Santana v. Barr

18-2755
Santana v. Barr

1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 August Term, 2019
5
6 (Submitted: April 17, 2020 Decided: September 18, 2020)
7
8 Docket No. 18-2755-ag
9
10 _____________________________________
11
12 ANDRES LUIS SANTANA,
13
14 Petitioner,
15
16 v.
17
18 WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
19
20 Respondent.
21 _____________________________________
22
23 Before:
24
25 LIVINGSTON, Chief Judge, LOHIER, and NARDINI, Circuit Judges.
26
27 This appeal involves a petition for review of a decision by the Board of
28 Immigration Appeals (“BIA”) affirming an order of removal of Andres Luis
29 Santana to the Dominican Republic. The BIA determined that Santana’s
30 conviction for third-degree criminal possession of stolen property in violation
31 of New York Penal Law § 165.50 is an aggravated felony offense under 8
32 U.S.C. § 1101(a)(43)(G), even though the stolen property need not have been
33 stolen by means of “theft,” as generically defined in the Immigration and
34 Naturalization Act, and even though the state statute of conviction does not
35 explicitly require an intent to deprive the owner of the property. We defer to
36 the BIA’s construction of the phrase “including receipt of stolen property” in
37 § 1101(a)(43)(G) to refer to an offense distinct from a theft offense, and we
38 DENY the petition for review.
 1 Nicholas J. Phillips, Prisoners’ Legal Services of New
2 York, Buffalo, NY; Timothy Sun, Richard W. Mark,
3 Luke A. Dougherty, Gibson, Dunn & Crutcher LLP,
4 New York, NY, for Petitioner Andres Luis Santana.
5
6 Colin J. Tucker, Melissa K. Lott, Trial Attorneys,
7 Song Park, Acting Assistant Director, Office of
8 Immigration Litigation, for Jeffrey B. Clark, Acting
9 Assistant Attorney General, Civil Division, United
10 States Department of Justice, Washington, D.C., for
11 Respondent William P. Barr, United States Attorney
12 General.
13
14 LOHIER, Circuit Judge:

15 Andres Luis Santana petitions for review of a decision of the Board of

16 Immigration Appeals (“BIA”) ordering him removed from the United States

17 for having been convicted of an aggravated felony under 8 U.S.C.

18 § 1101(a)(43)(G), which codifies a provision of the Immigration and

19 Naturalization Act (“INA”). The question on appeal is whether the BIA erred

20 in concluding that Santana’s conviction for criminal possession of stolen

21 property in the third degree, in violation of New York Penal Law § 165.50,

22 was an aggravated felony rendering him removable under 8 U.S.C.

23 § 1101(a)(43)(G). The BIA concluded that a conviction under Penal Law

24 § 165.50 is a removable aggravated felony even though the stolen property at

25 issue may be obtained with the rightful owner’s consent, and § 165.50 does

26 not explicitly contain an intent to deprive element.
2
 1 For the following reasons, we DENY the petition for review.

2 BACKGROUND

3 Santana was born in the Dominican Republic and admitted to the

4 United States as a lawful permanent resident in 1988. Over the last decade he

5 has had a string of criminal convictions. In January 2010 he pleaded guilty to

6 petit larceny under New York Penal Law § 155.25. In November 2011 he

7 pleaded guilty to possession of stolen property in the third degree under New

8 York Penal Law § 165.50 and later was sentenced to a term of imprisonment

9 of one to three years. In March 2015 he pleaded guilty to burglary in the first

10 degree under New York Penal Law § 140.30 and was sentenced to an eight-

11 year term of imprisonment.

12 In November 2016 the Department of Homeland Security (“DHS”)

13 charged Santana as removable under two provisions of the INA. First, DHS

14 charged Santana as removable under INA § 237(a)(2)(A)(ii), 8 U.S.C.

15 § 1227(a)(2)(A)(ii), because Santana had been convicted of two crimes

16 involving moral turpitude arising out of different schemes of criminal

17 misconduct. Second, DHS charged Santana as removable under INA

18 § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because his convictions for

3
 1 possession of stolen property and burglary were aggravated felony theft

2 offenses under § 1101(a)(43)(G) and separately because his conviction for

3 burglary was an aggravated felony crime of violence under § 1101(a)(43)(F).

4 In December 2017 Santana moved to terminate the removal

5 proceedings against him. In support of his motion, Santana argued that, with

6 respect to DHS’s charges of removability under § 237(a)(2)(A)(ii), neither petit

7 larceny nor possession of stolen property categorically constituted a crime

8 involving moral turpitude. As for removability under § 237(a)(2)(A)(iii), he

9 contended, neither possession of stolen property nor burglary was an

10 aggravated felony theft offense, and burglary was not a crime of violence.

