NEWS FROM THE COURTS

In re Bahta, Board of Immigration Appeals

In this case, the Board ruled that conviction of attempted possession of stolen property was conviction of a theft offense and thus an aggravated felony.

The respondent was convicted in 1997 in a Nevada state court of attempted possession of stolen property and sentenced to three years.  The INS placed him in deportation proceedings on the basis that his conviction was for an aggravated felony.  An immigration judge found that the conviction was not an aggravated felony, and ordered the proceedings terminated.  The INS appealed.

Because immigration law is federal, it is necessary to develop a uniform definition of offenses that will lead to deportation that is not dependent on individual state or federal law.  The respondent argued that his offense was not a theft offense because federal theft law criminalizes only receipt of stolen property, not possession of it.  The Board found that federal law was not determinative, but instead examined all laws relating to stolen property offenses.

The Board found that the modern understanding of receipt of stolen property, including its use in the Immigration and Nationality Act, encompassed possession of property one knows or has reason to know has been stolen.

While the respondent did not raise the issue, the Board took the unusual step of commenting on the prosecutorial discretion of the INS.  It noted that there has been much debate as to whether the INS retains discretion to forebear bringing deportation proceedings against people who have committed a criminal offense that qualifies them for deportation.  The Board found that the INS does retain such discretion.  While not a factor in this case, this may be a warning to the INS that it should exercise such discretion and not bring deportation proceedings against people convicted of minor offenses, especially when there are numerous equities weighing in the alien’s favor.

The text of the opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3437.pdf.

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In re Casas-Garcia, Board of Immigration Appeals

In this unpublished decision, the Board ruled that making a false statement on a Form I-9, used to verify employment eligibility, is not a crime of moral turpitude.

The respondent, who was not lawfully present in the US, indicated on a Form I-9 given her by a potential employer that she was a permanent resident of the US and that she had a social security number.  When the INS discovered her presence, it sought to deport her for engaging in fraud to obtain an immigration benefit.  The Immigration Judge found her deportable, and ineligible for cancellation of removal because lying on the I-9 was a crime of moral turpitude.  A crime of moral turpitude prevents a person from establishing good moral character, which is necessary for cancellation.

On appeal the Board ruled that the IJ was in error, and found that the respondent had established good moral character.  While giving false testimony to obtain an immigration benefit is a bar to establishment of good moral character, and the I-9 is filled out under oath, the information provided in the I-9 is not testimony, which must be given orally.  Finding that the respondent also satisfied the hardship and physical presence requirements for cancellation, the Board granted her application for cancellation of removal.

The opinion is not available online.

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