     16-3331
     Bastian-Mojica v. Sessions
                                                                                                      BIA
                                                                                                 Straus, IJ
                                                                                             A074 908 814
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                 At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 5th day of December, two thousand seventeen.
 4
 5   PRESENT:
 6               JON O. NEWMAN,
 7               JOSÉ A. CABRANES,
 8                     Circuit Judges,
 9               ROBERT N. CHATIGNY,
10                     District Judge.
11   _____________________________________
12
13   Javier Bastian-Mojica,
14
15                                Petitioner,
16
17                      v.                                                       16-3331
18
19   Jefferson B. Sessions III, United States
20   Attorney General,
21
22                     Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                              Nancy E. Martin, Anthony D. Collins, Collins &
26                                                Martin, P.C., Wethersfield, CT.
27
28   FOR RESPONDENT:                              Chad A. Readler, Acting Assistant Attorney
29                                                General; Cindy S. Ferrier, Assistant Director; Song
30                                                E. Park, Senior Litigation Counsel, Office of
31                                                Immigration Litigation, United States Department of
32                                                Justice, Washington, DC.


      Judge Robert N. Chatigny, of the United States District Court for the District of Connecticut,
     sitting by designation.
 1          UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

 2   Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the

 3   petition for review is GRANTED and the case is REMANDED to the BIA.

 4          Petitioner Javier Bastian-Mojica, a native and citizen of Mexico, seeks review of an August

 5   31, 2016, decision of the BIA affirming a July 28, 2015, decision of an immigration judge (“IJ”)

 6   ordering Bastian-Mojica removed to Mexico. In re Javier Bastian-Mojica, No. A074 908 814

 7   (B.I.A. Aug. 31, 2016), aff’g No. A074 908 814 (Immig. Ct. Hartford July 28, 2015). We assume

 8   the parties’ familiarity with the underlying facts and procedural history in this case.

 9          Bastian-Mojica was ordered removed for an aggravated felony theft offense, which

10   ordinarily would preclude review.        See 8 U.S.C. § 1252(a)(2)(C).         However, we retain

11   jurisdiction to consider the question of law that he raises: whether his conviction for fourth degree

12   larceny in violation of Connecticut General Statutes § 53a-125 is an aggravated felony theft

13   offense as defined in 8 U.S.C. § 1101(a)(43)(G). See 8 U.S.C. § 1252(a)(2)(D) (providing that

14   jurisdictional bars do not preclude review of “constitutional claims or questions of law”). We

15   review questions of law de novo. Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).

16          Both this Court and the BIA have previously encountered the issue of whether the

17   Connecticut larceny offense qualifies as an aggravated felony theft for purposes of the

18   immigration laws, but, for reasons explained in this Order, that consideration has not yielded a

19   definitive resolution of the issue. We will therefore remand this case to the BIA for further

20   consideration, but deem it appropriate to provide a full explanation of why we are doing so.

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

22   deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The Immigration and Nationality Act (“INA”),

23   using the following definitions, includes both theft and fraud offenses as an “aggravated felony”:

24   “The term ‘aggravated felony’ means-- . . . a theft offense (including receipt of stolen property) or

25   burglary offense for which the term of imprisonment [is] at least one year,” 8 U.S.C.


                                                       2
 1   § 1101(a)(43)(G), and “an offense that . . . involves fraud or deceit in which the loss to the victim

 2   or victims exceeds $10,000,” id. § 1101(a)(43)(M)(i).

 3             Bastian-Mojica was charged as removable for an aggravated felony theft offense. In

 4   Matter of V-Z-S-, the BIA defined a theft offense as “a taking of property . . . [with] criminal intent

 5   to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than

 6   total or permanent.”       22 I. & N. Dec. 1338, 1346 (BIA 2000).               Later, in Matter of

 7   Garcia-Madruga, the BIA clarified V-Z-S- by distinguishing between the theft and fraud grounds

 8   of removability:

 9             When a theft offense has occurred, property has been obtained from its owner
10             “without consent”; in a fraud scheme, the owner has voluntarily “surrendered” his
11             property, because of an “intentional perversion of truth,” or otherwise “act[ed]
12             upon” a false representation to his injury. The key and controlling distinction
13             between these two crimes is therefore the “consent” element--theft occurs without
14             consent, while fraud occurs with consent that has been unlawfully obtained.
15
16   Garcia-Madruga, 24 I. & N. Dec. 436, 439 (BIA 2008) (quoting Soliman v. Gonzales, 419 F.3d

17   276, 282 (4th Cir. 2005)).

