Hernandez-Mancilla,R v. INS ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3608
Rafael Hernandez-Mancilla,
Petitioner,
v.
Immigration and Naturalization Service,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A35-214-671
Argued January 9, 2001--Decided APRIL 11,
2001
Before Flaum, Chief Judge, and Bauer and
Coffey, Circuit Judges.
Bauer, Circuit Judge. Rafael Hernandez-
Mancilla, a native and citizen of Mexico
and a lawful permanent resident of the
United States, seeks review of the Board
of Immigration Appeals’ ("BIA") dismissal
of his appeal from the Immigration
Judge’s ("IJ") decision to deport him
under 8 U.S.C. sec. 1101(a)(43)(G). We
affirm the BIA’s dismissal.
BACKGROUND
On April 14, 1992, Hernandez-Mancilla
pled guilty to the Illinois offenses of
burglary of a motor vehicle, possession
of burglary tools, and possession of a
stolen motor vehicle. He was sentenced to
six months imprisonment and forty-eight
months probation, ordered to pay
restitution, and enrolled in a drug abuse
program. Hernandez-Mancilla violated the
terms of his probation by committing the
same offenses regarding a different motor
vehicle. On June 24, 1994, he again pled
guilty and was sentenced to two
additional years probation and enrolled
in another drug program. On February 29,
1996, Hernandez-Mancilla violated
probation again, resulting in a sentence
of six years imprisonment./1
On November 8, 1996, the INS charged
Hernandez-Mancilla as deportable under
the Immigration and Nationality Act
("INA"), 8 U.S.C. sec. 1227(a)(2)(A)(ii)
for being convicted of two crimes
involving moral turpitude not arising out
of a single scheme of criminal
misconduct. On January 30, 1997, the INS
brought additional charges against him
under 8 U.S.C. sec. 1227(a)(2)(A)(iii)
because he was convicted of an
"aggravated felony" under sec.
1101(a)(43)(G). Hernandez-Mancilla
admitted his convictions and conceded
deportability for moral turpitude, but
submitted that he was not deportable for
committing an "aggravated felony." On
September 30, 1998, the IJ issued a short
written decision deeming Hernandez-
Mancilla deportable as an "aggravated
felon," adjudging him ineligible for
relief, and ordering him to be deported.
On appeal to the BIA, Hernandez-Mancilla
argued that none of his convictions
should be classified as an "aggravated
felony." He first posited that his
burglary conviction was not a "burglary
offense" under the definition of burglary
developed in Taylor v. United States, 495
U.S. 575 (1990). Second, he argued that
his conviction for possession of a stolen
motor vehicle was not a "theft offense"
because it lacked the essential element
of theft, namely the intent to
permanently deprive the owner of his or
her property. He contended that both the
crimes of theft and receipt require this
culpability, whereas possession does not.
The INS countered that his burglary
conviction could be classified as both a
"theft offense" and a "burglary offense,"
and that his conviction for possession of
a stolen motor vehicle was a "theft
offense."
On September 10, 1999, the BIA affirmed
the IJ’s conclusion and dismissed the
appeal. The BIA said that not all
Illinois burglary convictions would "rise
to the level of a theft offense under the
Act, because a defendant [could] be
convicted for burglary in Illinois for
entering a building or automobile with
the intent to commit any felony, not just
theft." However, the BIA found this case
one in which burglary was a "theft
offense." In so finding, the BIA relied
on the language in the record of
conviction for burglary, noting that
Hernandez-Mancilla had "pled guilty to an
indictment charging him with entering a
motor vehicle ’with the intent to commit
the offense of theft therein.’" This
prompted the BIA to look to the
definition of "theft" under 720 ILCS
5/16-1, which outlaws the taking of
property with the intent to permanently
deprive the owner of its use or benefit.
