                                                                                  FILED
                                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           March 13, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
    GLECERIA MEJIA HEARD, a/k/a Justine
    Michelle Gazemen,

         Petitioner,

    v.                                                  Nos. 17-9525 & 17-9539
                                                         (Petitions for Review)
    WILLIAM P. BARR,* United States
    Attorney General,

         Respondent.
                         _________________________________

                             ORDER AND JUDGMENT**
                         _________________________________

Before LUCERO, HOLMES, and EID, Circuit Judges.
                  _________________________________

         Gleceria Mejia Heard petitions the court to reverse the immigration courts’

determination that she is ineligible for cancellation of removal. The Immigration

Judge (IJ) concluded, and the Board of Immigration Appeals (BIA) agreed, that

Heard’s 2005 theft conviction qualifies as an aggravated felony under the

Immigration and Nationality Act. We affirm.


*
  Pursuant to Fed. R. App. P. 43(c), we have substituted Jefferson B. Sessions III,
former United States Attorney General, for William P. Barr, current United States
Attorney General.
**
  This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                            I.

      Heard, an immigrant from the Philippines, was admitted to the United States as

a lawful permanent resident in 1994. In 1999, she pleaded guilty to attempted

forgery in violation of Nev. Rev. Stat. § 205.090. In 2005, she pleaded guilty to theft

in violation of Nev. Rev. Stat. § 205.0832(1)(b). Based on these convictions, the

Department of Homeland Security (DHS) initiated removal proceedings against her

in 2016. DHS asserted two grounds in support of removability. First, DHS

contended that Heard’s theft conviction under subsection (1)(b) is an aggravated

felony under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(G). Second, it

contended that both Heard’s theft and attempted forgery convictions are crimes

involving moral turpitude. 8 U.S.C. § 1227(a)(2)(A)(ii).

      Heard applied for cancellation of removal. The IJ determined her theft

conviction under subsection (1)(b) constituted an aggravated felony and that she was

ineligible for cancellation because of it. To reach this conclusion, the IJ determined

that Nevada’s theft statute is divisible and that, under the modified categorical

approach, subsection (1)(b) is not overbroad when compared to the federal generic

definition of theft. Specifically, the IJ held that subsection (1)(b) “meets the generic

definition of theft, as it describes conduct that involves the ‘taking of property or an

exercise of control over property without consent with the criminal intent to deprive

the owner of rights and benefits of ownership, even if the deprivation is less than

total or permanent.’” R. at 242 (citation omitted). Heard appealed to the BIA. The

BIA dismissed her appeal, agreeing with the IJ’s reasoning: “[l]ike the Immigration

                                            2
Judge, we conclude that section 205.0832(1)(b) defines a categorical ‘theft offense’

under section 101(a)(43)(G) of the Act because it requires that the defendant exercise

control over the owner’s property without consent and with the intent to deprive the

owner of the rights and benefits of ownership.” R. at 6. The BIA also denied

Heard’s motion to reopen and reconsider her eligibility to obtain relief from removal.

Heard petitioned for review in this court regarding both BIA orders, and this court

consolidated her petitions.

                                           II.

                                           A.

      We review de novo the BIA’s determination that Heard’s theft conviction

qualifies as an aggravated felony. See Rodriguez-Heredia v. Holder, 639 F.3d 1264,

1267 (10th Cir. 2011). Generally, a lawful permanent resident is eligible for

cancellation of removal if she establishes that she meets three requirements: (1) she

has been “lawfully admitted for permanent residence for not less than 5 years,” (2)

she “has resided in the United States continuously for 7 years after having been

admitted,” and (3) she “has not been convicted of any aggravated felony.” 8 U.S.C.

§ 1229b(a); see also 8 C.F.R. § 1240.8(d) (stating that the resident bears the burden

of establishing eligibility for cancellation of removal). Among other things, an

aggravated felony is “a theft offense . . . for which the term of imprisonment [is] at

least one year.” 8 U.S.C. § 1101(a)(43)(G).

