K. A. v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 17-3640
____________
K.A.,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA
____________
On Petition for Review of an
Order of the Board of Immigration Appeals
(A077-026-013)
Immigration Judge: Margaret Reichenberg
____________
Argued: January 14, 2020
Before: HARDIMAN, PORTER, and PHIPPS,
Circuit Judges.
(Filed: May 4, 2021)
____________
Miguel A. Estrada
Matthew S. Rozen [Argued]
GIBSON DUNN & CRUTCHER
1050 Connecticut Avenue, N.W.
Washington, DC 20036
Counsel for K.A.
Allison Frayer [Argued]
Anthony J. Messuri
UNITED STATES DEPARTMENT OF JUSTICE
OFFICE OF IMMIGRATION LITIGATION
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for the Attorney General of the United States
of America
____________
OPINION OF THE COURT
____________
PHIPPS, Circuit Judge.
This petition to review a motion to reopen decade-old
immigration proceedings turns on a single legal issue: whether
a conviction from 2000 for second-degree New Jersey robbery,
see N.J. Stat. Ann. § 2C:15-1, constitutes an aggravated felony
“theft offense” under the Immigration and Nationality Act, as
amended, see 8 U.S.C. § 1101(a)(43)(G). It does. From that
conclusion, everything else falls into place. An aggravated
felony theft offense constitutes a “particularly serious crime.”
2
Id. §§ 1158(b)(2)(B)(i), 1231(b)(3)(B). And commission of
such a crime disqualifies an alien from seeking asylum. See id.
§ 1158(b)(2)(A)(ii). Similarly, a conviction for a particularly
serious crime coupled with a prison sentence of at least five
years, which petitioner received, bars withholding of removal.
See id. § 1231(b)(3)(B)(ii). Because asylum and withholding
are the only forms of relief sought in this case, we will deny
the petition.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 1994, K.A., a citizen of Nigeria, entered the United
States without admission or parole. He settled in New Jersey,
and in 1997, he married a woman who was a United States
citizen. He also began to commit a series of crimes. Those
offenses included second-degree robbery under N.J. Stat. Ann.
§ 2C:15-1 and third-degree possession with intent to distribute
a controlled substance within 1,000 feet of a school under N.J.
Stat. Ann. § 2C:35-7. For the robbery, K.A. received a
sentence of ten years, and for the drug crime, five years. Those
sentences ran concurrently, and K.A. was incarcerated from
2002 until his parole in 2008.
K.A.’s release from custody would only be temporary, as
incarceration became the norm for him over the next decade.
Shortly after his parole, in August 2008, the U.S. Department
of Homeland Security (“DHS”) detained K.A. after it
commenced removal proceedings against him. In 2010,
however, while those proceedings were ongoing, K.A. was
released on bond and began a relationship with a woman who
was not his wife. After they were together for almost a year,
in April 2011, K.A. was pulled over for driving under the
influence in a car rented in her name. A search of that car
3
revealed potential evidence of fraud, and a federal grand jury
in New Jersey later indicted K.A. on multiple counts of using
inmates’ personal information to submit fraudulent tax returns
and receive tax refunds. As a result, K.A. began criminal
pretrial detention in April 2011.
During that time, his immigration proceedings ran their
course. K.A. conceded removability, but still sought asylum,
withholding of removal, and relief under the Convention
Against Torture. He premised those requests for relief on
Decree 33, a Nigerian law that authorized prosecutions for
drug convictions abroad. The Immigration Judge initially
found K.A. ineligible for asylum and withholding due to his
drug conviction but granted him CAT deferral. After DHS
administratively appealed that decision (K.A. did not appeal),
the BIA found error with the CAT deferral analysis and
remanded that issue. On remand, the Immigration Judge
denied CAT deferral. K.A. administratively appealed that
decision but to no avail. The BIA affirmed that ruling and
issued a final order of removal. This Court denied K.A.’s
subsequent petition for review of that final order.
Although he remained in criminal pretrial custody
throughout those removal proceedings, several other
developments occurred. In 2014, Nigeria enacted the Same
Sex Marriage (Prohibition) Act. That law criminalized same-
sex marriage, same-sex cohabitation as sexual partners, as well
as other conduct, such as public displays of same-sex affection.
