Interim Decision #3437

In re Awat Mengisteab BAHTA, Respondent

File A25 305 035 - Eloy

Decided October 4, 2000

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The respondent’s conviction for attempted possession of stolen property, in violation of

sections 193.330 and 205.275 of the Nevada Revised Statutes, is a conviction for an attempted “theft offense (including receipt of stolen property),” and therefore an aggravated felony,

within the meaning of sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act,

8 U.S.C. §§ 1101(a)(43)(G) and (U) (Supp. IV 1998).

(2) The Immigration and Naturalization Service retains prosecutorial discretion to decide

whether or not to commence removal proceedings against a respondent subsequent to the

enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Division C of Pub. L. No. 104-208, 110 Stat. 3009-546.

Jason R. Bartlett, Esquire, Phoenix, Arizona, for respondent

Carmel J. Fisk, Assistant District Counsel, for the Immigration and Naturalization Service

Before: Board En Banc: DUNNE, Vice Chairman; SCIALABBA, Vice Chairman; HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, JONES, GRANT, and

MOSCATO, Board Members. Dissenting Opinion: ROSENBERG, Board

Member, joined by SCHMIDT, Chairman; VILLAGELIU, GUENDELSBERGER,

and MILLER, Board Members.1

HOLMES, Board Member:

The Immigration and Naturalization Service appeals from an Immigration

Judge’s July 1, 1999, decision, which found that the respondent’s conviction

for attempted possession of stolen property was not a conviction for an aggravated felony and terminated removal proceedings. The appeal will be sustained, and the record will be remanded for further proceedings. 

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1

Fred W. Vacca, Board Member, participated in the deliberations concerning this case,

but retired prior to the issuance of the final decision. Noel A. Brennan, Cecelia M. Espenoza,

and Juan P. Osuna, Board Members, did not participate in this decision.
Interim Decision #3437

I. ISSUE ON APPEAL

The issue in this case is whether the respondent’s Nevada conviction for

attempted possession of stolen property is a conviction for an attempted

“theft offense (including receipt of stolen property)” within the definition of

an aggravated felony set forth in section 101(a)(43)(G) of the Immigration

and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (Supp. IV 1998).

II. FACTS

The Service charged that the respondent is subject to removal from the

United States under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. §

1227(a)(2)(A)(iii) (Supp. IV 1998), as an alien convicted of an aggravated

felony. The charge was based on the respondent’s February 6, 1997, conviction for attempted possession of stolen property, in violation of sections

193.330 and 205.275 of the Nevada Revised Statutes, for which he received

a suspended 36-month sentence to confinement. The Immigration Judge

determined that this conviction was not a conviction for an aggravated

felony as that term is defined in section 101(a)(43)(G) of the Act, because

it failed to “establish the elements of 18 U.S.C. § 2315,” a federal provision

criminalizing sale or receipt of stolen goods. Accordingly, the Immigration

Judge terminated the proceedings. The Service appealed from this decision. 

III. THEFT (INCLUDING RECEIPT OF STOLEN PROPERTY)

A. Relevant Authority

The Nevada “Buying or Receiving Stolen Goods” criminal provision

under which the respondent was convicted provides, in pertinent part, as

follows:

Offense involving stolen property: Definition; penalty; restitution; prima facie evidence; determination of value of property.

1. A person commits an offense involving stolen property if the person, for his own

gain or to prevent the owner from again possessing his property, buys, receives, pos1382

2

The Immigration Judge also terminated the proceedings on the ground that the Service

failed to demonstrate that the respondent’s refugee status had been terminated after notice

and hearing. The record indicates, however, that the respondent adjusted his status to that of

a lawful permanent resident on November 4, 1982. The respondent’s former status as a

refugee, therefore, does not provide a basis for terminating the proceedings. 
Interim Decision #3437

sesses or withholds property:

(a) Knowing that it is stolen property; or

(b) Under such circumstances as should have caused a reasonable person to know that

it is stolen property.

Nev. Rev. Stat. § 205.275(1) (1997) (emphasis added).3

Section 101(a)(43)(G) of the Act classifies as an aggravated felony “a

theft offense (including receipt of stolen property) or burglary offense for

which the term of imprisonment [is] at least 1 year.” (Emphasis added.)

B. Arguments on Appeal

The Service argues on appeal that a state offense need not necessarily

match the elements of an analogous federal offense to be adjudged an

aggravated felony under section 101(a)(43) of the Act. Although some of

the subdivisions of the aggravated felony definition specifically refer to federal definitions of offenses, the Service notes that the description of theft

and burglary offenses at section 101(a)(43)(G) contains no explicit reference to a federal definition or statute. The Service argues that the term

“theft” has been broadly construed under Nevada law and the law of other

jurisdictions to include both receipt and possession of stolen property. The

Service notes further that the definitions in section 101(a)(43) apply to an

offense “whether in violation of Federal or State law.” Section 101(a)(43)

of the Act. 

The respondent contends that his Nevada conviction for attempted possession of stolen property is not an aggravated felony under section

101(a)(43)(G) because it does not satisfy a uniform federal definition of that

crime, as embodied in an analogous federal statute, 18 U.S.C. § 2315

(1994). He also argues that his conviction is not for an aggravated felony

because possession of stolen property is not a “theft offense” and falls short

of “receipt of stolen property.”

The respondent acknowledges that some state criminal codes now

include all receipt and possession offenses under the broad heading of “theft

offenses,” but he argues that we should read the parenthetical, “including

receipt of stolen property,” as an indication that Congress drew the line on

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The respondent was convicted of an attempt offense under section 193.330 of the

Nevada Revised Statutes, which provides that “(a)n act done with the intent to commit a

crime, and tending but failing to accomplish it, is an attempt to commit that crime.” Nev. Rev.

Stat. § 193.330 (1997). The respondent’s failure to accomplish the possession does not affect

his status as an aggravated felon, as section 101(a)(43)(U) of the Act provides that “an attempt

or conspiracy to commit an offense described in this paragraph” constitutes an aggravated

felony. 
Interim Decision #3437

aggravated felony theft offenses at receipt of stolen property as that offense

has historically been defined. 

The respondent notes that receipt of stolen property has been distinguished from possession of stolen property, in that the receipt offense generally required proof that the perpetrator had knowledge, at the time of

receipt, that the property was stolen. See, e.g., Lewis v. Hudspeth, 103 F.2d

23 (10th Cir. 1939) (stating that different proof is required to convict under

former 18 U.S.C. § 101 depending upon whether the charge was for retaining stolen property or receiving and concealing stolen property); People v.

Allen, 96 N.E.2d 446 (Ill. 1950) (noting that a conviction for receiving

stolen property requires proof that the receiver knew the property was stolen

at the time he received it); see also Williams v. State, 154 S.W.2d 809 (Ark.

1941); State v. Lisena, 30 A.2d 593 (N.J. 1943); Reade v. State, 236 S.W.2d

798 (Tex. Crim. App. 1951). The respondent raises two additional constitutional arguments, to “preserve them, if necessary, for appeals.”