      To determine whether a state conviction qualifies as a “theft offense” under

section 1101(a)(43)(G), we apply the categorical approach. Cf. Mellouli v. Lynch,

                                           3
135 S. Ct. 1980, 1984, 1987 (2015) (applying the categorical approach to an

analogous provision of the Immigration and Nationality Act). We compare the

state’s definition of the offense with the generic federal offense. See Descamps v.

United States, 570 U.S. 254, 257 (2013); Efagene v. Holder, 642 F.3d 918, 921 (10th

Cir. 2011). We do not consider the facts of the offense when performing this

comparison. See Efagene, 642 F.3d at 921. Rather, we look only to the definition of

the crime of conviction. See id. Additionally, we “presume that the conviction

rested upon [nothing] more than the least of th[e] acts criminalized [by the statute],

and then determine whether even those acts are encompassed by the generic federal

offense.” De Leon v. Lynch, 808 F.3d 1224, 1230 (10th Cir. 2015) (alterations in

original) (quotations omitted). If even the least of the acts criminalized by the state

statute are covered by the generic federal offense, then the conviction is a categorical

match. See id.

      Importantly though, if the statute of conviction is divisible, we only consider

whether the elements of the conviction are a categorical match to the generic federal

version of the offense. See Descamps, 570 U.S. at 257. In cases involving divisible

statutes, we apply the modified categorical approach to determine which elements

supported the conviction. See id. The modified categorical approach permits us to

look at “a limited class of documents, such as indictments and jury instructions.” Id.

A statute is divisible if its alternatives are elements. See Mathis v. United States, 136

S. Ct. 2243, 2248–49, 2253–54 (2016). Elements are what “the prosecution must

prove to sustain a conviction,” but means are just facts. Id. at 2248 (citation

                                            4
omitted). And “facts . . . are mere real-world things—extraneous to the crime’s legal

requirements.” Id.

       To determine whether statutory alternatives are elements or means, we first

consider the statute itself and state court decisions interpreting the statute. See id. at

2256. If these sources are inconclusive, we may “peek” at the record to assist in the

analysis. See id. at 2253–54, 2256–57. For example, “an indictment . . . could

indicate, by referencing one alternative term to the exclusion of all others, that the

statute contains a list of elements.” Id. at 2257. If the “peek” indicates the statutory

alternatives are elements, we then apply the modified categorical approach to

determine which elements supported the conviction. See id. With these principles in

mind, we turn to the Nevada statute in question.

                                            B.

       If Nevada’s omnibus theft statute is indivisible, then it plainly sweeps broader

than the federal generic version of theft. But if it is divisible, then we only consider

whether subsection (1)(b)—the section of the statute containing the elements of

Heard’s conviction—is overbroad. We conclude that the Nevada statute is divisible.

       The Nevada Supreme Court has held that a prosecutor charging a defendant for

commission of a theft crime must specify which subsection of the theft statute the

defendant is “alleged to have violated.” State v. Hancock, 955 P.2d 183, 186–87

(Nev. 1998) (upholding trial court’s decision to dismiss indictment when prosecutors

failed to specify which subsection of Nev. Rev. Stat. § 205.0832 the defendants were

being accused of violating); see also Walch v. State, 909 P.2d 1184, 1188 (Nev.

                                             5
1996) (noting that it is unnecessary for the court to “struggle with [the] technical

distinctions between embezzlement, larceny, and other similar offenses, as long as

the State charged the appropriate subsection or subsections of the statute”). These

cases resolve the issue. Under Nevada law “a charging document may set forth

alternative means of committing a crime within a single count.” Hancock, 955 P.2d

at 187 (emphasis in original). But “alternative offenses must be charged in separate

counts.” Id. (same) (citation omitted). That it was insufficient in Hancock for the

prosecutors to generally allege that the defendants violated Nev. Rev. Stat.

§ 205.0832 means that Nevada treats the subsections within section 205.0832 as

separate offenses. In other words, the subsections are elements and not means.

Finally, we note that Heard’s information also supports our conclusion because it

references, “to the exclusion of [the other subsections],” subsection (1)(b). Mathis,

136 S. Ct. at 2257.

                                           C.