Also in 2014, K.A. began a sexual relationship with his male
cellmate, and the two had over fifteen sexual encounters until
the cellmate’s release in mid-2015. More than a year later, in
December 2016, and after he had been in criminal pretrial
detention going on six years, K.A. realized that he had “always
4
felt attracted to men” and that his “identity as a bisexual man
[was] permanent.” Affidavit of K.A. (AR156).
Soon after, on January 25, 2017, the federal district court in
New Jersey dismissed K.A.’s criminal charges for lack of a
speedy trial. K.A. was then transferred from criminal custody
to immigration custody pending his removal, which was
scheduled for August 2017. But he never boarded his return
flight.
Shortly before his scheduled departure, on July 28, 2017,
K.A. filed a motion with the BIA to reopen his immigration
proceedings. In that motion, K.A. sought asylum and
withholding of removal. He premised those requests on
changed country conditions in Nigeria (the Same Sex Marriage
(Prohibition) Act) coupled with his changed personal
circumstances (bisexuality). Specifically, he asserted that
under intervening Supreme Court decisions – Moncrieffe v.
Holder, 569 U.S. 184 (2013), and Mathis v. United States,
136 S. Ct. 2243 (2016) – his prior New Jersey drug conviction
no longer qualified as an aggravated felony (and thus it was not
a particularly serious crime). Without that designation, K.A.
argued that he was eligible for asylum and withholding. K.A.
also presented other arguments, including that his
circumstances were exceptional enough that the BIA should
sua sponte reopen his proceedings. Through a supplemental
filing, K.A. requested CAT protection due to his expressed fear
that he “would be subjected to harassment and torture due to
the unfavorable opinion Nigerians hold toward members of the
LGBT community.” Form I-589 at 5 (Aug. 15, 2017) (AR51).
The pendency of K.A.’s motion to reopen did not
automatically stay his removal. He was transported to Arizona
5
for a chartered flight to Nigeria, and while there, shortly before
his scheduled deportation, he moved to stay his removal for the
pendency of his motion to reopen. The BIA denied his request.
K.A. then petitioned for review in both the Third and Ninth
Circuits. Before this Court denied his request, the Ninth
Circuit issued a temporary stay of removal pending a decision
on the stay motion. That court eventually dismissed the
petition for lack of jurisdiction and vacated the temporary stay,
but only after K.A. had returned to immigration custody in
New Jersey instead of boarding the flight to Nigeria.
Almost three months later, the BIA denied K.A.’s motion
to reopen. In that decision, the BIA first determined that K.A.
was ineligible for asylum and withholding. But rather than
assessing whether K.A.’s drug conviction remained a
particularly serious crime under intervening Supreme Court
precedent, the BIA instead examined the significance of K.A.’s
second-degree robbery conviction. And relying on a non-
precedential opinion, the BIA determined that second-degree
robbery in New Jersey ‘“clearly constitutes an aggravated
felony’ theft offense.” BIA Decision at 1 (Nov. 22, 2017)
(AR3) (parenthetically quoting Briolo v. Att’y Gen.,
515 F. App’x 126, 128 n.3 (3d Cir. 2013)). Because an
aggravated felony theft offense is a particularly serious crime,
see 8 U.S.C. §§ 1158(b)(2)(B)(i), 1231(b)(3)(B), the BIA
concluded that K.A. was ineligible for asylum or withholding.
As for K.A.’s request for CAT protection, the BIA determined
that the motion was untimely on the theory that K.A. did not
demonstrate material changes in country conditions. (That
conclusion, if correct, would justify the BIA’s denial of K.A.’s
entire motion to reopen.) The BIA closed its decision with two
summary statements: (i) that K.A. did not make a prima facie
showing of eligibility for any of the relief he requested, and
6
(ii) that K.A. did not establish an exceptional circumstance
warranting sua sponte reopening.
K.A. timely petitioned for review of the BIA’s order while
in immigration detention, bringing the matter within this
Court’s jurisdiction. See 8 U.S.C. § 1252(a)(1). K.A. also
moved for a stay of removal, and this Court granted that
request.
