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Interim Decision #3877

Matter of Guillermo DIAZ-LIZARRAGA, Respondent
Decided November 16, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A theft offense is a crime involving moral turpitude if it involves a taking or exercise
of control over another’s property without consent and with an intent to deprive the
owner of his property either permanently or under circumstances where the owner’s
property rights are substantially eroded.
(2) Shoplifting in violation of section 13-1805(A) of the Arizona Revised Statutes is
categorically a crime involving moral turpitude.
FOR RESPONDENT: Laura M. St. John, Esquire, Florence, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY: Elly Laff, Assistant Chief
Counsel
BEFORE: Board Panel: PAULEY and GREER, Board Members; GELLER, Temporary
Board Member.
PAULEY, Board Member:

In a decision dated February 10, 2016, an Immigration Judge terminated
the removal proceedings against the respondent. The Department of
Homeland Security (“DHS”) has appealed from that decision. The appeal
will be sustained, the removal proceedings will be reinstated, and the record
will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico and lawful permanent
resident of the United States. In July 2015, the DHS charged him with
removability under section 237(a)(2)(A)(ii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2012), as an alien convicted
of two or more crimes involving moral turpitude, not arising out of a single
scheme of criminal misconduct. In support of that charge, the DHS
presented evidence indicating that the respondent was convicted in 2010,
2012, and 2013 of shoplifting property worth less than $1,000 in violation
of section 13-1805(A) of the Arizona Revised Statutes. At all relevant
times, that section has provided, in pertinent part, as follows:
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A person commits shoplifting if, while in an establishment in which merchandise
is displayed for sale, the person knowingly obtains such goods of another with the
intent to deprive that person of such goods by:
1. Removing any of the goods from the immediate display or from any other
place within the establishment without paying the purchase price; or
2. Charging the purchase price of the goods to a fictitious person or any person
without that person’s authority; or
3. Paying less than the purchase price of the goods by some trick or artifice
such as altering, removing, substituting or otherwise disfiguring any label, price
tag or marking; or
4. Transferring the goods from one container to another; or
5. Concealment.

(Emphasis added.) For purposes of this provision, section 13-1801(A)(4)
of the Arizona Revised Statutes defines the term “deprive” as follows:
“Deprive” means to withhold the property interest of another either permanently or
for so long a time period that a substantial portion of its economic value or
usefulness or enjoyment is lost, to withhold with the intent to restore it only on
payment of any reward or other compensation or to transfer or dispose of it so that
1
it is unlikely to be recovered.

There is no dispute that the respondent sustained his shoplifting
convictions. However, the Immigration Judge dismissed the removal
charge and terminated the proceedings, concluding that section 13-1805(A)
is overbroad relative to the definition of a crime involving moral turpitude
because the term “deprive” is defined in such a manner that a shoplifter
need not intend to “permanently” deprive the owner of the property in order
to be convicted, as required by our precedent decisions. The Immigration
Judge also found that section 13-1805(A) is an “indivisible” statute relative
to the definition of a turpitudinous offense, thus precluding him from
consulting the respondent’s conviction record under the modified
categorical approach.
The DHS argues on appeal that shoplifting under section 13-1805(A) is
a categorical crime involving moral turpitude. According to the DHS, in
finding to the contrary, the Immigration Judge misinterpreted the statute’s
elements and misunderstood our decisions addressing when a theft offense
should be considered a crime involving moral turpitude. The respondent
opposes the appeal. Whether a particular offense involves moral turpitude

1

The DHS argues on appeal that the definition of the term “deprive” in section
13-1801(A)(4) does not apply to the respondent’s offense of conviction. We disagree.

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is a legal question that we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii)
(2016).

II. ANALYSIS
The phrase “crime involving moral turpitude” describes a class of
offenses involving “reprehensible conduct” committed with some form of
“scienter”—that is, with a culpable mental state, such as specific intent,
deliberateness, willfulness, or recklessness. See, e.g., Matter of Leal,
26 I&N Dec. 20, 21 (BIA 2012); see also Matter of Silva-Trevino, 26 I&N
Dec. 826, 828 n.2, 833–34 (BIA 2016). Conduct is “reprehensible” if it is
“inherently base, vile, or depraved, and contrary to the accepted rules of
morality and the duties owed between persons or to society in general.”
Matter of Leal, 26 I&N Dec. at 25 (quoting Matter of Ruiz-Lopez, 25 I&N
Dec. 551, 553 (BIA 2011)). To determine whether an offense is a crime
involving moral turpitude, we employ the categorical approach, which
requires us to focus on the elements of the crime, rather than the conduct of
the respondent. See Almanza-Arenas v. Lynch, 815 F.3d 469, 475 (9th Cir.
2016) (en banc); Matter of Silva-Trevino, 26 I&N Dec. at 831–33.
From the Board’s earliest days we have held that a theft offense
categorically involves moral turpitude if—and only if—it is committed
with the intent to permanently deprive an owner of property. See, e.g.,
Matter of Grazley, 14 I&N Dec. 330, 333 (BIA 1973) (“Ordinarily, a
conviction for theft is considered to involve moral turpitude only when a
permanent taking is intended.”); Matter of P-, 2 I&N Dec. 887, 887 (BIA
1947) (holding that the Canadian statute of conviction did not require an
intent to permanently deprive the owner of her property and therefore did
not involve moral turpitude); Matter of H-, 2 I&N Dec. 864, 865 (Central
Office, BIA 1947) (“[T]he element which must exist before the crime of
theft or stealing is deemed one involving moral turpitude is that the offense
must be one which involves a permanent taking as distinguished from a
temporary one.”); Matter of T-, 2 I&N Dec. 22, 27 (BIA, A.G. 1944)
(concluding that theft under the law of Canada is a crime involving moral
turpitude even though intent to deprive may be permanent or temporary); 2
2

The Attorney General reversed the Board’s decision, stating that “it is quite apparent
to me that a person may be convicted of theft in Canada when the real offense is not
known by that name in our law and does not involve moral turpitude.” Matter of T-,
2 I&N Dec. at 42. While the Attorney General’s short decision reversed the Board, it did
not do so based on a legal conclusion that only an intent to deprive permanently would
suffice to render an offense turpitudinous. Instead, the reversal appears to have been
based on the Attorney General’s conclusion that the Canadian statute covered violations
(continued . . .)

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Matter of D-, 1 I&N Dec. 143, 145–46 (BIA 1941) (holding that driving an
automobile without the consent of the owner is not a turpitudinous offense
because the statute reached cases where there was only an intent to
temporarily deprive, which might involve mere prankishness). 3 At the
same time, we have found it appropriate to presume—absent evidence to
the contrary—that retail theft and theft of cash involve an intent to
permanently deprive the owner of the merchandise or cash, without
the necessity of affirmative proof. See Matter of Jurado, 24 I&N Dec. 29,
33–34 (BIA 2006); Matter of Grazley, 14 I&N Dec. at 333.
A careful examination of our early cases reflects that our purpose in
adopting the “intent to permanently deprive” requirement was to
distinguish between substantial and reprehensible deprivations of an
owner’s property on the one hand and, on the other, mere de minimis
takings in which the owner’s property rights are compromised little, if at
all. It is telling in this regard that all of our early cases involved theft
statutes that were phrased or interpreted to encompass “joyriding”—the
nonconsensual taking of a motor vehicle with the intent to return it to the
owner shortly thereafter—or other short-term takings of property. For
example, we explained in Matter of P-, 2 I&N Dec. at 887–88, that
_______________________________

where the intent to deprive was de minimis and thus outside the scope of what was
properly regarded as theft.
The dissenting Board Member set forth the circumstances in two pending cases that he
argued should not be deemed crimes involving moral turpitude because the deprivation
was too ephemeral. Id. at 31–32 (Wasserman, dissenting). One such case involved an
alien who “borrowed a ring, valued at $50, from a friend, only to wear at a party and with
the intention of returning it that night. This was done without her friend’s knowledge. A
boy at the party took the ring from the respondent and refused to return it.” Id. at 31.
The alien was nevertheless convicted under the Canadian theft statute at issue.
Such cases illuminate the Attorney General’s finding that persons may be convicted of
theft in Canada even though the offense would not be considered a crime involving moral
turpitude under the laws of the United States. Id. at 42. We therefore do not find that the
Attorney General’s decision in Matter of T- precludes us from reconsidering our prior
decisions in this area. Nor have any of our subsequent decisions adopting a distinction
between temporary and permanent takings indicated that the Attorney General’s decision
imposed such a constraint.
3
The “intent to permanently deprive” requirement is echoed in precedents of the United
States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises. See,
e.g., Almanza-Arenas v. Lynch, 815 F.3d at 476; Castillo-Cruz v. Holder, 581 F.3d 1154,
1159–60 (9th Cir. 2009); Flores Juarez v. Mukasey, 530 F.3d 1020, 1022 (9th Cir. 2008)
(per curiam); United States v. Esparza-Ponce, 193 F.3d 1133, 1136–37 (9th Cir. 1999).
However, the Ninth Circuit did not render an independent analysis of the moral turpitude
issue, deferring instead to our precedent decisions. See Marmolejo-Campos v. Holder,
558 F.3d 903, 911 (9th Cir. 2009) (en banc) (deferring to a published Board decision
finding an offense to be morally turpitudinous).

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the appellant is not inadmissible because of his conviction in Canada in 1947 for
violation of section 285 (3), Criminal Code of Canada. It has been determined that
such statute is similar to the various statutes in this country covering “joy riding”
and does not comprehend theft of automobile or intent to deprive the owner thereof
permanently, and, therefore, does not involve moral turpitude . . . .
....
The appellant testified that he entered the home of a Mrs. C— in Rockport,
Ontario, Canada, through an open window, to obtain a victrola for use at a party
and thereafter return same. He admitted that he did not secure Mrs. C—’s
permission, since she was then residing in the United States. The evidence
establishes that the taking was purely a temporary one . . . .

We continue to believe that it is appropriate to distinguish between
substantial and de minimis takings when evaluating whether theft offenses
involve moral turpitude. However, criminal law has evolved significantly
in the seven decades since we first addressed this issue. In most
jurisdictions, legislation and judicial opinions have refined the distinction
between substantial and de minimis takings to such an extent that the
traditional dichotomy of permanent versus temporary takings has become
anachronistic. In particular, responding to new economic and social
realities, lawmakers and judges across the country have come to recognize
that many temporary takings are as culpable as permanent ones. This trend
finds cogent expression in section 223.0(1) of the Model Penal Code, which
addresses theft crimes generally and defines the term “deprive” as
(a) to withhold property of another permanently or for so extended a period as to
appropriate a major portion of its economic value, or with intent to restore only
upon payment of reward or other compensation; or (b) to dispose of the property so
as to make it unlikely that the owner will recover it.

