Ronel Ramos v. U.S. Attorney General , 709 F.3d 1066 ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________
Nos. 11-14829 & 11-15945
__________________________
Agency No. A041-893-419
RONEL RAMOS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Petitions for Review of a Decision of
the Board of Immigration Appeals
__________________________
(February 19, 2013)
Before CARNES and COX, Circuit Judges, and RESTANI, * Judge.
COX, Circuit Judge:
*
Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
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Ronel Ramos was charged with removability for committing an “aggravated
felony” within the meaning of 8 U.S.C. § 1227(a)(2)(A)(iii) when he pled guilty to
violating Georgia Code § 16-8-14, a statute that criminalizes shoplifting. An
Immigration Judge sustained the charge, denied Ramos’s application for
cancellation of removal, and ordered Ramos deported. Ramos appealed to the
Board of Immigration Appeals. The Board dismissed his appeal, reasoning that a
§ 16-8-14 conviction necessarily qualifies as an aggravated felony. The Board
then denied Ramos’s motion to reconsider. Ramos petitioned this court to review
both of the Board’s rulings. We conclude that a § 16-8-14 conviction does not
categorically qualify as an aggravated felony. We also conclude that Ramos’s
record of conviction does not establish that he committed an aggravated felony.
We therefore grant Ramos’s petition and reverse the Board’s rulings.
I. FACTS
Georgia Code § 16-8-14 (hereinafter the “Georgia statute”) reads as follows,
in relevant part:
(a) A person commits the offense of theft by shoplifting when
[he] . . . , with the intent of appropriating merchandise to his own
use without paying for the same or to deprive the owner of
possession thereof or of the value thereof, in whole or in part . . . :
(1) Conceals or takes possession of the goods or merchandise of any store
or retail establishment[.]
Ga. Code Ann. § 16-8-14 (2004) (emphasis added).
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Ramos, a citizen of the Philippines and a lawful permanent resident of the
United States, was charged under the Georgia statute for taking three video games
from a Costco “with the intent of appropriating [the] merchandise to his own use
without paying for same.” (Admin. R. at 000164.) He pled guilty to this charge
and was sentenced to twelve months’ imprisonment to be served on probation.
The U.S. Attorney General then served Ramos with a notice to appear for
removal proceedings, listing two charges of removability. One charge involved
three additional convictions (Burglary from an Unoccupied Dwelling, Grand Theft,
and Theft from a Dwelling) that, the Government claimed, together rendered
Ramos removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for committing “two or more
crimes involving moral turpitude.” The other charge: Ramos’s conviction under
the Georgia statute rendered him removable because it constituted an “aggravated
felony” within the meaning of § 1227(a)(2)(A)(iii).
II. PROCEDURAL HISTORY
After a hearing, an Immigration Judge sustained the Government’s charge of
removability and denied Ramos’s application for cancellation of removal. The
Immigration Judge’s rulings were based only on Ramos’s shoplifting conviction
under the Georgia statute and did not address the Government’s § 1227(a)(2)(A)(ii)
charge. The Immigration Judge then ordered Ramos removed. Ramos appealed to
the Board of Immigration Appeals. The Board dismissed his appeal, reasoning that
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a conviction under the Georgia statute necessarily constitutes an aggravated felony
within the meaning of § 1227(a)(2)(A)(iii), so Ramos had committed an
aggravated felony and was removable. Ramos petitioned this court to review the
dismissal and, on the same day, moved the Board to reconsider. The Board denied
his motion on the same basis that it dismissed his appeal. Ramos then petitioned
this court to review the Board’s denial of his motion for reconsideration.
This court granted the parties’ joint motion to consolidate the two appeals.