The BIA noted that "the term theft
offense incorporates violations other
than those which are formally labeled
theft." The BIA found that "[although
intent] constitutes only one element of
theft, [it] is the main element common to
both theft and receipt of stolen
property, the two offenses which are
explicitly classified as theft offenses
under section 101(a)(43)(G) of the Act."
The BIA further noted, "not only did the
respondent possess the intent to commit
theft, but in entering the automobile
without authorization, the respondent had
clearly embarked on a plan of action in
furtherance of this intent." In a
footnote, the BIA wrote that sec.
1101(a)(43)(G) allows attempts to commit
any listed "aggravated felony" to be
classified as an "aggravated felony." The
BIA reasoned that since attempted theft
was a "theft offense," Hernandez-
Mancilla’s burglary conviction "should
similarly fall under the definition of
theft offense . . . ." Therefore, the BIA
held that his burglary conviction was a
"theft offense."
Finding this alone a sufficient basis
for deportation, the BIA declined to
address whether Hernandez-Mancilla’s
burglary conviction was a "burglary
offense" or whether his conviction for
possession of a stolen motor vehicle was
a "theft offense." Hernandez-Mancilla
appealed.
DISCUSSION
"Any alien who is convicted of an
aggravated felony at any time after
admission is deportable." 8 U.S.C.
sec.1227(a) (2)(A)(iii). "[N]o court
shall have jurisdiction to review any
final order of removal against an alien
who is removable by reason of having
committed [an aggravated felony]." 8
U.S.C. sec. 1252(a)(2)(C). In other
words, if Hernandez-Mancilla committed an
"aggravated felony" we are stripped of
jurisdiction. However, we have
jurisdiction to ascertain whether we have
jurisdiction. So, in a case such as this
where the inquiry into jurisdiction and
the merits is one in the same, we are
empowered to determine whether an
individual committed an "aggravated
felony." See Xiong v. INS, 173 F.3d 601,
604 (7th Cir. 1999). An "aggravated
felony" is, among other things, "a theft
offense (including receipt of stolen
property) or burglary offense for which
the term of imprisonment [is] at least
one year." 8 U.S.C. sec. 1101(a)(43)(G).
An offense may be classified as an
"aggravated felony" "whether in violation
of Federal or State law." 8 U.S.C. sec.
1101(a)(43). The question then is whether
any of Hernandez-Mancilla’s offenses may
be classified as an "aggravated felony,"
a jurisdictional question we review de
novo. See Solorzano-Patlan v. INS, 207
F.3d 869, 872 (7th Cir. 2000).
Solorzano-Patlan v. INS forecloses the
question of whether a conviction under
720 ILCS 5/19-1 for burglary of a motor
vehicle is an "aggravated felony" because
it is a "burglary offense" under sec.
1101(a)(43)(G). We held that it is not.
Therefore, we consider whether either
Hernandez-Mancilla’s conviction for
burglary under 720 ILCS 5/19-1 or his
conviction for possession of a stolen
motor vehicle under 625 ILCS 5/4-
103(a)(1) may be classified as a "theft
offense." As mentioned, the BIA declined
to address whether his conviction for
possession of a stolen vehicle was a
"theft offense" since it classified his
burglary conviction as such. We opt for
the opposite approach and address whether
his possession conviction renders him
deportable.
In reaching a decision, we use the
approach taken in Solorzano-Patlan. The
INS charged Solorzano-Patlan deportable
as an "aggravated felon" for committing a
"burglary offense" under 720 ILCS 5/19-1.
Solorzano-Patlan argued that his offense
ought not be classified as an "aggravated
felony." We began our analysis by
recognizing that since "burglary offense"
was not defined under the INA, a
definition had to be fashioned through
interpretative devices. Since state
definitions of burglary vary wildly, we
decided that how states classify crimes
is not determinative; that is, even if a
state labels an offense "burglary," we
will not consider it per se a "burglary
offense" under federal law. Relying on
Taylor v. United States, we determined
that, for the sake of uniformity, the
conviction at issue must encompass the
generic flavor of burglary. We discerned
that burglary constituted "’the basic
elements of unlawful entry, or remaining
in, a building or structure, with intent
to commit a crime.’" Id. at 874. We then
looked to the record of conviction to
discover whether Solorzano-Patlan’s
offense comprised these generic elements.