Nineteen States—including Arizona—have adopted the Model Penal
Code’s definition of the term “deprive” more or less verbatim. 4 Five other
4

Ala. Code § 13A-8-1(2) (2016); Alaska Stat. Ann. § 11.46.990(8) (West 2016);
Ariz. Rev. Stat. Ann. § 13-1801(A)(4) (2016); Ark. Code Ann. § 5-36-101(5)
(West 2016); Del. Code Ann. tit. 11, § 857(3) (West 2016); Haw. Rev. Stat. Ann.
§ 708-800 (West 2016); Ky. Rev. Stat. Ann. § 514.010(1) (West 2016); Me. Rev. Stat.
Ann. tit. 17-a, § 352(3) (2016); Md. Code Ann., Crim. Law § 7-101(c) (West 2016);
Minn. Stat. Ann. § 609.52 (West 2016); Neb. Rev. Stat. § 28-509(1) (West 2016); N.H.
Rev. Stat. Ann. § 637:2, III (2016); N.J. Stat. Ann. § 2C:20-1a (West 2016); N.D. Cent.
Code Ann. § 12.1-23-10(3) (West 2016); Ohio Rev. Code Ann. § 2913.01(C) (West
2016); 18 Pa. Stat. and Cons. Stat. Ann. § 3901 (West 2016); Tex. Penal Code Ann.
§ 31.01(2) (West 2016); Utah Code Ann. § 76-6-401(3) (West 2016); Wyo. Stat. Ann.
§ 6-3-401(a)(ii) (West 2016).

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States have statutes that essentially track the Model Penal Code, omitting
solely the mental state of “intent to restore only upon payment of reward or
other compensation.” 5 Eighteen States define theft or larceny by statute but
do not include an explicit statutory provision concerning the duration of the
intended deprivation. Of these 18 States, 15 have adopted variants of the
Model Penal Code approach through case law, holding that the perpetrator
must intend to deprive the owner of the property permanently or for so
extended a period as to deprive the owner of a major portion of its value or
enjoyment. 6 Only five States have retained the intent to permanently
deprive an owner of property as an explicit statutory requirement. 7 Statutes
in two States explicitly permit conviction for theft on a showing of intent to
temporarily deprive an owner of property. 8 Our case law has not kept pace
with these developments.
For the reasons that follow, we now update our existing jurisprudence
and hold that the Arizona shoplifting statute at section 13-1805(A) defines
a categorical crime involving moral turpitude despite the fact that it does
not require the accused to intend a literally permanent taking. At the
outset, we find that a taking or exercise of control over another’s property
without consent is itself a potentially reprehensible act that is inherently
5

Conn. Gen. Stat. Ann. § 53a-118(a)(3) (West 2016); Idaho Code Ann. § 18-2402(3)
(West 2016); Mont. Code Ann. § 45-6-301 (West 2016); N.Y. Penal Law § 155.00(3)
(McKinney 2016); Or. Rev. Stat. Ann. § 164.005(2) (West 2016).
6
See People v. Avery, 38 P.3d 1, 3–4 (Cal. 2002); State v. Berger, 438 N.W.2d 29,
31 (Iowa Ct. App. 1989); Commonwealth v. DiJohnson, 830 N.E.2d 1103, 1106 (Mass.
App. Ct. 2005); People v. Cain, 605 N.W.2d 28, 42–45 (Mich. Ct. App. 1999); Berry
v. State, 754 So. 2d 539, 542 (Miss. Ct. App. 1999); Harvey v. State, 375 P.2d 225, 226
(Nev. 1962); State v. Rhea, 523 P.2d 26, 28 (N.M. Ct. App. 1974); State v. Perry, 204
S.E.2d 889, 891 (N.C. Ct. App. 1974); Phipps v. State, 572 P.2d 588, 591 (Okla. Crim.
App. 1977); State v. McWilliams, 47 A.3d 251, 257–58 (R.I. 2012); Kerrigan v. State,
406 S.E.2d 160, 161 (S.C. 1991); Taylor v. State, 542 S.W.2d 825, 827 (Tenn. Crim. App.
1976); State v. Hanson, 446 A.2d 372, 374–75 (Vt. 1982); Williams v. Commonwealth,
696 S.E.2d 233, 235 (Va. Ct. App. 2010); State v. Hudson, 206 S.E.2d 415, 419 (W. Va.
1974). Two of the remaining three States provide, in case law, that a temporary
deprivation is sufficient. Bennett v. State, 871 N.E.2d 316, 322 (Ind. Ct. App. 2007);
State v. Komok, 783 P.2d 1061, 1063–64 (Wash. 1989) (en banc). Finally, in South
Dakota the distinction between intent to temporarily or permanently deprive does not
appear to have been addressed in the case law. See S.D. Codified Laws § 22-1-2(12)
(2016).
7
720 Ill. Comp. Stat. Ann. § 5/15-3 (West 2016); Kan. Stat. Ann. § 21-5111(f) (West
2016); La. Stat. Ann. § 14:67(A) (2016); Mo. Ann. Stat. § 570.010(8) (West 2016); Wis.
Stat. Ann. § 943.20(1)(a) (West 2016).
8
Fla. Stat. Ann. § 812.014(1)(a) (West 2016); Ga. Code Ann. § 16-8-1(1)(A) (West
2016). The Colorado theft statute at section 18-4-401(1) appears to be divisible, with
some sections requiring an intent to permanently deprive and others not.

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base and contrary to the moral duties owed between persons and to society
in general, and we therefore conclude that such a theft offense is a crime
involving moral turpitude if it involves an intent to deprive the owner of his
property either permanently or under circumstances where the owner’s
property rights are substantially eroded.
Take, for example, the situation in Matter of T-, 2 I&N Dec. 22, which
involved the taking of a ring with the intent to only wear it at a party that
same night. Consider instead that the alien in that case had the intent to
keep the ring for some years until the taker’s daughter was married and to
then return it anonymously. We would deem that crime to be one involving
moral turpitude because it was meant to substantially, albeit not
permanently, deprive the owner of her property. It is not a valid defense to
a crime involving moral turpitude charge that a thief may have intended to
return the stolen property after the passage of so much time that its value to
the owner has been lost or substantially eroded. Likewise, the fact that an
offender may be willing to restore stolen property to its owner if paid a
ransom or reward does not serve to mitigate the culpability of the offense or
transform it into a nonreprehensible “temporary” taking. 9
Moreover, viewing the matter from a modern perspective, we conclude
that our early jurisprudence does not provide us with good reasons to
persist in the rule that moral turpitude requires a taking involving a literally
permanent intended deprivation. As noted previously, those early cases
9

This perspective finds implicit support in the series of Ninth Circuit precedents
holding that theft under section 484 of the California Penal Code is a categorical crime
involving moral turpitude because it requires as an element that the accused have “the
specific intent to deprive the victim of his property permanently.” See Castillo-Cruz, 581
F.3d at 1160 (quoting People v. Albert A., 55 Cal. Rptr. 2d 217 (Cal. Ct. App. 1996); then
citing People v. Guerra, 708 P.2d 1252 (Cal. 1985); and People v. Butler, 421 P.2d 703
(Cal. 1967) (in bank), overruled on other grounds by People v. Tufunga, 987 P.2d 168
(Cal. 1999)); Flores Juarez, 530 F.3d at 1022; Esparza-Ponce, 193 F.3d at 1136–37.
We agree with those decisions. As the California Supreme Court has made
abundantly clear, however, “[t]he word ‘permanently,’ as used here is not to be taken
literally.” People v. Davis, 965 P.2d 1165, 1169 (Cal. 1998) (quoting Rollin M. Perkins
& Ronald N. Boyce, Criminal Law 327 (3d ed. 1982)) (stating that in three relevant
categories of cases, “the requisite intent to steal may be found even though the
defendant’s primary purpose in taking the property is not to deprive the owner
permanently of possession: i.e., (1) when the defendant intends to ‘sell’ the property back
to its owner, (2) when the defendant intends to claim a reward for ‘finding’ the
property, and (3) when . . . the defendant intends to return the property to its owner for
a ‘refund’”); see also People v. Avery, 38 P.3d at 6 (holding that the requirement of
“intent to deprive another of the property permanently[] is satisfied by the intent to
deprive temporarily but for an unreasonable time so as to deprive the person of a major
portion of its value or enjoyment”).

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concerned instances where the taking involved a de minimis deprivation of
the owner’s property rights, such as joyriding or “borrowing” a Victrola or
ring for short-term use at a party. 10 In noting that those offenses were not
crimes involving moral turpitude because they involved merely
“temporary” deprivations, we made no attempt to distinguish between such
de minimis takings and those more serious cases in which property is taken
“temporarily” but returned damaged or after its value or usefulness to the
owner has been vitiated. 11 Yet this distinction—which is embodied in the
Model Penal Code and echoed in most States’ laws—is now an important
aspect of modern American theft jurisprudence. Under the circumstances,
we are convinced that the mere antiquity of our case law is not a sound
reason for continuing to adhere to it. See Oliver Wendell Holmes, Jr., The
Path of the Law, 10 Harv. L. Rev. 457, 469 (1897) (“It is revolting to have
no better reason for a rule of law than that so it was laid down in the time of
Henry IV. It is still more revolting if . . . the rule simply persists from blind
imitation of the past.”).
Turning to the present facts, we observe that section 13-1805(A) of the
Arizona Revised Statutes embodies a mainstream, contemporary
understanding of theft, which requires an intent to deprive the owner of his
property either permanently or under circumstances where the owner’s
property rights are substantially eroded. For the above reasons, we
conclude that such an offense qualifies as a categorical crime involving

10

The Immigration Judge observed that section 13-1805(A) of the Arizona Revised
Statutes may be applied to the offense of “joyriding,” which we have held is not a crime
involving moral turpitude. We disagree. In Arizona, joyriding is prohibited under a
separate statute at section 13-1803(A)(1), which reads: “A person commits unlawful use
of [a] means of transportation if, without intent permanently to deprive, the person . . .
[k]nowingly takes unauthorized control over another person’s means of transportation.”
(Emphasis added.) A joyriding offense, by definition, is one in which the offender
intends and has the means to return the vehicle to the rightful owner, unconditionally and
promptly. Such conduct cannot be prosecuted as shoplifting.
11
To some extent, Matter of Grazley and Matter of Jurado have embodied an effort to
finesse this distinction by indulging a commonsense “assumption” that in cases involving
a theft of cash or merchandise from a retail establishment, the offender’s intent was to
permanently deprive the owner of the cash or merchandise. We continue to believe that
Grazley and Jurado reached proper conclusions as to the turpitudinous nature of the
conduct defined by the statutes at issue in those cases. However, in light of the
increasing strictures of the categorical approach in cases such as Mathis v. United States,
136 S. Ct. 2243 (2016), we recognize that the validity of the Grazley and Jurado
“assumption” may be called into serious doubt unless the moral turpitude standard for
theft offenses is updated to more accurately distill the state of the criminal law in this area.