III. ISSUE ON APPEAL
Section 1227(a)(2)(A)(iii) renders an alien removable if he “is convicted of
an aggravated felony at any time after admission.” Though the section does not
define “aggravated felony,” that term is defined in 8 U.S.C. § 1101(a)(43)(G) to
include “theft offense[s] . . . for which the term of imprisonment [is] at least one
year.” 1 In charging Ramos with removability under § 1227(a)(2)(A)(iii), the
Government alleged that his conviction under the Georgia statute constituted a
“theft offense” within the meaning of § 1101(a)(43)(G). If Ramos’s conviction
constituted a “theft offense,” it qualifies as an aggravated felony and Ramos is
removable. The issue on appeal, then, is whether Ramos’s conviction under the
Georgia statute constituted a theft offense.
1
Ramos does not dispute that the twelve-month sentence imposed qualified as a
§ 1101(a)(43)(G) “term of imprisonment.”
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IV. DISCUSSION
In deciding whether a conviction constitutes a theft offense, this court “first
look[s] to the fact of conviction and the statutory definition of the offense.”
Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1353 (11th Cir. 2005). If a
conviction under a particular statute does not categorically qualify as a theft
offense, we then look to the record of conviction—including documents involving
the charge, plea agreement, or sentence—to determine whether it clearly
establishes that the alien’s conviction qualifies as a theft offense. See id. at 1355.
The Government argues that Ramos was convicted of a theft offense because
the Georgia statute is categorical: any conviction under that statute constitutes a
theft offense. But Ramos argues that the Georgia statute is “divisible.” That is, the
Georgia statute punishes some conduct that qualifies as a theft offense and some
conduct that does not qualify as a theft offense. Because the statute is divisible,
Ramos contends, the mere fact of his conviction is insufficient to establish that he
committed a theft offense, and the court must look to the record of conviction.
A.
The initial inquiry on appeal is whether the Georgia statute is categorical or
divisible. To conclude that the Georgia statute is divisible, we must determine that
it punishes conduct that does not qualify as a theft offense within the meaning of
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§ 1101(a)(43)(G). The parties agree that we review the interpretation of the
Georgia statute de novo.2
This inquiry first prompts the question of how “theft offense” is defined.
The Supreme Court has held that when Congress has listed a specific crime, it
means to refer to that crime in “the generic sense in which the term is now used in
the criminal codes of most States.” Taylor v. United States, 495 U.S. 575, 598,
110 S. Ct. 2143, 2158 (1990). The Court later applied this principle to
acknowledge that the term “theft offense,” as § 1101(a)(43)(G) uses it, denotes the
“generic definition of theft.” Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 188–89,
127 S. Ct. 815, 819–20 (2007). That “generic definition,” the Court recognized,
has been stated by the Board and by many of our sister circuits as “the taking 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.” Id. at 189,
127 S. Ct. at 820 (quoting Penuliar v. Gonzales, 435 F.3d 961, 969 (9th Cir. 2006))
(emphasis added) (internal quotation marks omitted); see also United States v.
Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir. 2001) (recognizing verbatim this
2
We owe Chevron deference to the Board’s interpretations of the statutes it has been
empowered by Congress to administer. I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S. Ct.
1439, 1445–46 (1999). We owe no Chevron deference to the Board’s interpretation of the
Georgia statute, which the Board has no power to administer. Because the parties dispute only
the Board’s interpretation of the Georgia statute, the Board’s interpretation is not entitled to
Chevron deference.
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“generic definition”); Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir.
2001) (same); In re V-Z-S-, 22 I. & N. Dec. 1338, 1346 (BIA 2000) (same).
In Jaggernauth v. U.S. Attorney General, 432 F.3d 1346, we accepted this
generic definition and held that a theft statute that included two disjunctive intent
requirements—an intent to deprive and an intent to appropriate—was divisible.
Because we conclude that Jaggernauth controls the result in this case, we discuss it
in detail here.
