On September 15, 2016, The Board of Immigration Appeals (BIA or Board) adjudicated a Department of Homeland Security (DHS) appeal of an Immigration Judge’s (IJ’s) decision that a conviction under California Penal Code §211 is not an aggravated felony theft offense under the categorical approach because the statute proscribes generic extortion as well as other generic theft offenses. Relying on 9th Circuit precedent, the IJ held that §211 (obtaining property from another with consent induced by force, fear or threats) punishes offenses not included in the generic definition of theft because a violation requires a victim’s consent whereas generic theft requires that the taking be accomplished without consent.
In its initial analysis the BIA used the categorical approach to determine whether the respondent’s conviction falls within the generic definition of a theft offense, i.e., a taking of property without consent. Finding that in extortion cases, “consent” is forced, the Board held that such consent does not “exempt [ ] an offense from aggravated felony treatment under § 101(a)(43)(G)” because theft refers more broadly to “offenses that involve a taking against the voluntary assent of the victim”. The BIA thus found that there is no difference between a taking accomplished against one’s will and one where “consent” to the taking is coerced through force, fear or threats.
As such, the Board stated that the “with consent” element of generic extortion is not inconsistent with the “against the will” element of §211, noting that “a victim’s consent to an extortionate taking does not connote a voluntary conferral of property” and can be distinguished from consent obtained via fraud or deceit. The BIA therefore held that a taking of property falls within the generic definition of theft in §101(a)(43)(G) when consent is elicited by force, etc. The respondent’s crime was thus found to be a categorical aggravated felony theft offense for which he is removable. The appeal was sustained, The IJ’s decision vacated, proceedings reinstated and the record remanded to the IJ. Matter of Ibarra, 26 I & N Dec. 809 (BIA 2016).
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