See id. at 873, 875. Solorzano-Patlan had
pled guilty to an Information which
stated that he had "without authority,
knowingly entered a 1994 Ford Explorer
belonging to [another] with the intent to
commit therein a theft." Id. at 871(emphasis omitted). We noted that
Solorzano-Patlan had admitted to having
the intent to commit theft, not to having
the intent to commit a felony, which is
important since under the Illinois
burglary statute a defendant may be
charged for either. See id. at 873. We
held that Solorzano-Patlan’s conviction
for burglary of a motor vehicle under 720
ILCS 5/19-1 was not a "burglary offense"
because it did not jibe with the generic
elements since it did not involve
entering or remaining in a building or
structure. See id. at 875.
Like the term "burglary offense,"
Congress did not define the phrase "theft
offense (including receipt of stolen
property)," and a plain reading of sec.
1101(a)(43)(G) does not reveal its
meaning. Thus, following the rubric of
Solorzano-Patlan, we must ascertain the
generic elements of "theft offense
(including receipt of stolen property)."
At least two sister Circuits and the BIA
have addressed the meaning of this
phrase, so our interpretation is informed
by theirs.
In Lopez-Elias v. Reno, the Fifth
Circuit held that a petitioner’s
conviction under Tex. Penal Code Ann. sec.
30.04(a) for burglary of a vehicle with
the intent to commit theft therein did
not constitute a "theft offense" under
sec. 1101(a) (43)(G) because the
petitioner was only convicted for having
the intent to commit theft rather than
for having actually committed theft. See
209 F.3d 788, 792 (5th Cir. 2000). While
the court examined the text of the Texas
statute and the specific charges of
conviction, the court did not develop a
generic definition of the phrase la
Taylor before concluding that the
petitioner’s offense was not a "theft
offense."
The Fifth Circuit in United States v.
Dabeit further held that a conviction
under 18 U.S.C. sec.sec. 1014 and 2113(b)
for a check kiting conspiracy was a
"theft offense" under sec.1101(a)
(43)(G). See 231 F.3d 979, 983-84 (5th
Cir. 2000). The court defined "theft" as
"the act of stealing," part of the
definition found in Black’s Law
Dictionary. See id. at 983. The court
noted that the defendant’s conviction
involved the taking of another’s
property. See id. The statute under which
the defendant was charged made it illegal
to take property or money with the intent
to steal or purloin. See id. at 984. The
court concluded that the defendant’s
conviction "fit[ ] within the definition
of a theft offense . . . ." Id.The Ninth Circuit in United States v.
Corona-Sanchez held that a defendant’s
conviction under Cal. Pen. Code sec.sec.
488 and 666 for "petit larceny with a
prior" was a "theft offense" under
sec.1101(a)(43)(G). See 234 F.3d 449, 455
(9th Cir. 2000). The Ninth Circuit,
following Taylor, developed a modern,
generic definition for "theft offense."
The court looked at common law larceny,
but believed that Congress intended to
broaden the definition because the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"),
Pub. L. No. 104-208 expanded what
constitutes an "aggravated felony." See
id. at 454. Further, the court believed
that since the term "theft offense" was
used, rather than just "theft," and that
"receipt of stolen property" was included
parenthetically, Congress intended the
phrase to have a broad meaning. See id.The Ninth Circuit found that the Model
Penal Code ("MPC") offered a modern,
generic definition. See id. at 454-55.
The court noted that the Fifth Circuit in
Dabeit adopted the Black’s Law Dictionary
definition, and concluded that the MPC’s
definition was consistent with that
definition. See id. at 455 n.4. The Ninth
Circuit looked at the statute of
conviction, which made it a crime to,
among other things, "steal, take, carry,
lead, or drive away the personal property
of another . . . ." Id. The court then
looked at the record of conviction and
found that the defendant had attempted to
steal a twelve pack of beer and a pack of
cigarettes from a grocery store having
already been convicted of a petit theft.
