GARCIA-MADRUGA

Cite as 

 (BIA 2008)                                 Interim Decision #3596




Matter of Liduina De Fatima GARCIA-MADRUGA, Respondent
                              File A30 971 002 - Boston

                              Decided January 17, 2008

                             U.S. Department of Justice
                      Executive Office for Immigration Review
                          Board of Immigration Appeals

(1) A “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G)
  of the Immigration and Nationality Act, 

(a)(43)(G) (2000), ordinarily
  requires the taking of, or exercise of control over, property without consent and with the
  criminal intent to deprive the owner of the rights and benefits of ownership, even if such
  deprivation is less than total or permanent. Matter of V-Z-S-, 

 (BIA
  2000), clarified.

(2) The respondent’s welfare fraud offense in violation of section 40-6-15 of the General
  Laws of Rhode Island is not a “theft offense” under section 101(a)(43)(G) of the Act.

FOR RESPONDENT: John H. Ruginski, Jr., Esquire, Providence, Rhode Island

BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.

PAULEY, Board Member:


   In a decision dated August 21, 2007, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 

(a)(2)(A)(iii) (2000), as an alien convicted
of an aggravated felony “theft offense” for which the term of
imprisonment was at least 1 year under section 101(a)(43)(G) of the Act,

(a)(43)(G) (2000). The Immigration Judge also incorporated
a separate decision denying the respondent’s motion to terminate the
proceedings. The respondent has appealed from the Immigration Judge’s
decision. The Department of Homeland Security (“DHS”) has not filed a brief
in this matter.1 The respondent’s appeal will be sustained, and the proceedings
will be terminated.



1
    The DHS did, however, submit a brief on the issue before the Immigration Judge.



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             I. FACTUAL AND PROCEDURAL HISTORY
   The record reflects that the respondent was convicted on March 31, 2006,
of welfare fraud in violation of section 40-6-15 of the General Laws of Rhode
Island, for which she was sentenced to a 5-year term of imprisonment. That
statute provides as follows:
      Any person who by any fraudulent device obtains, or attempts to obtain, or aids or
      abets any person to obtain public assistance, pursuant to this chapter, to which he or
      she is not entitled, or who willfully fails to report income or resources as provided in
      this chapter, shall be guilty of larceny and, upon conviction thereof, shall be punished
      by imprisonment of not more than five (5) years or by a fine of not more than one
      thousand dollars ($1,000) or both, if the value of the public assistance to which he or
      she is not entitled shall exceed five hundred dollars ($500), or by imprisonment by
      less than one year or by a fine of not more than five hundred dollars ($500) or by
      both, if the value of the public assistance to which he or she is not entitled shall not
      exceed five hundred dollars ($500).

   The conviction record reflects that the respondent was found guilty under
that portion of the above statute that criminalizes fraudulently obtaining, or
attempting to obtain, public assistance to which she was not entitled. Citing
Matter of V-Z-S-, 

 (BIA 2000), the Immigration Judge
concluded that the respondent’s offense of welfare fraud qualified as an
aggravated felony under section 101(a)(43)(G) of the Act.

                                       II. ISSUE
   On appeal, the respondent contends that the Immigration Judge erred in
finding that her Rhode Island welfare fraud offense fits within the definition
of a “theft offense” as contemplated by section 101(a)(43)(G) of the Act. She
asserts that the offense defined by the portion of the statute under which she
was convicted–obtaining, or attempting to obtain, or aiding or abetting any
person to obtain, public assistance to which she is not entitled, by fraudulent
device–is not a “theft offense.” She argues that it represents instead a separate
and distinct aggravated felony, i.e., “an offense that involves fraud or deceit”
under section 101(a)(43)(M)(i) of the Act.2




2
  An aggravated felony under section 101(a)(43)(M)(i) of the Act is defined as an offense
that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.


