                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-19-2002

Williams v. INS
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1530




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"Williams v. INS" (2002). 2002 Decisions. Paper 756.
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                                                                            NOT PRECEDENTIAL

                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT




                                           No: 02-1530


                                   PEDRO CLIVE WILLIAMS,
                                                Appellant
                                             v.

                     IMMIGRATION AND NATURALIZATION SERVICE,


                          On Appeal from the United States District Court
                              for the Eastern District of Pennsylvania

                        District Court Judge: The Honorable Louis H. Pollak
                                   (D.C. Civ. No. 01-cv-00339)


                            Submitted Under Third Circuit L.A.R. 34.1(a)
                                        October 29, 2002

                Before: SLOVITER, FUENTES, and DEBEVOISE*, Circuit Judges

                                (Opinion Filed:                     )




                                   OPINION OF THE COURT




___________________
       *Honorable Dickinson R. Debevoise, United States District Judge for the District
of New Jersey, sitting by designation.

FUENTES, Circuit Judge:
         Appellant Pedro Clive Williams ("Williams") appeals an order of the United States

District Court for the Eastern District of Pennsylvania, denying his petition for habeas

corpus. Williams contends that the District Court erred in concluding that his New York

convictions for criminal possession of stolen property qualify as "aggravated felon[ies]"

under 8 U.S.C. § 1101(a)(43)(G). Because we agree that Williams' convictions qualify as

"aggravated felonies" within the meaning of the statute, we affirm the Order of the District

Court.

                                   I. Facts and Procedural History

         Williams, a thirty-two year old native of Guyana, entered the United States on May

15, 1985. On May 19, 1998, Williams was convicted in New York State court of two

counts of criminal possession of stolen property. The court sentenced Williams to one

year's imprisonment on each count, with the sentences to run concurrently. As a result of

these convictions, the Immigration and Naturalization Service ("INS") issued a Notice to

Appear on November 24, 1998, placing Williams in removal proceedings. In a decision

dated December 9, 1999, an Immigration Judge ("IJ") determined that Williams'

convictions did not qualify as aggravated felonies and granted Williams' application for

"cancellation of removal" pursuant to 8 U.S.C. § 1229b(a). The IJ also granted Williams a

waiver of inadmissibility pursuant to 8 U.S.C. § 1182(c).

         The INS appealed the decision to the Board of Immigration Appeals ("BIA"). The

Government's appeal focused on the IJ's conclusion that Williams' sentence of "one year"

failed to satisfy the requirement under 8 U.S.C. § 1101(a)(43)(G) of a conviction "for

                                                     2
which the term of imprisonment [imposed is] at least one year." The BIA reversed the

decision of the IJ. Assuming that Williams' convictions qualified as "theft offenses," the

BIA held that a sentence of one year for criminal possession of stolen property rendered

that conviction an aggravated felony. As a result, the BIA ruled that Williams was precluded

from eligibility for cancellation of removal under 8 U.S.C. § 1229b. Section 1229b grants

the Attorney General the discretion to cancel removal of an individual who meets certain

criteria, including that the individual "has not been convicted of any aggravated felony." The

BIA also found Williams statutorily ineligible for a waiver of inadmissibility pursuant to 8

U.S.C. § 1182(c).

        Williams filed his Petition for Writ of Habeas Corpus on February 7, 2001 to

challenge the BIA decision. The District Court appointed counsel to represent him. After a

series of briefings and hearings, the District Court denied the petition on December 21,

2001. Although the District Court entered an order staying removal to allow counsel to

file an appeal, the Government removed Williams from the United States on or about

December 23, 2001.

                               II. Jurisdiction and Standard of Review

        The District Court exercised jurisdiction over Williams' habeas petition pursuant to

28 U.S.C. § 2241(c). See INS v. St. Cyr, 533 U.S. 289 (2001) (holding that neither the

Antiterrorism and Effective Death Penalty Act of 1996 nor the Illegal Immigration Reform

Act of 1996 repealed the District Court's jurisdiction to review aliens' habeas petitions).

This Court exercises appellate jurisdiction over the District Court's order denying habeas

                                                     3
relief pursuant to 28 U.S.C. §§ 1291 and 2253. See Steele v. Blackman, 236 F.3d 130, 133

(3d Cir. 2001). We review de novo the District Court's denial of habeas corpus relief and

its interpretation of the applicable statute. See Gerbier v. Holmes, 280 F.3d 297, 302 (3d

Cir. 2002).