See id. The Ninth Circuit held that the
defendant’s offense "substantially
correspond[ed] to the theft-related
offenses set forth in the [MPC]." Id.We find the Ninth Circuit’s approach to
developing a modern, generic definition
of "theft offense (including receipt of
stolen property)" more in line with our
approach in Solorzano-Patlan because it
mimics Taylor. However, we decline to
adopt the MPC wholesale because we fancy
that it would be more consistent with
Solorzano-Patlan to develop one
definition rather than adopt a set of
definitions like the MPC offers. To be
thorough, we examine both the MPC and
Black’s Law Dictionary in developing a
definition.
While the crime of theft, like burglary,
has enjoyed a long legal history,
creating a modern, generic definition
presents a challenge because the term
"theft" provides an umbrella for a sundry
of offenses. Black’s Law Dictionary
defines "theft" as:
A popular name for larceny. The act of
stealing. The taking of property without
the owner’s consent. The fraudulent
taking of personal property belonging to
another, from his possession, or from the
possession of some person holding the
same for him, without his consent, with
intent to deprive the owner of the value
of the same, and to appropriate it to the
use or benefit of the person taking.
It is also said that theft is a wider
term than larceny and that it includes
swindling and embezzlement and that
generally, one who obtains possession of
property by lawful means and thereafter
appropriates the property to the taker’s
own use is guilty of a ’theft’. Theft is
any of the following acts done with
intent to deprive the owner permanently
of the possession, use or benefit of his
property: (a) Obtaining or exerting
unauthorized control over property; or
(b) Obtaining by deception control over
property; or (c) Obtaining by threat
control over property; or (d) Obtaining
control over stolen property knowing the
property to have been stolen by another.
Black’s Law Dictionary 1477 (6th ed. 1990)
(citations omitted). "Larceny" is defined
as:
Felonious stealing, taking and carrying,
leading, riding, or driving away
another’s personal property, with intent
to convert it or to deprive owner
thereof. . . . The essential elements of
a ’larceny’ are an actual or constructive
taking away of the goods or property of
another without the consent and against
the will of the owner or possessor and
with a felonious intent to convert the
property to the use of someone other than
the owner.
Id. at 881. "Possession" entails
"[h]aving control over a thing with the
intent to have and to exercise such
control." Id. at 1163. "Receiving stolen
goods or property" means acquiring
"physical dominion or apparent legal
power to dispose of property and
envisages possession or control as an
essential element." Id. at 1269. The MPC
sets forth a "[c]onsolidation of theft
offenses." Model Penal Code sec. 223.1; see
Wayne R. LaFave & Austin W. Scott, Jr.,
Substantive Criminal Law sec.sec. 8.1, 8.8
(West 1986 & 1999). The consolidation
subsumes eight offenses, namely: (1)
theft by unlawful taking or disposition;
(2) theft by deception; (3) theft by
extortion; (4) theft of property lost,
mislaid, or delivered by mistake; (5)
receiving stolen property; (6) theft of
services; (7) theft by failure to make
required disposition of funds received;
and (8) unauthorized use of automobiles
and other vehicles. See Model Penal Code
sec.sec. 223.2-223.9.
About a year after the BIA’s decision in
Hernandez-Mancilla’s case was rendered,
the BIA issued In re V-Z-S-, Interim Dec.
No. 3434, 2000 WL 1058931 (BIA Aug. 1,
2000). In V-Z-S- the respondent had been
convicted under Cal. Veh. Code sec.
10851(a) for willfully driving and taking
a vehicle without consent and with intent
to either permanently or temporarily
deprive the owner of title and possession
of the vehicle. The issue presented was
whether the respondent’s conviction was a
"theft offense" under sec.
