                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-7-2004

Nugent v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 02-4329




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                      PRECEDENTIAL         STEVEN A. MORLEY, ESQ. (Argued)
                                           Morley, Surin & Griffin, P.C.
   UNITED STATES COURT OF                  Constitution Place
          APPEALS                          325 Chestnut Street, Ste 1305-P
    FOR THE THIRD CIRCUIT                  Philadelphia, PA 19106

                                           ATTORNEY FOR PETITIONER
            No. 02-4329

                                           PETER D. KEISLER, ESQ.
     ERROL O'NEIL NUGENT,                  Assistant Attorney General, Civil Division
                                           DAVID V. BERNAL, ESQ.
                  Petitioner               Assistant Director
                                           WILLIAM C. MINICK, ESQ.
                 v.                        ANTHONY C. PAYNE, ESQ.
                                           JAMIE M . DOWD, ESQ. (Argued)
  JOHN ASHCROFT, ATTORNEY                  Office of Immigration Litigation
GENERAL OF THE UNITED STATES,              Civil Division
                                           United States Justice Department
                 Respondent                P.O. Box 878, Ben Franklin Station
                                           Washington, D.C. 20044

                                           ATTORNEYS FOR RESPONDENT
    Petition for Review of an Order
 of the Board of Immigration Appeals
           (No. A30-198-870)
                                                         No. 04-1541

              Argued
          January 12, 2004                       ERROL O’NEIL NUGENT,

 Before: SLOVITER, RENDELL and
     ALDISERT, Circuit Judges                                  Appellant

         (Filed May 7, 2004)
                                                                v.

                                               PATRICIA MULLIN, ASSOC.
                                           SPECIAL AGENT IN CHARGE OF THE
                                           PHILADELPHIA OFFICE OF UNITED

                                       1
S T A TE S I M M IG R A T IO N A N D
CUSTOMS AND ENFORCEM ENT
(USICE) OF THE DEPARTMENT OF                  MARY C. FRYE, ESQ.
HOMELAND SECURITY; THEODORE                   Office of United States Attorney
NORDMARK, ASSISTANT DISTRICT                  615 Chestnut Street, Suite 1250
DIRECTOR FOR DEPORTATION AND                  Philadelphia, PA 19106
D E T E N TI O N OF USICE IN
PHILADELPHIA THE DEPARTMENT                   ATTORNEY FOR APPELLEE
OF HOMELAND SECURITY,

                     Appellees
                                                     OPINION OF THE COURT


 Appeal from the United States District
                                              ALDISERT, Circuit Judge.
    Court for the Eastern District
            of Pennsylvania                          In the petition by Errol O’Neil
       (Civil No. 03-cv-06064)                Nugent at No. 02-4329 for review of a
  District Judge: Honorable J. Curtis         final order of removal by the Board of
                 Joyner                       Immigration Appeals (“BIA”), we must
                                              decide whether we have jurisdiction
                                              inasmuch as Nugent was ordered removed
  Submitted under Third Circuit LAR           from the United States under 8 U.S.C. §
               34.1(a)                        1227(a)(2)(A)(ii) for having been
           March 22, 2004                     convicted of two crimes involving moral
             _________                        turpitude. In the consolidated appeal at
                                              04-1541 from a judgment of the United
  Before: SLOVITER, RENDELL and               States District Court for the Eastern
      ALDISERT, Circuit Judges                District of Pennsylvania we must decide
                                              whether a conviction under a Pennsylvania
                                              theft by deception statute constitutes an
                                              aggravated felony.
Steven A. Morley
                                                      We hold that we lack jurisdiction
Morley, Surin & Griffin, P.C.
                                              in the petition for review of the final order
325 Chestnut Street, Suite 1305-P
                                              of removal and will dismiss the petition,
Philadelphia, PA 19106
                                              but, for reasons other than those stated by
                                              the district court, we affirm the judgment
                                              of the district court on the aggravated
ATTORNEY FOR APPELLANT
                                              felony issue denying the writ of habeas


                                          2
corpus without prejudice to Appellant’s             Pleas of Montgomery County for the State
applying to the Attorney General for                of Pennsylvania of theft by deception in
cancellation of the removal order pursuant          violation of 18 Pa. Cons. Stat. Ann. §
to 8 U.S.C. § 1229b. We will first address          3922(a) (West 1983 & Supp. 2000). He
the petition for review.                            was sentenced to a term of imprisonment
                                                    of not less than six months but not more
                     I.
                                                    than 23 months.
        Nugent is a native and citizen of
                                                           It was on the basis of Nugent’s
Jamaica who entered the United States on
                                                    2000 Pennsylvania conviction that the
August 25, 1971, as a lawful permanent
                                                    Immigration and Naturalization Service
resident when he was seven years old. On
                                                    (“INS”)1 charg e d N u g ent w ith
January 30, 1984, he was convicted in the
                                                    removability from the United States under
Court of Common Pleas of M ontgomery
                                                    8 U.S.C. § 1227(a)(2)(A)(iii) for having
County for the State of Pennsylvania of
                                                    been convicted of an aggravated felony as
theft by unlawful taking (theft of movable
                                                    defined in 8 U.S.C. § 1101(a)(43)(G). The
property) in violation of 18 Pa. Cons. Stat.
                                                    original Notice to Appear stated:
Ann. § 3921(a) (West 1973 & Supp. 1983)
and receiving stolen property in violation                4. You were, on November 28,
of 18 Pa. Cons. Stat. Ann. § 3925(a) (West                2000, convicted in the Court of
1973 & Supp. 1983). The crime involved                    Common P le a s, C oun ty of
theft of two typewriters valued at a total of             Montgomery, Commonwealth of
approximately $1,900. Nugent could have
been sentenced to five years imprisonment,
but instead he was sentenced to 12 months                 1
                                                             The INS is now known as the
on probation. Theft of the two typewriters
                                                    Bureau of Citizenship and Immigration
valued at this amount constituted a
                                                    Services (“BCIS”) within the Department
misdemeanor of the first degree. See 18
                                                    of Homeland Security (“DHS”). See
Pa. Cons. Stat. Ann. § 3903(b) (West 1973
                                                    Homeland Security Act of 2002, Pub. L.
& Supp. 1983). A misdemeanor of the
                                                    No. 107-296, § 451, 116 Stat. 2135, 2195
first degree was punishable by up to five
                                                    (2002) (codified at 6 U.S.C. § 271 (Supp.
years imprisonment. See 18 Pa. Cons.
                                                    2003)). Within the BCIS is the Office of
Stat. Ann. § 1104(1) (West 1983); Com v.
                                                    United States Immigration Enforcement
Schreiber, 466 A.2d 203, 208 (Pa. Super.
                                                    (“USICE”). Id. Because the operative
1983) (holding that a sentence of five
                                                    events in this case took place before the
years imprisonment would have been
                                                    name change, INS is used here. In the
appropriate for a first-degree misdemeanor
                                                    appeal at 04-1541 the principal defendant
conviction of theft by unlawful taking).
                                                    in the habeas corpus proceedings was
      On November 28, 2000, Nugent                  Patricia Mullen, Associate Special Agent
was convicted in the Court of Common                in charge of the Philadelphia office of
                                                    USICE.

