BIA: Auto Theft Is a "Theft Offense" Aggravated Felony Even Absent Permanent Theft Intent (Matter of V-Z-S)

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

BIA: AUTO THEFT IS A "THEFT OFFENSE" AGGRAVATED FELONY EVEN ABSENT PERMANENT THEFT INTENT (MATTER OF V-Z-S-)
Immigrants' Rights Update, Vol. 14, No. 5, August 31, 2000

The Board of Immigration Appeals has issued a precedent decision finding that a conviction for auto theft constitutes an aggravated felony "theft offense" even where the defendant did not intend to permanently steal the vehicle. In this case, the respondent was convicted of multiple offenses with sentences of incarceration amounting to more than five years, making him ineligible for withholding of removal or any other relief.

The respondent was born in Lebanon but never given citizenship in that country. He was admitted to the U.S. as a lawful permanent resident in 1974. Between 1993 and 1996, he was convicted of a series of offenses, including burglary, grand theft auto, and repeated unlawful driving and taking offenses. After a removal hearing, an immigration judge in August 1998 found that the respondent was ineligible for withholding because the burglary and grant theft auto convictions were aggravated felonies for which the respondent received aggregate sentences in excess of five years.

On appeal, the BIA ruled that the IJ improperly calculated the respondent's aggregate sentence by adding concurrent sentences. However, the BIA also found that a conviction for unlawful driving and taking, for which the respondent received a five-year sentence, constitutes an aggravated felony, and that therefore the respondent is barred from relief.

In reaching this conclusion, the BIA examined the California statute under which the respondent was convicted, Penal Code section 10851. This statute prohibits the unlawful taking of a vehicle "with intent either to permanently or temporarily deprive the owner" of the vehicle. The BIA noted that a separate statute, section 499(b), also prohibits the taking of a vehicle for temporary use and is commonly known as the "joyriding" statute. In 1996 this statute was amended to apply only to the taking of bicycles and motorboats because the legislature considered it otherwise duplicative of section 10851. Historically, courts had distinguished section 499(b) from section 10851 on the grounds that the former statute did not require a specific intent to deprive the owner of possession of the vehicle. The BIA concluded that based on cases distinguishing the two statutes, and similar cases arising in other states, a conviction under section 10851 constitutes a "theft offense" even where there is only an intent to take the vehicle temporarily. Because the BIA found the respondent's conviction constitutes an aggravated felony and in light of his sentence of five years' incarceration, it concluded he was not eligible for withholding of removal. The BIA also found that this decision does not conflict with its ruling in Mattter of D-, 1 I. & N. Dec. 143 (BIA 1941), in which it had held that a similar conviction was not a crime of moral turpitude.

BIA Member Guendelsberger wrote a concurring and dissenting opinion, joined by four other members. In the dissent he contended that section 10851 is a broad statute encompassing temporary takings that under common law do not constitute "theft." He concluded, "At the very least, the intent of Congress remains ambiguous as to whether temporary dispossessions are included in the term 'theft.'"

Matter of V-Z-S-, Int. Dec. 3434 (BIA Aug. 1, 2000).