C. Discussion

The issue in this case turns on the meaning of the phrase, “a theft

offense (including receipt of stolen property)” in section 101(a)(43)(G) of

the Act. Does inclusion of the parenthetical mean, as the respondent argues,

that Congress only intended to include within the scope of theft offenses a

receipt of stolen property crime that meets the historical elements of that

distinct offense? Or is the parenthetical properly read as incorporating into

the term “theft” the more contemporary understanding of “receipt of stolen

property” offenses?

The respondent pled guilty to “attempt[ed] possession of stolen property.” In so doing, he admitted the charges in Count II of his Criminal

Complaint, that he attempted “wilfully, unlawfully, and feloniously, for his

own gain, [to] possess property [he] . . . knew, or had reason to believe, had

been stolen.” Although the Nevada statute defines four ways in which the

section 205.275 offense may be committed (i.e., buying, receiving, possessing, or withholding), the respondent was charged and convicted only of

attempted possession.4

The respondent argues that a federal uniform standard should be

applied in determining whether a conviction is for a “theft offense” under

section 101(a)(43)(G) of the Act. In this regard, he urges that we recognize the elements of the federal statute at 18 U.S.C. § 2315 as the bench1384

4

An understandable line can be drawn, in an historical sense, between the offense of possession of stolen property and the offense of receipt of stolen property. It is more difficult to

comprehend an attempt to possess stolen property that would not also be an attempt to receive

such property. 
Interim Decision #3437

mark for identifying theft offenses under section 101(a)(43)(G). Section

2315 provides, in pertinent part, punishment for anyone who “receives,

possesses, conceals, stores, barters, sells, or disposes of any goods, wares,

or merchandise, securities, or money of the value of $5,000 or more, . . .

knowing the same to have been stolen, unlawfully converted, or taken.”

18 U.S.C. § 2315.

The respondent identifies two differences in the elements that are

required for a conviction under section 205.275 of the Nevada Revised

Statutes and for a conviction under 18 U.S.C. § 2315. Under the federal

statute, an individual may be convicted of felony possession of stolen property only if the property is worth more than $5,000; under the Nevada

statute, the stolen goods must only be worth more than $2,500. In addition,

the federal statute requires actual knowledge, whereas the Nevada statute

requires either actual knowledge or evidence demonstrating that a reasonable person would have realized that the goods had been stolen. Because of

such differences, the respondent argues that the Nevada statute under which

he was convicted falls short of the federal standard for a “theft offense” as

defined in section 101(a)(43)(G) of the Act.

We have recognized the importance of a categorical approach to

defining crimes constituting aggravated felonies in order to assure uniform treatment from state to state. See, e.g., Matter of K-V-D-, 22 I&N

Dec. 1163 (BIA 1999); Matter of L-G-, 21 I&N Dec. 89 (BIA 1995). We

do not find, however, that 18 U.S.C. § 2315 provides a definitive benchmark for determining the scope of what constitutes a “theft offense”

under section 101(a)(43)(G). Unlike some provisions of section

101(a)(43) that refer to federal statutes in defining particular crimes as

aggravated felonies, section 101(a)(43)(G) contains no reference to 18

U.S.C. § 2315 or to any other federal statutory provision defining the

term “theft.” In our recent decision in Matter of Rodriguez-Rodriguez,

22 I&N Dec. 991 (BIA 1999), we noted that, in defining the term “sexual abuse of a minor,” “we are not obliged to adopt a federal or state

statutory provision.” Id. at 5. 

The aggravated felony provision at issue in Matter of RodriguezRodriguez, like the one in this case, contains no explicit reference to a federal provision. In that case, we looked to the relevant provisions of federal

law “as a guide in identifying the types of crimes we would consider to be

sexual abuse of a minor.” Id. Similarly, although we may look in this case

to 18 U.S.C. § 2315 for some guidance as to the types of crimes that are

theft offenses or receipt of stolen property offenses, we do not find that the

monetary amounts or the particulars of the knowledge requirement set forth

in that federal statute were meant to be incorporated into the definition of a

“theft offense” in section 101(a)(43)(G) of the Act.5 These differences

between 18 U.S.C. § 2315 and the pertinent Nevada state law do not resolve

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Interim Decision #3437

the issue before us.

The determinative issue in this case is whether the respondent’s state

conviction for attempted possession of stolen property is a “theft offense”

as defined in section 101(a)(43)(G). See Matter of Sweetser, 22 I&N Dec.

709 (BIA 1999); see also Matter of Rodriguez-Rodriguez, supra. We find

that a review of the categorization of theft offenses that appears in the

United States Code, the various state codes, and the Model Penal Code provides guidance to the most reasonable reading of the phrase “theft offense

(including receipt of stolen property)” in section 101(a)(43)(G) of the Act.

1. Theft and Receiving Stolen Property as a Federal Offense

There are various federal criminal provisions relating to theft and stolen

property, which are principally included in Chapter 31 (“Embezzlement and

Theft”) and Chapter 113 (“Stolen Property”) of Title 18 of the United

States Code.

Section 641 of Chapter 31 makes it a criminal offense to embezzle,

steal, purloin, or knowingly convert United States Government property or

to receive, conceal, or retain the same with intent to convert it to one’s own

gain. 18 U.S.C. § 641 (1994).6 Retention of stolen Government property is

an offense under this theft provision. 

Section 662 of Chapter 31, entitled “Receiving stolen property within special

maritime and territorial jurisdiction [of the United States],” provides as follows:

Whoever, within the special maritime and territorial jurisdiction of the United States,

buys, receives, or conceals any money, goods, bank notes, or other thing which may

be the subject of larceny, which has been feloniously taken, stolen, or embezzled, from

any other person, knowing the same to have been so taken, stolen, or embezzled, shall

[be subject to penalty].

18 U.S.C. § 662 (Supp. II 1996). Thus, buying, receiving, and concealing

stolen property all are offenses under section 662, but neither possession

nor retention of such property is a proscribed offense. Id.

As noted, Chapter 113 of the United States Code sets out various federal “stolen property” offenses. Section 2313 of Title 18, entitled “Sale or

receipt of stolen vehicles,” applies to the following:

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5

We note that the actual knowledge requirement in 18 U.S.C. § 2315 may be established

by circumstantial evidence. See Pearson v. United States, 192 F. 2d 681 (6th Cir. 1951). 6

This section “was enacted in 1948, as a consolidation of four former sections of Title

18, . . . which in turn were derived from two sections of the Revised Statutes.” Morissette v.

United States, 342 U.S. 246, 265 (1952). Morissette includes a discussion of some of the legislative history of section 641 and its antecedents, and notes in part as follows: “The history

of § 641 demonstrates that it was to apply to acts which constituted larceny or embezzlement

at common law and also acts which shade into those crimes but which, most strictly considered, might not be found to fit their fixed definitions.” Id. at 266 n.28.
Interim Decision #3437

Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any motor

vehicle or aircraft, . . . knowing the same to have been stolen. 

