Omar Norvil Whylie Lewin v. Attorney General United States , 885 F.3d 165 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1846
_____________
OMAR NORVIL WHYLIE LEWIN,
AKA Omar Lewin,
AKA Omar N. Lewin,
AKA Lewin Omard,
AKA Lewin N. Oman,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA,
Respondent
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A041-353-654)
Immigration Judge: Hon. Mirlande Tadal
_______________
Submitted Under Third Circuit LAR 34.1(a)
January 11, 2018
Before: JORDAN, ROTH, Circuit Judges and MARIANI *,
District Judge.
(Filed: March 20, 2018)
_______________
Joseph C. Hohenstein
190 N. Independence Mall West
Suite 602
Philadelphia, PA 19106
Counsel for Petitioner
Jefferson B. Sessions, III
Anna Juarez
Anthony J. Messuri
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
*
Honorable Robert D. Mariani, United States District
Court Judge for the Middle District of Pennsylvania, sitting
by designation.
2
JORDAN, Circuit Judge.
This immigration case raises a single question:
whether the petitioner’s conviction under New Jersey’s
Receiving Stolen Property Statute, N.J. Stat. Ann. § 2C:20-
7(a), constitutes an “aggravated felony” under the
Immigration and Nationality Act (“INA”), 66 Stat. 163, as
amended. 8 U.S.C. § 1101(a)(43)(G). We conclude that it
does and, accordingly, will deny the petition for review.
I. BACKGROUND
Omar Norvil Whylie Lewin, a native and citizen of
Jamaica, was admitted to the United States in 1987 as a legal
permanent resident. In 2000, Lewin was convicted of
receiving stolen property in the third degree, in violation of
New Jersey law, N.J. Stat. Ann. § 2C:20-7(a), and was
sentenced to five years of probation. Seven years later,
following a finding that he violated the terms of his probation,
Lewin was resentenced to a term of four years of
imprisonment. 1 Another seven years later, Lewin received a
1
Lewin states that his probation violation stemmed
from a miscommunication regarding his request to transfer
his probation when he moved from New Jersey to Georgia,
which resulted in a bench warrant on the 2000 stolen property
offense. He alleges “serious defects” in the violation of
probation proceedings that resulted in his resentencing.
(Opening Br. at 5.) Those allegations are the subject of a
collateral attack, pending in the New Jersey Superior Court.
State v. Lewin, No. A-0713-1671. Lewin filed a motion to
hold the present matter in abeyance, pending the resolution of
that case, and we denied that motion.
3
Notice to Appear, charging him as removable pursuant to
8 U.S.C. § 1227(a)(2)(A)(ii)-(iii).
An Immigration Judge (“IJ”) concluded that Lewin is
removable for having been convicted of an aggravated felony
under § 1101(a)(43)(G), based on his 2000 New Jersey
conviction for receipt of stolen property and later
resentencing, and that the conviction also barred him from
relief in the form of cancellation of removal. The IJ therefore
pretermitted Lewin’s application for cancellation of removal.
Lewin then filed a motion for reconsideration, which was
denied. His case was ultimately transferred to a second IJ,
who adopted the original IJ’s conclusions regarding Lewin’s
removability and ineligibility for cancellation of removal.
Lewin appealed that decision to the Board of
Immigration Appeals (“BIA”), arguing that his New Jersey
conviction did not categorically constitute an aggravated
felony under § 1101(a)(43)(G) and that the IJ had prematurely
pretermitted his application for cancellation of removal under
8 U.S.C. § 1229b(a). The BIA affirmed the IJ’s decision. It
too concluded that, because Lewin’s New Jersey receipt of
stolen property conviction categorically constituted an
aggravated felony under 8 U.S.C. § 1101(a)(43)(G), he is
ineligible for cancellation of removal. It thus dismissed
Lewin’s appeal. He responded with this petition for review. 2
2
The second IJ also concluded, and the BIA affirmed,
that Lewin was ineligible for other forms of relief from
removal. Lewin does not contest those determinations in the
petition before us.
