Ronel Ramos v. U.S. Attorney General
709 F.3d 1066, 2013 WL 599552, 2013 U.S. App. LEXIS 3510 (2013)
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Rule of Law:
A state theft statute is divisible and does not categorically qualify as a 'theft offense' for immigration purposes if it allows for a conviction based merely on an 'intent to appropriate' property, as this intent does not necessarily satisfy the generic federal definition of theft, which requires an 'intent to deprive' the owner of the rights and benefits of ownership.
Facts:
- Ronel Ramos, a lawful permanent resident of the United States and citizen of the Philippines, took three video games from a Costco.
- The Georgia shoplifting statute under which he was charged, Ga. Code Ann. § 16-8-14, criminalizes shoplifting done with one of two alternate intents: either the 'intent of appropriating merchandise to his own use without paying for the same' or the intent 'to deprive the owner of possession thereof.'
- Ramos was specifically charged under the 'intent of appropriating' prong of the statute.
- Ramos pled guilty to the charge of shoplifting.
- He was sentenced to twelve months' imprisonment, to be served on probation.
Procedural Posture:
- The U.S. Attorney General served Ronel Ramos with a notice to appear for removal proceedings.
- An Immigration Judge sustained the charge of removability, finding the shoplifting conviction was an aggravated felony, and ordered Ramos removed.
- Ramos appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA).
- The BIA dismissed Ramos's appeal.
- Ramos petitioned the U.S. Court of Appeals for the Eleventh Circuit for review of the BIA's dismissal.
- Ramos also filed a motion to reconsider with the BIA, which the BIA denied.
- Ramos then filed a second petition with the U.S. Court of Appeals for the Eleventh Circuit to review the BIA's denial of his motion.
- The Eleventh Circuit consolidated the two petitions for review.
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Issue:
Does a conviction under a state shoplifting statute that criminalizes taking merchandise with the 'intent of appropriating [it] to his own use without paying for the same' categorically qualify as a 'theft offense,' and therefore an 'aggravated felony,' under federal immigration law?
Opinions:
Majority - Cox, Circuit Judge
No. A conviction under the Georgia shoplifting statute does not categorically qualify as a 'theft offense' because the statute is divisible, criminalizing conduct that falls outside the generic federal definition of theft. The generic definition of a 'theft offense,' as used in federal immigration law (8 U.S.C. § 1101(a)(43)(G)), requires a 'criminal intent to deprive the owner of rights and benefits of ownership.' The Georgia statute, however, allows for conviction based on two distinct mental states: an intent to deprive or an intent to appropriate. Relying on the court's precedent in Jaggernauth v. U.S. Att’y Gen., the court reasoned that an 'intent to appropriate' merchandise to one's own use does not necessarily include the intent to deprive the owner of their rights and benefits, making that part of the statute broader than the generic federal definition. Because the statute punishes both conduct that is a theft offense and conduct that is not, it is 'divisible.' After determining the statute was divisible, the court examined Ramos's record of conviction, which showed he was charged under the 'intent to appropriate' prong. Since that prong does not meet the generic definition of theft, his conviction is not a 'theft offense' and therefore not an 'aggravated felony' for removal purposes.
Analysis:
This case solidifies the distinction between the mental states of 'intent to appropriate' and 'intent to deprive' within the framework of the categorical approach for determining aggravated felonies in immigration law. The decision reinforces that courts must strictly compare the elements of a state crime to the generic federal definition, and if a state statute is divisible with one prong falling outside the generic definition, a conviction under that statute is not categorically an aggravated felony. It also clarifies the application of the Supreme Court's 'realistic probability' test from Gonzales v. Duenas-Alvarez, holding that the test is satisfied by the plain language of a divisible statute and does not require a showing of specific state court cases applying the statute to non-generic conduct. This provides a clear precedent for immigration practitioners challenging removability based on state theft convictions that lack a specific 'intent to deprive' element.
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