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moral turpitude. 12 Therefore, to the extent that any of our prior decisions
have required a literal intent to permanently deprive in order for a theft
offense to be a crime involving moral turpitude, those decisions are
overruled.

III. CONCLUSION
We conclude that the Immigration Judge erroneously terminated the
respondent’s removal proceedings. 13 Accordingly, the DHS’s appeal will
be sustained, the Immigration Judge’s decision will be vacated, the removal
proceedings will be reinstated, and the record will be remanded.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the
removal proceedings are reinstated.
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.

12

The respondent cites Sulavka v. State, 221 P.3d 1022, 1026 (Ariz. Ct. App. 2009), for
the proposition that one can be convicted of shoplifting in Arizona merely by removing
an item from a shelf and concealing it. However, we do not consider such a “theft by
concealment” to be less reprehensible than other types of theft. One who exercises
control over another’s property and conceals it with the intention of depriving the owner
of its value has committed an inherently reprehensible act even if he does not intend to
keep the concealed property for himself. See 3 Wayne R. LaFave, Substantive Criminal
Law § 19.5 (2d ed. Westlaw 2016) (noting that larceny is defined “in terms of the
owner’s deprivation rather than of the thief’s gain, in recognition of the majority view
that, for larceny, there need be no intent on the part of the thief to gain a benefit for
himself”); see also Jupiter v. State, 616 A.2d 412, 415 (Md. 1992); People v. Bradovich,
9 N.W.2d 560, 561 (Mich. 1943); McIntosh v. State, 180 N.W. 573, 575 (Neb. 1920).
13
Because section 13-1805(A) defines a categorical crime involving moral turpitude, we
find it unnecessary to review the portion of the Immigration Judge’s decision addressing
“divisibility” and the applicability of the modified categorical approach.

855


Interim Decision #2450

MATTER OF REEMAN
In Visa Petition Proceedings
A-20636112

Decided by Board November 19, 1975
Since the validity of adoption in the Province of Punjab, Pakistan, is governed by Muslim
personal law, and under Muslim personal law in Punjab no legal system of adoption is
recognized, the claimed adoption of beneficiary by petitioner's parents in Punjab according to Punjab customary law is not valid for immigration purposes. Accordingly,
beneficiary is ineligible for preference classification under section 203(a)(5) of the Immigration and Nationality Act, as amended, as the adopted brother of the U. S. citizen
petitioner.
ON BEHALF OF PRITITIONFIR! Pro sg

The United States citizen petitioner sought preference classification
for the beneficiary as his adopted brother under section 203(a)(5) of the

Immigration and Nationality Act. In a decision dated April 24, 1975, the
District Director denied the petition. The petitioner has appealed from
that decision. The appeal will be dismissed.
In order to support a claimed "brother' or "sister" relationship under
section 203(a)(5) of the Act, the petitioner has to establish that both he
and the beneficiary once qualified as "children" of a common "parent"
within the meaning of section 101(b)(1) and (2) of the Act. Matter of
Garner, 15 I. & N. Dec. 215 (BIA 19'75); Matter of Heung, 15 I. & N.
Dec. 145 (BIA. 1974). The term "child" as defined in section 101(b) of the
Act includes an adopted child, within certain limitations. See section

101(b)(1)(E) of the Immigration and Nationality Act.
The petitioner claims that the beneficiary was adopted by his parents
in the Province of Punjab in Pakistan in 1952 according to the Punjab
customary law. He has presented affidavits from his mother, brother
and the beneficiary's natural parents in support of this petition.
Nevertheless, the district director denied the petition on the ground
that the petitioner had failed to establish that the beneficiary was legally
adopted by the petitioner's parents. In so holding, he relied on a report
from the Library of Congress, dated March 1975, which addresses the
issue of adoption in Pakistan.
The validity of an adoption for immigration purposes is governed by
512

Interim Decision #2450
the law of the place where the adoption occurred. Matter of Kwok, 14 I.
& N. Dec. 127 (BIA 1972). The Library of Congress report states that,
in 1951, the Punjab Muslim Personal Law (Shariat) Application
(Amendment) Act, No. 11, abolished custom as the rule of decision for
the Punjab Muslims and provided that Muslim personal law be applied
to all matters, including adoption. 1 That report goes on to state that the
legal institution of adoption does not exist under the Muslim personal
law.
Although the petitioner on appeal contends that the beneficiary was
legally adopted according to Punjab customary law; he has failed to

present evidence to rebut the information on Punjab law supplied by the
Library of Congress. Consequently, we find that the validity of the
adoption is governed by Muslim personal law, and that under Muslim
personal law in Punjab no legal system of adoption is recognized.
The decision of the district director is correct. The appeal will be
dismissed.
ORDER: The appeal is dismissed.

1

111 All Pak. Leg. Dec., Punjab Acts 76 (1951).

513


MATTER OF
In DEPORTATION Proceedings
A-3409248
Decided by Board August 11, 1958
Narcotic drug addict—Section 241(a)(11) of 1952 act—Sufficiency of evidence—
Distinction between addict and user.
Alien's pre-hearing statement, later repudiated, held insufficient to establish
deportability as narcotic drug addict under section 241(a) (11) of act where
2 doctors expressed opinions that alien was not a confirmed drug addict and
evidence was otherwise lacking to show that he was an "addict" as distinguished from a mere "user."
CHARGE:

Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a)

(11)1—At

any

time after entry has boon a nar.otio drug edd irt

BEFORE THE BOARD

Discussion: The case comes forward on appeal from the order
of a special inquiry officer dated March 31, 1958, directing that the
respondent be deported on the ground set forth in the order to
show cause.
The facts are fully set forth in the decision of

the special in-

officer. The record relates to a native and citizen of China,
approximately 58 years old, male, who testified that he first entered
the United States at the port of San Francisco, California, in May
1922 as a student. He last entered the United States at the port of
Seattle, Washington, ex SS. President Jefferson, on December 15,
1931, and was admitted upon presentation of a reentry permit after
an absence from the United States since December 1930.
The case for deportation is mainly predicated upon a sworn
statement made by the respondent on September 10, 1957, before
a Service investigator. Counsel has strenuously objected to the
admission of this statement in evidence. However, there is no
doubt that the statement is admissible under the regulations (8
CFR 212.14(e) ). There is no requirement that the alien be advised
of his right to refuse to answer and to have counsel during the
course of a preliminary interrogation nor to be advised concerning
his right to claim protection of the Fifth Amendment (United States
quiry

108

ex rel. Bilokumsky v. Tod, 263 U.S. 149; Thompson v. United
States, 10 F.2d 781; Plane v. Carr, 19 F.2d 470, cert. den. 275 U.S.
545; Ex parte Callan, 42 F.2d 664, cert. den. 283 U.S. 862; Matter
of B B
A-4g90755, 4 T. R. N. Dec. 760, 763).
In the sworn statement the respondent stated that he had been
a user of morphine for about 5 years and on several occasions tried
to get away from this habit, seeking the assistance of several doctors, and that subsequently he went to a small town to attempt to
break the habit but being unsuccessful turned himself over to the
Lexington Hospital for narcotic users where he remained for about
2 weeks. He stated that he was a voluntary patient at Leaingtou;
that he had been a drug addict for about 5 or 6 years prior thereto;
and that he had inserted morphine mixed with sugar in his arm,
displaying old scars. He stated that ho used the drug upon arising
in the morning and before he would go to sleep at night. He was
asked whether he bought the morphine from a prescription that
was given him by a physician because of some ailment and replied
in the negative, that he had bought it through illegitimate sources.
He claims not to have used any narcotic drugs since April 15,
1957, and that he has enjoyed good health since his release from
the hospital at Lexington. He also stated that he had been steadily
employed as a chef prior to going to Lexington.
At the deportation hearing, upon examination by his attorney,
the respondent again testified that he had been steadily employed
as a restaurant cook and that he had never been a narcotic addict.
He claimed that he had never even been a steady user of morphine
nor an habitual drug user but that he used drugs in connection
with an illness in the nature of piles to relieve a painful burning
sensation. He stated that he received prescriptions for the narcotic
drugs from 2 doctors, whose names he could not at first remember
but then later named the doctors, one in Indianapolis and one in
Chicago, the latter being deceased. He was not able to further
identify the first doctor. His attention was called to the fact that
in the sworn statement he did not mention that he had a prescription from a doctor and he explained that he thought the investigator was asking about the occasions he bought through illegitimate
sources. He further stated that he was following instructions from
the doctor when administering the morphine to himself. He also
explained that he thought the questioning regarding the use of
morphine in eumiection with an injury or oickness and the need of
this drug to relieve pain, which he had answered in the negative,
referred to whether he had an order on his person at that time
but that when he first started he did have an order from a doctor.
The respondent admitted that he was a voluntary patient at the
Lexington Hospital as indicated in his sworn statement.
109

The respondent submitted letters from 2 physicians expressing
the opinion that respondent was not a drug addict. One of the
doctors, a surgeon for the Chicago Police Department handling
cases of the narcotic unit, expressed the opinion based upon the
writer's experience that the respondent is not a confirmed narcotic
addict but only an occasional user. The respondent Testified that
he had seen this doctor on 8 or 10 occasions as a personal physician.
A second doctor, who treated the respondent in March 1957 and
again in January 1958, sets forth that he had occasion to observe
respondent quite a few times during those 9. periods, that in his

opinion the respondent was not addicted to narcotic drugs and
that at the present time he finds no evidence of narcotic addiction.
Dapnrtatinn of the respondent is sought under section 211(a) (11)
of the Immigration and Nationality Act on the ground that after
entry he has been a narcotic drug addict. The term "narcotic
drug addict" is not defined in the act but recourse has been had to
the definition of the term "addict" as used in 4'2 U.S.C.A. 201(k)
which reads as follows:
The term "addict" means any person who habitually uses say habit-forming
narcotic drugs so as to endanger me poetic morale, health, ,, afeLy, m. welfare,
or who is or has been so far addicted to the use of such habit-forming narcotic
drugs as to have lost the power of self-control with reference to his addiction.
This definition was quoted with approval in

C

Matter of I-

A 5462239, 6 I. & N. Dec. 374, which noted that the
definition appeared to be in accord with judicial decisions which
recognized that one may be a - user without being an addict.'
Under the prior Act of February 18, 1931, as amended by sections
21 and 22 of the Alien Registration Act of 1940 (8 U.S.C. 156a),
relating to deportation for a narcotic conviction, the addict was an
exception to the proscription of the deportation statute and the
burden of proving that he was within the exception as an addict
who was not a dealer or peddler was upon the alien' However,
under the present statute, section 241(a) (11) of the Immigration
and Nationality Act (8 U.S.C. 1251(a) (11) ), a narcotic drug addict falls within the scope of the deportation statute and the burden
of proof is upon the Service to establish deportability by a preponderance of reasonable, substantial and probative evidence.
In the present case the only evidence against the respondent is
the admissions he made in the sworn statement to a Service investigator of September 10, 1957. At the hearing under questioning by
counsel he has repudiated or explained some of the statements
,

'Matter of B—, A-6815221, 3 1. & N. Dec. 620; Mow v. McGrath, 101 F. 2d
982; Ex parts Bag, 77 F. Supp. 74.
'Matter of V—, 56073J670, 1 L & N. Dec. 160; Wong Hang Jim v, Carmichael, 115 F.2d 529; :Nicoll v. Briggs, 83 F.2d 375.