In his briefs, K.A. challenges four aspects of the BIA’s
order denying his motion to reopen. First, he argues that his
robbery conviction is not an aggravated felony theft offense –
a conclusion that would render him eligible for asylum and
withholding. Second, he disputes the BIA’s assessment that
the treatment of LGBT persons in Nigeria had not materially
changed. From there, K.A. asserts that he demonstrated a
prima facie case for asylum and withholding of removal – but
he does not make such an argument for CAT deferral. Finally,
he contends that the BIA erred in declining to sua sponte
reopen his proceedings. After he submitted his opening brief,
K.A. was released on bond from immigration detention.
II. DISCUSSION
Through his petition, K.A. seeks to vacate the BIA’s denial
of his motion to reopen so that he can pursue asylum and
withholding of removal on remand. But if he is ineligible for
those forms of relief, then his petition cannot succeed. He must
therefore prevail on his first argument – that his second-degree
robbery conviction does not disqualify him from asylum and
withholding. However, on de novo review, see Ng v. Att’y
Gen., 436 F.3d 392, 395 (3d Cir. 2006), K.A.’s robbery
conviction constitutes an aggravated felony. And under the
7
circumstances, that bars him from both asylum and
withholding of removal. Because K.A. does not attempt to
make a prima facie case for any other form of relief, such as
CAT deferral, his petition therefore fails.
A. The Federal Generic Theft Offense
In removal proceedings, an alien who has committed a
statutorily identified “aggravated felony,” see 8 U.S.C.
§ 1101(a)(43), is ineligible for certain forms of relief. See
Singh v. Att’y Gen., 839 F.3d 273, 278 (3d Cir. 2016). Because
aggravated felonies constitute particularly serious crimes, see
8 U.S.C. §§ 1158(b)(2)(B)(i), 1231(b)(3)(B), a conviction for
such an offense disqualifies the alien from asylum. See id.§ 1158(b)(2)(A)(ii). Similarly, an aggravated felony that
results in a sentence of at least five years bars the alien from
seeking withholding of removal under both the INA and the
CAT. See id. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2).
As amended, the INA identifies various offenses as
aggravated felonies. One of those is a “theft offense”:
The term “aggravated felony” means . . . 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); see also Immigration and
Nationality Technical Corrections Act of 1994, Pub. L. No.
103-416, sec. 222(a), 108 Stat. 4305, 4321 (adding “theft
offense (including receipt of stolen property)” to the list of
aggravated felonies). Unlike some other aggravated felonies,
“theft offense” does not contain language limiting its scope by
8
“refer[ence] to the specific circumstances in which [the] crime
was committed.” Nijhawan v. Holder, 557 U.S. 29, 38 (2009);
see, e.g., 8 U.S.C. § 1101(a)(43)(K)(ii) (an offense “relating to
transportation for the purpose of prostitution[] if committed for
commercial advantage” (emphasis added)). Instead, due to its
more abstract formulation, the term “theft offense” refers to a
generic formulation of a theft offense, and not any specific
theft crime. See Moncrieffe, 569 U.S. at 190, 198 (considering
“generic” federal offenses “in the abstract”); Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 185 (2007) (finding aiding and
abetting a “theft offense” to fall within the generic definition).
Consistent with that understanding, courts have developed
a definition for a generic theft offense:
[T]he taking of property or an exercise of control
over property without consent with the criminal
intent to deprive the owner of rights and benefits
of ownership, even if such deprivation is less
than total or permanent.
Duenas-Alvarez, 549 U.S. at 189 (quoting Penuliar v.
Gonzales, 435 F.3d 961, 969 (9th Cir. 2006)); see also Lewin
v. Att’y Gen., 885 F.3d 165, 168 (3d Cir. 2018) (observing that
this definition is “an accepted generic definition of a ‘theft
offense’”). As formulated, the generic theft offense consists of
three elements: (i) the taking of property or an exercise of
control over property; (ii) without consent; and (iii) with the
criminal intent to deprive the owner of rights and benefits of
ownership, even if such deprivation is less than total or
permanent.
