Theft offenses as aggravated felonies

A conviction for an offense classified as an aggravated felony would disqualify an alien from most immigration benefits or relief. Due to these immigration consequences, anyone who’s facing a criminal complaint and who must weigh the merits of a plea bargain offer should be familiar with aggravated felonies, especially the more common ones in order to avoid getting these serious convictions.

Immigration law defines an aggravated felony, not by describing its common elements but by enumerating the specific offenses that fall under this category. Under INA 101(a)(43)(G), the term aggravated felony includes a theft offense, including receipt of stolen property, or burglary offense for which the term of imprisonment is at least 1 year.

In Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), the US Supreme Court explained that the accepted generic definition of theft is the “taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.”

Let’s examine some cases that would clarify the meaning of theft or distinguish it from other related offenses.

In Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008), the Board of Immigration Appeals (BIA) distinguished theft from an offense that involves fraud. Under INA 101(a)(43)(M)(i), an offense that involves fraud or deceit in which the loss to the victim exceeds $10,000 is also an aggravated felony. It’s important to make this distinction because if theft and fraud offenses overlap, an alien could circumvent the aggravated felony provisions by successfully arguing that his offense involves fraud and not theft but it is not an aggravated felony under INA 101(a)(43)(M)(i) because the amount of loss is below the threshold amount of $10,000.

Here’s how Matter of Garcia-Madruga distinguished theft from fraud offenses. In a theft offense, property is taken without the consent of its owner. In a fraud offense, property is taken or acquired with the consent of its owner but such consent was unlawfully obtained either due to an intentional perversion of the truth or a false representation. The key distinction then is that theft occurs without consent while fraud occurs with consent but consent is defective.

For example, if X grabs an old coin from Y’s desk when Y is not looking, the offense is theft. However, if Y gives the coin to X because he persuades Y that the coin is worthless but in truth X knows the coin is worth thousands of dollars because it is a rare ancient artifact, then it is a fraud offense.

Another issue in theft offenses is whether the deprivation of the owner’s rights should be permanent for the offense to qualify as theft. For example, what if X unlawfully takes Y’s car but Y is able to recover it after an hour when X abandoned the car several miles from Y’s home. Would this be theft considering that Y was only temporarily deprived of his ownership rights since he was able to promptly recover his car? Could X argue that he did not intend to deprive Y of his car and he only temporarily used it for joyriding?

In Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000), the BIA held that the taking of property constitutes theft even though the deprivation of the owner’s rights is less than permanent or total.

The BIA also held that the unlawful driving or taking of a vehicle under California Vehicle Code (VC) 10851 is theft because California courts have repeatedly presumed a specific intent to permanently deprive a victim of his property whenever a person unlawfully takes the property of another.

Finally, let’s examine cases on receipt of stolen property. In Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000), the BIA explained that the reference to “receipt of stolen property” under INA 101(a)(43)(G) was intended to clarify that the term “theft” was not being used in its limited

traditional sense to require proof that the offender was involved in the actual taking of the property. The modern view of theft generally treats as its equivalent those offenses where a person knowingly receives and possesses stolen property.

If a person “knows” that the property he received was stolen, his offense would be covered under INA 101(a)(43)(G) because it could be inferred that the offender had the intention to deprive the owner of his property. However, in Matter of Sierra, 26 I&N Dec. 288 (BIA 2014), the BIA held that if the offense requires that the offender has “reason to believe” that the property he received was stolen, then the offense is not covered under INA 101(a)(43)(G) because it cannot be inferred that the offender had the intention to deprive when he was not actually aware of the stolen character of the property.

Hence, an offense that requires an offender to have a mental state of “reason to believe” instead of “knowledge” that the property was stolen would not qualify an offense as receipt of stolen property under INA 101(a)(43)(G).

Atty. Charles Medina

Charles Medina practices immigration law. Visit his website at for more details. This article provides general information only and does not provide legal advice on any specific matter or predict the outcome of any legal matter. It does not invite or create an attorney-client relationship.

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