18             To determine whether an offense qualifies as an aggravated felony for purposes of

19   removal, courts, including the Second Circuit, employ a “categorical approach,” under which a

20   court “consider[s] whether ‘the minimum criminal conduct necessary to sustain a conviction’

21   under the statute of prior conviction satisfies the definition of the applicable INA provision,” but

22   “do[es] not evaluate ‘the singular circumstances’ of a petitioner’s prior conviction,” Hoodho v.

23   Holder, 558 F.3d 184, 189 (2d Cir. 2009) (quoting James v. Mukasey, 522 F.3d 250, 254 (2d Cir.

24   2008)).

25             Bastian-Mojica was convicted of fourth degree larceny. C.G.S. § 53a-125. “A person is

26   guilty of larceny in the fourth degree when he commits larceny as defined in section 53a-119 and

27   the value of the property or service exceeds one thousand dollars.” C.G.S. § 53a-125(a). “A

28   person commits larceny when, with intent to deprive another of property or to appropriate the same

29   to himself or a third person, he wrongfully takes, obtains or withholds such property from an

                                                       3
 1   owner.” C.G.S. § 53a-119. Section 53a-119 sets out 18 examples of different ways by which

 2   larceny can be accomplished, including takings of property both without consent, e.g., by

 3   threatened force, and with consent, e.g., by fraud. One example of a taking without consent is

 4   extortion, defined as “obtain[ing] property . . . by means of instilling . . . fear [of] physical injury,”

 5   id. § 53a-119(5). One example of a taking with consent is obtaining property by false promise,

 6   defined as “obtain[ing] property . . . pursuant to a scheme to defraud,” id. § 53a-119(3).

 7           This Court first considered a Connecticut larceny offense in Abimbola v. Ashcroft, 378

 8   F.3d 173, 176-80 (2d Cir. 2004). That decision ruled that a Connecticut conviction for larceny in

 9   the third degree in violation of C.G.S. § 53a-124 was an aggravated felony. (In Connecticut, all

10   degrees of larceny use the definition of larceny in C.G.S. § 53a-119, and are distinguished

11   primarily only by the value of the property taken. See id. §§ 53a-122, 53a-123, 53a-124, 53a-125,

12   53a-125a, 53a-125b.) However, Abimbola did not consider the argument, advanced by

13   Bastian-Mojica, that larceny in Connecticut is not a theft aggravated felony because it includes

14   takings of property both without and with consent, nor the related distinction, subsequently made

15   by the BIA in Garcia-Madruga, between theft and fraud offenses. We next considered a

16   Connecticut larceny offense in Almeida v. Holder, 588 F.3d 778, 783-87 (2d Cir. 2009). That

17   decision ruled that a Connecticut conviction for larceny in the second degree in violation of C.G.S.

18   § 53a-123 was an aggravated felony, but, like Abimbola, did not consider arguments based on the

19   distinction between takings of property both without and with consent, nor the BIA’s distinction in

20   Garcia-Madruga between theft and fraud offenses. Garcia-Madruga, decided in 2005, was not

21   cited in Almeida.

22           Moreover, the BIA has treated Connecticut’s larceny offense inconsistently. For example,

23   the BIA ruled in In re Lopes, 2017 WL 1230043, *3 (BIA Feb. 15, 2017) (unpublished), a case

24   arising within the jurisdiction of the First Circuit, that a Connecticut conviction for larceny in the

25   third degree was not an aggravated felony, and more recently ruled in In re Mitchell, ___ WL ___,


                                                         4
 1   at _ (BIA June 30, 2017) (unpublished), a case arising within the jurisdiction of the Second Circuit,

 2   that Connecticut convictions for larceny in the third and fourth degree were aggravated felonies. In

 3   Mitchell, the BIA understandably felt obliged to follow Abimbola and Almeida. Now that the BIA

 4   will be alerted by this Order to the fact that we do not consider those decisions to have adjudicated

 5   the claim that Bastian-Mojica makes in the pending case, it will be free upon remand to consider

 6   his claim anew. Specifically, the BIA will explain whether it considers Connecticut’s larceny

 7   offense to be categorically an aggravated felony theft offense in light of the Board’s distinction

 8   between theft and fraud.

 9          Accordingly, we GRANT the petition, VACATE the BIA’s decision, and REMAND for

10   further proceedings consistent with this order.

11                                                 FOR THE COURT:
12                                                 Catherine O’Hagan Wolfe, Clerk




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