11 The IJ rejected Santana’s arguments and held that Santana was

12 removable on any of the grounds raised by DHS. On Santana’s appeal to the

13 BIA, the Government conceded that under Obeya v. Sessions, 884 F.3d 442 (2d

14 Cir. 2018), petit larceny was not a crime involving moral turpitude. It also

15 acknowledged that Santana’s burglary conviction was not an aggravated

16 felony crime of violence in view of Sessions v. Dimaya, 138 S. Ct. 1204 (2018).

17 For reasons that are not apparent on the record, the Government never

18 addressed whether Santana’s burglary conviction constituted an aggravated

4
 1 felony theft offense. Instead, it focused exclusively on whether Santana’s

2 conviction for criminal possession of stolen property was an aggravated

3 felony under § 1101(a)(43)(G).

4 The BIA dismissed Santana’s appeal after concluding that possession of

5 stolen property in violation of New York Penal Law § 165.50 constituted an

6 aggravated felony under § 1101(a)(43)(G). Having concluded that Santana

7 was removable under § 237(a)(2)(A)(iii), the BIA declined to address the other

8 charges of removability.

9 This petition followed.

10 DISCUSSION

11 The central issue on appeal is whether Santana’s conviction under New

12 York Penal Law § 165.50 for third-degree possession of stolen property is a

13 removable aggravated felony under 8 U.S.C. § 1101(a)(43)(G). We have

14 “jurisdiction to consider whether a conviction falls within [a] statutory

15 prohibition.” Centurion v. Holder, 755 F.3d 115, 118 (2d Cir. 2014). Under the

16 categorical approach, which neither party disputes applies here, we

17 determine if the “state statute defining the crime of conviction categorically

18 fits within the generic federal definition of a corresponding aggravated

5
1 felony.” Flores v. Holder, 779 F.3d 159, 165 (2d Cir. 2015) (citing Moncrieffe v.

2 Holder, 569 U.S. 184, 190 (2013)). “[O]nly the minimum criminal conduct

3 necessary to sustain a conviction under a given statute is relevant, and the

4 factual aspects of a defendant’s situation are immaterial.” Dos Santos v.

5 Gonzales, 440 F.3d 81, 84 (2d Cir. 2006) (quotation marks omitted). And

6 where a provision of the INA is ambiguous, we defer to the agency’s

7 permissible reasonable interpretation of the provision, see Chevron U.S.A.

8 Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984), 1 and we review

1
We have elsewhere more extensively described the “two-step process” outlined in
Chevron as follows:

At Chevron step one, we consider de novo whether Congress has clearly
spoken to the question at issue. If the intent of Congress is clear, that is
the end of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress. To ascertain
Congress’s intent, we begin with the statutory text because if its
language is unambiguous, no further inquiry is necessary. We presume
that Congress says in a statute what it means and means in a statute
what it says. If the statutory language is ambiguous, however, we resort
first to canons of statutory construction, and, if the statutory meaning
remains ambiguous, to legislative history . . . to see if these interpretive
clues clearly reveal Congress’s intent.

If we determine that Congress has not directly addressed the precise
question at issue, we proceed to Chevron step two, which instructs us

6
 1 the agency’s construction of state law de novo, see Abimbola v. Ashcroft, 378

2 F.3d 173, 176 (2d Cir. 2004) (“We do not defer . . . to the BIA's interpretation of

3 state criminal laws as the BIA is not charged with the administration of these

4 laws.” (quotation marks omitted)).

5 We start with the statute of conviction in this case. New York Penal

6 Law § 165.50 provides that “[a] person is guilty of criminal possession of

7 stolen property in the third degree when he knowingly possesses stolen

8 property, with intent to benefit himself or a person other than an owner

9 thereof or to impede the recovery by an owner thereof.”

10 Santana argues that § 165.50 is not an aggravated felony under

11 § 1101(a)(43)(G) for two reasons. First, he says that receipt of stolen property

12 is merely a subset of the federal generic crime of “theft” and therefore

13 requires a lack of consent on the part of the property owner. Because

14 property may be “stolen” under § 165.50 with the owner's consent (for

15 example, by fraudulent means), Santana claims that possession of stolen

to defer to an agency’s interpretation of the statute, so long as it is
reasonable.

Mizrahi v. Gonzales, 492 F.3d 156, 158 (2d Cir. 2007) (cleaned up).
7
 1 property cannot categorically qualify as an aggravated felony theft under the

2 INA. Second, Santana contends that § 165.50 does not require an intent to

3 deprive, which is an element of an aggravated felony under § 1101(a)(43)(G).

4 I

5 Section 1101(a)(43)(G) defines an aggravated felony as “a theft offense

6 (including receipt of stolen property) or burglary offense for which the term

7 of imprisonment [is] at least one year.” A generic theft offense requires that

8 the property be stolen “without consent” of the owner. See Almeida v.