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                                   III. ANALYSIS
   In Matter of V-Z-S-, supra, we addressed the question of what constitutes
a “theft offense” for purposes of section 101(a)(43)(G) of the Act and
concluded, after an exhaustive analysis of relevant authorities, that “a taking
of property constitutes a ‘theft’ whenever there is criminal intent to deprive the
owner of the rights and benefits of ownership, even if such deprivation is less
than total or permanent.” Id. at 1346. Our focus in that case was not,
however, on the meaning of a “taking” and whether theft could overlap with
fraud, but on whether the deprivation must be permanent.3 Specifically, we
examined, among other things, Federal laws, State statutes, decisions of
several Federal courts of appeals, and section 223.2(1) of the Model Penal
Code, defining “theft.” However, we did not consider whether a conviction
under the adjoining section of the Model Penal Code, entitled “Theft by
Deception,” would represent a “theft offense.” See Model Penal Code § 223.3.
   Our decision in Matter of V-Z-S-, supra, has been well received by the
Federal courts. Moreover, in the wake of Matter of V-Z-S-, every Federal
court of appeals to have addressed the meaning of “theft offense” under
section 101(a)(43)(G) has determined that it necessarily includes the
requirement that the property have been obtained from its owner “without
consent.” See Burke v. Mukasey, No. 06-60710, 

 (5th
Cir. Dec. 10, 2007) (per curiam) (involving a conviction for criminal
possession of stolen property); Abimbola v. Ashcroft, 

 (2d
Cir. 2004) (involving a conviction for larceny); Nugent v. Ashcroft, 

 (3d Cir. 2004) (involving a conviction for theft by deception for
having passed a bad check); United States v. Corona-Sanchez, 

 (9th Cir. 2002) (en banc) (involving a conviction for petty theft of
cigarettes and beer); United States v. Vasquez-Flores, 

(10th Cir. 2001) (involving a conviction for attempting to knowingly receive
or transfer a stolen motor vehicle); Hernandez-Mancilla v. INS, 

 (7th Cir. 2001) (involving a conviction for possession of a stolen
motor vehicle). The Supreme Court has also observed with apparent approval
that “[t]he Ninth Circuit, like other Circuits and the BIA, accepted as a 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, 

 (2007)
(quoting Penuliar v. Gonzales, 

 (9th Cir. 2006)). Other than

3
 We note that the statute involved in Matter of V-Z-S-, supra, specifically required a taking
“‘without the consent of the owner.’” Id. at 1347 (quoting section 10851 of the California
Vehicle Code).

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Nugent v. Ashcroft, supra, however, none of these cases addressed whether
fraud crimes may also be encompassed in the definition of theft.
   In contrast, the Fourth Circuit examined the interplay between a “theft
offense” and “an offense that involves fraud” in Soliman v. Gonzales, 

 (4th Cir. 2005).4 The alien in that case was convicted of the fraudulent use
of a credit card for having misrepresented that she was the holder of a credit
card, without the card holder’s consent, to obtain property in excess of $200.
Like the respondent, the alien argued that she was not convicted of a “theft
offense” under section 101(a)(43)(G) of the Act but, rather, a “fraud” offense
covered by section 101(a)(43)(M)(i). The court noted our unpublished order
in that case, in which we agreed with the alien that her offense “‘by its terms,
involves fraud,’” but nonetheless found that the theft and fraud provisions of
sections 101(a)(43)(G) and (M)(i) were not mutually exclusive and that “‘a
crime which involves fraud may also involve theft.’” 

 at 279 (quoting the
Board’s decision). After determining that the plain text of section 101(a)(43)
shows that Congress specifically distinguished fraud from theft, and that it
meant for the two offenses to be treated differently, the court examined the
Black’s Law Dictionary definition of each from several editions, concluding
as follows:
      When a theft offense has occurred, property has been obtained from its owner
      “without consent”; in a fraud scheme, the owner has voluntarily “surrendered” his
      property, because of an “intentional perversion of truth,” or otherwise “act[ed] upon”
      a false representation to his injury. The key and controlling distinction between these
      two crimes is therefore the “consent” element–theft occurs without consent, while
      fraud occurs with consent that has been unlawfully obtained.