      Because the statute is divisible, we consider whether the subsection that

supported Heard’s conviction matches the generic federal offense. See Descamps,

570 U.S. at 257. The information charges Heard with violating subsection (1)(b).

That subsection states that a person commits theft if she

      [c]onverts, makes an unauthorized transfer of an interest in, or without
      authorization controls any property of another person, or uses the services
      or property of another person entrusted to [her] or placed in [her]
      possession for a limited, authorized period of determined or prescribed
      duration or for a limited use.



                                            6
Nev. Rev. Stat. § 205.0832(1)(b) (2005). We compare this language to the federal

generic definition of theft: “the taking of property or an exercise of control over

property without consent with the criminal intent to deprive the owner of rights and

benefits of ownership, even if such deprivation is less than total or permanent.”

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007) (quotations omitted).

      Heard contends that, even if the Nevada statute is divisible, she still prevails

because subsection (1)(b) is itself overbroad. Her overbreadth argument comes in

two parts. First, she argues that subsection (1)(b) is overbroad because it does not

require a nonconsensual taking. Second, she argues that subsection (1)(b) is

overbroad because it is satisfied by theft of services. We are not persuaded by

Heard’s arguments and conclude that subsection (1)(b) is not overbroad.

                                           1.

      Heard’s first overbreadth argument focuses on the fact that the definition of

the generic offense specifies that the theft is “without consent.” This definition

excludes “the taking or acquisition of property with consent that has been

fraudulently obtained.” In re Garcia-Madruga, 24 I. & N. Dec. 436, 440 (BIA

2008). Specifically, the BIA held that for a crime to be theft “there must be a

‘taking’ of property (as opposed, e.g., to an acquiring of property).” Id. In other

words, “the property must be obtained ‘without consent.’” Id.1 As Garcia-Madruga


1
 We generally defer to the BIA’s reasonable interpretations “of the [Immigration and
Nationality Act] . . . in an opinion . . . that is binding precedent within the agency.”
Afamasaga v. Sessions, 884 F.3d 1286, 1289 (10th Cir. 2018).

                                           7
pointed out, the Immigration and Nationality Act distinguishes between “theft” and

“fraud” offenses. See 8 U.S.C. § 1101(a)(43)(G) (proscribing a “theft offense

(including receipt of stolen property)”), § 1101(a)(43)(M) (proscribing “an offense

that . . . involves fraud or deceit in which the loss to the victim . . . exceeds

$10,000”). Notably, for an offense to qualify as fraud under section 1101(a)(43)(M)

it must exceed $10,000. See id. § 1101(a)(43)(M). But a similar monetary

requirement is not found in section 1101(a)(43)(G)’s description of a theft offense.

See id. § 1101(a)(43)(G). The BIA determined that the difference between fraud and

theft is that fraud involves “consent that has been unlawfully [(i.e., fraudulently)]

obtained,” whereas theft “occurs without consent.” Garcia-Madruga, 24 I. & N.

Dec. at 439.

       Here, subsection (1)(b) prohibits a person from the unauthorized “use[] [of]

the services or property of another person” when the property or services have been

entrusted to the person or “placed in [the person’s] possession for a limited,

authorized period of determined or prescribed duration or for a limited use.”

Consequently, it covers crimes like embezzlement that are satisfied when a person

converts property after he or she has already obtained possession of it. Heard

contends that, because subsection (1)(b) covers embezzlement, it covers crimes that

do not require a nonconsensual taking. We are not persuaded by this argument.2


2
  Whether Heard has properly preserved this issue is a close call, but we conclude
that she has satisfied the minimum requirements by raising the question below and
arguing it before this court. See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir.
2011) (stating general rule that arguments not raised in opening brief on appeal are
                                             8
      Contrary to Heard’s position, embezzlement in subsection (1)(b) does require

an “unauthorized” (i.e., nonconsensual) taking. The nonconsensual taking just occurs

after the offender has already obtained possession of the property. This is apparent

from both the language of the statute and how Nevada has defined embezzlement.