110

made by him and has claimed that his original use of narcotic drugs
was upon prescription issued by 2 doctors to relieve rectal pains
and that his method of administering the drug was in accordance
with the prescription. In the sworn statement he stated he was a
voluntary patient in the Lexington Hospital in April 1957 but that
he was discharged after 2 weeks. The hospital record or history
was not made a part of the evidence of record and, indeed, under
the provisions of 42 U.S.C.A. 260(d), the record of such voluntary
commitment is confidential and is not to be divulged. The respondent has not consented to the release of such hospital record. In
view of the fact that, the respondent was discharged after 2 weeks,
it is not believed that any conclusion as to addiction can be drawn
from his 2 weeks' stay at the hospital at Lexington, particularly
in the absence of the hospital history.
The respondent has also submitted letters from 2 physician, who
have treated him; while one categorizes him as a narcotic user,
both doctors rule out addiction to narcotic drugs. It is true that
these letters do not include any case history but they do represent
the opinion of 2 physicians who have been in contact with the
respondent on a number of occasions. The respondent claims not
to have used narcotics since April 1957 and there does not appear to
be any evidence of withdrawal symptoms. In addition, in view of
the technical definition of addiction in 42 U.S.C.A. 201(k), it is
not believed that the respondent's admission that he was an addict
is a sufficient basis upon which to predicate a determination of
narcotic drug addict so as to warrant a finding of deportability
thereon.
After a careful review of all the evidence of record, it is believed that the present evidence of record leaves us in doubt on the
matter of addiction and does not constitute a preponderance of
evidence which is maaonablo, substantial and probative upon which
to base a finding of addiction so as to render the respondent deportable under the provisions of section 241(a) (11) as a narcotic
drug addict. Accordingly, the proceedings will be terminated.
Order: It is ordered that the proceedings be and the same are
hereby terminated.

111


Interim Decision #2168

MATTER OF NAKOI

In Deportation Proceedings
A-13933641

Decided by Board October 11, 1972
A lawful permanent resident alien's departure to Canada in August 1967 to
fulfill a 9-month-academic-year teaching contract was not an "innocent,
casual, and brief excursion abroad" within the ambit of Rosenberg v. Fleuti,
374 U.S. 449 (1963), notwithstanding a continuing intent to maintain his
United States residence; hence, upon his return to the United States in
December 1967 he made an "entry" within the meaning of section 101(a)(13) of
the Immigration and Nationality Act upon which to predicate a ground of
deportation.
CHARGE:
Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251]—Convicted of clime
involving moral turpitude committed within five years
after entry and sentpnred to confinement or confined
therefor in a prison or corrective institution for a year
or more (kidnapping--18 U.S.C. 1201-1970)
ON BEHALF OF RESPONDENT:

Julius C. Biervliet, Esquire
Legal Aid Society
11 Park Place
New York, New York 10007
(Oral argument scheduled but counsel did not
appear)

ON BEHALF OF SERVICE:
A. L. Tadlock
Acting Trial Attorney
(Brief filed)

On March 14, 1972, having no application for discretionary relief
before her for consideration, the special inquiry officer directed
that the respondent, who had conceded deportability, be deported
from the United States to Austria on the charge contained in the
order to show cause. The respondent, who was not then represented by counsel, waived his right to appeal from that decision,
which thereby became final. A warrant for his deportation was
issued on April 6, 1972.
The respondent subsequently moved for reopening of his proceedings. That motion, which was unopposed by the Service, was
granted and a forthPr hearing was held. On September 1, 1972, the
special inquiry officer again entered an order of deportation, as

208

Interim Decision #2168
above. The respondent took a timely appeal therefrom, to bring
the case before this Board for review. That appeal will be dismissed.
The respondent, a 35-year-old single male alien, is a native of
Hungary and a naturalized citizen of. Austria. He was originally
admitted to the United States as a student in 1963. 1 His status was
adjusted to that of a permanent resident on or about April 15,
1965. He thereafter made several trips outside the United States,
his returns from which would have posed no problem except for
one fact. He was convicted in the United States District Court for
the Southern District of New York, of the crime of kidnapping,

committed on or about May 26, 1970, in violation of 18 U.S.C. 1201,
and sentenced to confinement in a prison or corrective institution
for a period of three years.
It is well established and uncontested here that the crime of
which the respondent stands convicted involves moral turpitude?
Thus, he is deportable if any of the returns he made within five
years preceding the commission thereof (1970) constituted an
"entry," within the contemplation of section 101(a)(13) of the
Immigration and Nationality Act, 8 U.S.C. 1101. These proceedings
are predicated on the charge that his return to the United States
following a 1967 Canadian sojourn constituted such an "entry."
The facts giving rise to that charge can be summarized briefly.
As the result of correspondence between St. Mary's University,
Halifax, Nova Scotia, Canada and respondent, he was offered and
accepted a contract to teach (lecture) in the Theology Department
of that institution for the academic year September 1967—May
1968, inclusive, at a salary of approximately mow, plus lodging.
The respondent left the United States in the latter part of August
of 1967 to fulfill the terms of that contract, which called for him to
commence teaching on September 1, 1967. However, differences

arose between school' officials and the respondent which resulted
in the termination of his employment in December of 1967. He
returned to the United States through the port of Buffalo, New
York, that same month?
With two exceptions, section 101(aX13) of the Immigration and
Nationality Act provides that any coming of an alien from a
foreign place, whether it is a first coming or return, is an "entry"
subjecting the alien to the exclusion and/or expulsion provisions of
He was then a duly ordained Catholic priest.
Matter of P—, 5 I. & N. Dec. 444 (BIA, 1953).
See stipulated amendment (hearing, R-20, 21) to factual allegation No. 4,
Order to Show Cause, charging entry at an unknown northern border port in
2

April 1968 (respondent apparently made two subsequent brief trips to Halifax in

1968, to pick up belongings and visit friends).

209

Interim Decision #2168
the immigration laws. The two exceptions are: (1) a coming
following an involuntary departure; (2) a coming following a
departure which "was not intended or reasonably to be expected"
by the alien. Thus, an alien falling within the exceptions does not
make an "entry" upon his return because, under the law, he is
regarded as if he had not left the United States.
Viewing the foregoing facts in the light of the usual meaning of
the ordinary words appearing in the statute, it would seem at first
glance that the respondent's case does not fall within either of the
stated exceptions. The record contains not the slightest indication
that the respondent's presence in Canada was the result of either
coercion or inadvertence. It indicates, rather, that he fully intended and/or reasonably expected to go there. But we cannot
dispose of the problem here that simply, because of the 1963 ruling
of the Supreme Court of the United States in the case of Rosenberg v. Fleuti, 374 U.S. 449 (10 L.Ed. 2d 1000, 83 S.Ct. 1804), that
the intent exception to section 101(a)(13) means "an intent to
depart in a manner which can be regarded as meaningfully
interruptive of the alien's permanent residence."
Respondent contends his case falls within the Fleuti "intent"
.

rule, supra, for the reason that he never intended to abandon his

permanent residence in the United States. He argues that: all
during the time he was in Canada he was in the process of
establishing a mail order export -import business in the United
States,4 in contemplation of leaving the religious life; he had a
business address (post office box) in Cambridge, Massachusetts, in
connection therewith; he made trips back to the United States
from Canada in October and November of 1967, each of about two
weeks' duration, to conduct that business—both at his Boston
importer's office and in travels around the Eastern United States;
on those occasions he, stayed at the home of various religious
orders where he had lived prior to going to Canada and where he
resided between the time of his final return from Canada (footnote
3, supra) and his departure from the clerical ranks; 5 and in
October of 196'7 he notified Service officers at Pittsburgh, Pennsylvania and Boston, Massachusetts of his absence from the United
States and his "permanent" United States address. He submits
that the fact that his business venture ultimately failed is of no
consequence.
While not challenging the respondent's last stated proposition,

we reject his basic contention and find wanting his supporting
factual argument. In our opinion, "intent to abandon permanent
4

He claimed he also attempted to set up a similar business in Canada during

that poriod, but was unsuccessful.
5

He was apparently relieved of his priestly obligations in 1970.

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Interim Decision #2168
resident status" is not synonymous with "intent to depart in a
manner which can be regarded as meaningfully interruptive of
permanent residence." We are not aware of any judicial decisions
equating the two concepts, and respondent has cited none. On the
contrary, it has been administratively determined, for reasons
which are equally applicable here, that a continuing intent to
maintain United States residence is not decisive, 6 but is merely
one factor to be considered in determining whether an alien's
departure was intended to be meaningfully interruptive of his
permanent residence? •
We must, therefore, evaluate the foregoing factor together with
others which the Supreme Court in Fleuti, supra, pointed up as
being relevant in determining whether a departure had been
intended to be disruptive of residence, to wit: length of the
absence, purpose of the visit, need to secure travel documents. In
weighing these considerations, we cannot overloo1 the Court's
admonition in Fleuti, supra, that "an innocent, casual, and brief
excursion by a resident alien outside this country's borders ...
may not subject him to the consequences of an, 'entry' into the
country on his return."
,

The facts recited above indicate that the respondent may well
have had a continuing intent to return to the United States from

Canada at all times here pertinent, despite his abortive attempt to
set himself up in business there (footnote 4, supra). Also, the
purpose of his trip was ostensibly bona fide, honorable, lawful, and
not necessarily inconsistent with any policy reflected in our immigration laws. Nevertheless, it is our judgment that respondent did
make an entry when he returned from Canada in December of
1967.
Well in advance of his August 1967 departure, the respondent
made plans to be in Canada for a period of approximately nine

months. Obviously, those same plans contemplated his being
present there basically all the time during that period. They also
involved substantial remuneration for respondent's services. The
effect thereof certainly was not materially altered by the unscheduled change in circumstances occurring four months after his
departure.
When the respondent departed from the United States, he was

inspected by a Canadian immigration officer. To gain admission to
Canada, he had to show that officer his "green alien registration
card" (Form 1-151) and a letter from St. Mary's University concerning his employment. At that time, the officer warned the
respondent that if he sold anything in Canada he would have to
7

Matter of Guitnares, 10 I. & N. Dec. 520 (BIA, 1964).
See Bilbao-Bastida v. INS, 409 F.2d 820 (C.A. 9, 1969).

