of stealing.” Concise Oxford English Dictionary 1494 (11th 

ed. 2004). At the core of these definitions is a singular 

concept: theft happens when property is taken without any 

semblance of consent. 

The parenthetical “(including receipt of stolen property)” 

reinforces § 1101(a)(43)(G)’s broad meaning. “Stolen property” 

means “goods acquired by,” among other means, “theft.” Stolen 

Property, Black’s Law Dictionary (10th ed. 2014). Stolen 

property thus includes property taken through any of the commonlaw means that make up theft. This is consistent with the 

definition of the verb “steal”: “[t]o take (something) by 

larceny, embezzlement, or false pretenses.” Steal, Black’s Law 

Dictionary (10th ed. 2014) (emphasis added). “Including,” 

furthermore, means “‘contain[ing]’ or ‘compris[ing] [] part of a 

whole.’” Chickasaw Nation v. United States, 534 U.S. 84, 89 

(2001) (citing Webster’s Ninth New Collegiate Dictionary 609

(1985)). Its use in conjunction with parentheses “emphasizes the 

fact that that which is within is meant simply to be 

illustrative . . . a circumstance underscored by the lack of any 

suggestion that Congress intended the illustrative list to be 

complete.” Id. at 89. Far from narrowing the meaning of “theft 

offense,” the parenthetical thus suggests that offenses similar 

to “receipt of stolen property” (i.e., receipt of embezzled 

property) are covered by the statute.
19

This plain meaning of theft is underscored by the fact that 

the INA uses the term “theft offense” in a generic sense. Its 

meaning therefore “roughly correspond[s] to the definitions” of 

theft found “in a majority of the States’ criminal codes.” See

Taylor v. United States, 495 U.S. 575, 589 (1990). Those codes, 

meanwhile, had by the time of § 1101(a)(43)(G)’s 1994 enactment 

largely adopted the Model Penal Code’s policy of consolidating 

various common law offenses, including larceny, extortion, 

blackmail, and embezzlement, into unitary theft offenses. J.A. 

6, citing In re Cardiel-Guerrero, 25 I. & N. Dec. 12, 21 (BIA 

2009); see also Model Penal Code § 223.1(1) (“Conduct 

denominated theft in this Article constitutes a single 

offense.”). A generic definition of theft accordingly includes 

embezzlement. 

The majority explicitly abjures common sense, i.e. plain 

meaning, in its approach to this problem. Maj. Op. at 11. But 

the categorical approach is supposed to “serve[] practical 

purposes.” Moncrieffe v. Holder, 133 S. Ct. 1678, 1690 (2013). 

Common sense (or plain meaning, or practicality), as we all 

seemingly acknowledge, would lead us to reject petitioner’s 

position. Petitioner Mena was convicted under the second 

paragraph of 18 U.S.C. § 659, which criminalizes receipt of 

stolen or embezzled property. He argues that he nonetheless has 

not committed a theft offense. But it is wrong to think that 
20

§ 659’s coverage of receipt of embezzled property somehow takes 

it beyond the realm of theft. 

Like theft, embezzlement is also stealing. And 

“distinctions between” different types of stealing “serve no 

useful purpose in the criminal law but are useless handicaps 

from the standpoint of the administration of criminal justice.” 

Rollin M. Perkins & Ronald Boyce, Criminal Law, 389-90 (3d ed. 

1982). Like a victim of traditional larceny, a victim of 

embezzlement does not “consent” to the loss of his property. Nor 

does a victim of embezzlement, like a victim of larceny, 

“consent” to the involvement of a third party when his property 

is transferred. Both victims consider their property stolen. 

Petitioner rejects this view, relying on our earlier 

decision in Soliman v. Gonzales. In that case, we held that an 

INA “theft offense” must involve a taking without consent. 419 

F.3d 276, 283 (4th Cir. 2005). But even if it were not already 

silly to suggest that one “consents” to the embezzlement of 

one’s property, see Pet’r’s Br. at 18, Soliman had no occasion 

to consider the problem before us now. The predicate offense in 

Soliman was credit card fraud. 419 F.3d at 278. The court thus 

did not consider how to evaluate receipt offenses under the INA. 

And the plain meaning of “(including receipt of stolen 

property),” 11 U.S.C. § 1101(a)(43)(G), requires that Mena’s 

conviction be treated as a theft offense.
21

The majority views this as an unfair result. It contends 

that embezzlement (as opposed to receipt of embezzled property) 

is not itself an aggravated felony unless the amount embezzled 

exceeds $10,000. Maj. Op. at 14-15. Making receipt of embezzled 

property an aggravated felony would thus risk, in the majority’s 

view, treating the lesser criminal more harshly than the greater 

one. But this reasoning assumes that the original embezzler is 

not also guilty of a theft offense – an incorrect assumption. 

And even if the majority’s understanding were correct, several 

considerations limit its relevance. First, fairness in the 

treatment of the family of embezzlers is more properly addressed 

during their individual sentencings. Second, § 1101(a)(43)(G) 

contains a safeguard. The term of imprisonment for any predicate 

theft offense must be “at least one year.” Mena, for example, 

was sentenced to sixty months of incarceration. Minor receipt of 

embezzled property offenses thus still avoid aggravated-felony 

status. Finally, if the point of the categorical approach, 

properly adopted by the majority, is to compare the elements of 

predicate against generic INA offenses, then the majority’s 

concerns are not only misplaced but irrelevant. The capacious 

terms of § 1101(a)(43)(G) embrace Mena’s 18 U.S.C. § 659 

conviction, and we are obliged to respect that legislative 

choice.
22

This case is much less complicated than the majority makes 

it. To repeat: embezzlement is a theft. Just ask the person two 

rows down.