                                                3
       Pennsylvania for the offenses of                   Pleas of Montgomery County for
       THEFT BY DECEPTIO N                                the State of Pennsylvania, of Theft
       (DOCKET # 1061-00) and                             of Movable Property and Theft by
       DRIVING UNDER THE                                  Receiving Stolen Property, in
       INFLUENCE (DOCKET # 1974-                          violation of Pennsylvania Criminal
       00), in violation of Title 18,                     Laws Sections 3921 and 3925.
       Pennsylvania Statutes, Section
       3922 and Title 75, Pennsylvania
       Statutes, Section 3731.                            7. The conviction alleged above in
                                                          Allegation No. 6 and the conviction
                                                          alleged in Allegation No. 4 on the
(App. at 206.)                                            Notice to Appear dated February
                                                          14, 2001 did not arise out of a
       On September 7, 2001, Nugent filed
                                                          single sc he me of c r im in al
a motion to terminate removal proceedings
                                                          misconduct.
on the basis that his conviction for theft by
deception under Pennsylvania law did not            (App. at 138.)
constitute an aggravated felony theft
                                                           At a hearing before the IJ on
offense as defined by 8 U.S.C. §
                                                    October 11, 2001, the following colloquy
1101(a)(43)(G).
                                                    took place:
       On September 14, 2001, an
                                                          Judge to     Mr. Mazer
immigration judge (“IJ”) issued an
                                                          [representing petitioner
interlocutory order denying Nugent’s
                                                          Nugent]:
motion to terminate removal proceedings.
The IJ concluded that Nugent’s conviction                 ....
for theft by deception constituted an
                                                                 Q. And how do you
aggravated felony theft under 8 U.S.C. §
                                                          plead allegations six and
1101(a)(43)(G).
                                                          seven?
       On September 12, 2001, the INS
charged Nugent with being subject to
removal under 8 U.S.C. §                                         A. We will
122 7(a)(2 )(A)(ii) for having been                              concede those
convicted of two or more crimes involving                        allegations.
moral turpitude. In notifying Nugent of
the additional charge, the INS stated in its
“Additional             Charges         of          Q. Okay. You concede that they
Inadmissibility/Deportability” Form I-261:               constitute crimes involving
                                                         moral turpitude then?
       6. You were convicted on January
       30, 1984 in the Court of Common

                                                4
              A. Ah, yes.                                  The BIA had jurisdiction pursuant
                                                   to 8 C.F.R. §§ 1003.1(b)(3) and 1240.15 to
(App. at 124.)
                                                   review the decision of the IJ. We have
        On the same day, October 11, 2001,         jurisdiction pursuant to 8 U.S.C. §
the IJ issued an oral decision concluding          1252(a)(1) and (b) “to determine our
that Nugent was subject to removal as an           jurisdiction under [ 8 U.S .C.] §
aggravated felon. The IJ then added:               1252(a)(2)(C).” Drakes v. Zimski, 240
“Further, in court today counsel has               F.3d 246, 247 (3d Cir. 2001). Section
conceded the allegations set forth in the I-       1252(a)(2)(C), the INA’s no-review
261. The Court finds the respondent is             provision, bars us from reviewing any final
subject to removal as charged therein.”            removal order for an alien who has been
(App. at 80.) As set forth above, the Form         ordered removed from the United States
I-261 added paragraphs 6 and 7 in which            because of convictions for either an
the INS listed Nugent’s 1984 conviction            aggravated felony or two crimes of moral
for theft by unlawful taking and referenced        turpitude, among other offenses. Thus, we
his 2000 conviction for theft by deception.        m u s t “ d e te r m i n e w h e t h e r t h es e
Thus, the two crimes involving moral               jurisdictional facts are present.” Valansi v.
turpitude consisted of theft by deception,         Ashcroft, 278 F.3d 203, 207 (3d Cir.
conviction date November 28, 2000, as              2002).
contained in the INS’ Allegation No. 4 in
                                                          In determining the pure legal
the original Notice to Appear, and theft by
                                                   questions before us that govern our own
unlawful taking, conviction date January
                                                   jurisdiction, we apply a de novo standard
30, 1984, as contained in the INS’
                                                   of review. Id.
Allegation Nos. 6 and 7 in the Form I-261.
The IJ specifically ordered Nugent                                       III.
removed from the United States based on
                                                         The INA’s no-review provision
convictions for both the aggravated felony
                                                   provides in relevant part:
listed in the Notice to Appear and the two
crimes of moral turpitude listed in the                    N o t w i t h st a nd i n g a n y o th e r
“Form I-261, Additional Charges of                         provision of law, no court shall
Inadmissibility/Deportability.”                            have jurisdiction to review any
                                                           final order of removal against an
        Nugent appealed the IJ’s decision to
                                                           alien who is removable by reason
the BIA, and on November 18, 2002, the
                                                           of having committed a criminal
BIA affirmed the IJ’s decision without
                                                           offense covered in sectio n
opinion, thereby adopting the IJ’s decision
                                                           1182(a)(2) or 1227(a)(2)(A)(iii)
as the final agency determination. Nugent
                                                           [aggravated felony], (B), (C), or
timely appealed the BIA’s order.
                                                           (D) of this title, or any offense
                    II.                                    covered                by     section
                                                           1227(a)(2)(A)(ii) [two or more

                                               5
      crimes involving moral turpitude,           .” 8 U.S.C. § 1227(a)(2)(A)(ii). Both
      not arising out of a single scheme          crimes of moral turpitude could have
      of criminal misconduct] of this title       resulted in sentences “of one year or
      for which both predicate offenses           longer[,]” id. § 1227(a)(2)(A)(i)(II), and
      are, without regard to their date of        whether the crimes were committed more
      commission, otherwise covered by            than five years after Nugent’s admission to
      section 1227(a)(2)(A)(i) of this            the United States is irrelevant under 8
      title.                                      U.S.C. § 1252(a)(2)(C). Therefore, under
                                                  the no review provision, § 1252(a)(2)(C),
                                                  we lack jurisdiction to review the removal
8 U.S.C. § 1252(a)(2)(C).                         order based on Nugent’s having committed
                                                  two crimes involving moral turpitude, §
                                                  1227(a)(2)(A)(i)-(ii).
       Nugent’s 1984 conviction for theft
                                                         Although Nugent concedes that he
by unlawful taking (theft of movable
                                                  is subject to removal based on his
property) was a crime involving moral
                                                  convictions for two crimes involving
turpitude. The INA does not define moral
                                                  moral turpitude, he nevertheless contests
turpitude, but we have noted that a legal
                                                  the order of removal based on the
dictionary defines the term as “[c]onduct
                                                  aggravated felony conviction because he
that is contrary to justice, honesty, or
                                                  contends that the Pennsylvania theft by
morality.” De Leon-Reynoso v. Aschroft,
                                                  deception conviction set forth in paragraph
293 F.3d 633, 636 (3d Cir. 2002) (quoting
                                                  No. 4 of the Notice to Appear does not
Black’s Law Dictionary 1026 (7th ed.
                                                  constitute an aggravated felony under 8
1999)). Although Nugent received a
                                                  U.S.C. § 1101(a)(43)(G). For its part, the
sentence of only 12 months on probation
                                                  government concedes that “M r. Nugent is
for the 1984 conviction, he could have
                                                  removable both by reason of having
been sentenced to up to five years
                                                  committed an offense that is properly
imprisonment. See 18 Pa. Cons. Stat. Ann.
                                                  considered an aggravated felony and by
§ 1104 (West 1983); 18 Pa. Cons. Stat.
                                                  reason of having committed two crimes
Ann. §§ 3903 and 3921 (West 1973 &
                                                  involving moral turpitude for which,
Supp. 1983).
                                                  respectively, he could have received a
       Likewise,     Nug ent’s     2000           sentence of one year . . . .” (Br. for Resp’t
conviction for theft by deception                 at 2.) The government nevertheless asks
constituted a crime involving moral               us to address the aggravated felony issue
turpitude. Nugent received a sentence of          to obviate the need for Nugent to seek
imprisonment of not less than six months          resolution of that issue via a petition for
but not more than 23 months. The 1984             writ of habeas corpus. (Id. at 18-19 n.4.)
and 2000 crimes did “not aris[e] out of a
                                                         Having decided, or more properly,
single scheme of criminal misconduct . . .
                                                  because the parties stipulate, that we have