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Interim Decision #2168
pay duty on it. After two or three months the respondent had to
obtain Canadian license plates for his previously United States
registered automobile.
Summarizing briefly, after careful preparation, the respondent
departed from the United States to engage in gainful employment
in Canada on a full-time basis for an academic year of approximately nine months' duration_ The circumstances of his admission
to Canada to fulfill that purpose were such as to reasonably have
caused him to consider more fully the implications involved in his
leaving this country.
On the foregoing bases, we conclude that this case does not
involve "an innocent, casual, and brief excursion abroad" by a
resident alien, within the scope of the Fleuti decision, supra.
Therefore, we hold that the respondent's departure to Canada in
August of 1967 was "meaningfully interruptive" of his resident
alien status and did subject him to the consequences of an "entry"
upon his return to this country in December of 1967. Accordingly,
and in view of the foregoing, the special inquiry officer's order of
deportation is affirmed. All we need add is that, as pointed out by
the special inquiry officer, the crime of which the respondent
stands convicted renders him ineligible for discretionary relief
from deportation.

ORDER: It is ordered that the appeal be and it is hereby
dismissed.

212


Cite as 28 I&N Dec. 52 (A.G. 2020)

Interim Decision #3992

Matter of Onesta REYES, Respondent
Decided by Attorney General July 30, 2020
U.S. Department of Justice
Office of the Attorney General
(1) If all of the means of committing a crime, based on the elements of the statute of
conviction, amount to one or more of the offenses listed in section 101(a)(43) of the
Immigration and Nationality Act, 8 U.S.C. §1101(a)(43), then an alien who has been
convicted of that crime has necessarily been convicted of an aggravated felony for
purposes of the INA.
(2) The respondent’s conviction for grand larceny in the second degree under New York
Penal Law § 155.40(1) qualifies as a conviction for an aggravated felony for
purposes of the INA. DHS charged that the respondent had been convicted of either
aggravated-felony theft or aggravated-felony fraud, as defined in section 101(a)(43)(G)
and (M)(i) of the INA, 8 U.S.C. § 1101(a)(43)(G) and (M)(i). Larceny by acquiring lost
property constitutes aggravated-felony theft, and the parties do not dispute that the other
means of violating the New York statute correspond to either aggravated-felony theft or
aggravated-felony fraud.

BEFORE THE ATTORNEY GENERAL
On November 21, 2019, I directed the Board of Immigration Appeals
(“Board”) to refer this case to me for review. I also invited the parties and
interested amici to brief the question whether an alien who has been
convicted of a criminal offense necessarily has been convicted of an
aggravated felony for purposes of section 237(a)(2)(A)(iii) of INA, 8 U.S.C.
§ 1227(a)(2)(A)(iii), where all of the elements of the statute of conviction,
and thus all of the means of committing the offense, correspond either to an
aggravated-felony theft offense, as defined in section 101(a)(43)(G) of the
INA, 8 U.S.C. § 1101(a)(43)(G), or to an aggravated-felony fraud offense, as
defined in section 101(a)(43)(M)(i) of the INA, 8 U.S.C.
§ 1101(a)(43)(M)(i). Matter of Reyes, 27 I&N Dec. 708 (A.G. 2019).
For the reasons set forth in the accompanying opinion, I vacate the
Board’s order affirming the termination of the removal proceeding and
dismissing the appeal. I conclude that an alien’s prior conviction is for an
aggravated felony where all of the elements of the statute of conviction, and
thus all of the means of committing the offense, correspond to at least one of
the aggravated-felony offenses specified in section 101(a)(43) of the INA. I
abrogate any decision of the Board inconsistent with the accompanying
52

Cite as 28 I&N Dec. 52 (A.G. 2020)

Interim Decision #3992

opinion and remand this matter to the Board for further proceedings
consistent with the opinion.
The Immigration and Nationality Act (“INA”) makes removable any
alien who is convicted of an “aggravated felony” after admission into the
United States. INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). It
defines “aggravated felony” to include many generic offenses, such as
murder, theft, and burglary. INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).
These offenses are generic in the sense that they are not themselves crimes,
but instead descriptions intended to capture violations of federal, state, and
foreign criminal codes. In deciding whether an alien has been convicted of
an aggravated felony, then, it is necessary to determine whether the particular
offense of conviction corresponds to one or more of the generic offenses
listed in the INA’s definition.
The Supreme Court has held that making this determination generally
requires resort to an analytical technique called the “categorical approach.”
E.g., Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). The categorical
approach disregards “the facts of the particular prior case.” Id. (internal
quotation marks omitted). Instead, it typically focuses on the elements of the
statute of conviction to see if they categorically map on to the elements of an
aggravated felony charged in the immigration proceeding, so that all of the
means of committing the underlying offense necessarily constitute
commission of that aggravated felony. See id. An alien is removable based
on a prior conviction “only if” the underlying offense “necessarily involved
. . . facts equating to” commission of an aggravated felony. Id. (internal
quotation marks omitted).
The categorical approach can generate significant questions concerning
whether a particular offense of conviction corresponds with a generic offense
included in the INA’s definition of “aggravated felony.” Here, the
Department of Homeland Security (“DHS”) initiated a removal proceeding
against the respondent on account of her conviction for grand larceny in the
second degree in violation of New York Penal Law § 155.40(1). DHS
contends that the respondent’s conviction meets the definition of theft,
8 U.S.C. § 1101(a)(43)(G), or of fraud, id. § 1101(a)(43)(M)(i). In DHS’s
view, the state-law crime of which the respondent was convicted necessarily
constitutes either aggravated-felony theft or aggravated-felony fraud.
The respondent moved to terminate the proceeding. She did not
contest in the immigration courts that she had been convicted of either
aggravated-felony theft or aggravated-felony fraud—that is, she did not
dispute that her violation of the New York statute necessarily involved facts
meeting the definition of an aggravated felony under one of the two
generic offenses. But the respondent argued that she is not removable
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Interim Decision #3992

because her offense of conviction does not categorically map on to either
aggravated-felony theft or aggravated-felony fraud, taken individually. The
immigration judge accepted respondent’s argument and terminated the
proceeding. The Board of Immigration Appeals (“Board”) affirmed,
agreeing that it may compare the elements of the statute of conviction only
“to one of the generic crimes listed in [section 101(a)(43)] at a time.” Matter
of Reyes, A031 123 346, slip op. at *7 (BIA Apr. 24, 2019).
The respondent does not explain why she should avoid removal simply
because both the immigration judge and the Board could not settle on which
one of two aggravated felonies she had committed. And I do not believe that
either the INA or the Supreme Court’s precedent requires such a result. If
all of the means of committing a crime, based on the elements of the statute
of conviction, amount to one or more of the offenses listed in section
101(a)(43) of the INA, then an alien who has been convicted of that crime
has necessarily been convicted of an aggravated felony as that term is defined
in the INA. Accordingly, I vacate the decision below and remand to the
Board for further proceedings.

I.
The INA imposes immigration-related consequences on any alien who is
convicted of certain serious crimes. As relevant here, “[a]ny alien who is
convicted of an aggravated felony at any time after admission” is removable
from the United States. 8 U.S.C. § 1227(a)(2)(A)(iii). In addition, an alien
convicted of an aggravated felony is not eligible for certain forms of
discretionary relief, such as asylum, cancellation of removal, and voluntary
departure. See id. § 1158(b)(2)(A)(ii), (B)(i); id. § 1229b(a)(3), (b)(1)(C);
id. § 1229c(b)(1)(C).
Section 101(a)(43) of the INA defines “aggravated felony” to mean any
of a long list of serious offenses spelled out across subparagraphs (A) through
(T), id. § 1101(a)(43)(A)–(T), and any “attempt or conspiracy to commit an
offense described in” the foregoing provisions, id. § 1101(a)(43)(U). Some
of the subparagraphs list familiar crimes, such as “murder,” “rape,” and
“burglary.” Id. § 1101(a)(43)(A), (G). Other subparagraphs define
categories of offenses through cross-references to various provisions of the
U.S. Code, e.g., id. § 1101(a)(43)(B) (“illicit trafficking in a controlled
substance (as defined in section 802 of Title 21)”), or capture offenses that
relate to or involve particular conduct, e.g., id. § 1101(a)(43)(K)(i) (“an
offense that . . . relates to the owning, controlling, managing, or supervising
of a prostitution business”). The offenses in section 101(a)(43) are not
themselves substantive crimes, but rather descriptions of crimes that may be
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Interim Decision #3992

committed under federal, state, and foreign law. See id. § 1101(a)(43) (“The
term [‘aggravated felony’] applies to an offense described in this paragraph
whether in violation of Federal or State law and applies to such an offense in
violation of the law of a foreign country for which the term of imprisonment
was completed within the previous 15 years.”).
When DHS seeks to remove an alien based on a conviction for an
aggravated felony, it ordinarily charges the alien with having been convicted
of one or more of the offenses listed in section 101(a)(43). Under the
“categorical approach” that applies to most aspects of the aggravated-felony
definition, DHS generally must show that the elements of the offense of
which the alien has been convicted match those of at least one of the offenses
listed in section 101(a)(43). It does not matter what “label [is] assign[ed] to
a crime” or “the means by which the defendant, in real life, committed his
crime[].” Mathis v. United States, 136 S. Ct. 2243, 2251 (2016). Instead,
DHS generally must show that the elements of the statute of conviction
categorically map onto those of a listed offense in order to establish that the
conviction necessarily amounted to the commission of an aggravated felony.
See Moncrieffe, 569 U.S. at 190 (“[W]e examine what the state conviction
necessarily involved, not the facts underlying the case[.]”); see also Shular
v. United States, 140 S. Ct. 779, 783 (2020) (explaining that the analysis
requires either defining and comparing “offense elements” or determining
“whether the conviction meets some other [statutory] criterion”). If the fact
of conviction does not establish a conviction for an aggravated felony, then
DHS may not rely upon that conviction as a basis for removal. 1
In this case, the particular types of offenses at issue are aggravated-felony
theft, which is defined as “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), and aggravated-felony fraud, which is defined as
“an offense . . . that involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000,” id. § 1101(a)(43)(M)(i). The Board has
previously examined the line between theft and fraud. In Matter of
Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008), the Board concluded that
“[t]he key and controlling distinction between these two crimes is . . .
the ‘consent’ element.” Id. at 439 (internal quotation marks omitted).
Aggravated-felony theft entails “the taking of, or exercise of control over,
1

The Supreme Court has rejected the view that the conviction must establish the
commission of an aggravated felony to a logical certainty and requires instead that there
be “a realistic probability, not a theoretical possibility, that the State would apply its statute
to conduct that falls outside the generic definition of a crime.” Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007).