18 U.S.C. § 2313(a) (1994). Possession of stolen vehicles was added in

1984 to the list of offenses in section 2313 by section 203 of the Motor

Vehicle Theft Law Enforcement Act of 1984, Pub. L. No. 98-547, 99 Stat.

2754, 2770.7 Section 203, which inserted “possesses” after “receives” in 18

U.S.C. § 2313, was captioned “Sale or receipt of stolen motor vehicles.” Id.

Thus, this “sale or receipt” section of Title 18 includes within its scope the

possession, concealment, and storage of stolen vehicles. Moreover, the section was amended in 1984 in a manner that reflects that Congress has used

the term “receipt” of stolen property in a generic sense to include a broader category of offenses than “receipt of stolen property” in its narrowest historical meaning. 

Similarly, section 2315 of Title 18, entitled “Sale or receipt of stolen

goods, securities, moneys, or fraudulent State tax stamps,” applies to the

following:

Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any goods,

wares, or merchandise, securities, or money of the value of $5,000 or more, . . . knowing the same to have been stolen, unlawfully converted, or taken.

18 U.S.C. § 2315 (1994). Possession of stolen goods was added in 1986 to

the list of offenses in section 2315. See Criminal Law and Procedure

Technical Amendments Act of 1986, Pub. L. No. 99-646, § 76, 100 Stat.

3592, 3618. 

The respondent argues that the fact that possession of stolen property

was added to 18 U.S.C. § 2315 in 1986 reflects that Congress understood

the distinction between receipt and possession of stolen property. He further asserts that this supports the view that the distinction was intended to

be carried forward in the parenthetical that appears in section

101(a)(43)(G) of the Act. We find, however, that the inclusion of “possession,” along with “concealment” and “storage,” in federal “receipt” of

stolen property provisions instead supports the view that Congress has

understood and used the term “receipt” in a broader sense than that propounded by the respondent.8

.

The federal provisions defining theft and receipt of stolen property do

not provide a conclusive answer regarding the intended scope of the

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This amendment may have been a response to court decisions holding that a conviction

for receipt of stolen property would require proof of knowledge at the time of receipt that the

property was stolen. See, e.g., United States v. Strauss, 678 F.2d 886, 891 n.8 (11th Cir. 1982),

and cases cited therein.
Interim Decision #3437

“receipt of stolen property” parenthetical in section 101(a)(43)(G) of the

Act. On the one hand, 18 U.S.C. § 662, entitled “Receiving stolen property,” references only receipt and concealment offenses, but not the possession or retention of stolen property. On the other hand, the remaining principal federal stolen property offenses reflect a broader understanding of

“theft” and “receipt” of stolen property crimes, and the amendments to 18

U.S.C. §§ 2313 and 2315 indicate an intent to include possession offenses

within the scope of criminal provisions designated as “receipt” of stolen

property offenses. Examination of the Model Penal Code and various state

law provisions provides additional guidance. 

2. Theft and Receiving Stolen Property Under the

Model Penal Code and State Law

The Model Penal Code provides a useful summary of recent developments in the treatment by the states of theft and related offenses and receipt

and possession of stolen property offenses. See Model Penal Code and

Commentaries pt. II, art. 223 (1980) (entitled “Theft and Related

Offenses”). Section 223.6 of the Model Penal Code categorizes “Receiving

Stolen Property” as a theft offense and defines it as follows:

Receiving. A person is guilty of theft if he purposely receives, retains, or disposes of

movable property of another knowing that it has been stolen, or believing that it has

probably been stolen, unless the property is received, retained, or disposed with purpose to restore it to the owner. “Receiving” means acquiring possession, control or

title, or lending on the security of the property.

Model Penal Code § 223.6(1) (emphasis added). The Model Penal Code

defines “receiving” to include “the retention of possession” of stolen property. Model Penal Code § 223.6, cmt. 2, at 235. A person “who receives

without knowledge that the goods were stolen but who, upon learning of

their status, nevertheless resolves to keep or sell them” has committed the

offense of receiving stolen property. Id.

The Model Penal Code commentary notes that receiving stolen property was traditionally treated as an offense distinct from theft offenses such as

larceny, embezzlement, and false pretenses, which involved the notion of a

“trespass” against another’s possession. A mere receiver of property wrongfully taken from its owner was not the trespasser and therefore not punishable for theft. The Model Penal Code, for both practical and analytical reasons, rejects the traditional “trespass” approach to defining theft offenses.

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See also 18 U.S.C. § 2317 (1994), entitled “Sale or receipt of livestock,” which provides as follows: “Whoever receives, conceals, stores, barters, buys, sells, or disposes of any

livestock, . . . knowing the same to have been stolen, shall [be subject to penalty].”
Interim Decision #3437

Analytically, “theft” involves the exercise of unlawful control over the property of another with a purpose to deprive. Such control can be exercised

whether the taking is directly from the owner or the property is received

from another who carried out the taking. In practice, it is often difficult to

differentiate between the closely related activities of stealing and receiving.

For this reason, the modern approach has been to consolidate receiving

stolen property offenses with other forms of theft, as traditional acquisitive

offenses have been consolidated into more broadly defined “theft” offenses.9 Model Penal Code art. 223, introductory note, at 122; id. § 223.6, cmt.

1, at 232.10

Many states have enacted receipt of stolen property statutes reflecting

the approach of the Model Penal Code. These provisions, like the Nevada

statute at issue in this case, generally include as prohibited conduct knowing receipt and knowing possession of stolen property and employ such

terms as buying, selling, concealing, retaining, or withholding in describing

offenses involving stolen property. Although, technically, such a statute

might be read to distinguish a receipt offense from a retention or possession

offense, the essential elements of both are control over property, knowledge

that the property has been stolen, and lack of intent to restore the property

to its owner. Punishment is the same whether the conviction is for receipt,

possession, or one of the other offenses typically included in the list of prohibited acts. 

Some states have used the term “possession of stolen property” to

encompass receiving stolen property and related offenses. The State of

Washington, for example, defines “possessing stolen property” to include

“knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same

to the use of any person other than the true owner or person entitled thereto.” Wash. Rev. Code Ann. § 9A.56.140 (West 1999) (emphasis added).

New York appears to have encompassed all receipt and similar offenses

under the prohibition against “criminal possession of stolen property.” N.Y.

Penal Law §§ 165.40, 165.45, 165.50, 165.52, 165.54 (McKinney 1999). 

Other states continue to distinguish between receipt and possession

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This “modern” approach of consolidating traditional acquisition and related offenses is

reflected in 18 U.S.C. § 641. 10Black’s Law Dictionary also broadly defines the term “theft,” as follows:

Theft is any of the following acts done with intent to deprive the owner permanently

of the possession, use or benefit of his property: (a) Obtaining or exerting unauthorized control over property; or (b) Obtaining by deception control over property; or (c)

Obtaining by threat control over property; or (d) Obtaining control over stolen property knowing the property to have been stolen by another.