                                              6
no jurisdiction to review the final order                   Nugent asks us to review not the
bottomed on moral turpitude grounds, we             final order but one of two reasons for
must now decide whether this court                  removal in the final order. For its part, the
possesses jurisdiction to consider the issue        government recognizes that we lack
both parties have urged upon us by brief            jurisdiction because of the moral turpitude
and oral argument, to-wit, whether a                convictions but somehow seeks a decision
conviction under the Pennsylvania theft by          on the aggravated felony issue. To assist
deception statute constitutes an aggravated         us in deciding this very difficult issue, on
felony under 8 U.S.C. § 1101(a)(43)(G).             February 11, 2004, we requested
It is to this issue that we now turn.               supplemental briefing:
                    IV.                                    By statute, our jurisdiction is
                                                           limited to reviewing final orders, 8
          A federal court, whether trial or
                                                           U.S.C. § 1252(a)(1), (b), (d) and
appellate, is obliged to notice want of
                                                           (g), not a particular reason
jurisdiction on its own motion. Mansfield,
                                                           supporting the order. If we do not
C. & L.M. Ry. Co. v. Swan, 111 U.S. 379,
                                                           have jurisdiction to review the
381-386 (1884). We have jurisdiction in
                                                           order based on one of the reasons
immigration cases to determine whether
                                                           (i.e., Petitioner’s removability on
jurisdictional facts are present. Drakes,
                                                           grounds of two crimes of moral
240 F.3d at 247. “Graven in stone is the
                                                           turpitude), what authority do we
maxim that parties cannot confer
                                                           have to review another reason
jurisdiction on a federal court by consent
                                                           supporting the order (i.e., whether
or stipulation.” Reale Int’l, Inc. v. Federal
                                                           the BIA erred in determining that
Republic of Nigeria, 647 F.2d 330, 331
                                                           Petitioner’s conviction constitutes
(2d Cir. 1981). “Without jurisdiction the
                                                           an aggravated felony)?
court cannot proceed at all in any cause.
Jurisdiction is power to declare the law,
and when it ceases to exist, the only
                                                    In Petitioner’s response dated March 1,
function remaining to the court is that of
                                                    2004, he advised the court:
announcing the fact and dismissing the
cause.” Steel Co. v. Citizens for a Better                 In October 2003, Petitioner filed a
Env’t, 523 U.S. 83, 94 (1998) (quoting Ex                  petition for writ of habeas corpus in
parte McCardle, 7 Wall. 506, 514 (1869)).                  the Eastern District of Pennsylvania
“For a court to pronounce upon the                         which was docketed at No:
meaning or the constitutionality of a state                03-cv-6064 and assigned to the
or federal law when it has no jurisdiction                 Honorable J. Curtis Joyner, Judge
to do so is, by very definition, for a court               of the Eastern District of
to act ultra vires.” Id. at 101-102.                       Pennsylvania. That petition for writ
                                                           of habeas corpus raised the single
                     V.
                                                           question that has been presented to

                                                7
      this Court, whether theft by                 view of this consolidation, and in light of
      deception under Pennsylvania law             the thorny jurisdictional problem, we will
      is a theft offense or a fraud/deceit         not consider the aggravated felony issue in
      offense. The reason for filing that          this proceeding at No. 02-4329. Rather,
      petition at that time was that Mr.           we will consider it in the appeal of the
      Nugent had just been detained by             district court’s habeas corpus judgment at
      DHS and this Court denied a stay             No. 04-1541.
      of removal. The government
                                                          Accordingly, we will dismiss for
      opposed the stay of removal in this
                                                   lack of jurisdiction the petition to review
      Court on jurisdictional grounds –
                                                   the removal order based on Nugent’s
      those raised recently by this Court –
                                                   having committed two crimes involving
      but that denial of the stay did not
                                                   moral turpitude.       See 8 U.S.C. §§
      state a basis for the motions panel
                                                   1252(a)(2)(C) and 1227(a)(2)(A).
      decision denying the stay. All facts
      regarding this Court's consideration                 We now turn to the appeal from the
      of the matter, as well as the denial         district court at No. 04-1541.
      of the stay, was set forth in the
                                                                        VI.
      petition for a writ of habeas corpus.
      Judge Joyner issued a stay shortly                   Nugent contends that the district
      after the filing of the petition, but,       court erred in denying his habeas corpus
      on February 19, 2004, denied the             petition because it held his 2000
      Petition for Writ of Habeas Corpus,          Pennsylvania conviction for theft by
      holding, without opinion or                  deception was “a theft offense (including
      ana1ysis, that theft by deception is         receipt of stolen property) or burglary
      an aggravated felony. On February            offense for w hich th e term of
      27, 2004, Petitioner appealed the            imprisonment [is] at least one year.” 8
      order of Judge Joyner to this Court.         U.S.C. § 1101(a)(43)(G). Because the
      Attached hereto is a copy of the             denial of the writ of habeas corpus was a
      notice of appeal as well as the              final order and an appeal was timely we
      docketing statement from this                have jurisdiction. 42 U.S.C. § 1291. Our
      Court.                                       review is plenary on this issue involving
                                                   statutory construction. Valansi, 278 F.3d
                                                   at 207.
       The habeas appeal has been
                                                           Appellant represents to us that
docketed in this Court at 04-1541. By
                                                   because in October, 2003 he was detained
order dated M arch 5, 200 4, we
                                                   by the DHS, he applied for writ of habeas
consolidated the habeas appeal from the
                                                   corpus under 28 U.S. C. § 2411(c) in the
United States District Court at No. 04-
                                                   district court. “The petition . . . raised the
1541 with the present petition to review
                                                   single question that has been presented to
the Order of the BIA at No. 02-4329. In

                                               8
this Court, whether theft by deception              previously addressed whether a conviction
under Pennsylvania law is a theft offense           under Pennsylvania’s theft by deception
or a fraud/deceit offense.” (Ltr. of                statute comes within the rubric of an
Petitioner’s Counsel to the court dated             aggravated felony as it relates to a “theft
March 1, 2004, p. 3.) Although by order             offense” under 8 U.S. C. § 1101(a)(43)(G)
dated February 19, 2004, the district court         and/or “an offense . . . that involves fraud
denied the petition without a detailed              or deceit” u n de r 8 U .S .C §
statement of reasons, it stated in a footnote       1101(a)(43)(M)(i).
to its order: “This Court finds that the
                                                           The record indicates that on January
Petitioner was convicted of an aggravated
                                                    8, 1999, Nugent attempted to make two
felony and as such, he is removable. See 8
                                                    withdrawals totaling $3,450 from an
U.S.C. § 1101(a)(43)(G).”
                                                    account in the name of Earl Rampert at
          For the reasons that follow, we           Willow Grove Bank in Abington
disagree with the district court’s sole             Township, Pennsylvania. Earlier on the
reason for denying the writ. We hold that           same day, Nugent had made separate
the Appellant is removable, but not on the          withdrawals of $1,450 and $2,000,
basis of Section 1101(a)(43)(G) for having          respectively, from the Willow Grove and
been convicted of an aggravated felony, as          Hatboro branches of Willow Grove Bank.
stated by the court, but solely on the basis        The account from which Nugent attempted
of 8 U.S.C. § 1227(a)(2)(A)(ii) for having          to make the withdrawals had been opened
been convicted of two or more crimes                with a $100 deposit on December 13,
involving moral turpitude. We will affirm           1998, and a check for $4,831.26 had been
the judgment of the district court on this          deposited into the account on January 6,
ground only, and apply the tenet that we            1999. Nugent admitted to police that the
may affirm for reasons completely                   $4,831.26 check was counterfeit.
different from those advanced by the
                                                           On November 28, 2000, Nugent
district court. PAAC v. Rizzo, 502 F. 2d
                                                    was convicted in the Court of Common
306, 308 n.1 (3d Cir. 1974); cert. denied,
                                                    Pleas of Montgomery County for the State
419 U.S. 1108 (1975) (“[i]t is proper for
                                                    of Pennsylvania of theft by deception in
an appellate court to affirm a correct
                                                    violation of 18 Pa. Cons. Stat. Ann. § 3922
decision of a lower court even when that
                                                    (West 1983 & Supp. 2000). 2 Section 3922
decision is based on an inappropriate
ground”) (emphasis in original). We now
discuss in detail why we disagree with the
                                                           2
district court’s stated reason that Nugent’s                   The statute reads:
conviction under Pennsylvania’s theft by
deception statute, 18 Pa. Cons. Stat. Ann.                 A person is guilty of theft if he
§ 3922, constitutes an “aggravated felony”                 intentionally obtains or withholds
as defined by the INA. We have not                         property of another by deception.
                                                           A person deceives if he