1101(a)(43)(G). Following Taylor, the BIA
fashioned a definition for "theft
offense" by examining the MPC, Black’s
Law Dictionary, and both federal and
state statutes. The BIA emerged with the
following definition: a "theft offense"
encompasses all takings of property with
the criminal intent to deprive the owner
of rights and benefits of ownership, even
if such deprivation is less than total or
permanent. Based upon this generic
definition, the BIA adjudged the
respondent deportable, over dissent, for
the commission of a "theft offense."
Soon thereafter, the BIA issued In re
Bahta, Interim Dec. No. 3437, 2000 WL
1470462 (BIA Oct. 4, 2000). The
respondent had been convicted under Nev.
Rev. Stat. 205.275(1) for attempted
possession of stolen property. The
question was whether the respondent’s
conviction was an attempted "theft
offense" under sec. 1101(a)(43)(G), (U).
The BIA set out to develop a modern,
generic definition for "receipt of stolen
property" by canvassing the United States
Code, some state codes, and the MPC for
guidance. (We read Bahta as only defining
"receipt of stolen property" rather than
"theft offense (including receipt of
stolen property).") The BIA concluded
that the predominant modern view of the
phrase "receipt of stolen property" is
that it includes the knowing receipt,
possession, or retention of another’s
property without consent. The BIA found
that the common element among these
offenses was that the offender exercised
unauthorized control over another’s
property, which means that proof that the
offender was involved in the actual
taking is not necessary. The BIA found
the conviction for attempted possession
of stolen property fit this definition of
"receipt of stolen property," and was
thus an "aggravated felony."
So, what does "theft offense (including
receipt of stolen property)" mean? Both
the MPC and Black’s Law Dictionary
recognize that "theft" encompasses many
crimes, which indicates that any
definition ought to be broad. Corona-
Sanchez and V-Z-S- note that Congress has
indicated that "aggravated felony"
encompasses a wide range of offenses, a
range which was widened further in 1996
because IIRIRA added offenses under the
label "aggravated felony" and lowered the
sentencing threshold from five years to
one year under sec. 1101(a)(43)(G). Also,
by choosing the words "theft offense"
rather than just "theft," and by
expressly including "receipt of stolen
property," Congress signaled that it was
not presenting an exhaustive list of
offenses (i.e. just theft and receipt);
rather, with its word choices, Congress
indicated that the phrase ought to be
given a broad read. See Corona-Sanchez,
234 F.3d at 455 ("If the word ’offense’
does not restrict or clarify the word
’theft,’ then it must broaden it."). And
finally, other offenses listed as
"aggravated felonies" reference other
statutes, thereby limiting the scope of
deportable offenses under those sections.
See, e.g., 8 U.S.C. sec. 1101(a)(43)(B),
(C), (D), (E), (F), (H), (I), (J), (K),
(L), (M), (N), (O) & (P). The section at
issue here, sec. 1101(a)(43)(G), is not
limited by such reference. Therefore, the
phrase "theft offense (including receipt
of stolen property)" ought to be broadly
construed.
We agree with a combination of the
definitions developed in both V-Z-S- and
Bahta, although we disagree with Batha to
the extent that it is only presenting a
definition for "receipt of stolen
property" and not the entire phrase
"theft offense (including receipt of
stolen property)." This is because we do
not read the entire phrase as merely a
list of two offenses--theft and
receipt./2 Rather, we read "theft
offense" as an umbrella label, and
"including receipt of stolen property" as
indicating that the label encompasses a
myriad of offenses. So, distilled to its
essence, we hold that the modern,
generic, and broad definition of the
entire phrase "theft offense (including
receipt of stolen property)" is a 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. Now we must decipher whether
Hernandez-Mancilla’s possession
conviction fits this generic mold.