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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.” Id. at 440–41 (emphasis added). Aggravated fraud,
by contrast, involves a taking “with consent that has been fraudulently
obtained.” Id. at 440 (emphases added); see also id. at 439 (“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”) (internal quotation marks omitted). The Board
has therefore concluded that theft and fraud are mutually exclusive.

II.
The respondent, a native and citizen of Italy, was admitted to the United
States in 1972 as a lawful permanent resident. In 2014, she pleaded guilty to
grand larceny in the second degree under New York Penal Law § 155.40(1).
She was convicted and sentenced to a term of one to three years’
imprisonment.
In 2015, DHS began a removal proceeding based upon the respondent’s
2014 conviction. DHS specified in the Notice to Appear that the conviction
qualified as a theft offense under section 101(a)(43)(G). Two weeks later,
DHS changed course and instead described the conviction as a fraud offense
under section 101(a)(43)(M)(i). Then, on the eve of a scheduled hearing,
DHS identified theft as an additional charge to fraud. See 8 C.F.R. § 1003.30
(“At any time during deportation or removal proceedings, additional or
substituted charges of deportability and/or factual allegations may be lodged
by [DHS] in writing.”). DHS explained that “research and consideration
of where the law stands on this issue makes the Government believe
that both charges may be correct.” Matter of Reyes, Hearing Transcript
at *32 (Immig. Ct. July 14, 2015). DHS thus chose to pursue both
aggravated-felony offenses in the removal proceeding.
The respondent moved to terminate the proceeding. Because New York
law defines larceny to include both a taking of property without consent and
one where consent was fraudulently obtained, see infra Part III.B, the
respondent argued that the statute of conviction is not a categorical match to
either aggravated-felony theft or aggravated-felony fraud. Even if the New
York offense must constitute either theft or fraud, she contended, the
immigration judge could not determine using the categorical approach the
one particular aggravated felony that she had committed. Therefore, she
argued, her larceny conviction could not support her removal.
The immigration judge granted the motion to terminate. The immigration
judge concluded that the New York statute defines a single crime that “is
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much broader than either of the charges brought by the Government.” Matter
of Reyes, Order on Motion to Terminate at *4 (Immig. Ct. July 28, 2015).
After DHS appealed, the Board invited the parties and interested amici to
submit supplemental briefs addressing “[w]hether DHS can establish
removability by charging an alien as an aggravated felon under two separate
aggravated felony definitions, neither of which would independently be a
categorical match to the statute of conviction, if all means of violating the
statute fall within at least one of the charged aggravated felony definitions.”
Letter for Michael Zamel Goldman, Esq., from Rebecca Noguera, Appeals
Examiner, Board of Immigration Appeals (Jan. 24, 2018). The Board also
invited supplemental briefing on the question “[w]hether all means of
violating New York Penal Law § 155.05 would meet the definition of an
aggravated felony as defined in either section 101(a)(43)(G)
[aggravated-felony theft] OR section 101(a)(43)(M) [aggravated-felony
fraud].” Id.
In April 2019, the Board affirmed the termination of the removal
proceeding in a split unpublished decision. The Board “assume[d] without
deciding” that all of the means of committing larceny under the New York
statute amount either to aggravated-felony theft or aggravated-felony fraud.
See Reyes, slip op. at *3 n.4. But the majority concluded that because the
statute reaches both takings without consent and those with fraudulently
obtained consent, it is “overbroad relative to the definition of a theft offense
at section 101(a)(43)(G)” and “overbroad relative to the definition of ‘fraud
or deceit’ at section 101(a)(43)(M)(i).” Id. at *3. The majority explained
that “neither the Supreme Court nor the circuit courts have used the
categorical approach to determine whether an alien has been convicted of an
‘aggravated felony’ by looking to multiple definitions listed in section
101(a)(43) in combination.” Id. at *6–7. Therefore, the majority surmised,
“we may only compare the State crime to one of the generic crimes listed in
that section at a time.” 2 Id. at *7.
One Board member dissented, asserting that the majority’s approach
yielded a “patently absurd result.” Id. at *11 (O’Connor, dissenting). He
described the categorical approach as a “tool for discerning what crime an
alien was necessarily convicted of,” id. at *10 (internal quotation marks and
2

There is no dispute about the $10,000-loss requirement of section 101(a)(43)(M)(i), or
about the term-of-imprisonment requirement of section 101(a)(43)(G), which, in any event,
can be proved with evidence other than the offense elements, see Nijhawan v. Holder, 557
U.S. 29, 40 (2009). Respondent was convicted under New York Penal Law § 155.40(1),
which requires that the value of the property “exceed[] fifty thousand dollars,” and was
sentenced to between one and three years’ imprisonment.

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emphasis omitted), and reasoned that “[w]hile there may be uncertainty over
whether the respondent was convicted of a theft offense or a fraud offense,
there can be no uncertainty that she was convicted of an aggravated felony
offense,” id. “[T]hat ends the analysis,” the dissent concluded, because
section 237(a)(2)(A)(iii) of the INA makes removable any alien who is
convicted of any aggravated felony. Id. at *11.
In November 2019, I directed the Board to refer this case to me for review
and invited supplemental briefing from the parties and interested amici on
the question whether an alien who has been convicted of a criminal offense
necessarily has been convicted of an aggravated felony where all of the
elements of the statute of conviction—and thus all of the means of
committing the offense—correspond either to aggravated-felony theft or to
aggravated-felony fraud. Matter of Reyes, 27 I&N Dec. 708 (A.G. 2019).
For the reasons explained below, I conclude that the respondent’s 2014
conviction for grand larceny under New York law is necessarily a conviction
for an aggravated felony as defined in section 101(a)(43) of the INA.

III.
The INA provides that an alien who is convicted of an “aggravated
felony” is removable from the United States. 8 U.S.C. § 1227(a)(2)(A)(iii).
DHS charged that the respondent had been convicted of either
aggravated-felony theft or aggravated-felony fraud, and the Board assumed
that was the case. The Board nonetheless concluded that the respondent is
not removable, because it could not determine using the categorical approach
which one of the two aggravated felonies matches the respondent’s offense
of conviction.
No doubt the categorical approach, by ignoring the respondent’s
real-world offense, may sometimes lead to bizarre results. See, e.g., Mathis,
136 S. Ct. at 2255–56 (acknowledging the “oddities” and “counter-intuitive
consequences” that may result); United States v. Chapman, 866 F.3d 129,
136 (3d Cir. 2017) (en banc) (Jordan, J., concurring) (lamenting that the
approach “require[s] judges to ignore the real world”); United States v. Faust,
853 F.3d 39, 61 (1st Cir. 2017) (Lynch, J., concurring) (noting
“counterintuitive results”). Indeed, the categorical approach has proven to
be particularly disruptive to the immigration system, because in a number of
cases it has prevented the removal of aliens who have unquestionably been
convicted of serious crimes, all because of the manner in which a state
legislature has phrased a particular criminal statute or a state court has
interpreted its elements. See, e.g., Amos v. Lynch, 790 F.3d 512 (4th Cir.
2015) (holding that an alien’s conviction under Maryland law for sexually
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abusing a five-year-old boy did not qualify as a conviction for “sexual abuse
of a minor,” 8 U.S.C. § 1101(a)(43)(A)); see generally United States
v. Burris, 912 F.3d 386, 408 (6th Cir.) (Thapar, J., concurring) (likening the
categorical approach to a “lottery” or “game of chance,” in which the
outcome “depends on how a state legislature and its judiciary have defined
and interpreted [a] crime”). A test that produces outcomes that seem random
or disconnected from reality can undermine the rule of law. But the Supreme
Court has spoken. Here, even accepting as I must the limitations of the
categorical approach, I believe that the Board’s wooden application of it in
this context conflicts with common sense and was not required by the
governing precedent.

A.
Although it is necessary to determine whether the underlying statute of
conviction meets the INA’s definition of an aggravated felony, see, e.g.,
Moncrieffe, 569 U.S. at 191, nothing in the INA requires that the elements of
a statute of conviction correspond to one and only one offense listed in
section 101(a)(43). Where it is known to a practical certainty that an alien
has been convicted of at least one such offense, the conviction qualifies, even
if the categorical approach does not permit a conclusive determination about
which one (here, theft or fraud).
The respondent argues that she “is aware of no precedent standing for the
principle that removability may be established through the application of
multiple aggravated felony definitions,” and therefore an underlying
conviction must correspond to one and only one type of aggravated felony.
Respondent’s Memorandum of Law in Response to Attorney General’s
Invitation to Submit Brief at 5 (Dec. 18, 2019) (“Respondent’s Br.”). The
Board likewise viewed DHS as proposing a “novel methodology” where two
types of aggravated felonies could be aggregated together. Reyes, slip op. at
*5. Amici who filed briefs in support of the respondent go further and
read the universe of cases applying the categorical approach to demand a
“one-to-one” comparison between the underlying criminal statute and a
single generic offense. E.g., Brief of the National Immigration Project of the
National Lawyers Guild et al., at 4 (Jan. 15, 2020).
I am not persuaded by these arguments. The cases on which the Board
and the amici rely, involving a one-to-one comparison of underlying criminal
statute and aggravated felony, reflect the fact that in each of those cases, the
government had charged only a single aggravated felony (or other type of
generic offense). None of the cases holds that a court is required to compare
the alien’s underlying crime to one, and only one, generic offense at a time.
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Moreover, before the Supreme Court’s decisions in Mathis and Descamps
v. United States, 570 U.S. 254 (2013), courts more routinely considered the
records of the earlier criminal proceeding to obtain a better understanding of
the nature of the underlying crime. Such a measure would likely have made
it easier to determine which one of two (or more) potentially applicable
aggravated felonies applied. Although the Court in those decisions
emphasized that consideration of the trial-court record is restricted, that does
not mean that an alien who indisputably was convicted of an aggravated
felony may evade that conclusion simply because there is a lack of clarity
about which aggravated felony the conviction reflects.
This understanding finds support in how the Ninth Circuit addressed a
similar issue when applying the categorical approach to a provision of the
federal Sentencing Guidelines. In United States v. Becerril-Lopez, 541 F.3d
881 (9th Cir. 2008), the court analyzed whether an alien’s conviction under
a California statute qualified as a “crime of violence” under the commentary
to section 2L1.2 of the Guidelines. At the time, the commentary defined
“crime of violence” to include “robbery” or “extortion.” U.S. Sentencing
Guidelines Manual § 2L1.2 cmt. n.1.B.iii (2005). Applying the categorical
approach, the court held that the California statute defined a crime of
violence because all of the means of committing the underlying offense
corresponded to the essential elements of either robbery or extortion. See
Becerril-Lopez, 541 F.3d at 892 (“[I]f a conviction under Cal. Penal Code
§ 211 involved a threat not encompassed by generic robbery, it would
necessarily constitute generic extortion and therefore be a ‘crime of violence’
under U.S.S.G. § 2L1.2.”). In United States v. Chaves-Cuevas, 862 F.3d 729
(9th Cir. 2017), the court confirmed the continuing validity of this approach,
explaining that “the categorical approach in Becerril-Lopez was not a
conduct-based analysis” of the sort barred by Mathis and Descamps because
Becerril-Lopez “focused squarely on the elements of California robbery and
the relevant generic offenses and not on a particular defendant’s conduct.”
Id. at 740.
The Board dismissed Becerril-Lopez on the ground that the decision
involved an interpretation of the Sentencing Guidelines rather than the INA.
See Reyes, slip op. at *6. But when the categorical approach applies to an
inquiry about whether a conviction meets a definition, it does not matter
whether the definition appears in the INA, a criminal statute, or the
Sentencing Guidelines. The Supreme Court accordingly has observed that it
has “appl[ied] the categorical approach set forth in [a criminal case] to the
INA.” Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017)
(describing Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007)); see also
Kawashima v. Holder, 565 U.S. 478, 483 (2012) (same). In fact, the Ninth
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Circuit in Becerril-Lopez treated both immigration and criminal decisions as
relevant precedents when explaining the categorical approach. See
Becerril-Lopez, 541 F.3d at 890 (quoting Duenas-Alvarez and citing criminal
cases).
The Board further suggested that Becerril-Lopez was “no longer good
law” in the Ninth Circuit. Reyes, slip op. at *6 n.7. But that decision was
superseded only because of subsequent amendments to the Sentencing
Guidelines, which rendered the California statute overbroad relative to the
new definition of “crime of violence.” See United States v. Bankston,
901 F.3d 1100, 1104 (9th Cir. 2018) (“Under Amendment 798,
Guidelines-defined extortion does not criminalize extortion committed by
threats to property; California robbery does. California robbery is thus no
longer a categorical match to a combination of Guidelines-described robbery
and extortion, and Becerril-Lopez’s holding to the contrary no longer
controls.”). The fact that the Sentencing Commission amended the definition
in a way that upset the specific result in Becerril-Lopez simply has no bearing
on that case’s sensible conclusion that, where all of the means of committing
an offense correspond to one or the other of two different crimes of violence,
then a conviction for the offense necessarily counts as a conviction for a
crime of violence.
The Board also rejected Becerril-Lopez’s approach on the ground that it
would effectively create a “hybrid” aggravated felony of theft/fraud, which
would be similar to the “hybrid offense theory” that the Third Circuit has
repudiated. See Al-Sharif v. U.S. Citizenship and Immigration Services, 734
F.3d 207 (3d Cir. 2010) (en banc) (overruling Nugent v. Ashcroft, 367 F.3d
162 (3d Cir. 2004)). In Nugent, the Third Circuit determined that a
Pennsylvania statute criminalizing theft by deception constituted a “hybrid
crime” implicating both aggravated-felony theft and aggravated-felony
fraud. See 367 F.3d at 177–79; id. at 179–80 (Rendell, J., concurring)
(describing the offense as a “hybrid crime”). The court held that to constitute
an aggravated felony, it was not sufficient for the alien’s conviction under
the statute to meet the definition of either aggravated-felony theft or
aggravated-felony fraud, but rather, the offense must satisfy the requirements
for both theft and fraud. See id. at 179 (“[Nugent’s] convict[ion] under
Pennsylvania’s theft by deception statute does not qualify as an aggravated
felony as defined by the INA, because although the term of imprisonment
imposed on Nugent was one year or more [as required by section
101(a)(43)(G)], the victims’ loss did not exceed $10,000 [as required by
section 101(a)(43)(M)(i)].”). In Al-Sharif, the en banc Third Circuit
overruled this “hybrid offense theory” as contrary to the plain text of the INA
and held that it was sufficient for the state-law offense to meet the
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requirements of only one of the offenses in the aggravated-felony definition.
734 F.3d at 213.
The Board’s discussion of the hybrid-offense theory is perplexing
because DHS does not contend here that New York larceny should be viewed
as a hybrid offense under Nugent that must satisfy the elements of both theft
and fraud. Nor does DHS seek to fuse the criteria of section 101(a)(43)(G)
with that of section 101(a)(43)(M)(i) to create a novel aggravated felony.
What DHS does contend is that the respondent was convicted of an
aggravated felony because, under New York law, her larceny conviction
necessarily constitutes one of two listed offenses. I agree. If an alien has
been convicted of one of two (or more) offenses listed in section 101(a)(43),
then the alien has necessarily been convicted of an aggravated felony for
purposes of the INA, even if the strictures of the categorical approach
obscure the specific offense committed. 3
This reasoning is supported by the structure of the INA’s definition of
aggravated felony. There is significant internal overlap between various
parts of that definition. For instance, section 101(a)(43)(F) includes “a crime
of violence . . . for which the term of imprisonment [is] at least one year,”
and that category includes several offenses that are separately listed
elsewhere in the definition, such as “murder” and “rape” (subparagraph (A)),
the use of fire or explosives to destroy property (subparagraph (E)(i)), and
“burglary” (subparagraph (G)). Similarly, subparagraph (K)(i) refers to
offenses related to running a prostitution business, which could include
offenses in subparagraph (A) (“sexual abuse of a minor”) or subparagraph
(K)(ii) (transporting someone, for commercial advantage, for the purpose of
engaging in prostitution). By including overlapping categories within its
many-pronged definition of aggravated felony, Congress evidently sought to
capture more offenses. What matters is that a serious crime necessarily falls
within the definition somewhere, not whether it falls within one particular
prong or another. When all means of committing the offense of conviction
satisfy one or the other of two alternative aggravated felonies, the conviction
does not fall between stools. Instead, it is necessarily supported by one or
the other, even if the categorical approach obscures which one.
3

Section 239(a)(1) of the INA requires that an alien in removal proceedings receive
written notice of, among other things, “[t]he charges against the alien and the statutory
provisions alleged to have been violated.” 8 U.S.C. § 1229(a)(1)(D). As the Board noted,
there are constitutional dimensions to this requirement. Reyes, slip op. at *4 n.6. (citing
Nolasco v. Holder, 637 F.3d 159, 163 (2d Cir. 2011)). The Board here correctly determined
that the respondent had adequate notice of and opportunity to respond to the specific
charges of removability. Id.

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B.
Whether the respondent was convicted of either aggravated-felony theft
or aggravated-felony fraud depends on whether the statute of conviction
categorically fits within one or the other. As noted above, the Board assumed
without deciding that all of the means of committing larceny under New
York Penal Law § 155.40(1) amount to either aggravated-felony theft or
aggravated-felony fraud. Although the respondent did not dispute this issue
before the Board, she has objected to this assumption before me, and I
exercise my discretion to consider the issue.
New York Penal Law § 155.40(1) provides that “[a] person is guilty of
grand larceny in the second degree when he steals property and when . . . the
value of the property exceeds fifty thousand dollars.” New York Penal Law
§ 155.05(1) explains that “[a] person steals property and commits larceny
when, with intent to deprive another of property or to appropriate the same
to himself or to a third person, he wrongfully takes, obtains or withholds such
property from an owner thereof.” New York Penal Law § 155.05(2) then
identifies various methods of committing larceny:
Larceny includes a wrongful taking, obtaining or withholding of
another’s property, with the intent prescribed in subdivision one of this
section, committed in any of the following ways: (a) By conduct heretofore
defined or known as common law larceny by trespassory taking, common
law larceny by trick, embezzlement, or obtaining property by false pretenses;
(b) By acquiring lost property . . . ; (c) By committing the crime of issuing a
bad check . . . ; (d) By false promise . . . ; [or] (e) By extortion. 4
DHS contends that all of the theories of larceny under New York Penal
Law § 155.05(2) meet the generic definition of either aggravated-felony theft
or aggravated-felony fraud as defined in Garcia-Madruga. Specifically,
DHS identifies larceny by trespassory taking, acquiring lost property, and
extortion as aggravated-felony theft, and larceny by trick, false pretenses,
embezzlement, issuing a bad check, and false promises as aggravated-felony
fraud.

4

The parties agree that the various methods of committing larceny that are outlined in
New York Penal Law § 155.05(2) constitute different means rather than alternative
elements; in the argot of the categorical approach, the statute of conviction is “indivisible.”
See Mathis, 136 S. Ct. at 2248–49. Numerous cases hold that the prosecution need not
prove the particular manner in which the property was stolen. See, e.g., People v. Tighe,
768 N.Y.S.2d 871, 872 (N.Y. App. Div. 2003); People v. Ponnapula, 655 N.Y.S.2d 750,
759–60 (N.Y. App. Div. 1997).