                                                9
is taken word for word from § 223.3 of the        “aggravated felony” any “theft offense
Model Penal Code (“Code”) promulgated             (including receipt of stolen property) and
by the American Law Institute (“ALI”) in          robbery for which the term of
1962. Nugent was sentenced to a term of           imprisonment [is] at least one year.”
imprisonment of not less than six months
                                                           Nugent argues that because his
but not more than 23 months.
                                                  conviction for theft by deception involved
                  VII.                            fraud or deceit, it is not a “theft offense”
                                                  under 8 U.S.C. § 1101(a)(43)(G), but a
      The IJ concluded and the BIA
                                                  fraud or deceit offense under 18 U.S.C. §
agreed that Nugent’s Pennsylvania
                                                  1101(a)(43)(M)(i), in which “[t]he term
conviction of theft by deception came
                                                  ‘aggravated felony’ means . . . an offense
within the purview of 8 U.S.C. §
                                                  that . . . involves fraud or deceit in which
1101(a)(43)(G), that includes as an
                                                  the loss to the victim or victims exceeds
                                                  $10,000[.]” The loss suffered by the
                                                  victims of Nugent’s theft by deception did
      intentionally:                              not exceed $10,000, and thus the INS did
                                                  not charge him with removability based on
      (1) creates or reinforces a false           Section 1101(a)(43)(M)(i).
      impression, including false
                                                          Whether Nugent’s theft by
      impressions as to law, value,
                                                  deception offense is a “theft offense”
      intention or other state of mind;
                                                  and/or a “an offense involving fraud or
      but deception as to a person’s
                                                  deceit” is a distinction with a serious
      intention to perform a promise
                                                  difference, as it carries a significant
      shall not be inferred from the fact
                                                  consequence for Nugent. There is no
      alone that he did not subsequently
                                                  minium dollar amount to constitute an
      perform the promise;
                                                  aggravated felony if the Pennsylvania
      (2) prevents another from
                                                  conviction is a “theft offense” as
      acquiring information which
                                                  contemplated by Section 1101(a)(43)(G),
      would affect his judgment of a
                                                  but if it is “an offense that . . . involves
      transaction; or
                                                  fraud or deceit” and the loss to the victim
      (3) fails to correct a false
                                                  or victims is $10,000 or less, it would not
      impression which the deceiver
                                                  qualify as an aggravated felony under
      previously created or reinforced,
                                                  Section 1101(a)(43)(M )(i). Here, the bad
      or which the deceiver knows to be
                                                  check amounted to only $4831.26.
      influencing another to whom he
      stands in a fiduciary or                           Carrying his reasoning one step
      confidential relationship.                  further, Nugent argues that although he is
                                                  subject to removal based on his
18 Pa. Cons. Stat. Ann. § 3922(a) (West           convictions for two crimes involving
1983 & Supp. 2000).

                                             10
moral turpitude, convictions on this                183, 189 (1984) (internal quotations and
ground alone do not prevent him from                citations omitted).
applying for cancellation of the removal
                                                           Moreover, Nugent contends that
order pursuant to 8 U.S.C. § 1229b.
                                                    Congress’ inclusion in Se ction
Having a conviction that is deemed an
                                                    1101(a)(43)(M)(i) of the language “fraud
aggravated felony, however, would make
                                                    or deceit in which the loss to the victim or
Nugent ineligible to apply for the
                                                    victims exceeds $10,000” demonstrates
cancellation. See 8 U.S.C. § 1229b(a)(3)
                                                    that Congress did not intend fraud or
(stating that the Attorney General may not
                                                    deceit offenses involving $10,000 or less
cancel removal in the case of an alien who
                                                    to nevertheless be defined as aggravated
has been convicted of an aggravated
                                                    felonies under Section 1101(a)(43)(G).
felony).
                                                    See INS v. Cardoza-Fonseca, 480 U.S.
        Nugent argues first that the                421, 432 (1987) (explaining “where
determination of what constitutes a “theft          Congress includes particular language in
offense” in the context of the INA’s                one section of a statute but omits it in
definition of an “aggravated felony” is             another section of the same Act, it is
made by reference to a federal standard             generally presumed that Congress acts
rather than the labels attached to crimes by        intentionally and purposefully in the
Pennsylvania’s criminal laws. See Taylor            disparate inclusion or exclusion”) (internal
v. United States, 495 U.S. 575, 592 (1990)          quotations and citation omitted).
(stating that the term “burglary” in 18
                                                           Although we reject Nugent’s
U.S.C. § 924(e) “must have some uniform
                                                    “either-or” argument, for the reasons that
definition independent of the labels
                                                    follow, we agree with his contention that
employed by the various States’ criminal
                                                    an offense under Pennsylvania’s theft by
codes”); In re V-Z-S-, 22 Interim Decision
                                                    deception statute falls within Section
1338 (BIA 2000) (explaining that “we
                                                    1101(a)(43)(M)(i) so that it would not be
generally apply a federal standard in
                                                    an aggravated felony unless the victim
determining whether a state offense fits
                                                    suffered a loss exceeding $10,000. But we
within the aggravated felony definition”).
                                                    must go further, we must decide whether
                                                    the Pennsylvania statute must also meet
        Nugent is correct in saying that            the requirements of Sectio n
Pennsylvania’s labeling of the crime as             1101(a)(43)(G).
theft by deception is not determinative of
                                                                       VIII.
its status as a theft offense under Section
1101(a)(43)(G). Rather, this court must                    In aligning state and federal
examine the plain language of the INA and           criminal offenses, previously this court has
“assume that the legislative purpose is             applied a “formal categorical approach”
expressed by the ordinary meaning of the            that requires comparison of the elements
words used.” INS v. Phinpathya, 464 U.S.            of the state law offense to see if they

                                               11
“encompass[] acts beyond those subject to                    Under this approach, “we must
prosecution under the federal definition.”           examine [Penns ylvania’s th eft b y
Drakes, 240 F.3d at 248-249 (noting the              deception] law to see if it encompasses
Supreme Court’s endorsement of such an               acts beyond those subject to prosecution
approach in Taylor, 495 U.S. at 600).                under the federal [theft offense]
                                                     definition[,]” as contemplated by 8 U.S.C.
       Where federal criminal statutes use
                                                     § 1101(a)(43)(G). Id. at 249. More
       words of established meaning
                                                     specifically, we must determine whether a
       without further elaboration, courts
                                                     Pennsylvania theft by deception offense is
       typically give those terms their
                                                     also an “offense involving fraud or deceit”
       common law definition. Moskal v.
                                                     set forth in 8 U.S.C. § 1101(a)(43)(M)(i).
       United States, 498 U.S. 103, 114 . .
       . (1990); Gilbert v. United States,                  Unfortunately the INA does not
       370 U.S. 650, 655 . . . (1962) ("in           define “theft offense,” and equally
       the absence of anything to the                unfortunately, Congress has not supplied
       contrary it is fair to assume that            a definition of “theft” or “larceny” in the
       Congress used ['theft'] in the statute        galaxy of federal offenses. And, in the
       in its common-law sense."). If                context of the facts in this case, we are
       research into the common law                  unwilling to say that the contretemps
       yields several co mp eting                    involving a theft offense crime and a fraud
       definitions, however, courts should           or deceit crime is free from ambiguity. We
       look to the reading that "best                therefore must refer to the teachings of
       accords with the overall purposes             Drakes and follow the “formal categorical”
       of the statute" even if it is the             approach.
       minority view. Moskal, 498 U.S. at
                                                                        IX.
       116-17 . . . . Where the traditional
       definition is out of step with the                   Our starting point is clear. Where
       modern meaning of a term, more                federal criminal statutes use words of
       "generic, contemporary"                       established meaning without further
       definitions--such as those found in           elaboration, courts typically give those
       state statutes--may apply. See                terms their common law definition.
       Taylor, 495 U.S. at 596, 598 . . . .
       Furthermore, "Congress' general
                                                            The common law spoke in terms of
       purpose in enacting a law may
                                                     “larceny,” rather than “theft” and the
       prevail over this rule of statutory
                                                     word s a r e use d inte r c hange ably.
       construction" altogether. Id.
                                                     Blackstone defined larceny simply as “the
                                                     felonious taking and carrying away of the
                                                     personal goods of another.” 2 Blackstone,
Drakes, 240 F. 3d at 249.
                                                     Commentaries on the Laws of England,
                                                     Book IV, at 230 (1879). But in the