4
   In Nugent v. Ashcroft, supra, the Third Circuit likewise considered the relationship
between a section 101(a)(43)(G) “theft offense” and a section 101(a)(43)(M)(i) “offense
involving fraud or deceit.” The court found that Pennsylvania’s theft by deception statute
fell under section 101(a)(43)(G) as a “theft offense,” but also was in the nature of an offense
based on fraud or deceit under section 101(a)(43)(M)(i). Id. at 176-79. The court further
held that, for such a “hybrid” offense consisting of both a theft and a fraud crime, the
elements of both needed to be satisfied before an alien would be removable. See also
Valansi v. Ashcroft, 

, 213 n.8 (3d Cir. 2002) (“The fact that the BIA classified
embezzlement as . . . a theft offense under § 1101(a)(43)(G) does not mean that it could not
also classify it as an offense involving fraud or deceit under § 1101(a)(43)(M)(i)”).
However, to date, the Third Circuit has not identified another “hybrid” offense occasioning
application of Nugent v. Ashcroft, supra. See, e.g., Bobb v. Att’y Gen. of U.S., 

(3d Cir. 2006) (distinguishing Nugent v. Ashcroft).


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Id. at 282. Thus, the court held that the alien’s crime would not qualify as an
aggravated felony “theft offense” under section 101(a)(43)(G) of the Act under
the “modified” categorical approach, as the indictment underlying the alien’s
conviction for credit card fraud did not charge that she had actually obtained
any property from the cardholder or taken goods without the consent of the
merchant.
   In sum, the Federal courts of appeals’ analysis of theft offenses under
section 101(a)(43)(G) of the Act requires that the stolen property be obtained
from its owner “without consent,” and the courts have read Matter of V-Z-S-,
supra, to include this element as well. We believe the courts’ interpretation
of Matter of V-Z-S- is correct, since the natural reading of the definition we
adopted there, i.e., that there must be a “taking” of property (as opposed, e.g.,
to an acquiring of property), is that the property must be obtained “without
consent.”
   We therefore find that we are in substantial agreement with Soliman v.
Gonzales, supra, that the offenses described in sections 101(a)(43)(G) and
(M)(i) of the Act ordinarily involve distinct crimes. Whereas the taking of
property without consent is required for a section 101(a)(43)(G) “theft
offense,” a section 101(a)(43)(M)(i) “offense that involves fraud or deceit”
ordinarily involves the taking or acquisition of property with consent that has
been fraudulently obtained.5 Accordingly, we now refine the definition in
Matter of V-Z-S-, supra, to clarify that a theft offense within the meaning of
section 101(a)(43)(G) consists of the taking of, or exercise of control over,
property6 without consent whenever there is criminal intent to deprive the

5
  However, the definition in Soliman v. Gonzales, supra, of a fraud offense is not before us,
and we need not decide whether it is sufficiently inclusive. That is, we do not discount the
possibility that the theft and fraud aggravated felony compartments are not watertight such
that certain crimes, like the theft by deception offense at issue in Nugent v. Ashcroft, supra,
may constitute both a theft offense and one “involv[ing] fraud.” See Valansi v. Ashcroft,
supra (holding that the elements of an offense that “involves fraud” need not be coextensive
with a crime of fraud); see also Conteh v. Gonzales, 

 (1st Cir. 2006) (same). That
does not mean, however, that we subscribe to the Nugent court’s holding that in such an
instance the elements of both aggravated felony branches must be demonstrated. Nor need
we determine in this case the precise meaning of “consent,” for example, whether it applies
to consent induced by coercion. See 

(b)(2) (2000).
6
   The language “exercise of control” does not come from Matter of V-Z-S-, but we
incorporate it inasmuch as the Supreme Court in Gonzales v. 

employed that phrase in summarizing the theft definition adopted by the courts of appeals
and the Board. Presumably, the “exercise of control” formulation is designed to better
capture the concept of an indirect “taking” or a situation where the owner originally
relinquished the property on a consensual, nonfraudulently induced basis (e.g., where it was
                                                                               (continued...)

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owner of the rights and benefits of ownership, even if such deprivation is less
than total or permanent.

                                 IV. CONCLUSION
   We conclude that the respondent’s offense of welfare fraud under section
40-6-15 of the General Laws of Rhode Island does not constitute the taking of,
or exercise of control over, property without consent and with the criminal
intent to deprive the owner of the rights and benefits of ownership. The
respondent has therefore not been convicted of an aggravated felony “theft
offense” as defined in section 101(a)(43)(G) of the Act. Accordingly, the
respondent’s appeal will be sustained, and the proceedings will be terminated.
   ORDER: The appeal is sustained, and the removal proceedings are
terminated.




(...continued)
lent to the offender for a limited time or purpose, but the offender later determined to keep
it for himself).

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