Hayk Arakelyan v. Loretta E. Lynch ( 2015 )

FILED
NOT FOR PUBLICATION SEP 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAYK ARAKELYAN, AKA Levon No. 12-70750
Arakelyan, AKA Mike Arakelyan,
Agency No. A071-113-206
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 14, 2015**
San Francisco, California
Before: TALLMAN and CALLAHAN, Circuit Judges and ROSENTHAL,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.
Hayk Arakelyan, a citizen of Armenia, petitions for review of a Board of
Immigration Appeals (“BIA”) affirmance of an Immigration Judge’s (“IJ”) order
finding Arakelyan removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an aggravated
felon. Arakelyan claims that his conviction for attempting to obtain or possess a
credit card without the cardholder’s consent is not an aggravated theft offense,
because the statute at issue is not a categorical match to the federal definition of a
theft offense. Although we lack jurisdiction to review removal orders against an
alien who is removable because they have been convicted of an aggravated felony,
8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction over questions of law and thus
have jurisdiction to determine if the conviction is an aggravated felony, a question
which we review de novo. 8 U.S.C. § 1252(a)(2)(D); see Estrada-Rodriguez v.
Mukasey, 512 F.3d 517, 519 (9th Cir. 2007). We deny the petition for review.1
1. Arakelyan was convicted of violating NRS § 205.690(2). This statute
criminalizes “possess[ion] [of] a credit card or debit card without the consent of the
cardholder and with the intent to circulate, use, sell or transfer the credit card or
debit card with the intent to defraud.”
1
Because the parties are familiar with the facts and procedural history, we
restate them here only as necessary to explain our decision.
2
To determine whether a state offense is an aggravated felony, we compare
the elements of the state offense with those of the federal definition of the offense
to determine if there is a categorical match. See Taylor v. United States, 495 U.S.
575, 598–602 (1990). If the state statute is not overbroad and has no alternative
elements, then it is a categorical match and there is no need to perform the
modified categorical approach. See Descamps v. United States, 133 S. Ct. 2276,
2283–86 (2013); Taylor, 495 U.S. at 599–602.
An aggravated felony theft offense is “a theft offense (including receipt of
stolen property) or burglary offense for which the term of imprisonment [is] at
least one year.” 8 U.S.C. § 1101(a)(43)(G). The generic federal definition of a
theft offense is “taking of property or an exercise of control over property without
consent with the criminal intent to deprive the owner of [the] rights and benefits of
ownership, even if such deprivation is less than total or permanent.” Huerta-
Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir. 2003).
The Nevada statute matches the generic definition of a theft offense. The
first element, taking of property or exercise of control over property, matches the
element of “possession of a credit card” in the Nevada statute — a person cannot
possess another’s property without necessarily exercising control over the
property. The second element, without consent, is nearly identical in the Nevada
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statute and the generic definition. The third element, criminal intent to deprive the
owner of rights and benefits, is implicit in the Nevada statute. The statute requires
possession of a credit card without the cardholder’s consent and with the intent to
defraud the cardholder, which necessarily includes the intent to deprive the owner
of his rights. See Randhawa v. Ashcroft, 298 F.3d 1148, 1154 (9th Cir. 2002)
(holding that a person who possesses something he or she knows to be stolen
“necessarily intends to deprive the [] true owner of his or her rights and benefits of
ownership.”). Finally, NRS § 205.690(2) is a category D felony, punishable by not
less than one and not more than four years’ imprisonment. This meets §
1101(a)(43)(G)’s definition of a theft offense for which punishment is at least one
year imprisonment. Accordingly, we conclude that Arakelyan’s conviction under
NRS § 205.690(2) is categorically an aggravated felony theft offense under §
1101(a)(43)(G).
2. Arakelyan urges us to follow the Fourth Circuit opinion in Soliman v.
Gonzales, 419 F.3d 276 (4th Cir. 2005), where the court applied the modified
categorical approach to a Virginia credit card theft and fraud statute. However the
Nevada statute, unlike the Virginia statute, does not contain alternative elements
and thus does not allow for the application of the modified categorical approach.
4
Therefore, as the modified categorical approach is not applicable, the Fourth
Circuit’s opinion in Soliman is inapposite.
The petition for review is DENIED.
5