                                                12
development of the common law, courts               excluded from the common law offense of
defined larceny in more comprehensive               larceny. See Bell v. United States, 462
terms.      The refined common law                  U.S. 356, 360 (1983).
description appears to be “the felonious
                                                            Thus, it would seem that the
taking by trespass and carrying away by
                                                    modern crime of obtaining property by
any person of the personal goods or things
                                                    false pretenses was not even a crime at
of another from any place, without the
                                                    common law. To plug the loophole, in
latter’s consent and with the felonious
                                                    1757 Parliament enacted a statute that
intent to deprive the owner of his or her
                                                    punished one who “knowingly and
property permanently and to convert it to
                                                    designedly, by false pretense or pretenses,
the taker’s own use . . . .” 50 Am. Jur. 2d,
                                                    shall obtain from any person or persons,
Larceny § 1. Professor Wayne R. LaFave
                                                    money, goods, wares or merchandises,
supplies a concise summary:
                                                    with intent to cheat or defraud any person
Larceny at common law may be defined as             or persons of the same.” 30 Geo II, c. 24
the (1) trespassory, (2) taking and (3)             (1757) (cited in LaFave, supra, at 114). In
carrying away of the (4) personal property          the eighteenth century, “[t]he theoretical
(5) of another (6) with intent to steal it.         distinction between false pretenses and
American statutes dealing with larceny as           larceny by trick may be stated simply. If a
a discrete offense have generally left the          thief, through his trickery, acquired title to
six elements of the crime unchanged,                the property from the owner, he has
except that there has been considerable             obtained property by false pretenses; but if
enlargement of the kinds of property which          he merely acquired possession from the
can be the subject of larceny.                      owner, he has committed larceny by trick.”
                                                    Bell, 462 U.S. at 359-360 (emphasis
                                                    added).
Wayne R. LaFave, 3 Substantive Criminal
                                                            Specific to Pennsylvania, our
Law § 19.2, at 62 (2nd ed. 2003) (footnote
                                                    research discloses that the false pretenses
omitted).
                                                    statute, 30 Geo II, c. 24, was not
       Before statutory offenses appeared           “received” by the “province” prior to the
on the scene, “[c]hoses in action including         Declaration of Independence and the
bonds and notes of all classes, according to        subsequent creation of the present
the common law, are not the subject of              Commonwealth:
larceny, being mere rights of action,
                                                           An act was passed on the 28th
having no corporeal existence; though . . .
                                                           January, 1777, entitled ‘An Act to
a person may be indicted for stealing the
                                                           revive and put in force such and so
paper on which they are written.” I
                                                           much of the late laws of the
Wharton’s Criminal Law § 876, at 766
                                                           province of Pennsylvania, as is
(10th ed. 1896) (emphasis added). A bank
                                                           judged necessary to be in force in
check was considered a chose-in-action

                                               13
       this commonwealth.’ In this act it           in the common law because the crime of
       is provided, that the common law,            false pretenses, a fraud or deceit crime,
       and such of the statute laws of              was the product of Parliament and not the
       England as have been heretofore in           collective experience of the judiciary.
       force in the said province, shall be
                                                           Following the direction of the
       in force, except as hereafter
                                                    “categorical approach” in Drakes, if
       excepted.
                                                    research into the common law does not
                                                    supply the answer, we look to the reading
                                                    that best accords with the overall purpose
Samuel Roberts, Digest of Select British
                                                    of the statute. In so doing, however,
Statutes xv (1847) (hereinafter “Digest”)
                                                    “[w]here the traditional definition is out of
(discussed in Commonwealth v. Guy, 41
                                                    step with the modern meaning of a term,
Pa. D & C 2d 151, 156 (1966) (Aldisert,
                                                    more ‘generic, contemporary’ definitions
J.)). An examination of Pennsylvania’s
                                                    – such as that found in state statutes – may
official compendium of British Statutes
                                                    apply.” Drakes, 240 F.3d at 249 (quoting
that were deemed to be in effect at the time
                                                    Taylor, 495 U.S. at 596).
Pennsylvania became a state reveals that
the statute 30 Geo II, c. 24 was not                                      X.
included.      See generally, Digest
                                                            As early as 1925, Judge Cardozo
(containing the full December 14, 1808,
                                                    was preaching the use of generic,
Report to the Pennsylvania legislature by
                                                    contemporary definitions rather than older,
the Justices of the Supreme Court of
                                                    if not truly ancient, approaches. When
Pennsylvania “of the English statutes
                                                    speaking of the difference between larceny
which are in force in the said
                                                    and embezzlement, he said, “[t]he
commonwealth, and of those of the said
                                                    distinction, now largely obsolete, did not
statutes which in their opinion ought to be
                                                    ever correspond to any essential difference
incorporated into the statute laws of the
                                                    in the character of the acts or in their effect
said commonwealth[,]” id. at xv).
                                                    upon the victim. The crimes are one to-day
        From the foregoing discussion, we           in the common speech of men as they are
must conclude that the government may               in moral quality.” Van Vechten v. Am.
not find support for its position in the            Eagle Fire Ins. Co, 146 N.E. 432, 433
common law crime of larceny, or theft,              (N.Y. 1925).
because the property that was the subject
                                                           In 1983, the Supreme Court was
of its asportation had to be tangible and
                                                    faced with a problem similar to what we
corporeal. Choses-in-action, like bonds,
                                                    face in this case. Bell, 462 U.S. at 357.
notes, and, to be sure, modern bank
                                                    Here, we must decide whether the
checks, were not considered goods or
                                                    Pennsylvania offense of larceny by
property in the context of common law
                                                    deception (trick) involving $10,000 or less
larceny. Similarly, Nugent finds no succor
                                                    is an “aggravated felony” as defined in

                                               14
Section 1103(a)(43) of the INA. Whereas              to two other aspects of § 2113(b) that
in Bell, the Court had to interpret the bank         indicate Congress’ “intention to go beyond
robbery provision, 18 U.S.C. § 2113(b),              the common-law definition of larceny.”
that imposes criminal sanctions on                   Id. First, whereas common law larceny
“[w]hoever takes and carries away, with              excluded “theft of a written instrument
intent to steal or purloin, any property or          embodying a chose in action[,]” Section
money or any other thing of value,                   2113(b) is broader in that it includes “any
exceeding $100 belonging to, or in the               property or money or any other thing of
care, custody, control, management, or               value exceeding $100.” Id. (citing W.
possession of any bank, credit union, or             LaFave & A. Scott, Handbook on Criminal
any savings and loan association.” 462               Law 633 (1972)).        Second, whereas
U.S. at 357-358.                                     common law larceny required theft from
                                                     the owner’s possession, Section 2113(b) is
        In Bell, the Court discussed
                                                     more expansive in that “[i]t applies when
extremely technical distinctions present in
                                                     the property ‘belong[s] to,’ or is ‘in the
old interpretations of two offenses –
                                                     care, custody, control, management, or
larceny by trick and false pretenses. Bell
                                                     possession of,’ a covered institution.” Id.
opened a bank account and deposited
                                                     at 360-361 (citations omitted). Based on
therein a $10,000 check belonging to
                                                     the above analysis, the Court held that
another. After the check cleared, he closed
                                                     notwithstanding the “common law” label
the account and was paid the total balance
                                                     attached to § 2113(b), more “generic,
in cash. He was arrested and convicted.
                                                     contemporary” definitions proscribe Bell’s
The question for decision was whether the
                                                     conduct here, explaining:
restricted common law definition of
robbery should apply. Although the court                    Although the term “larceny”
was faced with a robbery statute, its                       appears in the legislative reports,
discussion concentrated on concepts of                      the congressional purpose plainly
larceny by trick.                                           was to protect banks from those
                                                            who wished to steal banks’ assets –
        The Court concluded, “Congress
                                                            even if they used no force in doing
has not adopted the elements of larceny in
                                                            so . . . . To the extent that a bank
common-law terms[,]” explaining that the
                                                            needs protection against larceny by
statutory language “takes and carries
                                                            trick, it also needs protection from
away” represents merely one element of
                                                            false pretenses. We cannot believe
common law larceny and “is entirely
                                                            that Congress wished to limit the
consistent with false pretenses.” Id. at 360.
                                                            scope of the amended Act’s
Moreover, the statutory language “with
                                                            coverage, and thus limit its
intent to steal or purloin” has no
                                                            remedial purpose, on the basis of an
established common law meaning. Id.
                                                            arcane and artificial distinction
(citing United States v. Turley, 322 U.S.
                                                            more suited to the social conditions
407, 411-412 (1957)). The Court pointed