Black’s Law Dictionary 1477 (6th ed. 1990).
Interim Decision #3437

offenses. In North Carolina, for example, the offenses are set forth in two

separate provisions of the criminal statute. See N.C. Gen. Stat. §§ 14-71,

14-71.1 (1999). The North Carolina Supreme Court has noted that

“[a]lthough at first glance possession may seem to be a component of

receiving, it is really a separate and distinct act.” State v. Davis, 275 S.E.2d

491, 494 (N.C. 1981) (finding that a possession offense is not a lesser

included offense of receipt of stolen property, but a separate offense).

Nonetheless, under North Carolina law, the receipt and possession crimes

punish essentially the same offenses and apply the same penalties.

As expressed in the Model Penal Code, however, the predominant modern view is that the term “receiving stolen property” is now used in a generic sense to encompass a number of closely related offenses, including the

knowing possession, retention, withholding, or concealing of property with

knowledge that it has been stolen.

IV. CONCLUSION

We find that the “receiving stolen property” parenthetical in section

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

First, the modern view of theft generally treats as equivalent those who

knowingly receive and those who knowingly possess stolen property. The

commentaries to the Model Penal Code explain that whether the term used

is receiving, possessing, buying, or concealing, “[i]t seems clear that the

essential idea behind these and other terms is acquisition of control,

whether in the sense of physical dominion or of legal power to dispose.”

Model Penal Code § 223.6, cmt. 2, at 235. Accordingly, the Model Penal

Code definition of “receiving” is “broad” and includes “the retention of possession [of stolen property].” Id. Moreover, under the Model Penal Code,

one “is guilty of theft if he ‘receives, retains, or disposes of movable property of another’ with the requisite culpability.” Id. cmt. 1, at 234. Second,

nearly all of the federal “receipt” of stolen property provisions reflect an

application of this well-understood meaning of “receiving” stolen property

and include “possession” offenses within their scope. Finally, the focus is

not just on the parenthetical in section 101(a)(43)(G) of the Act, but also on

whether an offense is a “theft” offense within this provision. To read the

parenthetical in the restricted manner urged by the respondent and the dissent would be to assume that Congress intended to apply a technical distinction within the “theft” definition set forth in section 101(a)(43)(G) that

is inconsistent both with the modern view of “theft” offenses and with the

consolidation and definition of theft and related offenses in Chapters 31 and

113 of Title 18 of the United States Code.

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We conclude that the reference to “receipt of stolen property” in section

101(a)(43)(G) of the Act was intended in a generic sense to include the category of offenses involving knowing receipt, possession, or retention of

property from its rightful owner. See Matter of Rodriguez-Carrillo, Interim

Decision 3413 (BIA 1999). The respondent’s conviction for attempted possession of stolen property is therefore an attempted theft offense under sections 101(a)(43)(G) and (U) of the Act. Accordingly, we find the respondent

subject to removal as charged and remand the record to the Immigration

Judge to allow the respondent to apply for any form of relief from removal

for which he may be eligible.

V. THE SERVICE’S PROSECUTORIAL DISCRETION

We address one final matter. The respondent has not raised the issue of

prosecutorial discretion in this case. This is understandable as it has long

been held that neither an Immigration Judge nor this Board may review a

decision by the Service to institute deportation or removal proceedings. See

Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998); see also Matter of U-M-,

20 I&N Dec. 327, 333 (BIA 1991); Matter of Ramirez-Sanchez, 17 I&N

Dec. 503 (BIA 1980); Matter of Marin, 16 I&N Dec. 581 (BIA 1978);

Matter of Geronimo, 13 I&N Dec. 680 (BIA 1971). We briefly address this

issue only to note that there should be no question that, in fact, the Service

still has prosecutorial discretion, which includes the discretion to address

the equities of individual cases in a manner that the rigid application of a

broadly drawn statute often will not allow. 

In this regard, in restricting the judicial review of “the decision or

action by the Attorney General to commence proceedings,” Congress made

clear in section 242(g) of the Act, 8 U.S.C. § 1252(g) (Supp. IV 1998), that

such prosecutorial discretion still exists. Moreover, the United States

Supreme Court recently reaffirmed the Service’s continuing prosecutorial

discretion, including the discretion to decline to institute proceedings “for

humanitarian reasons or simply for its own convenience.” Reno v. ArabAmerican Committee, 525 U.S. 471, 484 (1999). And, in response to a

jointly posed question by 24 members of the United States Congress

whether the Service believed that the 1996 amendments to the Act eliminated this discretion, the Assistant Attorney General of the United States,

Office of Legislative Affairs, responded that the Service’s fundamental

authority to exercise prosecutorial discretion to decide whether or not to

commence removal proceedings was not altered by enactment of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Division C

of Pub. L. No. 104-208, 110 Stat. 3009-546. The Assistant Attorney General

recognized further that, in view of the expanded classifications of criminal

aliens for whom no statutory relief from removal exists, the exercise of such

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discretion can be “the only means for averting the extreme hardship associated with certain removal cases.” Letter from Robert Raben, Assistant

Attorney General, Office of Legislative Affairs, to Congressman Barney

Frank (Jan. 19, 2000), reprinted in 77 Interpreter Releases, No. 7, Feb. 14,

2000, app. I, at 217-20.

We do not raise this issue to suggest that the exercise of such discretion

was or is warranted in this case. We lack jurisdiction over this issue and, in

any event, the record before us is far from complete. The Service may

choose to further examine this issue on remand. However, there should be

no question within the Service that prosecutorial discretion, and its important concomitant responsibilities, continues to exist. 

ORDER: The appeal of the Immigration and Naturalization Service

is sustained.

FURTHER ORDER: The decision of the Immigration Judge dated

July 1, 1999, is vacated, and the record is remanded to the Immigration Court

for further proceedings consistent with the foregoing decision.

DISSENTING OPINION: Lory Diana Rosenberg, Board Member, in which

Paul W. Schmidt, Chairman; Gustavo D. Villageliu, John Guendelsberger,

and Neil P. Miller, Board Members, joined 

I respectfully dissent.

The majority’s interpretation of “theft offense (including receipt of

stolen property)” under section 101(a)(43)(G) of the Immigration and

Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (Supp. IV 1998), erroneously

treats any conviction relating to stolen property as a theft offense. Although

the majority attempts to equate the respondent’s conviction for attempted

possession of stolen property with a conviction for receipt of stolen property, such an equation is contrary to the plain language used by the United

States Congress in the Act and amounts to an impermissible interpretation

of the statute.

The plain meaning of the term “receipt” establishes that it means something different from the term “possession.” Likewise, the crime of “receipt

of stolen property” is distinct from the crime of “possession of stolen property.” “Where the plain meaning of a provision is unambiguous that meaning is controlling, except in the ‘“rare case [in which] the literal application

of a statute will produce a result demonstrably at odds with the intentions

of the drafters.”’” Almero v. INS, 18 F.3d 757, 760 (9th Cir. 1994) (quoting

United States v. Ron Pair Enter., Inc., 489 U.S. 235, 241 (1989) (quoting

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982))). 

