The Board of Immigration Appeals (BIA) recently held, in Matter of Sierra, 26 I&N 288 (BIA 2014), that a conviction for attempted possession of a stolen vehicle in violation of Nevada law is not categorically an aggravated felony, under INA Section 101(a)(43)(G) and (U), as an attempted theft offense. The BIA reasoned that the statute requires the minimal mental state of “reason to believe” that the property was stolen. Therefore, under Nevada law, a person can be convicted even if they did not know the vehicle was stolen. They can be convicted simply if they had reason to believe it was stolen, but no actual knowledge.
There are two limitations to this decision.
First, the BIA is bound by precedent decisions in the Ninth Circuit and therefore the result can be different in different circuits where those courts have rendered conflicting decisions. Therefore, this holding does not necessarily apply to immigration cases arising out of different circuits.
Second, it is also important to evaluate and analyze the specific language in a particular state’s statute, even within the Ninth circuit. The minimal mens rea, or mental state, required in each individual statute to prove guilt must be analyzed, in accordance with the law in your circuit, to determine whether a conviction under that statute would be considered an aggravated felony.
For example, the BIA, in Matter of Cardiel, 25 I&N Dec. 12 (BIA 2009), held that the state statute in California, which is also in the Ninth Circuit, involving receipt of stolen property was categorically a theft offense because that statute requires that the person knows that the property was stolen. Proving that the person had reason to believe the property was stolen is insufficient under that statute.