18-2755 Santana v. Barr 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2019 5 6 (Submitted: April 17, 2020 Decided: September 18, 2020) 7 8 Docket No. 18-2755-ag 9 10 _____________________________________ 11 12 ANDRES LUIS SANTANA, 13 14 Petitioner, 15 16 v. 17 18 WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, 19 20 Respondent. 21 _____________________________________ 22 23 Before: 24 25 LIVINGSTON, Chief Judge, LOHIER, and NARDINI, Circuit Judges. 26 27 This appeal involves a petition for review of a decision by the Board of 28 Immigration Appeals (“BIA”) affirming an order of removal of Andres Luis 29 Santana to the Dominican Republic. The BIA determined that Santana’s 30 conviction for third-degree criminal possession of stolen property in violation 31 of New York Penal Law § 165.50 is an aggravated felony offense under 8 32 U.S.C. § 1101(a)(43)(G), even though the stolen property need not have been 33 stolen by means of “theft,” as generically defined in the Immigration and 34 Naturalization Act, and even though the state statute of conviction does not 35 explicitly require an intent to deprive the owner of the property. We defer to 36 the BIA’s construction of the phrase “including receipt of stolen property” in 37 § 1101(a)(43)(G) to refer to an offense distinct from a theft offense, and we 38 DENY the petition for review. 1 Nicholas J. Phillips, Prisoners’ Legal Services of New 2 York, Buffalo, NY; Timothy Sun, Richard W. Mark, 3 Luke A. Dougherty, Gibson, Dunn & Crutcher LLP, 4 New York, NY, for Petitioner Andres Luis Santana. 5 6 Colin J. Tucker, Melissa K. Lott, Trial Attorneys, 7 Song Park, Acting Assistant Director, Office of 8 Immigration Litigation, for Jeffrey B. Clark, Acting 9 Assistant Attorney General, Civil Division, United 10 States Department of Justice, Washington, D.C., for 11 Respondent William P. Barr, United States Attorney 12 General. 13 14 LOHIER, Circuit Judge: 15 Andres Luis Santana petitions for review of a decision of the Board of 16 Immigration Appeals (“BIA”) ordering him removed from the United States 17 for having been convicted of an aggravated felony under 8 U.S.C. 18 § 1101(a)(43)(G), which codifies a provision of the Immigration and 19 Naturalization Act (“INA”). The question on appeal is whether the BIA erred 20 in concluding that Santana’s conviction for criminal possession of stolen 21 property in the third degree, in violation of New York Penal Law § 165.50, 22 was an aggravated felony rendering him removable under 8 U.S.C. 23 § 1101(a)(43)(G). The BIA concluded that a conviction under Penal Law 24 § 165.50 is a removable aggravated felony even though the stolen property at 25 issue may be obtained with the rightful owner’s consent, and § 165.50 does 26 not explicitly contain an intent to deprive element. 2 1 For the following reasons, we DENY the petition for review. 2 BACKGROUND 3 Santana was born in the Dominican Republic and admitted to the 4 United States as a lawful ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals