Francisco Mena v. Eric Holder, Jr.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: A034-019-659. [999805559]. [15-1009]

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 1 of 22

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1009

FRANCISCO ALBERTO MENA,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

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

Argued:

January 27, 2016

Decided:

April 27, 2016

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Petition for Review granted by published opinion.
Judge Shedd
wrote the opinion in which Judge Agee joined.
Judge Wilkinson
wrote a dissenting opinion.

ARGUED:
David
Kendall
Roberts,
O'MELVENY
&
MYERS
LLP,
Washington, D.C., for Petitioner.
Benjamin Mark Moss, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Joyce R. Branda, Acting Assistant Attorney General,
Civil Division, Douglas E. Ginsburg, Assistant Director, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 2 of 22

SHEDD, Circuit Judge:
Francisco
Immigration

Mena

petitions

Appeals’

for

(“BIA”)

review

decision

of

the

finding

Board

him

to

of
be

ineligible for cancellation of removal under the Immigration and
Nationality Act (“INA”) because he is an aggravated felon. For
the following reasons, we grant the petition.
I
Mena is a native and citizen of the Dominican Republic who
was

admitted

resident.

An

to

the

United

immigration

States

judge

(“IJ”)

as

a

lawful

ordered

permanent

Mena’s

removal

based on his two convictions of crimes involving moral turpitude
not arising out of the same criminal scheme. See 8 U.S.C. §
1227(a)(2)(A)(ii). Mena did not appeal the removal order to the
BIA, and he does not contest it in his petition for review.
During

his

immigration

proceedings,

Mena

applied

for

cancellation of removal, a form of discretionary relief that is
available to certain aliens who have not been convicted of an
“aggravated felony.” See 8 U.S.C. § 1229b(a)(3). For purposes of
the INA, an aggravated felony is, among other things, a “theft
offense (including receipt of stolen property) . . . for which
the term of imprisonment [is] at least one year.” 8 U.S.C. §
1101(a)(43)(G).

2

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 3 of 22

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

creates

four

offenses,

paragraph.

Pertinent

proscribes

the

certain

here,

illegal

property

that

each
the

taking
has

set

forth

first
by

moved

in

paragraph

embezzlement
in

a

separate

of

or

interstate

§

theft

or

659
of

foreign

commerce. The second paragraph proscribes the purchase, receipt,
or possession of such property “knowing the same to have been
embezzled

or

stolen.”

Mena

was

convicted

under

the

second

paragraph and was sentenced to a 60-month imprisonment term.
The IJ concluded that Mena is an aggravated felon based on
his finding that the § 659 conviction falls within the scope of
§

1101(a)(43)(G).

Accordingly,

the

IJ

pretermitted

Mena’s

cancellation of removal application. Thereafter, in a singlemember panel decision, the BIA dismissed Mena’s appeal of the
IJ’s order. 1 As we discuss below, the BIA primarily based its
decision on its view that § 1101(a)(43)(G) contains two separate
types of offenses that qualify as an INA “aggravated felony”: a
“theft

offense,”

which

is

the

base

offense

listed

in

the

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

in

the

parenthetical

appended

to

the

term

“theft

offense.”

1Consistent

with the BIA’s analysis, the parties agree that
§ 659 is divisible and that Mena was convicted under the second
paragraph.

3

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 4 of 22

II
Because the BIA issued its own opinion without adopting the
IJ’s

reasoning,

we

review

only

the

BIA

decision.

Hernandez-

Avalos v. Lynch, 784 F.3d 944, 948 (4th Cir. 2015). We review de
novo

the

BIA’s

determination

that

an

offense

is

an

INA

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

2014),

affording

“appropriate

deference”

to

the

BIA’s

statutory interpretation of the INA, Espinal-Andrades v. Holder,
777 F.3d 163, 166 (4th Cir. 2015).
A.
When
qualifies

the
as

“categorical

Government
an

INA

approach”

alleges

aggravated
to

that

felony,

determine

a

prior

we

must

employ

the

the

offense

is

whether

conviction

comparable to an offense listed in the INA. Omargharib, 775 F.3d
at 196. “Under that approach, we consider only the elements of
the statute of conviction rather than the defendant’s conduct
underlying the offense.” Id. The prior conviction constitutes an
aggravated felony if it has the same elements as the generic INA
crime. Id. However, if the statute of conviction “sweeps more
broadly” and criminalizes more conduct than the generic federal
crime,

the

prior

conviction

cannot

count

as

an

aggravated

felony. Id. This is so even if the defendant actually committed
the offense in its generic form. Id.

4

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 5 of 22

Because we examine what the prior conviction necessarily
involved, not the facts underlying the case, we must presume
that

the

prior

conviction

rested

upon

nothing

more

than

the

least of the acts criminalized and then determine whether even
those

acts

are

encompassed

by

the

generic

federal

offense.

Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013). Our focus on
the minimum conduct criminalized by the statute of conviction is
not

an

invitation

to

apply

“legal

imagination”

to

the

prior

offense; rather, there must be “a realistic probability” that
the government would apply its statute to conduct that falls
outside the generic definition of a crime. Id. at 1684-85.
B.
Applying the categorical approach, we addressed the meaning
of

the

§

1101(a)(43)(G)

term

“theft

offense”

in

Soliman

v.

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

that

the

alien’s

Virginia

credit

card

fraud

conviction

constituted an INA theft offense and, therefore an aggravated
felony, based on its determination that a conviction for fraud
may

also

constitute

“theft”

for

purposes

of

the

INA.

We

disagreed. We first noted that the “plain text of § 1101(a)(43)
shows that Congress specifically distinguished fraud from theft,
and

that

it

meant

for

the

two

5

offenses

to

be

treated

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 6 of 22

differently.” Id. at 282. 2 We then observed that “[w]hen a theft
offense has occurred, property has been obtained from its owner
‘without

consent;’”

voluntarily

but

“in

‘surrendered’

a

fraud

his

scheme,

property,

the

owner

because

has

of

an

‘intentional perversion of truth,’ or otherwise ‘act[ed] upon’ a
false representation to his injury.” Id. We thus explained that
the “key and controlling distinction between these two crimes is
. . . the ‘consent’ element — theft occurs without consent,
while

fraud

occurs

with

consent

that

has

been

unlawfully

obtained.” Id. Accordingly, we held that “a taking of property
‘without consent’ is an essential element” of a § 1101(a)(43)(G)
theft

offense.

Id.

at

283. 3

Consequently,

we

found

that

the

alien’s credit card fraud offense was not an INA “theft offense”
– i.e., an “aggravated felony.”
We

reiterated

this

holding

in

Omargharib.

There,

we

considered whether the BIA properly concluded that the alien’s

2In

addition to the § 1101(a)(43)(G) “theft offense,” an
offense that “involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000” is also an aggravated felony.
See 8 U.S.C. § 1101(a)(43)(M)(i).
3Consistent

with Soliman, the BIA now defines “theft
offense” for purposes of § 1101(a)(43)(G) as “the taking of, or
exercise of control over, property without consent whenever
there is criminal intent to deprive the owner of the rights and
benefits of ownership, even if such deprivation is less than
total or permanent.” In re Garcia-Madruga, 24 I. & N. Dec. 436,
440-41 (BIA 2008) (emphasis added).

6

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 7 of 22

Virginia larceny conviction was an INA theft offense. Finding
that the BIA erred, we explained that “Virginia law treats fraud
and theft as the same for larceny purposes, but the INA treats
them

differently.

broadly’

than

As

the

such,

INA’s

Virginia

theft

larceny

offense.”

775

‘sweeps
F.3d

more

at

197

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

“does

not

constitute

an

aggravated

felony

for

purposes of the INA under the categorical approach.” Id.
C.
Mena’s challenge to the BIA’s decision is primarily based
on our holding in Soliman. Mena argues that a person can be
convicted under the second paragraph of § 659 for receipt of
embezzled property, and the crime of embezzlement necessarily
involves
Therefore,

a

taking
according

of
to

property
Mena,

with

the

because

“a

owner’s
taking

of

consent.
property

‘without consent’ is an essential element” of a § 1101(a)(43)(G)
theft offense, Soliman, 419 F.3d at 283, a conviction under the
second

paragraph

of

§ 659

is

not

a

§

1101(a)(43)(G)

“theft

offense” under the categorical approach.
The BIA rightly did not dispute this interpretation of the
second paragraph of § 659 or the crime of embezzlement, see J.A.
5, because the second paragraph of § 659 plainly criminalizes
the receipt of certain embezzled property. Moreover, in what we
have described as the “the classic definition,” United States v.
7

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 8 of 22

Smith, 373 F.3d 561, 565 (4th Cir. 2004), the Supreme Court long
ago explained that embezzlement “is the fraudulent appropriation
of property by a person to whom such property has been intrusted
[sic],

or

into

whose

hands

it

has

lawfully

come,”

Moore

v.

United States, 160 U.S. 268, 269 (1895); see also United States
v. Stockton, 788 F.2d 210, 216 (4th Cir. 1986) (explaining that
the crime of embezzlement requires that “the embezzled property
must have been in the lawful possession of the defendant at the
time of its appropriation”). This classic definition applies to
the term as it is used in § 659. See, e.g., United States v.
Waronek, 582 F.2d 1158, 1161 (7th Cir. 1978) (explaining in the
context of a § 659 embezzlement conviction that although larceny
“involves an unlawful trespass to the possessory interest of the
owner in the property,” where “the taker has been entrusted with
possession of the property, the taking is more aptly described
as embezzlement”); see generally Boone v. United States, 235
F.2d 939, 941 (4th Cir. 1956) (explaining that the § 659 “crime
of

receiving

include[s]

a

receipt

of

property

founded

on

an

antecedent capture of it through fraud and deception”).
Despite its acceptance of Mena’s characterization of § 659
and the crime of embezzlement, the BIA applied the categorical
approach and concluded that Mena’s conviction under the second
paragraph of § 659 categorically falls within § 1101(a)(43)(G).
The key to the BIA’s decision is its view that § 1101(a)(43)(G)
8

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 9 of 22

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

base

offense)

and

“receipt

of

stolen

property”

(the

appended parenthetical offense) – which have “different generic
definitions composed of different elements.” J.A. 6 (quoting In
re Cardiel-Guerrero, 25 I. & N. Dec. 12, 14 (BIA 2014)). As the
BIA explained, this case involves “receipt of stolen property,”
a term it has interpreted “to include the category of offenses
involving knowing receipt, possession, or retention of property
from its rightful owner,” J.A. 5 (citing In re Bahta, 22 I. & N.
Dec. 1381, 1391 (BIA 2000)). Given the purported distinction
between the two § 1101(a)(43)(G) offenses, the BIA reasoned that
it “need not establish the elements of a ‘theft’ offense to
demonstrate that a conviction for ‘receipt of stolen property’
qualifies as an aggravated felony” under § 1101(a)(43)(G). J.A.
6. For this reason, the BIA found our holding in Soliman – that
a “theft offense” requires a nonconsensual taking of property
from its owner - to be inapplicable.
The BIA supported its decision by pointing to its prior
opinion in Cardiel-Guerrero, where it observed that receipt of
extorted

property

falls

within

the

generic

definition

of

“receipt of stolen property” under § 1101(a)(43)(G). The BIA
noted that in Cardiel-Guerrero, it “reasoned that although the
owner may have ‘consented in some aberrant sense’ during the
initial taking, ‘it can hardly be argued that the victim of
9

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 10 of 22

extortion has also consented to having his property ‘fenced,’
concealed, or otherwise withheld from him against his will by
third parties.’” J.A. 6 (quoting Cardiel-Guerrero, 25 I. & N.
Dec. at 23-24). Analogizing extortion with embezzlement, the BIA
explained that “although the initial taking under the second
paragraph of 18 U.S.C. § 659 may have involved embezzlement or
fraud, [Mena] cannot argue that an owner also consented to a
third party buying or possessing his or her embezzled property.”
J.A. 6.
Additionally, the BIA stated that “a survey of State theft
statutes supports [its] view that receipt of embezzled property
is

included

in

the

generic

definition

of

a

‘theft

offense

(including receipt of stolen property)’” under § 1101(a)(43)(G).
J.A. 6. The BIA noted that when § 1101(a)(43)(G) was added to
the INA, most states had adopted the Model Penal Code’s approach
of consolidating the various common law offenses of larceny,
embezzlement and false pretenses, receiving stolen property, and
extortion into a unitary “theft” offense. J.A. 6. The BIA also
found support for its holding in the fact that § 659 requires
proof that the defendant received the property knowing that it
was embezzled or stolen, and with the intent to deprive the
owner of the rights or benefits of the property. J.A. 6.
D.

10

Appeal: 15-1009

Doc: 59

Common

sense

Filed: 04/27/2016

suggests

Pg: 11 of 22

that

knowingly

receiving

either

stolen or embezzled property – i.e., the offense set forth in
the second paragraph of § 659 - is a form of theft. See, e.g.,
United States v. Johnson, 612 F.2d 843, 846 (4th Cir. 1979)
(noting that the purpose of § 659 “is to protect goods moving in
interstate commerce from theft”). However, we are not writing on
a clean slate, and we may not simply rest our decision on some
concept of common sense. Instead, we are obliged to apply the
categorical approach, and in doing so we are guided by circuit
precedent. Applying the categorical approach, we believe that
Soliman, combined with a straightforward reading of §§ 659 and
1101(a)(43)(G), dictates the result in Mena’s favor.
As noted, Soliman establishes that “a taking of property
‘without consent’ is an essential element” of a § 1101(a)(43)(G)
“theft

offense.”

419

F.3d

at

283.

Moreover,

the

text

of

§

1101(a)(43)(G) provides that the term “theft offense” includes
the crime of “receipt of stolen property.” 4 The straightforward

4The

pertinent text of § 1101(a)(43)(G) actually reads:
“theft offense (including receipt of stolen property).” The key
word in this provision is “including,” which most naturally
means that the term that follows is a part of the term that
precedes “including.” See, e.g., P.C. Pfeiffer Co. v. Ford, 444
U.S. 69, 77 n.7 (1979) (holding that the use of the word
“including” in the definitional provision of the federal statute
being reviewed there indicates an element that is “part of the
larger group” and rejecting the argument that “including” means
“and” or “as well as”); see also Universal Maritime Serv. Corp.
(Continued)
11

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 12 of 22

conclusion that follows is that a receipt crime – being an INA
“theft offense” – requires a taking of property without consent.
By definition, embezzlement, like the closely related crime
of

fraud, 5

involves

property

that

came

into

the

initial

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

regardless

of

whether

the

property

is

subsequently

transferred to, and received by, a third party. Accordingly, a
conviction for receipt of embezzled property under § 659 does
not require proof that the owner did not consent to the taking
of the property. Lacking the “without consent” element, receipt
of embezzled property under § 659 does not fall within the §
1101(a)(43)(G) theft offense definition. Consequently, the crime
set forth in the second paragraph of § 659 “sweeps more broadly”
than the generic § 1101(a)(43)(G) theft offense, and it is not
an INA aggravated felony under the categorical approach.
In

reaching

this

decision,

we

accept

the

government’s

unremarkable observation – premised on the BNA’s prior Bahta
decision

-

v. Wright,
holding).

that

155

the

F.3d

parenthetical

311,

319

n.10

5The

clause

of

(4th

Cir.

§ 1101(a)(43)(G)

1998)

(similar

Supreme Court has explained that “the word ‘embezzled’
itself implies fraudulent conduct on the part of the person
receiving the money,” and “it is impossible for a person to
embezzle the money of another without committing a fraud upon
him.” Grin v. Shine, 187 U.S. 181, 189 (1902).

12

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 13 of 22

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

the

offender

was

involved

in

the

actual

taking

of

the

property. However, that observation simply does not support the
BIA’s conclusion that the “without consent” element of a “theft
offense”

is

inapplicable

to

a

“receipt

offense.”

Section

1101(a)(43)(G) plainly applies to both “taking” and “receiving”
offenses. Nonetheless, as we have explained, a “receipt offense”
is one type of “theft offense” for purposes of the INA, and
Soliman

establishes

that

a

necessary

element

of

a

“theft

offense” is a taking from the owner without consent.
We also find the BIA’s analogy between embezzlement and
extortion
although

misplaced.
“consent”

extortion,
extortion

“the
is

In
of

Cardiel-Guerrero,
the

concept

highly

property

of

owner

‘consent’

unconventional

the

and

BIA

is

an

used
does

in

noted

that

element
the

not

law

connote

of
of
a

voluntary or elective conferral of property.” 25 I. & N. Dec. at
20. Indeed, as the Second Circuit has observed, the “consent”
element

in

an

extortion

case

presents

the

victim

with

a

“Hobson’s choice” and “is the razor’s edge that distinguishes
extortion from robbery.” United States v. Zhou, 428 F.3d 361,
371 (2nd Cir. 2005). This type of “consent” stands in marked
contrast to the lawful consent underlying an embezzlement crime.
See generally Tredwell v. United States, 266 F. 350, 352 (4th
Cir. 1920) (explaining that “[w]here one comes lawfully into the
13

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 14 of 22

possession of property, and afterwards and while it is in his
possession forms and carries out the purpose of appropriating it
to

his

own

use,

embezzlement;

the

but

crime

if,

at

thus
the

committed
time

of

is

the

getting

crime

of

possession

lawfully, the one to whom property is intrusted [sic] has the
intention of appropriating it to his own use, the crime thus
committed is the crime of larceny”).
Additionally, we find the BIA’s reliance on its survey of
State

statutes

and

the

Model

Penal

Code

to

be

unavailing.

Although the BIA pointed to the States’ “trend” to consolidate
various common law offenses into a unitary “theft” offense, that
trend involves, among other things, certain fraud offenses. Of
course,

we

Omargharib

implicitly
by

rejected

holding

that

that
fraud

trend

in

Soliman

offenses

are

and
not

§ 1101(a)(43)(G) “theft offenses.”
Finally, we note the anomalous result that the BIA decision
would

create. 6

Under

the

BIA’s

6Depending

reasoning,

an

alien

who

is

on the circumstances of a given case, we accord
various levels of deference to the BIA’s interpretation of the
INA. Here, the parties disagree regarding the applicable level
of deference we should apply. Our decision is based on the plain
language of § 1101(a)(43)(G), as interpreted by Soliman, so we
owe no deference to the BIA’s statutory interpretation. See
Espinal-Andrades, 777 F.3d at 166-67. However, even if the
statute is ambiguous, “[w]e need not wade into the debate over
the proper degree of deference, for it makes no difference in
this case.” Oxygene v. Lynch, 813 F.3d 541, 548 n.3 (4th Cir.
2016).

14

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 15 of 22

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

not

be

an

aggravated

felon

under

§

1101(a)(43),

yet

another alien who is convicted under § 659 (and sentenced to a
year of imprisonment) for knowingly receiving a fraction of the
embezzled property would be. This result “makes scant sense” and
cannot stand. Mellouli v. Lynch, 135 S.Ct. 1980, 1989 (2015)
(rejecting BIA interpretation of the INA that treated “minor
paraphernalia possession offenses . . . more harshly than drug
possession

and

distribution

offenses”);

see

also

Castillo

v.

Holder, 776 F.3d 262, 270 n.6 (4th Cir. 2015) (in rejecting the
BIA’s decision that the Virginia crime of unauthorized use of a
vehicle

is

categorically

a

“theft

offense”

under

§

1101(a)(43)(G), we noted that “under the BIA’s decision . . . an
anomalous and unreasonable result would occur if a conviction of
the

‘lesser’

crime

of

unauthorized

use

formed

the

basis

for

removability under [§ 1101(a)(43)(G)], while the greater crime
of larceny would not”).
III
In

short,

based

on

our

application

of

the

categorical

approach, we hold that a conviction under the second paragraph
of § 659 is not a “theft offense (including receipt of stolen
property)” under § 1101(a)(43)(G). The BIA therefore erred in
finding Mena to be an aggravated felon who is ineligible for
cancellation

of

removal

under

§
15

1229b(a)(3).

Accordingly,

we

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 16 of 22

grant the petition for review and remand for further proceedings
consistent with this opinion. 7
PETITION FOR REVIEW GRANTED

7Our

determination that Mena’s § 659 conviction is not
categorically an INA aggravated felony does not alter the basic
nature of his offense. Mena may not have committed an INA “theft
offense” as a technical matter, but he did commit an offense
involving his knowing receipt of illegally obtained property.
The government apparently feels strongly that Mena should not
receive cancellation of removal relief, asserting that if (as we
are ordering) the case is remanded, the BIA should be free to
consider whether Mena is ineligible for cancellation of removal
on another basis. Brief for Respondent, at 44. Mena disputes
this assertion, but we decline to enter the fray. We note,
however, that regardless of whether Mena is ultimately deemed to
be eligible for cancellation of removal, the Attorney General’s
decision whether to grant cancellation relief is discretionary
and generally not subject to judicial review. See 8 U.S.C. §
1252(a)(2)(B)(i).
We do not know if the issue of discretionary relief will
eventually be considered in this case, and we express no opinion
about that. However, as a general observation, it seems that a
great deal of the effort and resources expended in appeals of
cases of this type could potentially be preserved if the IJ or
BIA proceeded beyond the eligibility determination and ruled
alternatively on the discretionary cancellation decision. See,
e.g., Ennis v. Att’y Gen. of the U.S., 617 Fed. Appx. 161, 16364 (3rd Cir. 2015) (“We . . . note that we would not reach the
aggravated felony issue even if Ennis had exhausted it because
the IJ denied cancellation of removal on the independently
dispositive ground that cancellation was not warranted in the
exercise of discretion. . . . [W]e generally lack jurisdiction
to review the discretionary denial of cancellation in any
event.”).

16

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 17 of 22

WILKINSON, Circuit Judge, dissenting:
Embezzlement is a theft. Ask the person seated next to you.
He or she will tell you that it is.
The

majority

says

not.

Come

again?

The

majority

says

embezzlement is not a form of theft.
It is from that proposition that I respectfully dissent.
* * *
The

Immigration

and

Nationality

Act

declares

that

any

“theft offense (including receipt of stolen property) . . . for
which the term of imprisonment is at least one year” is an
aggravated

felony.

8

U.S.C.

§ 1101(a)(43)(G).

This

broad,

generic language embraces a variety of offenses, and the plain
meaning of “theft” makes clear that Mena’s conviction under 18
U.S.C. § 659 is a theft offense.
The

majority

believes

that

embezzlement

is

not

a

theft

because the owner of the funds voluntarily entrusts them to the
embezzler. That totally ignores the fact that the whole purpose
of the entrustment is for an honest stewardship of the funds.
The betrayal of that purpose through embezzlement is purely and
simply theft.
Theft

is

defined

as

“[b]roadly,

any

act

or

instance

of

stealing, including larceny, burglary, embezzlement, and false
pretenses.”

Theft,

Black’s

Law

Dictionary

(10th

ed.

2014)

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

17

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 18 of 22

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

2004).

concept:

At

the

theft

core

happens

of
when

these

definitions

property

is

is

taken

a

singular

without

any

semblance of consent.
The parenthetical “(including receipt of stolen property)”
reinforces § 1101(a)(43)(G)’s broad meaning. “Stolen property”
means “goods acquired by,” among other means, “theft.” Stolen
Property,

Black’s

Law

Dictionary

(10th

ed.

2014).

Stolen

property thus includes property taken through any of the commonlaw

means

that

definition

of

make
the

up

theft.

verb

This

“steal”:

is

“[t]o

consistent
take

with

(something)

the
by

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

(10th

ed.

2014)

(emphasis

added).

“Including,”

furthermore, means “‘contain[ing]’ or ‘compris[ing] [] part of a
whole.’” Chickasaw
(2001)

(citing

Nation

Webster’s

v.

United

Ninth

New

States,

534

Collegiate

U.S.

84,

Dictionary

89
609

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

that

that

which

is

within

is

meant

simply

to

be

illustrative . . . a circumstance underscored by the lack of any
suggestion that Congress intended the illustrative list to be
complete.” Id. at 89. Far from narrowing the meaning of “theft
offense,” the parenthetical thus suggests that offenses similar
to

“receipt

of

stolen

property”

(i.e.,

property) are covered by the statute.

18

receipt

of

embezzled

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 19 of 22

This plain meaning of theft is underscored by the fact that
the INA uses the term “theft offense” in a generic sense. Its
meaning therefore “roughly correspond[s] to the definitions” of
theft found “in a majority of the States’ criminal codes.” See
Taylor v. United States, 495 U.S. 575, 589 (1990). Those codes,
meanwhile, had by the time of § 1101(a)(43)(G)’s 1994 enactment
largely adopted the Model Penal Code’s policy of consolidating
various

common

law

offenses,

including

larceny,

extortion,

blackmail, and embezzlement, into unitary theft offenses. J.A.
6, citing In re Cardiel-Guerrero, 25 I. & N. Dec. 12, 21 (BIA
2009);

see

denominated

also

Model

theft

in

Penal
this

Code

Article

§

223.1(1)

(“Conduct

constitutes

a

single

offense.”). A generic definition of theft accordingly includes
embezzlement.
The majority explicitly abjures common sense, i.e. plain
meaning, in its approach to this problem. Maj. Op. at 11. But
the

categorical

approach

is

supposed

to

“serve[]

practical

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

sense

(or

plain

seemingly

acknowledge,

position.

Petitioner

paragraph

of

18

meaning,
would

Mena

U.S.C.

or

lead
was

§ 659,

practicality),
us

to

convicted
which

reject
under

criminalizes

as

we

all

petitioner’s
the

second

receipt

of

stolen or embezzled property. He argues that he nonetheless has
not committed a theft offense. But it is wrong to think that

19

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 20 of 22

§ 659’s coverage of receipt of embezzled property somehow takes
it beyond the realm of theft.
Like

theft,

“distinctions

embezzlement

between”

different

is

also

types

of

stealing.

stealing

And

“serve

no

useful purpose in the criminal law but are useless handicaps
from the standpoint of the administration of criminal justice.”
Rollin M. Perkins & Ronald Boyce, Criminal Law, 389-90 (3d ed.
1982).

Like

a

victim

of

traditional

larceny,

a

victim

of

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

a

victim

of

embezzlement,

like

a

victim

of

larceny,

“consent” to the involvement of a third party when his property
is transferred. Both victims consider their property stolen.
Petitioner

rejects

this

view,

relying

on

our

earlier

decision in Soliman v. Gonzales. In that case, we held that an
INA “theft offense” must involve a taking without consent. 419
F.3d 276, 283 (4th Cir. 2005). But even if it were not already
silly

to

suggest

that

one

“consents”

to

the

embezzlement

of

one’s property, see Pet’r’s Br. at 18, Soliman had no occasion
to consider the problem before us now. The predicate offense in
Soliman was credit card fraud. 419 F.3d at 278. The court thus
did not consider how to evaluate receipt offenses under the INA.
And

the

plain

property),”

11

meaning
U.S.C.

of

“(including

§ 1101(a)(43)(G),

conviction be treated as a theft offense.

20

receipt
requires

of

stolen

that

Mena’s

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 21 of 22

The majority views this as an unfair result. It contends
that embezzlement (as opposed to receipt of embezzled property)
is not itself an aggravated felony unless the amount embezzled
exceeds $10,000. Maj. Op. at 14-15. Making receipt of embezzled
property an aggravated felony would thus risk, in the majority’s
view, treating the lesser criminal more harshly than the greater
one. But this reasoning assumes that the original embezzler is
not also guilty of a theft offense – an incorrect assumption.
And even if the majority’s understanding were correct, several
considerations

limit

its

relevance.

First,

fairness

in

the

treatment of the family of embezzlers is more properly addressed
during

their

individual

sentencings.

Second,

§ 1101(a)(43)(G)

contains a safeguard. The term of imprisonment for any predicate
theft offense must be “at least one year.” Mena, for example,
was sentenced to sixty months of incarceration. Minor receipt of
embezzled property offenses thus still avoid aggravated-felony
status.

Finally,

if

the

point

of

the

categorical

approach,

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

against

generic

INA

offenses,

then

the

majority’s

concerns are not only misplaced but irrelevant. The capacious
terms

of

conviction,

§ 1101(a)(43)(G)
and

we

are

embrace

obliged

choice.

21

to

Mena’s
respect

18

U.S.C.

that

§ 659

legislative

Appeal: 15-1009

Doc: 59

Filed: 04/27/2016

Pg: 22 of 22

This case is much less complicated than the majority makes
it. To repeat: embezzlement is a theft. Just ask the person two
rows down.

22