Under the Illinois statutory scheme, the
crimes of receipt and possession of a
stolen motor vehicle are in the same
subsection within a section entitled
"Anti-theft laws." The statute of
conviction forbids, in part, a "person
not entitled to the possession of a
vehicle to receive, possess, conceal,
sell, dispose, or transfer it, knowing it
to have been stolen or converted . . . ."
625 ILCS 5/4-103(a)(1). The Illinois
statute outlaws receiving, possessing,
concealing, selling, disposing, and
transferring. Since the statute houses
many offenses, we look to the record of
conviction to see what particular offense
Hernandez-Mancilla was convicted of. In
1994, Hernandez-Mancilla pled guilty to
an Indictment that read: "Rafael
Hernandez committed the offense of
possession of a stolen motor vehicle, in
that He, not being entitled to the
possession of a motor vehicle, to wit: a
1983 Oldsmobile Royale Delta 88 property
of Luis Luna possessed said vehicle,
knowing it to have been stolen or
converted . . . ." Since Hernandez-
Mancilla’s conviction was for possession,
we need not decide today whether the
other offenses listed in the statute
constitute "theft offenses (including
receipt of stolen property)." Hernandez-
Mancilla’s conviction for possession of a
stolen motor vehicle entailed a knowing
exercise of control over another’s
property without consent, and thus it
fits the generic definition of "theft
offense (including receipt of stolen
property)" under sec. 1101(a) (43)(G).
And, since Hernandez-Mancilla was
sentenced to six years, his prior
conviction for possession of a stolen
motor vehicle constitutes an "aggravated
felony."
Hernandez-Mancilla also raises some
constitutional arguments, which we may
review under the "safety valve"
exception, which grants us the power to
review substantial constitutional claims
raised by a deportee. See Morales-Ramirez
v. Reno, 209 F.3d 977, 981 (7th Cir.
2000). However, we only have jurisdiction
to review constitutional claims if they
are substantial. So, again, the inquiry
into jurisdiction and the merits is one.
See id. at 981 & n.1. Hernandez-Mancilla
argues that his guilty pleas for burglary
and possession cannot be morphed into
convictions for theft as it would alter
the legal consequences of his plea such
that it would not have been made
knowingly and intelligently. He cites
Jideonwo v. INS, which held that
subsequent legislation eliminating
deportation relief could not be applied
retroactively because there was evidence
that the plea agreement was entered into
in reliance of such relief. See 224 F.3d
692, 697-701 (7th Cir. 2000). Based on
Jideonwo, he argues that the BIA’s
interpretation that is deportable for
committing theft constitutes a
retroactive application of the law which
"transforms his plea into convictions for
[an] entirely different criminal
offense." He concludes that the BIA
"cannot retroactively re-label these
guilty pleas without undermining their
knowing and voluntary nature."
While aliens enjoy due process rights in
deportation hearings, such as notice and
an opportunity to be heard, see Xiong,
173 F.3d at 608, Hernandez-Mancilla’s
argument is mistaken. There has been no
retroactive application of legislation to
his case; rather, statutory
interpretation and application of the law
have occurred. Neither this Court nor the
BIA has convicted him of theft. Indeed,
our analysis and the BIA’s have assumed
that he pled guilty to possession of a
stolen motor vehicle under 625 ILCS 5/4-
103(a)(1), not theft. Hernandez-Mancilla
is deportable because his state
conviction constitutes an "aggravated
felony" under federal law. Furthermore,
the due process notice requirement has
been satisfied because Hernandez-Mancilla
received an Order, which notified him
that he was charged as deportable under
sec. 1101(a)(43)(G), and he has been
found deportable under sec.
1101(a)(43)(G).
We are likewise unpersuaded by
Hernandez-Mancilla’s argument in the same
vein that it violates due process to
render him deportable for theft because
possession is not a lesser included
offense of theft or receipt of stolen
property. As explained, we have not said
that possession is a lesser included
offense of theft or receipt. Nor have we
said that his possession conviction is
really a conviction for theft or receipt
under Illinois law. Rather, the phrase
"theft offense (including receipt of
stolen property)" contained in a federal
statute has been interpreted and applied.
