Rabii Baghdad v. Attorney General United States

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 21-2094 _______________ RABII BAGHDAD, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA _______________ On Petition for Review of a Decision of the Board of Immigration Appeals (Agency Case No. A047-505-299) Immigration Judge: Alice Song Hartye _______________ Argued May 24, 2022 Before: KRAUSE, BIBAS, and PHIPPS, Circuit Judges (Filed: October 11, 2022) _______________ Craig R. Shagin [ARGUED] THE SHAGIN LAW GROUP 120 South Street The Inns of St. Jude Harrisburg, PA 17101 Counsel for Petitioner Sara J. Bayram [ARGUED] Kathryn M. McKinney U.S. DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent _______________ OPINION OF THE COURT _______________ BIBAS, Circuit Judge. Juries are not mind readers. Usually, the only way they can know a defendant’s intent is to infer it. As long as those infer- ences are permissive, they do not dilute a crime’s mens rea requirement. A Moroccan man was convicted of shoplifting, making him removable. He objects that Pennsylvania’s shoplifting statute directs juries to infer intent to steal whenever someone con- ceals merchandise. But in view of Pennsylvania’s standard jury instructions and case law, that inference is only permissive. A permissive inference does not water down the requisite intent to steal and does not shift the burden of proof onto defendants. 2 Because his conviction made him removable, we will deny his petition for review. I. BACKGROUND Rabii Baghdad, a Moroccan citizen, has lived in the United States as a lawful permanent resident for two decades. In 2018, he and two accomplices ran out of a Home Depot with three drills (worth about $1000) and hawked them at a pawn shop. He pleaded guilty to retail theft and faced nearly two years’ incarceration. 18 Pa. Cons. Stat. § 3929(a)(1). The government then sought to deport him, arguing that his conviction was for an aggravated felony and thus made him removable. An immi- gration judge and the Board of Immigration Appeals agreed. On this petition for review, Baghdad challenges that aggravated-felony ruling. We have jurisdiction over this ques- tion of law and review the Board’s ruling de novo. 8 U.S.C. § 1252(a)(2)(D); Quinteros v. Att’y Gen., 945 F.3d 772, 781– 82 (3d Cir. 2019). II. BAGHDAD COMMITTED GENERIC THEFT, AN AGGRAVATED FELONY The Immigration and Nationality Act lets the government deport an alien who is convicted of an “aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). That term includes theft convic- tions that result in prison sentences of at least one year. § 1101(a)(43)(G). Baghdad’s sentence was longer than that. So the only remaining question is whether, under the Act, his retail-theft conviction counts as “theft.” But the Act does not define theft. So we apply the so-called categorical approach. We must compare the Pennsylvania theft 3 statute with how “the criminal codes of most States” and the federal government generically use “the term ‘theft.’ ” Gonza- les v. Duenas-Alvarez, 549 U.S. 183, 189–90 (2007) (quoting Taylor v. …

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