The majority reviewed several federal statutes, but found that none provided “a conclusive answer” as to whether a state conviction for possession

of stolen property is a “theft offense” as defined in the Act. The majority

looked to the Model Penal Code, but found no authority for the conclusion

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that all cases of possession of stolen property necessarily constitute receiving stolen property or theft. The majority also found that while some states

apparently bundle together the offenses of receiving, retaining, possessing,

concealing, or disposing of stolen property, others expressly distinguish

possessing stolen property. 

In short, the majority was unable to posit any conclusive authority for

its holding that the respondent’s conviction for attempted possession of

stolen property constitutes a conviction for a “theft offense (including

receipt of stolen property)” under section 101(a)(43)(G) of the Act. For the

reasons discussed below, I find the majority’s holding precipitous and

unsupported either by the statute or by relevant authority addressing theft

offenses. 

I. LEGAL AND PROCEDURAL BACKGROUND

The respondent was admitted to the United States as a refugee from

Ethiopia (now Eritrea) when he was 4 years old. He has been a lawful permanent resident of the United States for 18 years, since November 4, 1982.

He was convicted on February 6, 1997, pursuant to a plea bargain entered

on April 11, 1996, of attempted possession of stolen property under sections

205.275 (referring to stolen property) and 193.330 (referring to attempts) of

the Nevada Revised Statutes. Specifically, the respondent was found guilty

of an attempt “wilfully, unlawfully . . ., for his own gain, [to] possess property . . . [he] knew, or had reason to believe, had been stolen.”

The Immigration Judge terminated the removal proceedings that had

been initiated by the Immigration and Naturalization Service. In terminating proceedings, the Immigration Judge looked to 18 U.S.C. § 2315 (1994)

and concluded that, measured against this possible federal counterpart, the

respondent’s state conviction for attempted possession of stolen property

did not constitute a theft offense under section 101(a)(43)(G) of the Act. 

The Service appealed. To prevail on appeal, the Service must establish that the Immigration Judge erred in concluding that it failed to prove

that the respondent is removable, and must establish further that the evidence supports the conclusion that the respondent is removable as

charged. See section 240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A)

(Supp. IV 1998) (imposing on the Service the burden of proof in removal

proceedings involving a lawfully admitted alien); 8 C.F.R. § 240.8(a)

(2000). In other words, there must be clear and convincing evidence in

the record that the respondent’s conviction under Nevada law constitutes

a theft offense. See section 240(c)(3)(A) of the Act. 

II. STATUTORY INTERPRETATION OF “THEFT OFFENSE 

(INCLUDING RECEIPT OF STOLEN PROPERTY)”

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Our task is to give effect to Congress’ intent in enacting the phrase

“(including receipt of stolen property)” in section 101(a)(43)(G) of the Act.

It is not to legislate where Congress has declined to do so. See Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-

43 (1984); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12 (1987)

(stating that there is a “strong presumption that Congress expresses its

intent through the language it chooses”). 

Before we begin to peruse federal statutes and other sources of authority for possible guidance in interpreting Congress’ intent, we must first consider the precise language that Congress used. See Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., supra, at 843. “In interpreting

statutes, we begin with the language of the statute itself.” Aragon-Ayon v.

INS, 206 F.3d 847, 851 (9th Cir. 2000) (citing Shaar v. INS, 141 F.3d 953,

956 (9th Cir. 1998)). “Where the plain meaning . . . is unambiguous, that

meaning is controlling.” Id. (citing Coronado-Durazo v. INS, 123 F.3d

1322, 1324 (9th Cir. 1997)). If the plain language does not reveal Congress’

intent, we should proceed to develop a reasonable interpretation of the

phrase in question. Id. (citing Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., supra).

We favor a categorical approach in determining whether a particular

state conviction comes within the ambit of a ground of deportability articulated in the Act. See, e.g., Matter of Perez, 22 I&N Dec. 1325 (BIA 2000)

(relating to a burglary conviction); Matter of K-V-D-, 22 I&N Dec. 1163

(BIA 1999) (relating to a controlled substance conviction); Matter of

Alcantar, 20 I&N Dec. 801 (BIA 1994) (relating to a crime of violence conviction); see also Taylor v. United States, 495 U.S. 575 (1990) (establishing

a uniform federal standard for what constitutes a burglary offense). We

seek to articulate and apply a uniform federal standard, not necessarily to

adopt a particular federal statute. See Matter of V-Z-S-, 22 I&N Dec. 1338

(BIA 2000); see also United States v. Baron-Medina, 187 F.3d 1144 (9th

Cir. 1999); cf. Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA

1999). 

A. Meaning of “theft offense”

The language before us is “theft offense (including receipt of stolen

property).” Section 101(a)(43)(G) of the Act. In ascertaining the “plain

meaning” of the statute, the Board “‘must look to the particular statutory

language at issue, as well as the language and design of the statute as a

whole.’” Matter of Alvarado-Alvino, 22 I&N Dec. 718, at 720 (BIA 1999)

(quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)); see also

2A Norman J. Singer, Sutherland Statutory Construction § 45.13, at 78 (5th

ed. 1992) (“[L]egislators can be presumed to rely on conventional language

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usage.”).

Admittedly, while the meaning of “theft” may be clear, the phrase “theft

offense” suggests that Congress meant something more than simply a conviction for theft. As such, the use of this phrase invites our interpretation.

We recently have responded to this invitation and articulated an interpretation of what constitutes a theft in the context of the statutory phrase “theft

offense.” In Matter of V-Z-S-, supra, we reasoned that “Congress’ use of the

term ‘theft’ is broader than the common-law definition of that term,” and

held 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.” Id. at 10. 

However, the offense of which the respondent was convicted is not a

theft within the meaning of “theft offense” as we have defined it. The

respondent was convicted of attempted possession of stolen property.

Conviction of this offense does not require proof that there was either a permanent or a temporary taking. It does not require proof of a taking at all.

Conviction also does not require an intent to deprive the owner of the benefits of ownership. Consequently, under Matter of V-Z-S-, supra, the respondent was not convicted of a “theft offense.”

B. Meaning of the Parenthetical

“(including receipt of stolen property)”

The question, therefore, is whether by having been convicted of

attempted possession of stolen property, the respondent has been convicted

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

101(a)(43)(G) of the Act. (Emphasis added.) No one contends that the

respondent’s conviction for attempted possession of stolen property is a

conviction for theft. No one claims that the respondent has been convicted

of receipt of stolen property. Thus, the question we are addressing actually

is an attenuated one: is a conviction for attempted possession of stolen

property a theft offense by virtue of its being the offense of “receipt of

stolen property”? 

The language used in the parenthetical phrase “(including receipt of

stolen property)” is plain and straightforward. Unlike the broader scope of

the language “theft offense,” the modifying parenthetical phrase “including

receipt of stolen property” refers specifically to a particular offense. It contains three terms—“including,” “receipt,” and “stolen property,” of which

“including” and “receipt” are the operative words. 

