In Re Bahta: BIA Rules Nevada Attempted Possession Conviction Is Theft Offense, Triggering INA Aggravated Felony Ground of Removal

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

IN RE BAHTA: BIA RULES NEVADA ATTEMPTED POSSESSION CONVICTION IS THEFT OFFENSE, TRIGGERING INA AGGRAVATED FELONY GROUND OF REMOVAL
Immigrants' Rights Update, Vol. 14, No. 7, Nov. 28, 2000

A split en banc panel of the Board of Immigration Appeals has ruled that a conviction under Nevada law for attempted possession of stolen property amounts to an attempted theft offense under Immigration and Nationality Act sections 101(a)(43)(G) and (U), rendering the respondent subject to removal as an aggravated felon. In the same decision, the BIA reiterated that despite the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the Immigration and Naturalization Service retains prosecutorial discretion in deciding whether or not to initiate removal proceedings.

The respondent in the case, a Mr. Awat Mengisteab Bahta, was convicted in February 1997 for attempted possession of stolen property in violation of sections 193.330 and 205.275 of the Nevada Revised Statutes. For the conviction, Bahta received a suspended 36-month sentence to confinement. The INS subsequently charged him with removability under INA section 237(a)(2)(A)(iii) as an aggravated felon. However, the immigration judge determined that Bahta's conviction did not amount to an aggravated felony because it failed to contain all the elements set forth in 18 U.S.C. section 2315, a provision of federal law criminalizing the sale or receipt of stolen goods. After the IJ terminated removal proceedings, the INS appealed.

In reversing the IJ, the BIA first noted that it is not obliged to follow federal or state statutes in setting the limits on the INA's definition of theft offenses. It then presented a detailed examination of other statutory authorities, which showed that some jurisdictions treat possession and receipt as distinct offenses, while others do not. Despite the diversity of classifications, the BIA ruled that section 101(a)(43)(G) encompasses possession of stolen property. In so ruling, the BIA cited the "predominant modern view [as expressed in the Model Penal Code] . . . that the term 'receiving stolen property' is now used to encompass a number of closely related offenses, including . . . possession." Accordingly, the BIA found Bahta subject to removal as charged and ordered the case remanded to the IJ to allow him to apply for any form of relief from removal for which he may be eligible.

BIA member Lory Rosenberg disagreed sharply with the majority. In a dissenting opinion in which four other BIA colleagues joined, Rosenberg criticized the majority's attempt to equate a conviction for attempted possession of stolen property with a conviction for receipt of the same. She noted that the majority's review of other statutory authorities yielded only inconclusive results and argued that the holding runs counter to the plain language used by the U.S. Congress in the INA. As noted above, in addition to sustaining the INS's appeal, the BIA reaffirmed that the agency's prosecutorial discretion was not rescinded by the IIRIRA. Although the BIA has no jurisdiction over this issue, it nonetheless stated that the IIRIRA's restriction on judicial review of decisions by the attorney general to commence proceedings has no effect on the INS's prosecutorial discretion.

In re Bahta, Int. Dec. No. 3437 (BIA Oct. 4, 2000).