On November 16, 2016, the Board of Immigration Appeals (BIA or Board) updated its jurisprudence on the subject of when a theft offense categorically qualifies as a crime involving moral turpitude (CIMT), dropping its former requirement that moral turpitude requires a taking involving a literally permanent intended deprivation and adopting the more modern perspective that such an offense is a CIMT if it involves an intent to deprive the owner of his property either permanently or under circumstance where the owner’s property rights are substantially eroded.
Respondent had been convicted of shoplifting under §13-1805(A) of the Arizona Revised Statutes and charged with removability under INA §237(a)(2)(A)(ii) as one convicted of 2 or more CIMT’s not arising from a single scheme. The Immigration Judge (IJ) terminated proceedings on the ground that 13-1805(A) is overbroad in terms of qualifying as a CIMT as it does not require a shoplifter to intend to “permanently”, deprive the owner of the property to be convicted, as required by BIA precedent. The IJ found the statute indivisible and thus was unable to use the modified categorical approach. On appeal, the Department of Homeland Security (DHS) argued that 13-1805(A) defines a categorical CIMT.
In its analysis, the Board initially noted it uses the categorical approach to determine whether an offense is a CIMT, focusing on the elements of the crime, not the conduct of the respondent. The opinion found that the Board’s earliest precedents held that a theft offense categorically involves moral turpitude if – and – only if – it is committed with the intent to permanently deprive an owner of property” so as to distinguish between substantial property deprivations and more de minimis takings where the owner’s rights are comprised little, if at all., However, the BIA held that “criminal law has evolved significantly” and most jurisdictions and court rulings have refined the distinction between substantial and de minimis takings such that “the traditional dichotomy of permanent versus temporary taking has become anachronistic.”
Noting that modern economic and social realities have caused most states to recognize that many temporary takings are as culpable as permanent ones, such that many statutes now require a respondent to intend to deprive a property owner permanently or for so extended a period as to deprive the owner of a major portion of the property’s value or enjoyment, the Board held that 13-1805(A) defines a categorical CIMT despite the fact that it does not require a defendant to intend to literally effect a permanent taking. Observing that the Arizona statute embodies a mainstream, contemporary understanding of theft, the BIA concluded by overruling prior cases that requires a literal intent to permanently deprive in order for a theft offense to qualify as CIMT, Matter of Diaz-Lizarraga, 26 I&N Dec, 847 (BIA 2016).
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