DIAZ-LIZARRAGA
26 I. & N. Dec. 847 (2016)
Rule of Law:
A theft offense constitutes a crime involving moral turpitude if it involves taking or exercising control over another's property without consent and with an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded.
Facts:
- Guillermo Diaz-Lizarraga is a native and citizen of Mexico and a lawful permanent resident of the United States.
- Diaz-Lizarraga was convicted in 2010, 2012, and 2013 of shoplifting property worth less than $1,000 in violation of section 13-1805(A) of the Arizona Revised Statutes.
- Arizona Revised Statutes section 13-1805(A) defines shoplifting as knowingly obtaining goods with the intent to deprive the owner by various means, including removal without paying, charging to a fictitious person, altering price, transferring goods, or concealment.
- Arizona Revised Statutes section 13-1801(A)(4) defines 'deprive' as withholding property interest either permanently or for so long a time period that a substantial portion of its economic value, usefulness, or enjoyment is lost, or withholding with intent to restore only on payment of reward, or disposing of it so that it is unlikely to be recovered.
Procedural Posture:
- The Department of Homeland Security (DHS) charged Guillermo Diaz-Lizarraga with removability under section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, as an alien convicted of two or more crimes involving moral turpitude.
- An Immigration Judge (IJ) terminated the removal proceedings against Diaz-Lizarraga, concluding that the Arizona shoplifting statute was overbroad relative to the definition of a crime involving moral turpitude because it did not require an intent to 'permanently' deprive the owner.
- The DHS appealed the Immigration Judge’s decision to the Board of Immigration Appeals (BIA).
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Issue:
Is shoplifting in violation of section 13-1805(A) of the Arizona Revised Statutes categorically a crime involving moral turpitude, given that the statute's definition of 'deprive' includes situations where the owner's property rights are substantially eroded, not just permanently lost?
Opinions:
Majority - Pauley, Board Member
Yes, shoplifting under section 13-1805(A) of the Arizona Revised Statutes is categorically a crime involving moral turpitude because its definition of 'deprive' aligns with the updated understanding of what constitutes a substantial taking. The Board of Immigration Appeals (BIA) held that a theft offense is a crime involving moral turpitude if it involves taking another's property without consent and with intent to deprive the owner of property either permanently or under circumstances where property rights are substantially eroded. Historically, the BIA required an intent to 'permanently deprive' to distinguish substantial deprivations from de minimis takings like 'joyriding.' However, modern criminal law, reflected in the Model Penal Code and the majority of state statutes, recognizes that many temporary takings are as culpable as permanent ones when they substantially erode an owner's property rights. Arizona's shoplifting statute, by incorporating the Model Penal Code's definition of 'deprive,' encompasses such substantial deprivations. The BIA reasoned that its prior jurisprudence had become anachronistic and did not adequately distinguish between de minimis takings and more serious temporary takings that vitiate an item's value or usefulness. Therefore, any prior decisions requiring a literal intent to permanently deprive for a theft offense to be a crime involving moral turpitude are overruled, and Arizona's statute meets the revised standard.
Analysis:
This decision significantly updates the BIA's jurisprudence regarding 'crimes involving moral turpitude' (CIMT) in the context of theft offenses. By moving beyond a literal 'intent to permanently deprive' standard to include 'substantial erosion of property rights,' the BIA acknowledges the evolution of modern criminal law and aligns its immigration determinations more closely with how states actually define and prosecute theft. This shift will likely lead to more theft offenses being classified as CIMTs, potentially increasing the number of non-citizens subject to removal for such convictions. It also demonstrates the BIA's willingness to re-evaluate long-standing precedent in light of changing legal landscapes.