9 Holder, 588 F.3d 778, 785 (2d Cir. 2009); see also Matter of Garcia-Madruga,

10 24 I. & N. Dec. 436, 440 (B.I.A. 2008). A few years ago, in Matter of Alday-

11 Dominguez, a published decision, the BIA differentiated a “theft offense”

12 from an offense involving “receipt of stolen property” and concluded that

13 “the receipt of stolen property . . . is not limited to receipt offenses in which

14 the property was obtained by means of theft.” 27 I. & N. Dec. 48, 51 (B.I.A.

15 2017). The question, then, is what the term “including” in § 1101(a)(43)(G)

16 means. Does it clearly signal that receipt of stolen property is a subset of a

17 theft offense? Does it instead clearly refer to an entirely separate offense? Or

8
 1 is the term ambiguous, so that we should defer to the agency’s reasonable

2 interpretation of it under Chevron?

3 United States v. Flores, 901 F.3d 1150 (9th Cir. 2018), is instructive.

4 There the Ninth Circuit considered whether California’s receipt of stolen

5 property offense was categorically an aggravated felony under

6 § 1101(a)(43)(G). Id. at 1154. As with New York Penal Law § 165.50, the

7 property at issue under California law could be stolen with the owner’s

8 consent. Id. The defendant argued that § 1101(a)(43)(G)’s use of the term

9 “including” plainly signified that receipt of stolen property was a subset of a

10 theft offense rather than a separate offense. Id. at 1156–57. The Ninth Circuit

11 responded that, to the contrary, “including” could have been used by

12 Congress either to refer to a subset of theft offense or “to add a theft-related

13 crime, receipt of stolen property, into the list of qualifying offenses even

14 though it may not otherwise technically be a generic ‘theft offense.’” Id. at

15 1157. The latter reading, the Ninth Circuit reasoned, was “consistent with the

16 distinct function of the term ‘stolen’ in ‘receipt of stolen property’: unlike the

17 adjective ‘theft’ in ‘theft offense,’ which indicates the nature of the offender’s

18 conduct, ‘stolen’ describes the nature of the property involved in the offense,

9
 1 independent of the offender’s conduct.” Id. The Ninth Circuit thus

2 concluded that the term “including” in § 1101(a)(43)(G) was ambiguous. Id.

3 at 1158.

4 We agree with the Ninth Circuit that the term “including” is

5 ambiguous here for essentially the same reason and that it is not clear

6 whether receipt of stolen property is a subset of a theft offense or a separate

7 offense. Under Chevron, therefore, “we must defer to the precedential

8 opinions of the BIA interpreting the term so long as the interpretation is based

9 on a permissible construction of the statute.” Id.; see Chevron, 467 U.S. at

10 843.

11 II

12 The BIA’s interpretation of the term “including” in the parenthetical

13 “including receipt of stolen property” in § 1101(a)(43)(G) is reasonable. As

14 the BIA observed, the fact that the parenthetical says “receipt of stolen

15 property” rather than “receipt of property obtained by theft” strongly

16 suggests that Congress did not intend to limit receipt of stolen property to the

17 generic federal definition of theft. Alday-Dominguez, 27 I. & N. Dec. at 50

18 (emphasis added); see Flores, 901 F.3d at 1158. And in a different context the

10
 1 Supreme Court interpreted the term “stolen” expansively to include offenses

2 in which property was obtained with an owner’s consent. See Alday-

3 Dominguez, 27 I. & N. Dec. at 50–51 (citing United States v. Turley, 352 U.S.

4 407, 415–17 (1957)). This again conveys that “the receipt of stolen property

5 parenthetical is not limited to receipt offenses in which the property was

6 obtained by means of theft.” Id. at 51.

7 We defer to the BIA’s reasonable construction of the phrase “including

8 receipt of stolen property” as not limited to receipt offenses in which the

9 property was obtained by means of theft. The elements of generic theft,

10 including that the property be taken without consent, differ from the

11 elements of receipt of stolen property, which require only that the offender

12 knowingly possess stolen property, regardless of how it was stolen.

13 In urging a contrary conclusion, Santana insists that Alday-Dominguez

14 contradicts an earlier BIA determination in an unpublished decision, In re

15 Bazuaye, No. A024 359 599, 2009 WL 773212 (B.I.A. Mar. 9, 2009). In Bazuaye,

16 the BIA concluded that larceny under New York law, an offense commonly

17 thought to be somewhat more serious than possession of stolen property, is

18 not categorically an aggravated felony theft offense under § 1101(a)(43)(G)

11
 1 because it does not have a “without consent” requirement. Id. at *3–4. In

2 effect, Santana invites us to favor the BIA’s earlier decision in Bazuaye and to

3 extend it to the offense of receipt of stolen property here.