                                                15
        of 18th century England than the                    (i.e. just theft and receipt); rather, with its
        needs of 20th century America.                      word choices, Congress indicated that the
        Such an interpretation would signal                 phrase ought to be given a broad read.”
        a return to the “incongruous                        See Hernandez-M ancilla v. INS, 246 F.3d
        results” that the 1937 amendment                    1002, 1008 (7th Cir. 2001); see also
        was designed to eliminate.                          United States v. Corona-Sanchez, 291 F.3d
                                                            1201, 1205 (9th Cir. 2002) (en banc)
462 U.S. at 362.
                                                            (“Congress used the words ‘theft offense’
        Thus, the marching order we                         rather than just ‘theft,’ thus indicating that
receive from the Court is that in                           the phrase ought be read to incorporate
interpreting federal criminal statutes where                different but closely related constructions
there is no specific definition, do not fall                in modern state statutes.”). Under the
in love with the label attached to an                       Code, “theft” includes theft by unlawful
offense.                                                    taking or disposition; theft by deception;
                                                            theft by extortion; theft of property lost,
         We now turn to an analysis of the
                                                            mislaid, or delivered by mistake; receiving
“generic, contemporary” definitions of the
                                                            stolen property; theft of services; theft by
t e r m s “ t h e f t o f f e n s e ,” S e c t i o n
                                                            failure to make required disposition of
1103(a)(43)(G), and “an offense that
                                                            funds received; and unauthorized use of
involves fraud or deceit,” Section
                                                            automobiles and other vehicles. Model
1103(a)(43)(M)(i), to determine whether
                                                            Penal Code §§ 223.2-223.9.                  In
either or both of these “aggravated
                                                            Hernandez-M ancilla, the Seventh Circuit
offense” provisions applies to offenses
                                                            engaged in an extensive discussion of the
under Pennsylvania’s theft by deception
                                                            background of the term “theft offense” as
statute. For this we look to logical
                                                            used by Congress in the INA, including an
reasoning and the background of the
                                                            evaluation of theft offenses set forth in the
“aggravated offense” provisions enacted
                                                            Code, and came up with the definition: “a
by Congress and the foundation of the
                                                            taking of property or an exercise of control
theft by deception statute adopted by
                                                            over property without consent.” 246 F.3d
Pennsylvania’s legislature.
                                                            at 1009. The Ninth Circuit has adopted
                       XI.                                  this definition, Corona-Sanchez, 291 F.3d
                                                            at 1205, and a panel within this Circuit has
        At the onset, we agree with our
                                                            relied on it in a not-for-publication
sister circuits that it was Congress’ intent
                                                            opinion, Williams v. INS, 54 Fed. Appx.
for a “theft offense” to include more than
                                                            55 (3d Cir. 2002) (Judges Fuentes, Sloviter
what was considered larceny at common
                                                            and Debevoise).
law: “[B]y choosing the words ‘theft
offense’ rather than just ‘theft,’ . . .                           We agree that given this broad
Congress signaled that it was not                           definition, Nugent’s bad check transaction
presenting an exhaustive list of offenses                   for which he was convicted under the


                                                       16
Pennsylvania theft by deception statute is          check is regarded as property in the
a “theft offense” as set forth in Section           context of “generic, contemporary”
1103(a)(43)(G). Indeed, a worthless check           larceny, or theft, concepts requiring
is “property” within the scope of                   “caption” (when the actor secured
Pennsylvania’s theft by deception statute.          dominion over the property of another) and
As we have explained previously, in                 “asportation” (carrying away of the other’s
common law larceny it was not so                    property), and therefore Nugent’s bad
regarded: “common law larceny was                   check transaction for which he was
limited to thefts of tangible personal              convicted under Pennsylvania’s theft by
property. This limitation excluded, for             deception statute is a “theft offense” under
example, the theft of a written instrument          18 U.S.C. § 1101(a)(43)(G). This does
embodying a chose in action.” Bell, 462             not, however, end our inquiry.
U.S. at 362. Pennsylvania’s consolidated
                                                             The sole question for decision is
theft statute, which we note was taken
                                                    whe the r with in the p urvie w of
verbatim from Code § 223.0, defines
                                                    Pennsylvania’s theft by deception statute,
“property” in the context of theft offenses:
                                                    Section 3922, Nugent’s conviction for
       Anything of value, including real            passing a bad check represents “an offense
       estate, tangible and intangible              involving fraud or deceit” under 8 U.S.C.
       personal property, contract rights,          § 1101(a)(43)(M)(i), notwithstanding that
       c h o ses-in-action , and o t h er           it also constitutes a “theft offense” under 8
       interests in or claims to wealth,            U.S.C. § 1101(a)(43)G). If we decide that
       admission or transportation tickets,         Nugent’s conviction is “an offense that
       captured or domestic animals, food           involves fraud or deceit” as well as “a theft
       and drink, electric or other power.          offense,” then to qualify as an aggravated
                                                    felony under the INA it must meet the
                                                    requirements               of     Section
18 Pa. Cons. Stat. Ann. § 3901 (emphasis            1101(a)(43)(M)(i), loss to the victim of
added). Wharton teaches that a chose-in-            more than $10,000, in addition to Section
action includes “bonds and notes of all             1101(a)(43)(G), term of imprisonment of
classes.” Wharton’s Criminal law, supra, §          at least one year. Here it is stipulated that
876, at 62. A chose-in-action is defined as         Nugent’s state conviction was based on a
“[a] right to receive or recover a debt, or         bad check amounting to only $4,831.26,
money, or damages for breach of contract,           and therefore Nugent’s conviction could
or for a tort connected with contract, but          not be an aggravated felony if Section
which cannot be enforced without action,”           1101(a)(43)(M)(i) applies.
and includes “a check on a bank.” See 1
                                                            And the distinction is especially
Bouvier’s Law Dictionary 483 (8th ed.
                                                    critical to Nugent because if we determine
1914).
                                                    that both the district court in the habeas
       We must conclude then that a bank            corpus proceeding and the IJ in the

                                               17
removal proceeding erred in concluding                     The term “offense” means “[t]he
that his state offense amounted to an               doing that which a penal law forbids to be
aggravated felony under the INA, then, as           done, or omitting to do what it
we have emphasized previously, Nugent               commands.” Bouvier’s Law Dictionary
will be able to apply for cancellation of           2399 (3rd ed. 1914).
removal pursuant to 8 U.S.C. § 1229b.
                                                            In comparing these two subsections
Conviction of an “aggravated felony”
                                                    of Section 1101(a)(43), we are struck by
prohibits such relief. See 8 U.S.C. §
                                                    several distinctions. First, we note that (G)
1229b(a)(3).
                                                    is limited to “a theft offense;” second, in
       For the reasons that follow, we are          (M), Congress uses the broader term “an
persuaded that Appellant is correct in his          offense” (as does every other 14 different
contention that he was not guilty of an             offenses set forth in (43) (E), (H) through
aggravated felony when he was convicted             (L) and (N) through (U);3 third, (M) and
of Pennsylvania’s statutory offense of theft        the laundering money offense (D) are the
by deception in which the victims’ loss did         only offenses listed in Section (43) that set
not exceed $10,000.                                 a minimum amount of damages that must
                                                    be proved before the offense may qualify
                   XII.
                                                    as an “aggravated felony.”
       Title 8 U.S.C. § 1101(a) provides:
                                                            These distinctions are significant.
       (43) The term ‘aggravated felony’            It could be that because all other offense
       means –
       (G) a theft offense (including
                                                           3
       receipt of stolen property) or                        Offenses relating to explosive
       burglary offense for which the term          materials, firearms, violence, demand for
       of imprisonment [is] at least one            receipt of ransom, child pornography,
       year. 8 U.S.C. § 1101(a)(43)(G);             racketeering influenced corrupt
                                                    organizations, gambling, prostitution,
                                                    peonage, slavery or involuntary
       [and]                                        servitude, misuse of national defense
                                                    information, alien smuggling, smuggling,
                                                    failure to appear for service of a
       (M) an offense that – (i) involves           sentence, bribery, counterfeiting, forgery,
       fraud or deceit in which the loss to         trafficking in altered vehicle
       the victim or victims exceeds                identification numbers, obstruction of
       $10,000[.]         8 U .S.C . §              justice, perjury or subornation of perjury,
       1101(a)(43)(M)(i)                            bribery of a witness, failure to appear
                                                    before a court on a felony charge, an
                                                    attempt or conspiracy to commit an
                                                    offense described in § 1101(a)(43).