4
II. DISCUSSION 3
Lewin’s petition challenges only the sufficiency of the
mens rea element of his New Jersey offense: he says that the
minimum mens rea under New Jersey’s § 2C:20-7(a) –
“believing that [the property] is probably stolen” – renders
that offense insufficient to categorically constitute an
aggravated felony under the INA, specifically under
§ 1101(a)(43)(G). He argues that, although the BIA properly
applied a “strict categorical approach” when determining
whether his conviction constituted an aggravated felony under
the INA, it reached the wrong result. (Opening Br. at 7.)
3
The BIA had jurisdiction under 8 U.S.C. § 1103 and
8 C.F.R. §§ 1003.1(b)(3) and 1240.15. Because the basis for
Lewin’s removal and the pretermission of cancellation of
removal relief is an aggravated felony conviction, our
jurisdiction is limited to “constitutional claims or questions of
law” raised in his petition. 8 U.S.C. § 1252(a)(2)(D); Roye v.
Att’y Gen., 693 F.3d 333, 339 (3d Cir. 2012).
Aggravated felony determinations are questions of
law, which, it is said, we review de novo, Mateo v. Att’y Gen.,
870 F.3d 228, 231 (3d Cir. 2017), subject to Chevron
deference principles, Denis v. Att’y Gen., 633 F.3d 201, 205-
06 (3d Cir. 2011). See Denis, 633 F.3d at 208-09 (stating that
de novo review is proper in a case involving a pure legal issue
as to removability, but that granting deference to the BIA’s
reasonable interpretation of ambiguous statutory language
would also be proper); see also infra n.6. Because the BIA
issued its own opinion, we review its decision rather than the
IJ’s decision. Roye, 693 F.3d at 339.
5
We apply the categorical approach’s element-by-
element analysis to determine whether Lewin’s New Jersey
receiving stolen property conviction “fits” the generic
definition of receiving stolen property that is contemplated by
the INA under § 1101(a)(43)(G). Rojas v. Att’y Gen., 728
F.3d 203, 214 (3d Cir. 2013); see also Moncrieffe v. Holder,
569 U.S. 184, 190 (2013) (employing categorical approach
for aggravated felony determination). Lewin’s “actual
conduct is irrelevant to the inquiry,” and we must “presume
that the conviction rested upon nothing more than the least of
the acts criminalized under the [New Jersey] statute.”
Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (quotation
marks and citation omitted). However, “our focus on the
minimum conduct criminalized by the state statute is not an
invitation to apply ‘legal imagination’ to the state offense;
there must be ‘a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct
that falls outside the generic definition of a crime.’”
Moncrieffe, 569 U.S. at 191 (citation omitted).
Lewin was convicted of receiving stolen property in
the third degree. Following the Model Penal Code’s pattern
definition, M.P.C. § 223.6, New Jersey defines receiving
stolen property as follows: “A person is guilty of theft if he
knowingly receives or brings into this State movable property
of another knowing that it has been stolen, or believing that it
is probably stolen.” N.J. Stat. Ann. § 2C:20-7(a).
The INA includes a generic theft offense within its list
of specified aggravated felonies, and it requires that, to fit the
definition of aggravated felony, the “theft offense (including
receipt of stolen property) … [must be one] for which the
6
term of imprisonment [is] at least one year[.]” 4 8 U.S.C.
§ 1101(a)(43)(G). The INA itself does not define “theft” or
“receipt of stolen property,” but an accepted generic
definition of a “theft offense” is 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.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189
(2007).
The BIA has issued published decisions interpreting
the requisite “criminal intent” inherent in § 1101(a)(43)(G)’s
generic receipt of stolen property offense, most recently in
Matter of Deang, 27 I. & N. Dec. 57 (2017), which post-dated
the BIA’s decision in Lewin’s case. In Matter of Deang, the
BIA addressed whether a state statute governing the receipt of
certain stolen property (specifically motor vehicles), and
providing a minimum mens rea of “reason to believe” the
property at issue was stolen, was sufficient to satisfy the
criminal intent element of the generic receipt of stolen
property offense contemplated by the INA. Construing the
INA’s generic offense to include as “a necessary element” an
“intent to deprive the owner of his or her property, ” id. at 59,
the BIA concluded that a mens rea amounting only to a
“reason to believe” the property was stolen did not satisfy that
intent element. Id. at 63. It said, “[w]e cannot infer that a
violator who received property with a ‘reason to believe’ that
the property was stolen (or a similar mens rea) intended to
deprive the true owner of the rights and benefits of
4
Lewin does not contest the BIA’s conclusion that his
2007 resentencing supplied the statutory requirement of a
minimum term of imprisonment of at least one year.