4 We decline Santana’s invitation. “While the BIA's interpretation of

5 immigration statutes is generally entitled to Chevron deference,

6 interpretations in non-precedential unpublished BIA decisions, as in

7 [Bazuaye], are not so entitled.” Dobrova v. Holder, 607 F.3d 297, 300 (2d Cir.

8 2010). Regardless of any conflict between the two BIA decisions, we afford

9 Chevron deference only to the BIA’s later reasonable interpretation of

10 § 1101(a)(43)(G) in Alday-Dominguez, a published opinion, unless that

11 interpretation is contrary to the “unambiguously expressed intent of

12 Congress.” Chevron, 467 U.S. at 843; see Mizrahi v. Gonzales, 492 F.3d 156,

13 158 (2d Cir. 2007). As we have already concluded, however, the plain

14 language of the statute is ambiguous as to whether “receipt of stolen

15 property” is a subset of theft offenses or a separate theft-related crime.

16 III

17 We turn next to Santana’s argument that New York Penal Law § 165.50

18 and 8 U.S.C. § 1101(a)(43)(G) are not a categorical match because

12
 1 § 1101(a)(43)(G) requires proof that the offender intends to deprive the owner

2 of property, while the New York statute does not. The BIA has interpreted

3 “receipt of stolen property” under § 1101(a)(43)(G) to include the taking of

4 property “whenever there is criminal intent to deprive the owner of the rights

5 and benefits of ownership, even if such deprivation is less than total or

6 permanent.” In re V-Z-S-, 22 I. & N. Dec. 1338, 1346 (B.I.A. 2000). In Matter

7 of Deang, the BIA explained that an intent to deprive the owner of property is

8 “a necessary element of a receipt of stolen property offense.” 27 I. & N. Dec.

9 57, 59 (B.I.A. 2017). If so, the BIA reasoned, then a statute that permits

10 conviction even if the offender had only “reason to believe” that the property

11 was stolen is not a categorical match with § 1101(a)(43)(G). See id. Actual

12 knowledge that the property was stolen, the agency ruled, is necessary to

13 demonstrate that the offender had the required intent to deprive. Id. at 62–63.

14 We earlier endorsed this view in Abimbola. There the petitioner

15 argued that larceny under Connecticut law was not a categorical aggravated

16 felony under § 1101(a)(43)(G) because Connecticut defines larceny to include

17 receipt of stolen property, a crime that does not explicitly incorporate an

18 intent to deprive element. See Abimbola, 378 F.3d at 179–80. Under

13
 1 Connecticut law, an individual is guilty of receipt of stolen property if “he

2 receives, retains, or disposes of stolen property knowing that it has probably

3 been stolen or believing that it has probably been stolen.” Conn. Gen. Stat.

4 § 53a–119(8) (2014). We explained that “[o]ne who possesses stolen property

5 under Connecticut law does so knowing or having reason to know that the

6 property is stolen.” Abimbola, 378 F.3d at 180. Therefore, we said, “[i]t

7 would seem self-evident that under Connecticut law, the possession of stolen

8 property . . . plays a role in the continued deprivation of a rightful owner’s

9 use of his or her property.” Id.

10 We agree that an intent to deprive the owner of property is inherent in

11 the knowing possession of stolen property under New York law. As we

12 asserted in Abimbola, it was unnecessary for the state legislature to explicitly

13 incorporate an intent to deprive element in Connecticut’s receipt of stolen

14 property statute, since an intent to deprive can be inferred from the

15 requirement that the offender knew that the property was stolen. See id. at

16 179–80; Flores, 901 F.3d at 1160. Similarly, we infer that an offender like

17 Santana who has violated § 165.50 by knowingly possessing stolen property

14
 1 in the third degree has necessarily done so with the intent to deprive the

2 owner of that property.

3 IV

4 In sum, we defer to the BIA’s reasonable interpretation of the

5 ambiguous term “including” in “including receipt of stolen property” in 8

6 U.S.C. § 1101(a)(43)(G). Under that interpretation, “‘receipt of stolen

7 property’ is a distinct aggravated felony independent of theft and the

8 property received need not have been stolen by means of ‘theft’ as generically

9 defined.” Flores, 901 F.3d at 1159. We also determine that an intent to

10 deprive is inherent in the requirement that an offender “knowingly”

11 possesses stolen property. A conviction under New York Penal Law § 165.50

12 is therefore categorically an aggravated felony under § 1101(a)(43)(G).

13 CONCLUSION

14 We have considered Santana’s remaining arguments and conclude that

15 they are without merit. For the foregoing reasons, we DENY the petition for

16 review.

15