Burke v. Mukasey, (5th Cir. Dec. 10, 2007)

A conviction for third-degree criminal possession of stolen property under NY Penal Law §165.50 is an aggravated felony theft offense under INA §101(a)(43)(G).

Petitioner was convicted of criminal possession of stolen property in the third degree in violation of NY Penal Law §165.50. The immigration judge found Petitioner removable as a result of his conviction for an aggravated felony under INA §101(a)(43)(G). The BIA affirmed.

Under NY Penal Law §165.50,

[a] person is guilty of criminal possession of stolen property in the third degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds three thousand dollars.

Under INA §101(a)(43)(G), "a theft offense (including receipt of stolen property)" is an aggravated felony. In Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir. 2001), the Seventh Circuit found that the "modern, generic and broad definition" of §101(a)(43) includes "a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." See also United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc); United States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir. 2001). The court formally adopted this interpretation and found that the elements necessary for conviction under NY Penal Code §165.50 "plainly fall within the generic definition used in [INA §101(a)(43)(G)]."

The court explained that similar to the generic definition, "possess" under New York law means "to have physical possession or otherwise to exercise dominion or control over tangible property." Moreover, under both the generic definition and the New York statute, there must be an intent to deprive the owner of the benefit proceeding from possession of the stolen goods. Therefore, the court held that a conviction under NY Penal Law §165.50 constitutes an aggravated felony theft offense under INA §101(a)(43)(G).