7
ownership[,]” because a violator “need not be actually aware”
of an item’s stolen character; rather, the state need only prove
that a person “should have been aware” that the property was
stolen, based on the circumstances. Id. at 59. The BIA then
considered other intent elements used in similar federal and
state statutes, and it held that “the mens rea of ‘knowledge or
belief’ is an essential element of an aggravated felony receipt
of stolen property offense under [§ 1101(a)(43)(G).]” 5 Id. at
63.
5
In its opinion, the BIA relied, in part, on its survey of
federal and state statutes in place at the time Congress
amended the INA to include a “receipt of stolen property”
offense. Id. at 59-62. It stated that, while “21 jurisdictions …
and one [f]ederal statute used the lesser mental state of
‘reason to believe’ or something similar[,] … 29 [s]tate
statutes, 11 [f]ederal statutes, and the Model Penal Code used
an elevated standard of ‘knowledge or belief’ when
[§ 1101(a)(43)(G)] was enacted.” Id. at 62. “[W]hile not
dispositive in itself,” the BIA viewed its survey as “lend[ing]
substantial support to … [the] conclusion that a statute that
only requires proof that a violator had a ‘reason to believe’
that the property received was stolen cannot qualify as an
aggravated felony receipt of stolen property offense[.]” Id. at
62-63. We express no view on that point, but we do note that
the BIA properly categorized New Jersey’s receiving stolen
property statute as an MPC-patterned offense, with a
“knowledge or belief” element, and that it expressly
addressed the facial differences between the “knowledge or
belief” and “reason to believe” standard used in certain
jurisdictions’ receipt of stolen property statutes. We therefore
reject Lewin’s arguments that Matter of Deang is irrelevant.
Matter of Deang is consistent with the BIA’s decision in
8
The government argues that Matter of Deang
forecloses Lewin’s argument that New Jersey’s receipt of
stolen property statute, with its “knowing ... or believing”
mens rea, N.J. Stat. Ann. § 2C:20-7(a), is insufficient to
constitute an aggravated felony under the INA. Lewin
counters that Matter of Deang is not dispositive and that we
should not afford it any deference under the principles laid
out in Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 468 U.S. 837 (1984). While the issue of
Chevron deference to the BIA’s evaluation of criminal
statutes in light of the INA has generated some controversy
and confusion, 6 we do not need to resolve that issue here. See
Lewin’s case, and we therefore also reject Lewin’s argument
that we must remand to the BIA to apply that decision in the
first instance.
6
See Denis, 633 F.3d at 207-09 (noting confusion
regarding appropriate degree of Chevron deference to BIA’s
aggravated felony interpretations, and discussing cases); see
also Singh v. Ashcroft, 383 F.3d 144, 151 (3d Cir. 2004)
(“Canvassing the dozen aggravated felony cases decided by
this Court, one indisputable and surprising pattern emerges:
We have never affirmatively deferred to an interpretation by
the BIA (or an IJ) of 8 U.S.C. § 1101(a)(43), i.e., of whether
the crime at issue constitutes an aggravated felony.”). But see
Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004) (stating
that the BIA’s interpretation of “moral turpitude,” as well as
its determination of whether the underlying criminal statute
satisfies that definition, were entitled to Chevron deference);
but see also Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir.
2014) (citing Knapik and noting that “[w]hile we do not defer
9
Rojas, 728 F.3d at 207 (citing Denis v. Att’y Gen., 633 F.3d
201, 208-09 (3d Cir. 2011) (declining to resolve Chevron
dispute because it would not affect the outcome)). We agree
with the BIA’s conclusion that the mens rea element of New
Jersey’s receiving stolen property statute is categorically
sufficient to constitute an aggravated felony under
§ 1101(a)(43)(G). Cf. De Leon-Reynoso v. Ashcroft, 293 F.3d
to the BIA’s parsing of the elements of the underlying crime,
we generally accord deference to the BIA’s determination
that a certain crime involves moral turpitude when that
determination is reasonable[,]” but concluding that
unpublished BIA decisions are not entitled to Chevron
deference though they may constitute persuasive authority
(quotation marks and citation omitted)).