See Walch, 909 P.2d at 1190 (Springer, J., dissenting on other grounds) (noting that

embezzlement under subsection (1)(b) is “taking while in possession” (emphasis in

original)). Thus, subsection (1)(b) does not run afoul of Garcia-Madruga’s

interpretation of generic theft as not including instances where property was taken

with consent obtained by fraud. See Garcia-Madruga, 24 I. & N. Dec. at 440; see

also Vassell v. U.S. Att’y Gen., 839 F.3d 1352, 1358 n.2 (11th Cir. 2016) (noting that



waived); Action, Inc. v. Donovan, 789 F.2d 1453, 1456 (10th Cir. 1986) (“To
preserve issues for review by the courts, objections to agency proceedings should be
made while the agency still has an opportunity for correction.”). She argued before
the IJ that a theft offense cannot be established by a statute of conviction that is
satisfied by fraud and deceit, see R. at 195 (citing Garcia-Madruga for support); that
section 205.0832 is satisfied by fraud and deceit, see id.; and that subsection (1)(b) is
problematic because it does not require “intent to deprive,” see R. at 196. Likewise,
before the BIA she argued that “[t]heft by fraud or deceit . . . does not constitute a
generic theft offense.” See R. at 24 (citing Garcia-Madruga for support).

       Additionally, we note that both the IJ and the BIA ruled on this issue. The IJ
held that subsection (1)(b) “meets the generic definition of theft, as it describes
conduct that involves the ‘taking of property or an exercise of control over property
without consent.’” R. at 242 (emphasis added) (citation omitted). Similarly, the BIA
held that subsection (1)(b) “defines a categorical ‘theft offense’ . . . because it
requires that the defendant exercise control over the owner’s property without
consent.” R. at 6 (emphasis added).

      Finally, Heard successfully raised the argument here. In her opening brief, she
argued that “under an entrustment or embezzlement scenario, the ‘without consent’
element of generic theft is absent.” See Pet’r Br. at 42.
                                            9
Garcia-Madruga did not resolve “whether theft committed through embezzlement is

‘without consent’”).

      Additionally, the two circuit cases Heard cites, Lopez-Valencia v. Lynch, 798

F.3d 863 (9th Cir. 2015), and Mena v. Lynch, 820 F.3d 114 (4th Cir. 2016), do not

save her argument. Heard cites Lopez for “reasoning that . . . embezzlement [does

not] fall within the generic theft definition.” Pet’r Br. at 42. She cites Mena for

“holding that receipt of stolen or embezzled property is not categorically a theft

offense.” Id. Lopez does not stand for the cited proposition: in Lopez, the Ninth

Circuit only mentioned embezzlement in passing and did not opine on whether it

qualifies as a theft offense. See 798 F.3d at 870. In fact, it appears that the Ninth

Circuit might hold that embezzlement is indeed a nonconsensual-theft-offense. See,

e.g., Carrillo-Jaime v. Holder, 572 F.3d 747, 752 (9th Cir. 2009) (recognizing that

“embezzlement involve[s] taking another’s personal property . . . without the owner’s

consent” (quotations omitted)), abrogated on other grounds as recognized in Pena-

Rojas v. Sessions, 724 F. App’x 622, 624 (9th Cir. 2018).

      Mena, on the other hand, is a better case for Heard, but it is not enough. In

Mena, the Fourth Circuit considered whether the knowing “purchase, receipt, or

possession” of embezzled property—proscribed in 18 U.S.C. § 659—qualifies as a

theft offense. See 820 F.3d at 118–21. The Fourth Circuit held that it does not. See

id. In doing so, it commented that embezzlement itself is not a theft offense because

the property is initially acquired through a consensual transaction. See id. This out-

of-circuit decision is not binding upon us. See Garcia ex rel. Garcia v. Miera, 817

                                           10
F.2d 650, 658 (10th Cir. 1987) (“[T]he decisions of one circuit court of appeals are

not binding upon another circuit.”).

      Additionally, the Fourth Circuit hinged its analysis on the fact that

embezzlement does not require a nonconsensual taking at the time possession is

obtained. Mena, 820 F.3d at 119–20 (“By definition, embezzlement . . . involves

property that came into the initial wrongdoer’s hands with the owner’s consent.”