In Jaggernauth, we considered whether a lawful permanent resident of the
United States had committed a theft offense within the meaning of
§ 1101(a)(43)(G) when she was convicted of grand theft under Florida Statutes
§ 812.014(1) (hereinafter the “Florida statute”). The Florida statute reads as
follows:
A person commits a theft if he or she knowingly obtains or uses, or
endeavors to obtain or use, the property of another with intent to,
either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from
the property.
(b) Appropriate the property to his or her own use or to the use of any
person not entitled to the use of the property.
Fla. Stat. § 812.014(1). The charging document submitted against the alien
“tracked the general language” of the statute but “did not specify under which
subsection [she] was charged.” Jaggernauth, 432 F.3d at 1349.
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The Attorney General then charged her with removability under
§ 1227(a)(2)(A)(iii). An Immigration Judge sustained the charge and ordered her
deported. The Board dismissed the alien’s appeal, but it granted her motion to
reconsider the dismissal. On reconsideration, the Board affirmed the Immigration
Judge’s ruling on the grounds that, although the Florida statute appeared to be
divisible, the record of conviction established that the alien was charged with a
theft offense.
We reversed the Board’s holding. On de novo review, we concluded that the
Florida statute encompassed two distinct mens rea: an intent to deprive and an
intent to appropriate. Id. at 1353–54. We then determined that the Florida
statute’s intent-to-appropriate clause (subpart (b)) could not include a “criminal
intent to deprive the owner of the rights and benefits of ownership,” as the generic
definition of theft requires. Id. at 1353. To interpret both subparts to involve an
intent to deprive, we reasoned, “would make subpart (b) superfluous, thereby
violating the well-established rule of statutory construction that courts must give
effect, if possible, to every clause and every word of a statute.” Id. at 1354. That
interpretation would also “ignore the plain meaning of appropriation,” which does
“not necessarily entail that the property owner be deprived [of] his or her rights to
the property’s use or benefits.” Id. (internal quotation marks omitted). Because
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the statute punishes both crimes that are theft offenses and crimes that are not, the
statute is divisible. Id.
Because the Florida statute is divisible, the fact of the alien’s conviction
alone did not necessarily mean she had committed a theft offense. The Board was
therefore permitted to look beyond the fact of conviction to the record of
conviction. Id. at 1355. The conviction record (which included the charging
document, the plea, and sentencing documents) referenced only the Florida
statute’s general language and nowhere specified under which subpart the alien had
been convicted, leaving open the possibility that the alien was convicted for theft
with intent to appropriate only. Id. For that reason, we held that the Government
failed to clearly establish that the alien was convicted of a theft offense. We
vacated the Board’s order of removal.
We find no meaningful difference between the Florida statute we interpreted
in Jaggernauth and the Georgia statute we consider here. Both statutes
unmistakably require either an intent to deprive (which falls under the generic
definition of theft) or an intent to appropriate (which does not). Accord K-Mart
Corp. v. Coker, 410 S.E.2d 425, 427 (Ga. 1991) (recognizing that the Georgia
statute contemplates three alternate forms of mens rea: the intent to appropriate, the
intent to deprive an owner of the possession of merchandise, and the intent to
deprive an owner of the value of merchandise). Although the Georgia statute
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qualifies the intent-to-appropriate clause with the phrase “without paying for the
same”—which the Florida statute does not do—the phrase does not change the
meaning of the clause. We fail to see how a thief’s intent to appropriate
merchandise to his own use transforms into an intent to deprive a right or benefit of
ownership simply because the thief tenders no payment.
For the reasons set forth in Jaggernauth, a conviction under the Georgia
statute for shoplifting with intent to “appropriat[e] merchandise to [one’s] own use
without paying for the same” (the intent on which the charge against Ramos was
based) does not constitute a theft offense within the meaning of § 1101(a)(43)(G).
The Georgia statute punishes both conduct that qualifies as a theft offense and
conduct that does not. We therefore hold that the Georgia statute is divisible.
