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Fourth Circuit Finds That Embezzlement Is Not Theft Under INA

By Jonathan R. Tung, Esq. on July 14, 2016 | Last updated on March 21, 2019

In an analysis of moral turpitude crimes, the Fourth Circuit recently found that embezzlement is not tantamount to theft for purposes of the Immigration and Nationality Act. In the case at bar, it involved a man who was under threat of removal from the United States for having committed an "aggravated felony."

But it also shines a light on a rather peculiar question. Just when is embezzlement theft? Is all property from fraudulently-obtained consent a form of theft?

Mena v. Loretta Lynch

The case at bar follows Francisco Mena, a Dominican Republic native who was served with removal orders following his conviction of two separate crimes involving moral turpitude. Mena applied for a cancellation of his removal on the basis that he'd not been convicted of an "aggravated felony" under 8 U.S.C. sec. 1229b(a)(3). The relevant language within that statute includes within the class of "aggravated felony" any "theft offense (including receipt of stolen property) ... for which the term of imprisonment [is] at least one year." 8 U.S.C. sec. 1101(a)(G)(3).

Mena had earlier been convicted of crimes involving the illegal trafficking of goods across state lines. In that capacity, Mena took possession of property that he knew to be illegally obtained. When Mena appealed to the BIA, it looked to the language of Section 1101(a)(43)(G), which not only included "theft" in the traditional sense of taking, but also included "receipt of stolen property" within the ambit of theft.

The odd thing here was that Mena's crime, whatever it was, did not involve "taking" and "receiving" of stolen property. Under a previous case under the same circuit, the court found that an aggravated felony of the theft type would not only need receipt as a necessary element, but also the taking without consent by the owner. No such facts? No theft. This, interestingly enough, meant that the lower court erred in dismissing Mena's application for cancellation.

Not everyone was happy with this outcome. Judge Wilkinson intimated that any reasonable person knows that embezzlement is theft.

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