Congress’ use of a parenthetical does not authorize us to elaborate on

the terms used. Under accepted rules of statutory construction, “parentheses indicate that the matter enclosed is in addition to, or in explanation of,

the rest of the sentence.” Holmes Fin. Assoc., Inc. v. Resolution Trust Corp.,

33 F.3d 561, 567 (6th Cir. 1994); see also United States v. Monjaras1395
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Castaneda, 190 F.3d 326, 328 (5th Cir. 1999) (interpreting a parenthetical

descriptively based on the general context and structure of section

101(a)(43) of the Act). At most, as we stated in Matter of Ruiz-Romero, 22

I&N Dec. 486 (BIA 1999), aff’d, 205 F.3d 837 (5th Cir. 2000), “[W]e find

that the parenthetical is merely descriptive.”

Accordingly, the modifying parenthetical phrase helps only to elucidate

the main clause of the provision. Although the language “theft offense” may

require our interpretation, the parenthetical must be read according to its

own terms in the context of that subsection of the Act. The phrase “(including receipt of stolen property)” after the word “offense” limits the crimes

that are included within the phrase “theft offense.” United States v.

Monjaras-Castaneda, supra, at 329 (citing John E. Warriner & Francis

Griffith, English Grammar and Composition (Heritage ed., Harcourt Brace

Jovanovich 1977)). Specifically, the parenthetical provides that a “theft

offense” encompasses the particular offense of receiving stolen property

(which, by implication and judicial interpretation, is not a theft). 

1. The Term “including” Refers to the Crime of

“receipt of stolen property”

The word “including” comes from the verb “to include.” “Include”

means “[t]o confine within, hold as in an inclosure, take in, attain, shut up,

contain, inclose, comprise, comprehend, embrace, involve.” Black’s Law

Dictionary 763 (6th ed. 1990). “‘Including’ within [a] statute is interpreted

as a word of enlargement or of illustrative application as well as a word of

limitation.” Id. (citing Premier Products Co. v. Cameron, 400 P.2d 227, 228

(Or. 1973)). 

Therefore, we may reasonably conclude that the parenthetical phrase

modifies and enlarges the phrase “theft offense” by referring to a specific

circumstance or situation, i.e., the offense of receipt of stolen property. As

discussed below, without this parenthetical, the crime of receiving stolen

property would not necessarily constitute a theft offense. 

2. The Term “receipt” in the Phrase “receipt of stolen property”

Refers to a Separate Crime

Congress’ inclusion of the phrase “receipt of stolen property” was necessary because receipt of stolen property is a statutory crime separate from

the crime involved in the stealing or possession of the property. It was necessary because receipt is not theft.

The word “receipt” comes from the verb “to receive.” “To receive”

means to acquire. Black’s Law Dictionary, supra, at 1268. Receipt connotes

a deliberate act, i.e., active conduct. The elements of the offense of receiving stolen property are receipt of stolen goods with knowledge that they

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have been stolen and with intent to convert such goods to one’s own use.

Teel v. United States, 407 F.2d 604 (8th Cir. 1969). To convict an individual for such an offense, it is necessary to prove that the accused received the

property, knowing at that time that it was stolen. Lewis v. Hudspeth, 103

F.2d 23 (10th Cir. 1939). 

The courts have invariably held that receiving is not a lesser included

offense of theft. E.g., Schmuck v. United States, 489 U.S. 705 (1989) (stating that one offense is not “necessarily included” in another unless the elements of the lesser offense are a subset of the elements of the charged

offense); see also United States v. Spencer, 905 F.2d 1260, 1262 (9th Cir.

1990). A defendant cannot be convicted of both larceny and receiving the

same stolen property. Milanovich v. United States, 365 U.S. 551, 555

(1961); see also United States v. Gaddis, 424 U.S. 544, 547 (1976); Heflin

v. United States, 358 U.S. 415, 419-20 (1959) (concluding that in enacting

the proscription against receipt, the legislature was “trying to reach a new

group of wrongdoers, not to multiply the offense of the . . . robbers themselves”); Point v. State, 717 P.2d 38 (Nev. 1986).

The Model Penal Code section cited by the majority does not discuss

the offense of possession of stolen property. Rather, it discusses the offenses of theft and receiving, and categorizes such offenses as being one and the

same. The majority fails to recognize, however, that despite section 223.6

of the Model Penal Code and its accompanying commentary, state and federal courts continue to distinguish the offenses of theft and receiving stolen

property. Consequently, if Congress wished to encompass receipt of stolen

property in the aggravated felony category of theft offenses, it was critical

for Congress to have added the parenthetical phrase.

3. The Crime of “possession of stolen property” Is

Neither Theft Nor “receipt of stolen property”

In contrast to the offense of receiving stolen property, the offense of

possession of stolen property connotes conduct that is more passive. There

is no requirement that the offender receive the property to be convicted of

this crime; he simply must possess it. Moreover, possession alone does not

constitute receipt of stolen property, as possession means no more than having control over a thing with the intent to have and to exercise such control.

See Oswald v. Weigel, 549 P.2d 568, 569 (Kan. 1976); see also Black’s Law

Dictionary, supra, at 1163. Possession, as an element of an offense relating

to stolen goods, extends to things under one’s power and dominion. See

McConnell v. State, 266 So. 2d 328, 333 (Ala. Crim. App. 1972).

Similarly, possession is distinct from retention, which means to keep or

to continue to possess. See Lewis v. Hudspeth, supra. Possession also is distinct from sale. See Albrecht v. United States, 273 U.S. 1 (1927) (holding that

possessing and selling the same liquor are different offenses); see also United

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States v. Fowler, 463 F. Supp. 649, 651 (W.D. Va. 1978). Possession also is

distinct from concealment. See United States v. Pichany, 490 F.2d 1073 (7th

Cir. 1973); see also Corey v. United States, 305 F.2d 232 (9th Cir. 1962).

In many cases, state courts have found that evidence of possession of

stolen property does not support a conviction for receipt of stolen property,

but may constitute evidence of theft. For purposes of criminal prosecution,

“an unexplained, falsely or implausibly explained, or suspicious possession

of recently stolen property raises a presumption or inference that the possessor stole the property . . . [and] operated to preclude convictions for

receiving stolen property.” David J. Marchitelli, Annotation, Participation

in Larceny or Theft as Precluding Conviction for Receiving or Concealing

the Stolen Property, 29 A.L.R. 5th 59 (1995).

For example, where a defendant was found in possession of a stolen

vehicle, and was convicted of theft and receiving stolen property, the court

in Byrd v. State, 605 N.E.2d 231 (Ind. Ct. App. 1992), held that the inference of theft created by the defendant’s possession was sufficient to preclude his conviction for receiving stolen property. In Sosbee v. State, 270

S.E.2d 367 (Ga. Ct. App. 1980), the court ruled that where a defendant is in

recent unexplained possession of stolen property, it is neither necessary nor

advisable to find that the same possession constitutes guilt of theft by

receiving. See also People v. Watts, 370 N.E.2d 583 (Ill. App. Ct. 1977). But

see Sankey v. State, 568 So. 2d 366 (Ala. Crim. App. 1990) (holding that

where a defendant offered no explanation for being found in a parked stolen

automobile, his possession did not preclude a conviction for receiving

stolen property). 