                                               18
portions of Section 1101(a)(43) are listed          Accordingly, we must decide in favor of
in the universal form “offense” rather than         the Appellant because the property loss
the limited or particular form “theft               involved was less than the statutory
offense,” that Congress intended that               minimum.
Subsection M(i) apply only to theft
                                                                         A.
offenses. Indeed, a case could be made
that was its intention. This view would                     First, the logicians teach us that a
find support in the rules of logic discussed        term, such as “an offense” as contained in
heretofore in the distinctions between              Section 1101(a)(43)(M) or “a theft
universal and particular propositions, and          offense” as in Section 1101(a)(43)(G), is
distributed and undistributed terms. In any         said to have both a quality and a quantity.
event, for our immediate purposes, it is not        Here we are concerned with quantity. The
necessary for us to decide how many of the          quantity of a proposition is universal or
other 14 offenses listed in Section                 particular according to whether the
1101(a)(43), if any, are limited by                 proposition refers to all members of a class
Subsection M(i). And we expressly do not            or to some members of the class
do so. Suffice it to say, we decide here            designated by its subject term. In the case
only that M(i) clearly applies to those             of (M) we have a term representing all
“theft offenses” under Subsection (G) that          members of a class – “an offense.”
are anchored on “fraud or deceit.”
                                                            When a term contains no
        In the view we take we therefore            restrictions (as in (M) – “an offense”),
reject the “either-or” arguments advanced           logicians refer to it as “distributed,” and
by the parties. We reject the government’s          the proposition of which it is the subject as
contention that the naked language of               “universal” and is a class. In the universe
Subsection (G) compels a conclusion that            of offenses set forth in Section
Nugent committed an “aggravated felony”             1101(a)(43), however, the term “theft
as defined by Section 1103(a)(43) of the            offense” in (G) is predicated on some, but
INA; and also reject Nugent’s argument              not all, of the distributed term “an offense”
that Subsection (G) does not apply, that he         in (M), and is therefore considered as
did not commit a theft, but only an offense         “undistributed” and is a subclass. The
involving fraud or deceit under Subsection          proposition of which it is the subject is
(M)(i).                                             denoted as a “particular.” See Ruggero J.
                                                    Aldisert, Logic for Lawyers: A Guide to
       Instead, we hold that Congress’
                                                    Clear Legal Thinking 57-59 (3rd ed.
intent was for both G and M (i) to apply to
                                                    1997); Irving M. Copi, Introduction to
an “offense” involving “theft” and “fraud
                                                    Logic 173 (7th ed. 1986). Expressed in
or deceit,” and thus the requirements of
                                                    less technical phrasing: “All theft offenses
both provisions must be fulfilled for such
                                                    are offenses, but not all offenses are theft
an offense to qualify as an aggravated
                                                    offenses.”
felony for purposes of the INA.

                                               19
         We are taught that conclusions in                   Depriving another of property by
all reasoning, including legal reasoning,                    fraud or deceit is an offense (M).
deductive or inductive analogy, “derive[]
their validity from the axiom known as the
dictum de omni et nullo, which states:                       The offense of theft by deception
“What is true of the universal (or class) is                 deprives another of property by
true of the particular (or subclass).”                       theft (G).
Joseph Gerard Brennan, A Handbook of
Logic 64 (1957); see also Ralph M. Eaton,
General Logic 97 (1931). This is an axiom                    Therefore, the offense of theft by
concerning all or none in its class. It was                  deception is an offense under (M)
first established by Aristotle, but in today’s               and (G).
legal reasoning it is the unstated linchpin
in formulating the major premise in every
categorical deductive syllogism that
lawyers use in their briefs, and judges in                           *****
their opinions. The axiom may also be
stated as: If every member of a class has
(or does not have) a certain property, and                   The offense of theft by deception is
if certain individuals are included in that                  an offense under (M) and (G).
class, then these individuals have (or do
not have) the property. See L.S. Stebbing,
A Modern Introduction to Logic 86 (6th                       A violation of Pennsylvania’s theft
ed. 1948) (“[t]hat one term should be                        by deception statute, § 3922, is an
included in another as in a whole is the                     offense of theft by deception.
same as for the other to be predicated of all
of the first”) (quoting Aristotle, Anal.
Priora, 24(b) 26-30).                                        T h e r e f o re , a v i o l a t io n o f
                                                             Pennsylvania’s theft by deception
       We believe, therefore, that the
                                                             statute, § 3922, is an offense under
logical framework used to support the
                                                             (M) and (G).
conclusion we reach can be set forth in the
following polysyllogism:4


       4
         A polysyllogism is defined as “a
series of syllogisms in which the
conclusion of one becomes the premise                 prosyllogism; a syllogism in which one
of the next. In such a series the syllogism           premise is the conclusion of a preceding
whose conclusion becomes the                          syllogism is call an episyllogism.” Logic
succeeding premise is called the                      for Lawyers, supra, at 64.

                                                 20
         With the foregoing as our analytical        designedly, by false pretense or pretenses,
guide, we now proceed to evaluate the                shall obtain from any person or persons,
elements of Sections 1101(a)(43)(G) and              money, goods, wares or merchandises,
(M)(i) of the INA and those of the                   with intent to cheat or defraud any person
Pennsylvania theft by deception statute, 18          or persons of the same.” Accordingly, we
Pa. Cons. Ann. Stat. § 3922. It is beyond            believe that when Congress defined a
cavil that the particular or subclass                particular species of aggravated felony in
Pennsylvania statute under which Nugent              Section 1101(a)(43)(M)(i) as “an offense
was convicted falls within the purview of            that . . . involves fraud or deceit” it had in
“a theft offense (including receipt of stolen        mind, inter alia, the statutory offense of
property) or burglary offense for which the          false pretenses.
term of imprisonment [is] at least one
                                                            The Pennsylvania’s theft by
year.” 8 U.S.C. § 1101(a)(43)(G). The
                                                     deception statute under which Nugent was
sole question for decision is whether
                                                     convicted provides in part:
Pennsylvania’s theft by deception statute,
w h i c h is subs um ed in S ectio n                        (a) Offense defined – A person is
1101(a)(43)(G) as a particular “theft                       guilty of theft if he intentionally
offense,” also comes within the universal                   obtains or withholds property of
(or class) nature of “an offense” bottomed                  another by deception. A person
on fraud or deceit under Section                            deceives if he intentionally:
1101(a)(43)(M)(i). We hold that it does.
                     B.
                                                            (1) creates or reinforces a false
     First, under the teachings of Bell, we                 impre s s i o n , i n c l u d ing f alse
decide that in drafting the INA, Congress                   impressions as to law, value,
recognized the distinction in theft offenses                intention or other state of mind; but
coming within the common law offense of                     deception as to a person’s intention
larceny and the statutory offense of false                  to perform a promise shall not be
pretenses. It recognized that larceny                       inferred from the fact alone that he
required a taking (caption) and carrying                    did not subsequently perform the
away (asportation) of another’s property.                   promise . . . .
A taking occurs when the offender secures
dominion over the property, and a carrying
away requires slight movement away of                18 Pa. Cons. Stat. Ann. § 3922. In
the property.       LaFave, supra, at 74.            evaluating this statute, we turn to relevant
Congress knew that the offense of false              provisions and the ALI’s accompanying
pretenses was not known at common law,               commentary of the Code. We are obliged
and that it is statutory in nature and stems         to do this because 18 Pa. Cons. Stat. Ann.
from 30 Geo II, c. 24 (1757), which                  § 3922, theft by deception, was adopted by
punishes one who “knowingly and                      the Pennsylvania legislature word for word

