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Matter of Siegfred Ara SIERRA, Respondent

Decided April 8, 2014

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Under the law of the United States Court of Appeals for the Ninth Circuit, the offense

of attempted possession of a stolen vehicle in violation of sections 193.330 and 205.273

of the Nevada Revised Statutes, which requires only a mental state of “reason to believe,”

is not categorically an aggravated felony “theft offense (including receipt of stolen

property)” under sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act,

8 U.S.C. §§ 1101(a)(43)(G) and (U) (2012).

FOR RESPONDENT: Xavier Gonzales, Esquire, Las Vegas, Nevada

FOR THE DEPARTMENT OF HOMELAND SECURITY: Patrick W. Lindemann,

Assistant Chief Counsel

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

Members.

PAULEY, Board Member:

In a decision dated October 29, 2012, an Immigration Judge found the

respondent removable under sections 237(a)(2)(A)(ii) and (iii) of the

Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(ii) and (iii)

(2006), as an alien convicted of two crimes involving moral turpitude and

an aggravated felony, and ordered him removed from the United States.

The respondent has appealed from that decision. The appeal will be

sustained and the record will be remanded for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of the Philippines who was

admitted to the United States as a lawful permanent resident in August

1997. On October 17, 2003, he was convicted in the District Court for

Clark County, Nevada, of attempted forgery in violation of sections

193.330, 205.090, and 205.110 of the Nevada Revised Statutes. On

February 22, 2010, he was also convicted of attempted possession of a

stolen vehicle in violation of sections 193.330 and 205.273 of the Nevada

Revised Statutes.
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Before the Immigration Judge, the respondent conceded that he is

removable under section 237(a)(2)(A)(ii) of the Act, but he denied the

charge under section 237(a)(2)(A)(iii) that he was convicted of an

aggravated felony. The Immigration Judge found the respondent

removable as charged and ordered him removed from the United States to

the Philippines.

For the reasons that follow, we conclude that attempted possession of

a stolen vehicle under the Nevada statute is not categorically an aggravated

felony under sections 101(a)(43)(G) and (U) of the Act, 8 U.S.C.

§§ 1101(a)(43)(G) and (U) (2012). We will therefore sustain the

respondent’s appeal in part and remand the record to the Immigration Judge

for further proceedings.

II. ISSUE

The question in this case is whether the offense of attempted possession

of a stolen vehicle in violation of sections 193.330 and 205.273 of

the Nevada Revised Statutes categorically qualifies as a “theft offense

(including receipt of stolen property)” within the meaning of sections

101(a)(43)(G) and (U) of the Act.

III. ANALYSIS

The respondent argues that the offense of attempted possession of a

stolen vehicle under Nevada law is not an aggravated felony because it does

not meet the generic definition of attempt to receive stolen property. In

particular, he claims that the Nevada statute criminalizes possession of a

stolen vehicle with the mens rea of a “reason to believe” that the vehicle

has been stolen, which is not sufficient to establish that the crime is a theft

offense.

The respondent pled guilty to attempted possession of a stolen vehicle

under section 205.273 of the Nevada Revised Statutes, which, at the time of

his offense, stated the following in pertinent part:

(1) A person commits an offense involving a stolen vehicle if the person:

(a) With the intent to procure or pass title to a motor vehicle which he knows or

has reason to believe has been stolen, receives or transfers possession of the vehicle

from or to another person; or

(b) Has in his possession a motor vehicle which he knows or has reason to

believe has been stolen.

Nevada has specifically provided by statute that a person can be

convicted of possession of stolen property without actual knowledge of its

stolen nature if it is shown that the property was possessed “[u]nder such
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circumstances as should have caused a reasonable person to know that it

is stolen property.” Nev. Rev. Stat. Ann. § 205.275(1)(b) (West 2013);

see also Gray v. State, 688 P.2d 313, 314 (Nev. 1984).

Assuming, without deciding, that section 205.273 of the Nevada

Revised Statutes is a divisible statute, a modified categorical approach does

not resolve the question before us, since the record of conviction does not

establish whether the respondent was convicted under the “knowing” or

“reason to believe” portion of the statute. We are therefore presented with

a pure question of law, that is, whether a person convicted under Nevada

law of attempted possession of a stolen motor vehicle under either

prescribed mental state with regard to the stolen character of the property

has been convicted of an aggravated felony “theft offense (including receipt

of stolen property)” within the meaning of sections 101(a)(43)(G) and (U)

of the Act.

In Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000), we addressed

whether a similar offense under Nevada law, attempted possession of stolen

property in violation of sections 193.330 and 205.275, was an aggravated

felony under sections 101(a)(43)(G) and (U) of the Act. The focus of our

inquiry in that decision was not on the applicable mens rea but rather on the

issue raised, which was whether the reference to “receipt of stolen property”

in section 101(a)(43)(G) was intended to encompass a broad range of

offenses “involving knowing receipt, possession, or retention of property

from its rightful owner.” Id. at 1391. We concluded that the reference was

intended to clarify that the term “theft” was not being used in its limited

traditional sense to require proof that the offender was involved in the

actual taking of the property at issue. Id. at 1390. We therefore held that

the parenthetical was intended to include the category of offenses involving

knowing receipt, possession, or retention of property from its rightful

owner. Id. at 1391.

Because our focus in Matter of Bahta was on the alien’s contentions in

that case, which sought to place a limiting construction on the scope of the

term “receipt,” we did not fully consider the question raised here involving

the necessary mens rea for an offense to qualify as an aggravated felony

“theft offense (including receipt of stolen property)” under section

101(a)(43)(G) of the Act. In any event, the United States Court of Appeals

for the Ninth Circuit, in whose jurisdiction this case arises, has

subsequently decided cases that we find are now controlling on this issue.