We have adopted the approach in
Solorzano-Patlan in defining this phrase.
In so defining, we have distilled the
generic elements of the phrase and
compared them with the elements of the
crimes Hernandez-Mancilla was charged
under and pled to. The lesser included
offense analysis is of no import under
this analysis.
Finally, citing Xiong, Hernandez-
Mancilla argues that it would violate due
process to deport him for committing an
"attempted theft offense" because he was
not charged on this ground. Since he is
entitled to notice, Hernandez-Mancilla’s
argument would hold water if the BIA had
held him deportable on this uncharged
ground. See Xiong, 173 F.3d at 608.
However, the BIA did not so hold. In a
footnote, the BIA noted that an
"aggravated felony" also includes "an at
tempt or conspiracy to commit an offense
described in this paragraph." See 8
U.S.C. sec. 1101(a)(43)(U). While the BIA
mentioned sec. 1101(a)(43)(U) in its
analysis, it did not hold that Hernandez-
Mancilla was deportable under this
section; rather, the BIA reasoned (albeit
unpersuasively) that if an attempted
"theft offense" could be classified as an
"aggravated felony," Hernandez-Mancilla’s
admission that he had the intent to
commit theft could also be classified as
an "aggravated felony." The BIA’s
decision to deport Hernandez-Mancilla was
based on the rationale that his burglary
conviction was a "theft offense" under
sec. 1101(a) (43)(G). Furthermore, any
problem created by the BIA’s reasoning is
cured since we have eliminated this
rationale from our analysis. After
evaluating Hernandez-Mancilla’s various
constitutional arguments, we find them
insubstantial, which strips us of
jurisdiction to review them.
CONCLUSION
Based on the foregoing, the BIA’s
conclusion is AFFIRMED and the petition
for review is DISMISSED.
/1 In the Order to Show Cause and Notice of Hearing,
the INS charged Hernandez-Mancilla deportable
for: (1) a burglary conviction on June 24, 1996;
and (2) a conviction for unlawful possession of
a stolen motor vehicle on April 14, 1992. During
argument before the IJ, Hernandez-Mancilla’s
attorney noted that the INS had listed the wrong
date for the burglary conviction in the Order.
His attorney said that the burglary conviction
had been entered on February 29, 1996 not Febru-
ary 24, 1996. The IJ allowed the INS to orally
amend the Order. However, both the INS and Herna-
ndez-Mancilla’s attorney were mistaken as to the
dates. Hernandez-Mancilla’s burglary conviction
was actually entered on June 24, 1994. It was on
February 29, 1996 that Hernandez-Mancilla was
sentenced for violating his probation. In its
opinion, the BIA did not expressly note the
discrepancy, but did correctly recite that the
conviction dates at issue were those in 1992 and
1994. We have clarified these dates to ensure
Hernandez-Mancilla’s due process right to notice
was satisfied. We find that these discrepancies
do not affect the substantive disposition of the
case.
/2 Hernandez-Mancilla makes much ado that under
Illinois law possession of a stolen motor vehicle
is a separate offense than theft because theft
requires a finding of intent to permanently
deprive, whereas possession does not. See People
v. Anderson, 721 N.E.2d 1121, 1124 (Ill. 1999);
People v. Sullivan, 705 N.E.2d 928, 929 (Ill.
App. 2 Dist. 1999). This is of no matter since we
are fashioning a federal definition of "theft
offense (including receipt of stolen property)."
As noted, how states classify crimes is of little
matter to this purpose. We do point out, however,
that possession of a stolen motor vehicle is a
more serious offense under Illinois law than
theft, see Sullivan, 705 N.E.2d at 930, and that
possession of recently stolen property gives rise
to an inference that the person in possession
obtained the property by theft, see People v.
McCracken, 614 N.E.2d 418, 421 (Ill. App. 1 Dist.
1993).