                                                21
from Code § 223.3, theft by deception.                  cheat or wrongfully deprive another of his
                                                        property by deception or artifice.” United
        Examining         the      o ff i c ia l
                                                        States v. Thomas, 315 F.3d 190, 200 (3d
commentaries of the ALI relating to §
                                                        Cir. 2002) (internal quotations and citation
223.3, we are informed that this section
                                                        omitted); see also United States v.
“covers that portion of the consolidated
                                                        Summers, 19 F.2d 627 (W.D. Va. 1927)
offense of theft that derives from the
                                                        (“The word ‘fraud,’ as commonly used,
traditional offense of obtaining property by
                                                        implies deceit, deception, artifice,
false pretenses . . . [which] is statutory in
                                                        trickery.”). Ballentine defines “deceit” as
origin. It stems from 30 Geo 2, ch. 24
                                                        “[a] species of fraud; actual fraud
(1757).” ALI, Model Penal Code and
                                                        consisting of any false representation or
Commentaries, § 223.3 Theft by
                                                        contrivance whe r e by one person
Deception, 180 and n.1 (1980). The ALI
                                                        overreaches and misleads another to his
makes clear that “theft by deception” states
                                                        hurt.” Ballentine, supra, at 335. By its
the elements of the statutory offense of
                                                        very language, the Pennsylvania statute is
false pretenses.          Moreover, the
                                                        bottomed on “fraud” and “deceit.”
commentaries indicate that many states
have adopted § 223.3 and many other                             This, too, must be said.         In
states have enacted statutes that also                  commentary accompanying the proposed
describe false pretenses as “theft.”                    official draft of the Code dealing with
                                                        “Bad Checks,” § 224.5, the ALI stated:
       It is significant that in the very
                                                        “[I]f the check is over $500.00, the passer
language of Pennsylvania’s theft by
                                                        could be prosecuted for felonious theft by
deception statute, various forms of the
                                                        deception, under Sections 223.1(2) and
word “deceive” appear in five places;
                                                        223.3.” ALI, Model Penal Code, Reprint
“false impression,” in three places.
                                                        – Proposed Official Draft (May 4, 1962).
Supporting our conclusion that a
                                                        Moreover, in the Official Comment to the
Pennsylvania theft by deception offense
                                                        Pennsylvania bad checks statute, 18 Pa.
falls within the purview of Section
                                                        Cons. Stat. Ann § 4105, we are told: “A
1101(a)(43)(M)(i) of the INA are accepted
                                                        person who passes a bad check could be
definitions of the words “fraud” and
                                                        prosecuted for theft by deception under
“deceit” as used in that provision. Fraud
                                                        Section 3922.”       As in 18 U.S.C. §
has been defined as “conduct which
                                                        1103(a)(43)(M)(i), the structure of
operates prejudicially on the rights of
                                                        Pennsylvania’s theft by deception statute
others, and is so intended; deception
                                                        includes a minimum amount of damages to
practiced to induce another to part with
                                                        qualify as an elevated offense.
property, or surrender some legal right,
and which accomplished the end desired.”                        The final reason, and not the least
James Ballentine, Law Dictionary with                   important, why we believe that Congress
Pronunciations 526 (1930). “In common                   intended to import the provisions of (M)(i)
parlance, the word ‘defraud’ means to                   into the “theft offenses” of (G) is that were

                                                   22
we not to consider “theft offenses” as a                contemporary’ definitions” found in the
subclass of “an offense that . . . involves             C o d e , a s a d op te d ve rb a ti m by
fraud or deceit,” the application of (M)(i)             Pennsylvania’s legislature, supply the
would be seldom invoked. Moreover,                      meaning that “best accords with the
were it not for the $10,000 loss limitation             overall purposes of the statute.” 240 F.3d
of (M)(i), then in those jurisdictions like             at 249 (internal quotation and citations
Pennsylvania that hold that a person who                omitted). We determine that although an
passes a bad check of a modest amount                   offense under the Pennsylvania statute is a
could be convicted of theft by deception,               “ the f t of f e nse ” so tha t Sectio n
we would be faced with the anomalous                    1101(a)(43)(G) applies, because the state
situation that the minor offense would be               statute is bottomed on “fraud or deceit,”
considered an aggravated felony.                        the offense mu st also m eet the
                                                        requirements of Section 1101(a)(43)(M )(i)
           For all of these reasons, we
                                                        to qualify as an aggravated felony under
conclude that a conviction under
                                                        the INA. We accordingly conclude that
Pennsylvania’s theft by deception statute is
                                                        Nugent’s bad checks transaction for which
the type of offense that comes within 8
                                                        he was convicted under Pennsylvania’s
U.S.C. § 1101(a)(43)(M)(i), “an offense
                                                        theft by deception statute does not qualify
that . . . involves fraud or deceit,” albeit it
                                                        as an aggravated felony as defined by the
t o o c o m e s w i t h in 8 U .S .C . §
                                                        INA, because although the term of
1101(a )(43)(G), “a theft offense.”
                                                        imprisonment imposed on Nugent was one
Because the particular Pennsylvania statute
                                                        year or more, the victims’ loss did not
is designed entirely on all-embracing
                                                        exceed $10,000.
concepts of fraud or deceit – various forms
of the word “deceive” appear five times                        Accordingly, we will dismiss the
and “false impression” three times – it is              petition for review at No. 02-0329 for lack
precisely the particular type of theft                  of jurisdiction. In the appeal at No. 04-
contemplated in the universal class of                  1541, for reasons other than those stated
offenses set forth in the fraud or deceit               by the district court as set forth above, we
Subsection 1101(a)(43)(M)(i).                 We        will affirm the judgment of the district
therefore apply the axiom de omni et                    court without prejudice to the Appellant to
nullo: what is true of the universal (or                apply to the Attorney General for
class) in § 1101(a)(43)(M)(i) is true for the           cancellation of the removal order pursuant
p a r t ic u l a r ( o r s u b c l a s s ) i n §        to 8 U.S.C. § 1229b.5
1101(a)(43)(G).
                  *****                                        5
                                                                Title 8 U.S.C. § 1229b(e) limits
       In reaching our ultimate conclusion,             the number of actions by the Attorney
therefore, we follow the teachings of                   General that cancel the removal or
Drakes and conclude that “more ‘generic,                adjusts the status of aliens under section
                                                        1229b.

                                                   23
Rendell, Circuit Judge - Concurring.


        I am pleased to join in the majority’s
scholarly opinion. As amply demonstrated
by the majority’s historical exegesis, theft
by deception is a hybrid crime that is both
a theft offense, 8 U.S.C. § 1101(a)(43)(G),
and an offense involving fraud or deceit, 8
U.S.C. § 1101(a)(43)(M)(i). Therefore, in
order to qualify as an aggravated felony, it
must be shown that Nugent’s conviction
for theft by deception qualifies under the
statutory definitions for both theft offenses
and fraud/deceit offenses. I think this is
necessary to carry out Congress’s intention.
Nugent’s conviction was for an offense
that involved deceit resulting in a loss of
less than the $10,000 minimum set forth in
(M)(i). However, while I applaud Judge
Aldisert’s logical tour de force in devising
a way to reason to this conclusion under
the statute, I write separately to stress that
this logic should not compel that we
combine definitions within this section, as
a general rule. Rather, only where an
offense is a hybrid—as I submit theft by
deception is—and the aggravated felony
classifications contain two distinct, clearly
applicable tests, should we conclude that
both must be fulfilled in order for the
offense to qualify as an aggravated felony.




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