(footnote and emphasis omitted)). It ignored that, in most embezzlement crimes (like

the one here), a nonconsensual taking occurs after possession is obtained. See id. at

119–20; United States v. Clark, 765 F.2d 297, 303 (2d Cir. 1985) (“To embezzle

means the wrongful or willfull [sic] taking of money or property of someone else

after the money or property has lawfully come within the possession or control of the

person taking it.” (quotations omitted)); 1A Fed. Jury Prac. & Instr. § 16:01 (6th ed.)

(“To ‘embezzle’ means willfully or deliberately to take or to convert the money or

property of another after the money or property lawfully came into the possession of

the person who eventually took it.”). We see no reason to call a nonconsensual

taking consensual solely because it happens after possession is obtained.

      As the dissent in Mena observed, much like “a victim of traditional larceny, a

victim of embezzlement does not ‘consent’ to the loss of his property.” 820 F.3d at

123 (Wilkinson, J., dissenting). The dissent’s observation is true here: the victim of

embezzlement in subsection (1)(b) does not consent to the unauthorized use or taking

of her property. Rather, she is the victim of a nonconsensual taking that occurs after

she has placed the property in the taker’s control. Because Heard has failed to show

                                          11
that subsection (1)(b) is satisfied by a consensual taking, we reject Heard’s first

overbreadth argument. See Mathis, 136 S. Ct. at 2251 (noting an offense is

overbroad “if its elements are broader than those of a listed generic offense”); 8

C.F.R. § 1240.8(d) (establishing resident bears burden of showing eligibility for

cancellation of removal).

                                            2.

      We also reject Heard’s second overbreadth argument, in which she contends

that subsection (1)(b) is overbroad because it prohibits the taking of services. Heard

posits that theft of services is not covered under the federal generic definition of the

offense. The circuits are divided as to whether theft of services qualifies as a theft

offense under section 1101(a)(43)(G). The Fifth and Ninth Circuits have held that

theft of services does not qualify. See United States v. Juarez-Gonzalez, 451 F.

App’x 387 (5th Cir. 2011); Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir.

2003). But the First, Second, and Third Circuits have concluded that it does. See De

Lima v. Sessions, 867 F.3d 260 (1st Cir. 2017); Abimbola v. Ashcroft, 378 F.3d 173

(2d Cir. 2004); Ilchuk v. Att’y Gen. of the United States, 434 F.3d 618 (3d Cir. 2006).

We find the latter group’s position more convincing.

       Unless Congress has indicated otherwise, we define removable offenses by

looking to their “generally accepted contemporary meaning.” Ibarra v. Holder, 736

F.3d 903, 913 (10th Cir. 2013). We find this generally accepted meaning by

examining the Model Penal Code and state criminal codes at the time Congress

enacted the statute. See id.; Taylor v. United States, 495 U.S. 575, 598 (1990)

                                           12
(relying on the Model Penal Code and state statutes to define the term “burglary” in

the Career Criminals Amendment Act of 1986). Here, “[a]t the time of the enactment

of § 1101(a)(43)(G), the Model Penal Code had for several years provided for

criminal liability for theft of services, and over half the states had criminalized theft

of services under their respective criminal codes.” De Lima, 867 F.3d at 266.

Consequently, we conclude that the generally accepted contemporary meaning of

theft under section 1101(a)(43)(G) included theft of services.

                                            D.

       Finally, we reject Heard’s challenge to the BIA’s denial of her motion to

reopen and reconsider, which we review for an abuse of discretion. See Maatougui v.

Holder, 738 F.3d 1230, 1239 (10th Cir. 2013). Because we have concluded on de

novo review that the BIA did not err when it held that theft is an aggravated felony,

we find that it did not abuse its discretion in refusing Heard’s request to reconsider

its order affirming the IJ.

                                           III.

       For the foregoing reasons, we AFFIRM both the BIA’s order dismissing

Heard’s appeal and the BIA’s refusal to reconsider that order.



                                                  Entered for the Court


                                                  Allison H. Eid
                                                  Circuit Judge



                                            13