Based on those intervening decisions, we hold that under the law of the

Ninth Circuit, the mental state of “reason to believe” in section 205.273(1)

is insufficient for attempted possession of a stolen motor vehicle in

violation of the Nevada statute to qualify categorically as an aggravated

felony “theft offense (including receipt of stolen property).”
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The generic definition of a theft offense requires that the exercise of

control over stolen property be “with the criminal intent to deprive the

owner of rights and benefits of ownership, even if such deprivation is less

than total or permanent.” United States v. Corona-Sanchez, 291 F.3d 1201,

1205 (9th Cir. 2002) (en banc) (quoting Hernandez-Mancilla v. INS, 246

F.3d 1002, 1009 (7th Cir. 2001)) (internal quotation mark omitted),

superseded on other grounds by U.S. Sentencing Guidelines Manual

§ 2L1.2, cmt. n.4 (2002); see also Matter of Garcia-Madruga, 24 I&N Dec.

436, 438 (BIA 2008) (citing Matter of V-Z-S-, 22 I&N Dec. 1338, 1346

(BIA 2000)).

In Matter of Cardiel, 25 I&N Dec. 12 (BIA 2009), we determined that

receipt of stolen property in violation of section 496(a) of the California

Penal Code was categorically a “theft offense (including receipt of stolen

property)” under section 101(a)(43)(G) of the Act. The California statute

required that the offender received the property “knowing” that it was

stolen or obtained by theft or extortion. We concluded that under the

prevailing circuit law, although the intent to deprive was not explicitly

stated in the California statute, it was implicit or properly inferred from the

requisite scienter of knowledge in the context of a receipt offense. Id. at

24−25; see also Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1061 (9th Cir.

2009) (reaffirming that a theft offense must contain the element of criminal

intent to deprive the owner of rights and benefits of ownership in finding

that the knowing receipt of stolen property under section 496(a) of the

California Penal Code was an aggravated felony).

In this regard, we cited Randhawa v. Ashcroft, 298 F.3d 1148, 1154

(9th Cir. 2002), where the Ninth Circuit held that a conviction under

18 U.S.C. § 1708 for “knowing” possession of stolen mail inferentially

contained the element of an intent to deprive the true owner of the rights

and benefits of ownership of the mail. According to the court,

To be guilty of possession of stolen mail . . . , a hypothetical offender must know that

the mail is stolen. From this knowledge, we infer the requisite criminal intent under

our generic definition; an individual who possesses mail he or she knows to be stolen

necessarily intends to deprive the mail’s true owner of his or her rights and benefits

of ownership.

Id.; cf. Burke v. Mukasey, 509 F.3d 695 (5th Cir. 2007) (holding that the

“knowing” possession of stolen property under New York law qualifies as

an aggravated felony). The Ninth Circuit has also found that there was no

conviction for an aggravated felony theft offense under a similar Arizona

law in the absence of a showing of knowledge in Huerta-Guevara

v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003), stating that it could not “tell

from the mere fact of Huerta’s conviction for possession of a stolen vehicle
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that she knew the vehicle was stolen or that the vehicle was taken or control

was exercised with the requisite criminal intent.”

Unlike the California statute in Cardiel, a conviction will lie under the

Nevada statute where the offender only has a “reason to believe” that the

property possessed was stolen. No valid inference may be drawn that the

offender intended to deprive the true owner of the rights and benefits of

ownership where he was not actually aware of the stolen character of the

item received but merely should have been aware of that fact from the

circumstances. We note in this regard that the “reason to believe” standard

is something different from, and less than, knowledge, as Nevada has

expressly provided by statute. Nev. Rev. Stat. Ann. § 205.275(1)(a)−(b)

(stating that a person commits an offense involving possession of stolen

property if he possesses it knowing that it is stolen property or under

circumstances that should have caused a reasonable person to know that it

was stolen). Otherwise, the phrase “reason to believe” in section 205.273

would be superfluous. See, e.g., United States v. Kaur, 382 F.3d 1155,

1157 (9th Cir. 2004).

Given the controlling law of the Ninth Circuit, we conclude that a

mental state of “reason to believe” is insufficient to establish that the crime

of attempted possession of a stolen motor vehicle in violation of the Nevada

statute is categorically an aggravated felony “theft offense (including

receipt of stolen property)” within the meaning of sections 101(a)(43)(G)

and (U) of the Act.1In view of this determination, we need not address the

respondent’s other arguments on appeal.

Finally, the respondent has filed a motion asserting that he is a

derivative United States citizen because his mother has naturalized. On

remand, the Immigration Judge should address the respondent’s claim of

derivative citizenship, including making any necessary findings of fact.

Accordingly, the respondent’s appeal will be sustained in part, the

Immigration Judge’s order will be vacated, and the record will be remanded

for further proceedings.

ORDER: The appeal is sustained in part and the Immigration Judge’s

order of removal is vacated.

1 However, we reserve the question of what Congress meant by the term “receipt of

stolen property” in section 101(a)(43)(G) of the Act for a future case where circuit law

does not dictate that such an offense requires a showing that the actor had an intent

to deprive the owner of his property. We note that our survey of receipt of stolen

property statutes reveals that many State statutes included a “reason to believe” standard

at the time Congress enacted section 101(a)(43)(G) in 1994, although most Federal

statutes did not. See Taylor v. United States, 495 U.S. 575 (1990).
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FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with the foregoing opinion and for

the entry of a new decision.