Marlene Jaggernauth v. U.S. Attorney General
2005 U.S. App. LEXIS 28029, 432 F.3d 1346 (2005)
Rule of Law:
When a state criminal statute is divisible, meaning it encompasses some offenses that qualify as aggravated felonies under the Immigration and Nationality Act (INA) and some that do not, a conviction under that statute only constitutes an aggravated felony if the record of conviction clearly, unequivocally, and convincingly establishes that the alien was convicted under the portion of the statute that qualifies as an aggravated felony.
Facts:
- Marlene Jaggernauth lawfully entered the United States on November 18, 1977, at age twelve, and was a lawful permanent resident.
- In April 1997, Jaggernauth pleaded nolo contendere and was convicted of grand theft under Florida Statutes § 812.014(1).
- For the 1997 conviction, Jaggernauth was initially sentenced to probation, and later to six months' imprisonment for a probation violation.
- On May 29, 2001, Jaggernauth again pleaded nolo contendere and was convicted of grand theft under Florida Statutes § 812.014(1).
- Concurrently on May 29, 2001, Jaggernauth was convicted of the misdemeanor offense of resisting a merchant under Florida Statutes § 812.015(6).
- The 2001 Information charging Jaggernauth with grand theft tracked the general language of § 812.014(1) but did not specify whether she was charged under subpart (a) or (b), or whether the alleged deprivation was temporary or permanent.
- For her 2001 grand theft conviction, Jaggernauth was sentenced to a suspended one-year term of imprisonment.
- Jaggernauth has no other convictions beyond these two grand theft convictions and one resisting a merchant conviction.
Procedural Posture:
- On January 16, 2003, the Immigration and Naturalization Service (INS) instituted removal proceedings against Marlene Jaggernauth based on her 1997 and 2001 grand theft convictions.
- The INS charged Jaggernauth was removable as an alien convicted of an aggravated felony (8 U.S.C. § 1227(a)(2)(A)(iii)) and separately as an alien convicted of two crimes involving moral turpitude (8 U.S.C. § 1227(a)(2)(A)(ii)).
- An Immigration Judge (IJ) ordered Jaggernauth removed and deported, finding her removable on both grounds charged by the INS.
- Jaggernauth timely appealed the IJ’s decision to the Board of Immigration Appeals (BIA).
- On November 14, 2003, the BIA dismissed Jaggernauth's appeal, affirming the IJ’s conclusion that she was an aggravated felon and upholding the removal order; the BIA did not address the moral turpitude ground.
- On December 13, 2003, Jaggernauth filed a timely motion to reconsider the November 14, 2003, BIA order.
- On January 21, 2004, the BIA granted Jaggernauth’s motion for reconsideration but upheld and affirmed its November 14, 2003, order, without changing the legal basis, and again did not address the moral turpitude issue.
- On December 12, 2003, Jaggernauth filed a petition for review of the BIA’s November 14, 2003, order of removal with the United States Court of Appeals for the Eleventh Circuit; the government subsequently moved to dismiss the appeal for lack of jurisdiction.
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Issue:
Does a conviction for grand theft under Florida Statutes § 812.014(1) necessarily constitute an "aggravated felony" under INA § 101(a)(43)(G) (8 U.S.C. § 1101(a)(43)(G)), thereby subjecting an alien to removal, when the Florida statute is divisible and the record of conviction does not clearly indicate the specific intent element found by the convicting court?
Opinions:
Majority - Per Curiam
No, a conviction for grand theft under Florida Statutes § 812.014(1) does not necessarily constitute an aggravated felony under the INA, because the statute is divisible and the record of conviction in Jaggernauth's case did not clearly establish the requisite criminal intent for an aggravated felony. The court first addressed jurisdiction, holding that it retained jurisdiction to review the Board of Immigration Appeals (BIA)'s November 14, 2003, final order of removal, as the BIA's subsequent grant of reconsideration on January 21, 2004, which affirmed and upheld the original order without substantive change, did not disturb the original order's finality for judicial review purposes, consistent with Stone v. INS. Turning to the merits, the court noted that the INA defines an "aggravated felony" to include a "theft offense" for which the term of imprisonment is at least one year. The BIA has defined "theft" as a taking of property with the criminal intent to deprive the owner of rights and benefits of ownership, even if less than total or permanent. The Florida grand theft statute, § 812.014(1), is interpreted by Florida courts as providing two distinct standards of intent: (a) intent to deprive the owner of a right or benefit to the property, and (b) intent to appropriate the property to one's own use. Because subpart (b) does not necessarily involve the intent to "deprive the owner of the rights and benefits of ownership," the court concluded that § 812.014(1) is a divisible statute. Therefore, the fact of conviction and statutory language alone are insufficient to establish by "clear, unequivocal, and convincing evidence" that Jaggernauth's conviction qualified as an aggravated felony. The court found that the record of conviction (Information, plea, judgment, sentence) did not provide this clear evidence, as the Information was disjunctive and referenced the general statute without specifying subpart (a). Furthermore, the BIA erred by relying on Jaggernauth's separate conviction for resisting a merchant, as a separate misdemeanor cannot be combined with another offense to determine if the latter is an aggravated felony, and in any event, the resisting a merchant charge provided no insight into the specific intent for the grand theft conviction. Consequently, the BIA erred in upholding Jaggernauth's removal as an aggravated felon, and the case was remanded for the BIA to consider the alternative ground for removal based on conviction of two crimes of moral turpitude.
Analysis:
This case clarifies the application of the categorical and modified categorical approaches in immigration proceedings when determining if a state conviction constitutes an "aggravated felony" under the INA. It emphasizes that for divisible statutes, a heightened evidentiary standard ('clear, unequivocal, and convincing evidence') must be met by the record of conviction to establish that an alien's specific conduct falls within the INA's definition of an aggravated felony. The ruling prevents immigration authorities from automatically classifying convictions under broadly worded state statutes as aggravated felonies without specific proof of the requisite criminal intent. This decision has a significant impact on aliens facing removal for past criminal convictions, requiring a meticulous examination of state statutes and conviction records, rather than relying on general statutory language or extraneous conviction information.