The Government contends that the Supreme Court “clarified” Jaggernauth
in Duenas-Alvarez. But Duenas-Alvarez is distinguishable from this case. In
Duenas-Alvarez, the Supreme Court was asked to interpret a California statute that
criminalizes theft. The petitioner in that case argued that the statute was divisible
because it punished both the principal of a theft and anyone who aids or abets that
theft. The petitioner’s rather creative reasoning went this way: Aiders and
abettors, in general, are liable not only for the crimes they specifically intended
others to commit but also for the criminal acts that were natural and probable
consequences of the specifically intended crimes. So, aiders and abettors of theft
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include individuals who specifically intended a principal to commit theft, on one
hand, and on the other, individuals who specifically intended a different crime of
which theft was only a natural and probable consequence. In theory, then, the
California statute could punish individuals who never specifically intended a theft.
But the generic definition of theft requires a specific intent to deprive. The statute
could therefore punish conduct that was not a theft offense within the meaning of
§ 1101(a)(43)(G), and the statute was divisible.
The Supreme Court rejected this argument. The Court concluded that “to
find that a state statute creates a crime outside the generic definition” of theft
“requires more than the application of legal imagination to the state statute’s
language.” Id. at 193, 127 S. Ct. at 822. Instead, the determination that a statute is
divisible “requires a realistic probability . . . that the State would apply its statute to
conduct that falls outside the generic definition.” Id. Seeing no support in the
statute’s language for the petitioner’s construction, the Court required him to point
to case law supporting the proposition that California would prosecute conduct
under the theft statute that fell outside the generic definition of theft. Because the
petitioner could make no such showing, the statute was not divisible.
Here, the Government argues that, under Duenas-Alvarez, Ramos must show
that Georgia would use the Georgia statute to prosecute conduct falling outside the
generic definition of theft; if he cannot, the Government argues, the statute cannot
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be considered divisible. But Duenas-Alvarez does not require this showing when
the statutory language itself, rather than “the application of legal imagination” to
that language, creates the “realistic probability” that a state would apply the statute
to conduct beyond the generic definition. Here, the statute expressly requires
alternate intents. Accord Coker, 410 S.E.2d at 427. One of those intents (the one
at issue here) does not render the crime a theft offense. The statute’s language
therefore creates the “realistic probability” that it will punish crimes that do qualify
as theft offenses and crimes that do not. Duenas-Alvarez does not control this
case.
B.
Because the Georgia statute is divisible, we look to the record of conviction
to determine whether Ramos was convicted of a theft offense. See Jaggernauth,
432 F.3d at 1355. This inquiry need not detain us for long. The record of
conviction consists of the charging document, Ramos’s plea agreement, and a
sentencing document. Only the charging document specifies that Ramos was
charged under the Georgia statute. That document accuses him of taking the video
games from Costco “with the intent of appropriating said merchandise to his own
use without paying for same.” (Admin R. at 000164.) As we explained above, a
conviction for theft of merchandise with intent to appropriate it does not constitute
a theft offense: the intent to appropriate does not encompass the intent to deprive,
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as the generic definition of theft requires. The record of conviction thus fails to
show that Ramos was convicted of a theft offense. The Government makes no
argument counter to this conclusion and effectively concedes it.
V. CONCLUSION
We conclude that the Georgia statute is divisible and that Ramos’s record of
conviction does not show that he committed a theft offense. If Ramos was not
convicted of a theft offense, he was not convicted of an aggravated felony, and his
conviction cannot provide the basis for his removal under § 1227(a)(2)(A)(iii). We
grant Ramos’s petition and reverse the Board’s dismissal of his appeal. His appeal
of the Board’s denial of the motion for reconsideration is moot.
Neither the Immigration Judge nor the Board considered, however, whether
Ramos was removable under § 1227(a)(2)(A)(ii) on the grounds that he committed
multiple crimes involving moral turpitude. We remand this case to the Board to
enable consideration of the alternate grounds advanced by the Government for
Ramos’s removal.
PETITION GRANTED.
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