We also question whether, in light of its substantial
reliance on a survey of other criminal statutes, the BIA’s
interpretation in Matter of Deang of generic theft under the
INA’s aggravated felony provision reflects the traditional
hallmarks of a decision justifying Chevron deference. Cf.
Mateo, 870 F.3d at 231 (“[T]he interpretation of criminal
provisions ‘is a task outside the BIA’s special competence
and congressional delegation ... [and] very much a part of this
Court’s competence[.]’” (quoting Aguilar v. Att’y Gen., 663
F.3d 692, 695 (3d Cir. 2011)); I.N.S. v. Aguirre-Aguirre, 526
U.S. 415, 425 (1999) (reasoning that “judicial deference to
the Executive Branch is especially appropriate in the
immigration context where officials exercise especially
sensitive political functions that implicate questions of
foreign relations” (quotation marks omitted)). The question is
immaterial, here, however, because we would reach the same
decision with or without deference to the BIA’s
interpretation.
10
633, 637 (3d Cir. 2002) (rejecting mens rea challenge to
similar Pennsylvania receiving stolen property statute,
reasoning that “[a]t a minimum, [the petitioner] was
convicted of possessing stolen property that he believed
probably was stolen, a crime that is barely removed from
possessing stolen property with knowledge that it is stolen”).
Lewin argues that New Jersey’s statute does not meet
the generic INA definition because it criminalizes conduct
“that would not result in any deprivation (i.e. a mistaken
belief in a probable fact that an item was stolen)[,]” but his
concern is misplaced. (Opening Br. at 14.) New Jersey law
makes it clear that “the State … must prove that the property
in question was actually stolen.” State v. Hodde, 858 A.2d
1126, 1129 (N.J. 2004). So too is his concern that a
defendant’s “belief” that the property is probably stolen need
not be proved beyond a reasonable doubt. “It is well settled
that due process requires the State to prove each element of a
charged crime beyond a reasonable doubt.” State v. Hill, 974
A.2d 403, 411 (N.J. 2009); see also id. at 418 (stating that “it
was the State’s exclusive burden to prove, beyond a
reasonable doubt” the defendant’s mens rea); N.J. Model
Crim. Jury Charges §2C:20-7a (“The third element that the
State must prove beyond a reasonable doubt is that the
defendant either knew that the property had been stolen or
believed that it had probably been stolen at the time the
defendant received the property … . Mere proof that the
property was stolen is not sufficient[.]”). Indeed, that
“burden is not only a constitutional mandate, but is also
codified in [New Jersey Annotated Statute] 2C:1–13(a).”
State v. Tindell, 10 A.3d 1203, 1214 (N.J. App. Div. 2011).
11
On its face, the New Jersey statute’s language –
“knowing that [the property] has been stolen, or believing that
it is probably stolen” – refers to a specific defendant’s
knowledge or belief, and that element must be proved beyond
a reasonable doubt. N.J. Stat. Ann. § 2C:20-7(a); Hill, 974
A.2d at 411; N.J. Model Crim. Jury Charges §2C:20-7a; see
also De Leon-Reynoso, 293 F.3d at 636-37 (concluding that
“belief that the property probably has been stolen speaks to
the specific defendant’s belief and not the hypothetical
reasonable person[,]” and noting that “subjective intent is
generally inferred from objective facts”). Lewin cites no
New Jersey case law to substantiate his concern that New
Jersey courts interpret “belief” under any lesser standard. At
most, he raises a theoretical challenge, and that is insufficient.
Moncrieffe, 569 U.S. at 191. We therefore conclude the BIA
correctly determined that his conviction under New Jersey
law for receiving stolen property constituted an aggravated
felony under § 1101(a)(43)(G). 7
III. CONCLUSION
For the foregoing reasons, we will deny Lewin’s
petition for review.
7
For similar reasons, Lewin’s reliance on the rule of
lenity fares no better. That rule affords relief only in light of
a “grievous ambiguity[,]” Patel v. Ashcroft, 294 F.3d 465,
473 n.9 (3d Cir. 2002), superseded by statute on other
grounds as recognized in Kamara v. Att’y Gen., 420 F.3d
202, 209 (3d Cir. 2005), and there is none here.
12