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As noted, before the Board, the respondent did not dispute DHS’s
contentions, either in her initial brief or in the supplemental brief requested
by the Board. The respondent now argues that one theory of larceny under
New York Penal Law § 155.05(2)—larceny by acquiring lost property—“is
neither a fraud nor a theft aggravated felony.” Respondent’s Br. at 2. The
respondent asserts that “[a]cquiring lost property under New York Penal Law
§ 155.05(2)(b) does not involve taking property from the victim with or
without consent, but merely involves exercising control over, and failing to
make reasonable measures to return[,] property which may have come into
one’s possession through no fault of one’s own.” Id. The respondent further
asserts that larceny by acquiring lost property “can be performed in the
absence of consent, or by mistaken consent,” and therefore it does not satisfy
the definition of theft as stated in Garcia-Madruga. Id.
The respondent cites no precedent in support of that interpretation, and I
conclude that larceny by acquiring lost property categorically meets the
definition of aggravated-felony theft. New York law provides that a person
has committed larceny by acquiring lost property when “with the intent
prescribed in subdivision one”—that is, “with intent to deprive another of
property or to appropriate the same to himself or to a third person,” New
York Penal Law § 155.05(1)—“he exercises control over property of another
which he knows to have been lost or mislaid, or to have been delivered under
a mistake as to the identity of the recipient or the nature or amount of the
property, without taking reasonable measures to return such property to the
owner.” Id. § 155.05(2)(b). In Garcia-Madruga, the Board held that
aggravated-felony theft entails “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.” 24 I&N Dec. at 440–41.
Larceny by acquiring lost property categorically fits within
aggravated-felony theft. First, larceny by acquiring lost property requires an
“exercise[] [of] control over property of another.” N.Y. Penal Law
§ 155.05(2)(b). Aggravated-felony theft requires “the taking of, or exercise
of control over, property” of another. Garcia-Madruga, 24 I&N Dec. at
440–41. Second, larceny by acquiring lost property requires a lack of
consent—the owner is incapable of having consented, as the property has
been “lost,” “mislaid,” or “delivered under a mistake,” and the possessor both
“knows” this and fails to take “reasonable measures” to return it. N.Y. Penal
Law § 155.05(2)(b). Aggravated-felony theft requires that the taking or
exercise of control occur “without consent.” Garcia-Madruga, 24 I&N Dec.
at 440–41. Third, larceny by acquiring lost property requires “intent to
deprive another of property,” or “to appropriate the same.” N.Y. Penal Law
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§ 155.05(2)(b); see also People v. Jennings, 512 N.Y.S.2d 652, 659 (1986)
(noting that “the terms ‘deprive’ and ‘appropriate’ . . . connote a purpose . . .
to exert permanent or virtually permanent control over the property taken, or
to cause permanent or virtually permanent loss to the owner of the possession
and use thereof”). Aggravated-felony theft requires a “criminal intent to
deprive,” even if the deprivation is “less than total or permanent.”
Garcia-Madruga, 24 I&N Dec. at 440–41. 5
Because larceny by acquiring lost property constitutes aggravated-felony
theft, and because there is no dispute that the other means of violating New
York Penal Law § 155.40(1) correspond to either aggravated-felony theft or
aggravated-felony fraud, I conclude that the respondent’s conviction under
the statute is for an aggravated felony.

C.
The respondent’s final argument is that, if I conclude that her conviction
for larceny is one for an aggravated felony, then I cannot apply that
conclusion in this case because it constitutes a “new” rule whose application
would be “impermissibly retroactive.” Respondent’s Br. at 4. The
respondent relies on Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2018), where
the court explained that “[a]gencies may create new rules through
adjudication, but the retroactive application of the resulting rules ‘must be
balanced against the mischief of producing a result which is contrary to a
statutory design or to legal and equitable principles.’” Id. at 445 (quoting
SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)). This argument fails for
several reasons.
First, there is no retroactivity problem here. This opinion does not
announce any “new” rule, because I have not departed from settled precedent
or practice. See Judulang v. Holder, 565 U.S. 42, 63 n.12 (2011) (“Because
5

In Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009), the Second Circuit rejected an
argument that a Connecticut larceny statute incorporates theories of larceny not included
within the INA’s definition of aggravated-felony theft because, like the New York statute
at issue here, a conviction under the Connecticut statute may rest on proof of intent to
appropriate rather than intent to deprive. See id. at 787–88. The court reasoned that, under
Connecticut law, the phrases “intent to deprive” and “intent to appropriate” are “focus[ed]
on different property rights,” but both “ultimately establish[] a broad generic requirement
of an intent to deprive another person (to the degree statutorily specified) of some rights or
benefits of property ownership.” Id. at 788. Almeida forecloses any similar argument that
the respondent may have made in this case, because the phrases “to deprive” and “to
appropriate” are defined identically under Connecticut and New York law. Compare Conn.
Gen. Stat. § 53a-118(a)(3)–(4), with N.Y. Penal Law § 155.00(3)–(4).

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we find the BIA’s prior practice so unsettled, we likewise reject Judulang’s
argument that Blake and Brieva-Perez were impermissibly retroactive.”); cf.
Obeya, 884 F.3d at 448 (concluding that the BIA had created a new rule
where its decision “expressly effected a clear departure from longstanding
BIA precedent”). Neither the respondent nor amici have identified any case
reaching a contrary result on the legal questions here. The respondent
maintains that she is “aware of no precedent” recognizing an aggravated
felony under similar circumstances, Respondent’s Br. at 5, but the absence
of such precedent demonstrates at most an ambiguity in the law, rather than
a settled understanding to the contrary upon which she could have reasonably
relied. See Judulang, 565 U.S. at 63 n.12. And, as discussed above, the
closest precedent on point—the Ninth Circuit’s decision in Becerril-Lopez—
applied the categorical approach precisely as I have.
Second, even if this opinion announces something that could be
considered a “new” principle of law, there would be no barrier to applying it
in this case. As a general proposition, “where legal consequences hinge upon
the interpretation of statutory requirements, and where no pre-existing
interpretive rule construing those requirements is in effect, nothing prevents
the agency from acting retroactively through adjudication.” Bowen
v. Georgetown Univ. Hosp., 488 U.S. 204, 224 (1988) (Scalia, J.,
concurring). 6 Consistent with that understanding, there is a well-recognized
“exception” to the anti-retroactivity principle for a litigant whose case gives
rise to a new legal interpretation, because that person had an opportunity to
present argument to the agency and ran the risk that the agency would use
his case to announce the new understanding. Velásquez-Garcia v. Holder,
760 F.3d 571, 580–81 (7th Cir. 2014). There can be no doubt that the
respondent here had a full and fair opportunity to present argument on the
dispositive issues, including two rounds of briefing before the Board, and
another round before me.
Third, the respondent has not established, and cannot establish, that she
relied on what she supposes to be the old rule—a fact that is fatal under the
balancing tests applied by some courts to address retroactivity claims,
6

Courts have on occasion regarded an agency’s adjudication as more akin to a
rulemaking, and for that reason have held that the general principle of the agency’s decision
may be applied only prospectively. See De Niz Robles v. Lynch, 803 F.3d 1165, 1172–75
(10th Cir. 2015) (Gorsuch, J.); see also Velásquez-Garcia v. Holder, 760 F.3d 571, 581
(7th Cir. 2014). But this case does not involve any of the facts that were most critical in
De Niz Robles—that the alien clearly relied on an old rule; that the agency clearly adopted
a new legal principle; that a court ultimately deferred to the agency’s interpretation of a
statute under administrative-law principles; and that the alien’s reasonable expectations
were unsettled as a result. See 803 F.3d at 1167–68, 1172–75.

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Interim Decision #3992

especially when added to the reasons I have already given for rejecting the
respondent’s claim. See Obeya, 884 F.3d at 445 (considering “whether the
case is one of first impression”; whether the new rule abruptly “depart[s]
from well-established practice”; whether the party had relied on the former
rule; “the degree of the burden which a retroactive order places on a party”;
and “the statutory interest in applying a new rule”); De Niz Robles v. Lynch,
803 F.3d 1165, 1177 (10th Cir. 2015) (Gorsuch, J.) (discussing the same
factors, and explaining that they “direct our attention to the question whether
the petitioner can claim reasonable reliance on some past rule or decision”).
The respondent asserts that it was “eminently reasonable” for her to plead
guilty to the larceny charge based on her understanding of the state of the law
at that time. Respondent’s Br. at 5. But the respondent does not explain what
authorities would have reasonably supported her understanding, and she
could not seriously maintain that she relied upon a prediction about the
meaning of “aggravated felony” under the INA when she chose to plead
guilty. Moreover, the respondent acknowledged during her plea colloquy
that she had consulted with an immigration attorney and understood that a
guilty plea could lead to her removal. DHS Notice of Filing of Intended
Evidence, Ex. C at 12–13 (Immig. Ct. May 14, 2015) (Plea Minutes, People
v. Reyes, No. 1997N-13 (N.Y. Sup. Ct. Apr. 3, 2014)). On these facts, there
is no basis to avoid applying the correct legal principle to the respondent’s
case.

IV.
For the reasons set forth above, I conclude that the respondent’s 2014
conviction for grand larceny in the second degree under New York Penal
Law § 155.40(1) is necessarily one for an aggravated felony under section
101(a)(43) of the INA. Because the respondent was convicted of an
aggravated felony, the Board erred in affirming the immigration judge’s
order terminating the removal proceeding and in dismissing DHS’s appeal.
I vacate the decision below and remand for further proceedings consistent
with this opinion.

67


Interim Decision #1705

MATTER OF ALVAlligZ-RIERA

In Deportation Proceedings
A-11884468
Decided by Board February 1, 1967
Motion to reopen deportation proceedings to permit application for adjustment
Of status under the Act of November 2, 1085 is denied, without prejudice, in
the ease of respondent, a Cuban refugee, since he was not 'Inspected and admitted or paroled" into the United States as required by the Act, having last
entered this country by fording the Rio Grande River on September 9, 1959, at
which- time he 010 not present himself for inspection by an immigration officer_
CHARGE :

Order : Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 ( a) (2)1—Entered with.
out inspection.

The respondent, a native and citizen of Cuba, has been found deportable under the provisions of section 241(a) (2) of the Immigration and
Nationality Act in that he entered the United States without inspection. A warrant for his deportation dated October 21, 1959 is outstanding. He has moved for a reopening of the proceeding to permit
consideration of an application for an adjustment of status pursuant to
the Cuban Refugee Act of November 2, 1966. The motion was denied
by the special inquiry officer by an order entered on January 12, 1967.
The respondent appeals from this order.
The respondent, a Cuban refugee, last entered the United States
near the port of Laredo, Texas on September 9, 1959. He forded the
Rio Grande River and did not present himself for inspection by an
immigration officer. The respondent concedes that he is deportable as
charged in the order to show cause.
The Act of November 2, 1966 provides for the adjustment of status
of Cuban refugees who have been inspected and admitted or paroled
into the United States. The special inquiry officer denied the motion
to reopen inasmuch as the respondent was not inspected and admitted

or paroled into the United States. The respondent, in his notice of
appeal (Form I-290A), maintains that the Act of November 2, 1966
was passed for the benefit of all Cubans who fled from the tyranny of
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Castro; that while in Mexico he attempted. to obtain a visa from the
American Consul in order to enter the United States lawfully but was
refused. The respondent informs us that his wife resides with him at
Philadelphia, Pennsylvania and is employed as a dietician and that he
has one son who is serving in the United States Army.
We have carefully reviewed the record before us. While we are sympathetic with the respondent's desire to remain in the United States
with his family and to become an American citizen, we are not aware
of any provision under the immigration laws which would permit him
to adjust his status to that of a permanent resident alien at the present
time. We will, however, dismiss the appeal without prejudice to consideration of a motion to reopen to apply for such relief as may be
available in the future.
ORDER: It is directed that the appeal be and the same is hereby
dismissed without prejudice to consideration of a motion to reopen to
apply for such relief as may become available to the alien.

Ha