The Board of Immigration Appeals held that Nevada’s attempted possession of a stolen vehicle does not fit within the theft category of aggravated felony. Matter of Sierra, 26 I&N Dec. 288 (BIA 2014) (Pauley, Guendelsberger, and Greer, Board members). Board member Pauley wrote the panel’s decision.
This case involved an LPR convicted of attempted possession of a stolen vehicle in violation of Nevada Revised Statutes 193.330 and 205.273. At the time, the statute criminalized possession of a stolen vehicle by a person who “knows or has reason to believe” that the vehicle was stolen. Nev. Rev. Stat. § 205.273.
The fact that the statute does not require actual knowledge that the vehicle was stolen proved to be critical. As the Board explained, the Ninth Circuit, the circuit in which this case arose, clearly emphasizes knowledge when gauging intent. Matter of Sierra, 26 I&N Dec. at 291. Without a clear indication that the defendant had knowledge that the item was stolen, it’s not clear that a person was convicted of possessing a stolen item with the intent to deprive the rightful owner of its use.
Nevada’s willingness to punish people who knew a vehicle was stolen alongside those who merely had “reason to believe” it was stolen goes too far. “No valid inference may be drawn that the offender intended to deprive the true owner of the rights and benefits of ownership where he was not actually aware of the stolen character of the circumstances,” the panel wrote. Id. at 292.
Importantly, the Board took pains to limit its holding to cases arising in the Ninth Circuit. Not only did it explicitly note its reliance on Ninth Circuit cases, but it added, “we reserve the question of what Congress meant by the term ‘receipt of stolen property’ in section 101(a)(43)(G) of the Act for a future case where circuit law does not dictate that such an offense requires a showing that the actor had an intent to deprive the owner of his property.” Matter of Sierra, 26 I&N Dec. at 292 n.1. This makes me think the Board would have liked to take a more expansive approach but felt that its hands were tied.
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