Matter of DELGADO, 27 I&N Dec. 100 (BIA 2017)
Robbery under section 211 of the California Penal Code, which includes the element of asportation of property, is categorically an aggravated felony theft offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G)(2012), regardless of whether a violator merely aided or abetted in the asportation of property stolen by a principal.
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100
Matter of Juan DELGADO, Respondent
Decided September 7, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Robbery under section 211 of the California Penal Code, which includes the element of
asportation of property, is categorically an aggravated felony theft offense under section
101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012),
regardless of whether a violator merely aided or abetted in the asportation of property
stolen by a principal.
FOR RESPONDENT: J. Elle Cox, Esquire, Las Vegas, Nevada
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jonathan Grant, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and MALPHRUS, Board
Members.
PAULEY, Board Member:
In a decision dated March 1, 2017, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien who was
convicted of an aggravated felony theft offense under section 101(a)(43)(G)
of the Act, 8 U.S.C. §§ 1101(a)(43)(G) (2012), and denied his applications
for relief from removal. The respondent has appealed from that decision.
The appeal will be dismissed.
The respondent is a native and citizen of Mexico and a lawful permanent
resident of the United States. On December 15, 2005, he was convicted of
five counts of robbery in violation of section 211 of the California Penal
Code.1 He was sentenced to 5 years of incarceration on the first count and
an additional 1 year on each of the other four counts, to run consecutively.
To determine whether the respondent’s crime is an aggravated felony
theft offense under the Act, “we must apply the categorical approach outlined
by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990).”
Matter of Ibarra, 26 I&N Dec. 809, 810 (BIA 2016). The categorical
1 Section 211 of California Penal Code defines the crime of robbery as “the felonious
taking of personal property in the possession of another, from his person or immediate
presence, and against his will, accomplished by means of force or fear.”
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approach ignores the particular facts of the respondent’s crime and focuses
on whether the elements of his State statute of conviction proscribe conduct
that categorically falls within the Federal definition of the offense. See
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). “Under this
categorical approach, if ‘the elements of the state crime are the same as or
narrower than the elements of the federal offense, then the state crime is a
categorical match and every conviction under that statute qualifies as an
aggravated felony.’” Diego v. Sessions, 857 F.3d 1005, 1009 (9th Cir. 2017)
(emphasis added) (citation omitted). Whether the respondent’s crime is
categorically an aggravated felony theft offense is a question of law we
review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2017).
Generic theft under section 101(a)(43)(G) of the Act is defined as the
“taking of property or an exercise of control over property without consent
with the criminal intent to deprive the owner of rights and benefits of
ownership, even if such deprivation is less than total or permanent.”2 Matter
of Ibarra, 26 I&N Dec. at 811 (quoting Gonzales v. Duenas-Alvarez, 549
U.S. 183, 189 (2007)). In Matter of Ibarra, we addressed whether the generic
theft element of taking “without consent” encompasses extortionate takings
—those accomplished by force or fear—under section 211 of the California
Penal Code. After examining the relevant case law, we concluded that such
takings fall within the generic definition of aggravated felony theft and
therefore held that a robbery offense in violation of section 211 is
categorically an aggravated felony under section 101(a)(43)(G) of the Act.
The issue in Ibarra is different from the question raised by the
respondent—namely, whether the “taking of property” element of
aggravated felony theft encompasses the “taking” contemplated by section
211 of the California Penal Code. The respondent argues that section 211 is
overbroad with respect to the Federal definition of theft because a “taking”
under California law requires a perpetrator to carry property away (also
known as “asportation”). See, e.g., People v. Hill, 952 P.2d 673, 703 (Cal.
1998) (stating that the “taking” element of section 211 has two components:
(1) gaining control over the property; and (2) asportation).
Asportation was an element of common law larceny and it remains a
feature of several States’ robbery statutes. See, e.g., Gutierrez v. State, 723
S.E.2d 658, 659 (Ga. 2012); Hill, 952 P.2d at 703; State v. Johnson, 558
N.W.2d 375, 377 (Wis. 1997); see also 3 Wayne R. LaFave, Substantive
Criminal Law § 20.3 (2d ed.), Westlaw (database updated Oct. 2016).
However, the asportation element of section 211 does not expand the reach
2 Section 101(a)(43)(G) of the Act defines an aggravated felony, in relevant part, as “a
theft offense (including receipt of stolen property) . . . for which the term of imprisonment
[is] at least one year.”
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of the statute beyond the range of conduct encompassed by the definition of
aggravated felony theft. Instead, it narrows it.
The definitions of both robbery in section 211 and aggravated felony theft
in section 101(a)(43)(G) of the Act reach “takings” committed by gaining
control over the property of another. Compare Hill, 952 P.2d at 703, with
Matter of Ibarra, 26 I&N Dec. at 811. The only difference between the
statutes is that section 211 criminalizes a narrower subset of “takings” within
the broader universe of those encompassed by the generic offense. In other
words, the presence of the asportation element of section 211 narrows the
reach of the State statute to only some, but not all, “takings” included in the
definition of aggravated felony theft. See LaFave, supra, § 20.3(a)(2)
(“[R]obbery under the traditional view requires both a taking and an
asportation . . . of the property. Modern statutes, however, are frequently less
demanding, often reflecting the . . . position that asportation is not required
for the underlying theft . . . .” (emphasis added) (footnotes omitted)).
Because the elements of robbery in section 211 are the same as or narrower
than the elements of aggravated felony theft, all of the conduct proscribed by
the State statute necessarily falls within the Federal definition. See Diego,
857 F.3d at 1009. We therefore hold that the respondent’s robbery offense
is categorically an aggravated felony under section 101(a)(43)(G) of the Act.
The respondent relies on unpublished decisions from the United States
District Court for the Southern District of California to support his claim that
section 211 could be used to successfully prosecute an aider and abettor
whose only conduct involved the asportation of property after it had been
taken by a principal violator—conduct that falls outside the Federal
definition of generic theft. See United States v. Alonso-Sepulveda, No.
15CR3084 WQH, 2016 WL 1223355, at *2–4 (S.D. Cal. Mar. 29, 2016);
United States v. Bernal-Sanchez, No. 15CR1689 WQH, 2016 WL 727070,
*4–7 (S.D. Cal. Feb. 24, 2016). We find no merit to this argument.
In Bernal-Sanchez, the court concluded that a conviction involving only
the asportation of stolen property would not fall within the definition of an
aggravated felony. The court reasoned that “[n]o aspect of the generic theft
offense covers conduct limited solely to participation in the asportation of
the stolen property.” See Bernal-Sanchez, 2016 WL 727070, at *7. The
court further observed that the asportation requirement of section 211 “is not
confined to a fixed point in time. The asportation continues thereafter as long
as the loot is being carried away to a place of temporary safety.” Id. (citation
omitted) (internal quotation mark omitted).
We understand the reasoning in Bernal-Sanchez and similar cases.
However, we respectfully point out the Supreme Court’s statement that “a
person aids and abets a crime when (in addition to taking the requisite act)
he intends to facilitate that offense’s commission. An intent to advance some
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different or lesser offense is not . . . sufficient: Instead, the intent must go to
the specific and entire crime charged . . . .” Rosemond v. United States, 134
S. Ct. 1240, 1248 (2014) (emphasis added) (citation omitted).
California case law similarly reflects that “an aider and abettor must share
the specific intent of the perpetrator,” which occurs “when he or she knows
the full extent of the perpetrator’s criminal purpose and gives aid or
encouragement with the intent or purpose of facilitating the perpetrator’s
commission of the crime.” People v. Beeman, 674 P.2d 1318, 1326 (Cal.
1984). Under section 31 of the California Penal Code, “[a]ll persons
concerned in the commission of a crime, . . . whether they directly commit
the act constituting the offense, or aid and abet its commission, . . . are
principals in any crime so committed.” (Emphasis added.) Thus, as the
California courts have recognized, “The aider and abettor doctrine merely
makes aiders and abettors liable for their accomplices’ actions as well as their
own. It obviates the necessity to decide who was the aider and abettor and
who the direct perpetrator or to what extent each played which role.” People
v. Delgado, 297 P.3d 859, 863 (Cal. 2013) (quoting People v. McCoy,
24 P.3d 1210, 1216 (Cal. 2001)).
For this reason, the Supreme Court has concluded that under California
law, “one who aids and abets a theft falls, like a principal, within the scope
of [the] generic definition” of theft. Duenas-Alvarez, 549 U.S. at 189. The
United States Court of Appeals for the Ninth Circuit, in whose jurisdiction
this case arises, relied on Duenas-Alvarez in holding that aiding and abetting
a crime of violence was an aggravated felony. Ortiz-Magana v. Mukasey,
542 F.3d 653, 658 (9th Cir. 2008). The court reasoned that aiders and
abettors and principals are convicted under the same statute in California and
that “there is no material distinction between an aider and abettor and
principals in any jurisdiction of the United States including California and
federal courts: aiding and abetting [any crime] is the functional equivalent
of personally committing that offense.” Id. at 659. Accordingly, since a
violation of section 211 falls squarely within the Federal definition of theft,
a conviction for aiding and abetting such a crime must also fall within this
definition. See id.; see also Sales v. Sessions, No. 15-70885, 2017 WL
3567831, at *4 (9th Cir. Aug. 18, 2017) (holding that the offense of aiding
and abetting second degree murder under California law was an aggravated
felony).
Furthermore, while we recognize that the asportation requirement of
section 211 is not fixed in time and may continue after a principal perpetrator
has gained control over stolen property, we conclude that the time for
assessing whether a violation of section 211 is categorically an aggravated
felony theft offense is at the completion of the crime. At that time, a
California robbery offense necessarily contains all of the elements of generic
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theft. For example, a hypothetical aider and abettor who claims to have
assisted in just the asportation of stolen property can only be convicted
of a completed violation of section 211 if he or she had knowledge of the
perpetrator’s unlawful purpose and acted with the specific intent and purpose
of facilitating the commission of the entire crime.3
As a consequence, a person who is convicted as an aider and abettor in a
robbery under section 211 of the California Penal Code, but who has assisted
in only the asportation aspect of the offense, is just as culpable of the “taking”
as the principal. We therefore conclude that the respondent’s conviction for
robbery under section 211 of the California Penal Code is categorically a
conviction for an aggravated felony theft offense, regardless of whether he
committed the offense as an aider and abettor. Accordingly, the respondent’s
appeal will be dismissed.
ORDER: The appeal is dismissed.
3 California Criminal Jury Instruction 3.01 provides, in pertinent part, the following jury
instructions for aiding and abetting:
A person aids and abets the [commission] [or] [attempted commission] of a crime
when he or she:
(1) With knowledge of the unlawful purpose of the perpetrator, and
(2) With the intent or purpose of committing or encouraging or facilitating the
commission of the crime, and
(3) By act or advice, [or, by failing to act in a situation where a person has a
legal duty to act,] aids, promotes, encourages or instigates the commission of the
crime.
These instructions must be given in any case in which a defendant is prosecuted as an aider
and abettor. Delgado, 297 P.3d at 864−65.