Is embezzlement theft? Some people think it is. Even common sense suggests it. But the U.S. Court of Appeals for the Fourth Circuit can’t live in the world of common sense. It lives in a world of statutes that have words, and it said in Mena v. Lynch (link is external), No. 15-1009 (4th Cir. Apr. 27, 2016), that for some purposes, embezzlement actually isn’t theft.

Underlying Proceedings

Let’s talk first about how we got here. Francisco Mena is a native and citizen of the Dominican Republic who was admitted to the United States as a lawful permanent resident. An immigration judge ordered his removal based on 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). During his immigration proceedings, Mena applied for cancellation of removal, a form of discretionary relief 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 Immigration and Nationality Act, 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)(G)(3).

Embezzlement Conviction

Unfortunately for Mena, he has a prior conviction for violating 18 U.S.C. § 659, which creates four offenses. The first paragraph of Section 659 prohibits the illegal taking by embezzlement or theft of certain property that has moved in interstate or foreign commerce. The second paragraph proscribes the purchase, receipt, or possession of that property “knowing the same to have been embezzled or stolen.” Mena was convicted under the second paragraph and sentenced to 60 months in prison.

The immigration judge found that Mena was an aggravated felon, and the Board of Immigration Appeals dismissed Mena’s appeal of the IJ’s order. The BIA primarily based its decision on its view that Section 1101(a)(43)(G) contains two separate types of offenses that qualify as an INA “aggravated felony”: (1) a “theft offense,” which is the base offense listed in the statutory section, and (2) “receipt of stolen property,” contained in the parenthetical to the term “theft offense.”

Categorical Approach

When the government alleges that a prior conviction qualifies as an INA aggravated felony, the court doesn’t look at what the defendant actually did. Instead, it uses the “categorical approach” to determine whether the offense is comparable to an offense listed in the INA. “Under that approach, [the court] consider[s] only the elements of the statute of conviction rather than the defendant’s conduct underlying the offense.” Op. at 4 (citing Omargharib v. Holder, 775 F.3d 192 196 (4th Cir. 2014)). The prior conviction amounts to an aggravated felony if it has the same elements as the generic INA crime. But if the statute of conviction “sweeps more broadly” and criminalizes more conduct than the generic federal crime, the prior conviction can’t count as an aggravated felony. Even if the defendant actually did what the INA crime outlaws!

Lack of Consent in Theft

The Fourth Circuit examined the meaning of Section 1101(a)(43)(G)’s “theft offense” in Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005). In that case, the court held that credit card fraud under Virginia law did not amount to “theft” under the INA. The difference? “When a theft offense has occurred, property has been obtained from its owner ‘without consent;’ but “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.” Soliman, 419 F.3d at 282. Consent is the key. Theft happens without it, while fraud occurs with consent that has been unlawfully obtained. So the Soliman court held that “a taking of property ‘without consent’ is an essential element” of a Section 1101(a)(43)(G) theft offense. Id. at 283.

And that reasoning largely drives the result here. Mena argued that because “a taking of property ‘without consent’ is an essential element of a Section 1101(a)(43)(G) theft offense, a conviction under the second paragraph of Section 659 does not count as a theft offense.

The BIA had said that analysis was all wrong – that Section 1101(a)(43)(G) really created two “distinct and separate offenses: a ‘theft offense’ (the base offense) and ‘receipt of stolen property’ (the appended parenthetical offense).” Because this case involved “receipt of stolen property, the government argued that it need not establish the elements of a theft offense to demonstrate that “receipt of stolen property” qualifies as an aggravated felony under Section 1101(a)(43)(G).

The court said, oh, no, Section 1101(a)(43)(G) applies to both “taking” and “receiving” offenses, and that a “receipt offense” is one type of “theft offense” for purposes of the INA. And Soliman established that a necessary element of a “theft offense” is a taking from the owner without consent. Because Mena’s embezzlement conviction did involve consent, even if obtained with deceipt, it didn’t fit as an aggravated felony under the INA.

Common Sense?

By the way, Judge Wilkinson hated this approach and in dissent said that common sense and “the person seated next to you” could tell you that embezzlement is theft. The panel majority –comprising Judge Shedd and Judge Agee – agreed, but said:

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.

What to do

If you are a non-citizen criminal defendant in Francisco Mena’s position, literally do not let common sense get in your way. It does not pay in the Fourth Circuit, which encompasses North Carolina. Using the categorical approach to defining your prior conviction(s) could keep you in the country if you don’t want to be removed. Fight, fight, fight.