United States Court of Appeals For the Eighth Circuit ___________________________ No. 22-2508 ___________________________ Ruachkuoth Wiyual Thok Petitioner v. Merrick B. Garland, Attorney General of the United States Respondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: May 11, 2023 Filed: July 13, 2023 ____________ Before SHEPHERD, STRAS, and KOBES, Circuit Judges. ____________ SHEPHERD, Circuit Judge. Ruachkuoth Wiyual Thok, a native of Sudan and citizen of South Sudan, petitions this Court for review of a Board of Immigration Appeals (BIA) order affirming the immigration judge’s (IJ) decision ordering Thok removed and reversing the IJ’s decision granting Thok deferral of removal to South Sudan. Having jurisdiction under 8 U.S.C. § 1252, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this opinion. I. Thok was admitted into the United States in 2009, and his status was later adjusted to that of a lawful permanent resident in 2012. As relevant to this appeal, Thok was convicted of theft by shoplifting, in violation of Neb. Rev. Stat. § 28-511.01, three separate times in 2010 1 and once in 2017 (each a misdemeanor). Accordingly, the Department of Homeland Security (DHS) initiated removal proceedings against Thok in 2017, charging Thok with removability on two grounds: (1) for being convicted of a felony crime involving moral turpitude within five years of admission, in violation of 8 U.S.C. § 1227(a)(2)(A)(i); and (2) for being convicted of two crimes or more involving moral turpitude, in violation of 8 U.S.C. § 1227(a)(2)(A)(ii).2 DHS later alleged that, in 2018, Thok received another Nebraska theft-by-shoplifting conviction (but this time, a felony), as well as an attempted-terroristic-threatening conviction, in violation of Neb. Rev. Stat. §§ 28-201(4)(D) and 28-311.01. Based on these allegations, DHS charged Thok with removability on two additional grounds: (1) for being convicted of an aggravated felony for a theft offense, in violation of 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(G); and (2) for being convicted of an aggravated felony for a “crime of violence,” in violation of 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(F). 1 The record indicates that one of Thok’s 2010 shoplifting convictions was pursuant to Lincoln, Neb., Mun. Code § 9.24.150. However, the IJ and BIA both identified all three 2010 offenses as violations of Neb. Rev. Stat. § 28-511.01. Because Thok did not challenge this finding before the agency, he does not do so now on appeal, and the matter does not affect the outcome of our decision, we state the facts in accordance with the BIA’s decision. 2 DHS also charged Thok with removability for being convicted of a firearms offense, in violation of 8 U.S.C. § 1227(a)(2)(C), based upon another allegation, but it later withdrew the charge. -2- At a hearing addressing Thok’s removability, the IJ sustained all of DHS’s allegations relevant to this appeal. The IJ then determined that Thok’s 2018 conviction for shoplifting constituted an aggravated felony because it was a theft offense. The …
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