Therefore, although possession of stolen property may support an inference sufficient to warrant a conviction for theft, it is not the same as a conviction for either theft or receiving stolen property. See Muniz v. State, 663

S.W.2d 660 (Tex. Crim. App. 1983) (ruling that where a defendant was

acquitted of theft and the evidence did not establish how the defendant

came into possession of stolen property, he could not be convicted of theft

by possession of stolen property); Hagan v. State, 104 S.W.2d 857 (Tex.

Crim. App. 1937) (holding that a defendant’s unexplained possession of

stolen property would have warranted a conviction for theft or burglary, but

that, without more, it was insufficient to establish the offense of receiving

stolen property). Thus, the elements of the crime of possession of stolen

property are distinct from the elements of the crime of receiving stolen

property. Schmuck v. United States, supra.

The amendment of 18 U.S.C. § 2315 to cover possession supports this

reading. As the respondent argues, the 1986 amendment of this federal

statute relating to receiving stolen property reflects that Congress recognized the need to include possession as an offense different from receipt if

it wished to treat possession of stolen property as a theft offense. Such

inclusion does not indicate, as the majority suggests, that receiving and pos1398
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session are interchangeable. Rather, they are distinct. 

Receipt is receipt and possession is possession. Were these offenses one

and the same, it would be surplusage for Congress to have included possession in the 1986 amendment to 18 U.S.C. § 2315. These distinctions reasonably explain Congress’ intent in adding the parenthetical “(including

receipt of stolen property)” to indicate what it intended to be covered by the

language “theft offense.” In the face of the courts’ disparate treatment of

the offenses of theft and receipt of stolen property, Congress’ apparent purpose in revising the language of § 2315 was to mandate that a conviction for

receipt of stolen property, while not necessarily a “theft” per se, was henceforth to be considered a “theft offense” for purposes of the Act.

C. Permissible Interpretation of

“receipt of stolen property”

In the case before us, the respondent was convicted of possession of

stolen property. Although the facts underlying his conviction may or may

not have supported a prosecution for theft, we do not redetermine those

facts. His conviction for attempted possession of stolen property is not a

conviction for theft and it is not a conviction for receiving stolen property. 

At the very least, where a statute is silent or ambiguous and an agency

determination is concerned, the agency’s determination must be reasonable.

Aragon-Ayon v. INS, supra, at 851 (citing Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., supra). Even assuming that the majority

is correct in treating section 101(a)(43)(G) of the Act as requiring our interpretation before we can implement its language in accordance with congressional intent, the interpretation proposed by the majority is not a permissible one.

For over 50 years the Supreme Court has ruled that we must interpret

immigration statutes to give effect to the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the

alien.” INS v. Cardoza-Fonseca, supra, at 449 (citing INS v. Errico, 385

U.S. 214, 225 (1966); Costello v. INS, 376 U.S. 120, 128 (1964); Fong Haw

Tan v. Phelan, 333 U.S. 6, 10 (1948)). Even if the statutory language and

legislative history “leave the matter in some doubt, we [are] constrained by

accepted principles of statutory construction in this area of the law to

resolve that doubt in favor of the petitioner.” Costello v. INS, supra, at 128.

This rule of construction, unique to the interpretation of immigration

statutes, mandates that “we will not assume that Congress meant to trench

on his freedom beyond that which is required by the narrowest of several

possible meanings of the words used.” Fong Haw Tan v. Phelan, supra, at

10 (emphasis added); see also Squires v. INS, 689 F.2d 1276, 1280 (6th Cir.

1982) (mandating a liberal construction in favor of the alien); Marino v.

INS, 537 F.2d 686 (2d Cir. 1976) (same). 

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We have recognized and applied this rule with approval in over 30

precedent decisions issued since 1949. See, e.g., Matter of Farias, 21 I&N

Dec. 269, 274 (BIA 1996; A.G., BIA 1997)); Matter of Tiwari, 19 I&N Dec.

875 (BIA 1989); Matter of Baker, 15 I&N Dec. 50 (BIA 1974); Matter of

Andrade, 14 I&N Dec. 651 (BIA 1974); Matter of G-, 9 I&N Dec. 159 (BIA

1960); Matter of K-, 3 I&N Dec. 575 (BIA 1949). In doing so, we have

found consistently that “[i]t is equally clear that any doubts in deciding such

questions [of deportability] must be resolved in the alien’s favor.” Matter

of Serna, 20 I&N Dec. 579, 586 (BIA 1992). Accordingly, we have been

“reluctant to read implied restrictions into the statute, particularly in the

context of a deportation proceeding.” Matter of Chartier, 16 I&N Dec. 284,

287 (BIA 1977) (emphasis added). In reaching its decision, the majority

has utterly failed to observe and follow this rule.

Furthermore, “[o]ur compass is not to read a statute to reach what we

perceive—or even what we think a reasonable person should perceive—is a

‘sensible result’; Congress must be taken at its word unless we are to

assume the role of statute revisers.” Bifulco v. United States, 447 U.S. 381,

401 (1980) (Burger, C.J., concurring) (citing Aaron v. SEC, 446 U.S. 680

(1980); TVA v. Hill, 437 U.S. 153 (1978)). “The temptation to exceed our

limited judicial role and do what we regard as the more sensible thing is

great, but it takes us on a slippery slope. Our duty, to paraphrase Mr. Justice

Holmes in a conversation with Judge Learned Hand, is . . . to apply the law

and hope that justice is done. The Spirit of Liberty: Papers and addresses

of Learned Hand 306-307 (Dilliard ed. 1960).” Id. at 401-02.

The purpose of developing a uniform interpretation of an arguably

ambiguous phrase in the aggravated felony provisions of the Act is to provide consistent treatment of a conviction for the referenced offense.

However, the review conducted by the majority fails to yield a common definition. Instead, the authorities considered are inconclusive and, to some

extent, inapposite.

The majority has identified no definitive basis to support its bootstrapping of a conviction for “possession of stolen property” as a conviction for

receipt of stolen property. Cf. Fong Haw Tan v. Phelan, supra; Matter of

Tiwari, supra. The statute contains no indication that Congress meant this

separate offense, to which it did not refer, to be included under the ambit of

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

101(a)(43)(G) of the Act. Where a statute lists some generic offenses but

omits others, the statute should be read to cover only the generic offenses

expressly listed. See, e.g., Leyva-Licea v. INS, 187 F.3d 1147, 1149 (9th Cir.

1999) (citing Coronado-Durazo v. INS, supra, at 1325-26).

Moreover, the Model Penal Code, to which the majority refers, does not

discuss receipt of stolen property in relation to possession of stolen property, but discusses receipt of stolen property only in relation to theft. Our

interpretation of receipt of stolen property as a theft offense is a given,

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based on the plain language used by Congress in including a descriptive

parenthetical in section 101(a)(43)(G) of the Act. We do not need to justify

treating receipt of stolen property as a theft offense because Congress mandated such treatment. 