                                              III. Discussion

        Williams argues that his convictions for possession of stolen property in New

York do not qualify as aggravated felonies under the Immigration and Nationality Act

("INA"). First, he claims that the relevant sections of New York law and the INA make clear

that possession of stolen property is not a "theft offense (including receipt of stolen

property)." Second, he contends that the BIA and the District Court erred in adopting a

harsh interpretation of Congressional intent based on ambiguous statutory language.

        "Any alien who is convicted of an aggravated felony at any time after admission is

deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). The INA defines "a theft offense (including

receipt of stolen property) or burglary offense for which the term of imprisonment [is] at

least one year" as an "aggravated felony." 8 U.S.C. § 1101(a)(43)(G). Williams argues that

the plain language of the INA does not extend to possession offenses.

        Williams was convicted under New York Penal Law § 165.40, which states:

                Criminal Possession of stolen property in the fifth degree. A person is
                guilty of criminal possession of stolen property in the fifth degree when he
                knowingly possesses stolen property, with the intent to benefit himself or a
                person other than an owner thereof or to impede the recovery by an owner
                thereof. Criminal possession of stolen property in the fifth degree is a class
                A misdemeanor.



                                                      4
Based on the language in both the state and federal statutes, he concludes that while one

who steals a car or car parts may be guilty of a theft offense in New York, one who

possesses such items is culpable of neither a theft offense nor receiving stolen property.

        The Seventh Circuit recently dealt with this issue and held that "the modern, generic,

and broad definition of the entire phrase 'theft offense (including receipt of stolen

property)' is a taking of property or an exercise of control over property without consent

with the criminal intent to deprive the owner of rights and benefits of ownership, even if

such deprivation is less than total or permanent." Hernandez-Mancilla v. Immigration and

Naturalization Service, 246 F.3d 1002, 1009 (7th Cir. 2001). The Seventh Circuit cited a

number of reasons for reaching this conclusion. First, both the Model Penal Code and

Black's Law Dictionary recognize that "theft" encompasses many crimes, indicating that any

definition should be broad. See id. at 1008. Second, other courts have noted that Congress

has indicated that the phrase "aggravated felony" encompasses a vast range of offenses, as

evidenced by the fact that, in 1996, the Illegal Immigration Reform and Responsibility Act

("IIRIRA") added offenses under the label "aggravated felony" and lowered the sentencing

threshold from five years to one year under § 1101(a)(43)(G). See id. Third, "by choosing

the words 'theft offense' rather than just 'theft,' and by expressly including 'receipt of stolen

property,' Congress signaled that it was not presenting an exhaustive list of offenses (i.e.

just theft and receipt); rather, with its word choices, Congress indicated that the phrase

ought to be given a broad read." Id. (citations omitted). Finally, while other offenses listed

as "aggravated felonies" reference other statutes, which limit the scope of deportable

                                                      5
offenses under those sections, § 1101(a)(43)(G) contains no such references.

        We agree with the analysis of the Seventh Circuit and conclude that the phrase "theft

offense (including receipt of stolen property)" should be read broadly. Williams was

convicted of knowingly possessing stolen property, with the intent to benefit himself or a

person other than an owner thereof or to impede the recovery by an owner thereof, through

his work in a "chop shop." The Immigration Judge heard testimony that Williams

participated in removing parts from cars that he knew were stolen. We conclude that

Williams' convictions for criminal possession of stolen property based on this conduct

qualify as "theft offenses" under our broad reading of 8 U.S.C. § 1101(a)(43)(G).

        We also reject Williams' second argument, that the BIA and the District Court erred

in adopting a harsh interpretation of Congressional intent based on ambiguous statutory

language. "[T]he rule of lenity does not apply simply because a statute requires

interpretation." United States v. Graham, 169 F.3d 787, 790 (3d Cir. 1999) (citations

omitted). Based on the language used in the section of the statute at issue, changes made to

past versions of the section, and comparisons to other sections of the statute, we conclude

that Congress intended the phrase "theft offenses (including receipt of stolen property)" to

be given a broad meaning. As a result, we need not resort to the rule of lenity.

                                            IV. Conclusion

        Accordingly, because Williams' convictions for possession of stolen property under

New York law meet the definition of an "aggravated felony" under 8 U.S.C. §

1101(a)(43)(G), we affirm the judgment of the District Court.

                                                    6
_____________________________
TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.




___________________________
                                         Circuit Judge




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