We do, however, need to justify treating a conviction for the crime of

“possession of stolen property” as though it were a conviction for the crime

of “receipt of stolen property.” Possession of stolen property is a distinct

offense. A defendant can possess stolen property knowing it was stolen if

he learns of the theft after he assumes possession. Moreover, retention of

possession requires that the offender continue to keep the property after

learning that it was stolen. The respondent was not convicted of either

receipt or retention of stolen property. He was convicted of attempted possession of stolen property.

The subsection of the Act before us does not refer to possession of

stolen property, but refers expressly to “receipt of stolen property.” The

majority’s awkward and unlikely syllogism—receiving stolen property

includes retention of possession of stolen property, and retention of stolen

property is a possession offense, so therefore possession of stolen property

must either be receiving or some other theft offense—is unjustifiable. Not

only does it defy logic, but it is based on nothing more than isolated commentary in the Model Penal Code. Cf. Taylor v. United States, supra, at 598

(adopting a generic definition that embodies the modern use of the term

“burglary” that appears in most state criminal codes and approximates the

usage in the Model Penal Code). 

Similarly, the fact that federal or state statutes bundle together several

related offenses under a broad umbrella that includes “receiving stolen

property” does not alter the plain language of the Act or the established

meaning of the particular offense of “receipt of stolen property.” Neither

the Model Penal Code nor any assortment of criminal statutes can transform

the crime of possession of stolen property into either the crime of theft or

the crime of receipt of stolen property.

We must “decline to add to the law what Congress has plainly excluded.” Monet v. INS, 791 F.2d 752, 754 (9th Cir. 1986) (citing Fedorenko v.

United States, 449 U.S. 490, 517-18 (1981) (holding that courts are without

equitable power to moderate or avoid statutory mandates of the immigration

laws)). As we stated in Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA

2000), the words in the statute mean what they say. “Our task is not to

improve on the statute or to question the wisdom of it, but rather to interpret the language that was enacted as law.” Id. at 6 (citing Richards v.

United States, 369 U.S. 1, 10 (1962) (asserting that, notwithstanding the

ease of application inherent in an alternative construction of a statute, the

courts “are bound to operate within the framework of the words chosen by

Congress and not to question the wisdom of the latter in the process of construction”)).

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Our job is to read the statutory language narrowly and in the respondent’s favor. Fong Haw Tan v. Phelan, supra, at 10; Matter of Serna, supra,

at 586; Matter of Tiwari, supra, at 881. Yet, the majority unnecessarily

broadens the convictions covered under the “theft offense” category.

Similarly, our job is not to legislate. Bifulco v. United States, supra. Yet, that

is precisely what the majority has done. The majority has improperly

expanded upon the language used by Congress and added the offense of

possession of stolen property to the phrase “receipt of stolen property.” No

federal statute supports this reading. The Model Penal Code does not support this reading. The decisions of federal and state courts do not support

this reading. Rather, each of these authorities supports the conclusion that

possession of stolen property amounts to a different offense. Possession

does not constitute the offense of receipt of stolen property.

III. DIVISIBILITY OF THE NEVADA STATUTE

The interpretation offered by the majority also does not resolve the

question whether the respondent’s conviction for possession of stolen property under the Nevada statute constitutes a “theft offense.” In United States

v. Baron-Medina, supra, the United States Court of Appeals for the Ninth

Circuit emphasized that a state offense qualifies as an aggravated felony “if

and only if the ‘full range of conduct’ covered by it falls within the meaning of that term.” Id. at 1146 (quoting United States v. Lomas, 30 F.3d 1191,

1193 (9th Cir. 1994)); see also Matter of Sweetser, Interim Decision 3390

(BIA 1999). 

Accordingly, even under the majority’s overbroad definition, the

respondent’s conviction for possession of stolen property constitutes a theft

offense only if it amounts to stealing, taking, or receiving stolen property,

with intent to deprive the owner of ownership. The record does not contain

clear and convincing evidence that the offense of which the respondent was

convicted constitutes a “theft offense” under any reading of section

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

The Nevada statute at issue covers several types of conduct that it has

categorized under the generic rubric of an “offense involving stolen property.” An individual commits an offense under the statute if he or she buys,

receives, possesses, or withholds such stolen property. See Nev. Rev. Stat. §

205.275 (1997). These forms of conduct are presented in the conjunctive.

Proof of any one form of conduct constitutes one element of the offense

necessary to obtain a conviction.

As discussed above, possession is not receipt. Possession is neither

buying nor withholding. Moreover, in addition to the “conduct” element,

the Nevada statute includes two other elements that must be established to

obtain a conviction, each of which is presented in the conjunctive. There is

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a “purpose” element, which requires proof that the conduct is engaged in

“for his own gain or to prevent the owner from again possessing his property.” Nev. Rev. Stat. § 205.275(1) (emphasis added). There also is an

“intent” or mental state element, which requires proof that the defendant

acted knowing the property was stolen or under circumstances in which a

reasonable person would believe the property was stolen.

By providing for four distinct forms of participation, two different purposes motivating the defendant’s participation, and two different mental

states underlying the defendant’s participation, the Nevada statute is one

that we characterize as “divisible.” See Matter of Perez, supra; Matter of

Sweetser, supra. A statute’s divisibility means that while some of the conduct adequate to incur a conviction under the statute might constitute an

offense that comes under the Act, some does not. Such circumstances

require our consideration of the record of conviction. See Matter of

Teixeira, 21 I&N Dec. 316, 319 (BIA 1996) (ruling that we may look to the

judgment of conviction to determine the offense of which the respondent

was convicted, and when neither the criminal statute nor the judgment of

conviction supports the charge, we then may look to the record of conviction); Matter of Short, 20 I&N Dec. 136, 137-38 (BIA 1989). 

Accordingly, a defendant could be convicted under this statute without

a taking and without the intent to prevent the owner from possessing his

property. Cf. Matter of V-Z-S-, supra. In fact, that is what appears to have

happened in the instant case. Although the respondent was convicted of

attempted possession of stolen property for his own gain, he was not convicted of such attempted possession with the intent to deprive the owner of

his or her ownership. Cf. id.

The Service did not provide any evidence that the offense of which the

respondent was convicted involved a taking. Cf. id; cf. also section

240(c)(3)(A) of the Act; 8 C.F.R. § 240.8. The Service did not provide any

evidence that the respondent was convicted of receiving stolen property

with the intent to deprive the owner of the benefits of ownership. Cf. id.

Rather, the record only contains evidence that the respondent’s conviction

for possession of stolen property was for his own gain. This is not evidence

of either theft or receipt of stolen property. 

IV. CONCLUSION

The record does not contain clear and convincing evidence that the

respondent’s conviction for attempted possession of stolen property constitutes a conviction for either theft or receipt of stolen property under section

101(a)(43)(G) of the Act. In the absence of clear and convincing evidence

to prove the charges lodged, section 240(c)(3)(A) of the Act requires us to

dismiss the Service’s appeal. See Matter of Teixeira, supra, at 322.

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Interim Decision #3437

Accordingly, I cannot agree that the respondent is removable as charged

under section 237(a)(2)(A)(iii) of the Act, and I conclude that the proceedings should be terminated.

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