9
To date, this Circuit has not considered the precise contours
of the second element – the without-consent requirement. And
in this context, the term ‘consent’ is capable of multiple
meanings. It may refer only to assent – the act of agreeing.
See, e.g., Consent, Webster’s Third New International
Dictionary (1993) (definition 1a: “compliance or approval esp.
of what is done or proposed by another: acquiescence,
permission”); Consent, The Random House Dictionary of the
English Language (2d ed. 1987) (“permission, approval, or
agreement; compliance; acquiescence”). But ‘consent’ may
require more than the mere act of agreeing; it may also require
that the assent be voluntary and intelligent. See, e.g., Consent,
Webster’s Third New International Dictionary (1993)
(definition 1b: “capable, deliberate, and voluntary agreement
to or concurrence in some act or purpose implying physical and
mental power and free action – distinguished from assent”). In
articulating the generic theft offense, other circuits have used
the first definition of ‘consent’ – consent as only assent. See
Soliman v. Gonzales, 419 F.3d 276, 282–84 (4th Cir. 2005)
(originating this theory); see also, e.g., Vassell v. Att’y Gen.,
839 F.3d 1352, 1356–59 (11th Cir. 2016); Carrillo-Jaime v.
Holder, 572 F.3d 747, 751–54 (9th Cir. 2009); In re Garcia-
Madruga, 24 I. & N. Dec. 436, 439–41 (B.I.A. 2008). But for
three reasons, the second definition of ‘consent’ – consent as
voluntary and intelligent assent – better fits the definition of a
generic theft offense.
First, statutory text favors the reading of ‘consent’ as
voluntary and intelligent assent. By using the term “theft
offense” – not merely ‘theft’ – in its itemization of aggravated
felonies, see 8 U.S.C. § 1101(a)(43)(G), the INA includes
conduct beyond ‘theft’; it extends to a family of crimes related
to theft. See Hernandez-Mancilla v. INS, 246 F.3d 1002,
10
1008–09 (7th Cir. 2001) (reading the term “theft offense” as
“an umbrella label” that “encompasses a myriad of offenses”);
see also Nugent v. Ashcroft, 367 F.3d 162, 174 (3d Cir. 2004)
(“Congress used the words ‘theft offense’ rather than just
‘theft,’ thus indicating that the phrase ought be read to
incorporate different but closely related constructions in
modern state statutes.” (parenthetically quoting United States
v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en
banc))), overruled on other grounds by Al-Sharif v. U.S.
Citizenship & Immigr. Servs., 734 F.3d 207 (3d Cir. 2013) (en
banc). Similarly, the INA expressly includes “receipt of stolen
property,” as a theft offense, signaling again that the term “theft
offense” should not be limited to a narrow conception of theft.
8 U.S.C. § 1101(a)(43)(G). Also, in terms of impact, a
construction of the without-consent element to mean ‘without
assent’ would exclude a multitude of state-law theft crimes
from the federal generic definition.1 But significantly
1
See, e.g., Lopez-Aguilar v. Barr, 948 F.3d 1143, 1147–49 (9th
Cir. 2020) (holding that third-degree Oregon robbery is not a
theft offense because “a defendant could be convicted if she
threatened force against a third party to compel that third party
to convince a property owner, by deception, to give the
property to the defendant consensually” or “if the taking was
consensual (although deceptive), but force was used against a
third party to prevent that person from retrieving the property
right after it was received by the thief”); Vassell, 839 F.3d at
1359–61 (holding that Georgia theft by taking is not a theft
offense because it does not “require any lack of consent on the
part of the victim”); Mena v. Lynch, 820 F.3d 114, 118–20 (4th
Cir. 2016) (holding that federal receipt of embezzled property
is not a theft offense because “[b]y definition,
11
diminishing the volume of theft-related crimes included within
the federal generic definition of “theft offense” is incompatible
with the INA’s use of the broad term “theft offense.”
Second, the plain and ordinary meaning of ‘theft’ supports
this construction of the without-consent element. At the time
Congress amended the INA to include “theft offenses” as
embezzlement . . . involves property that came into the initial
wrongdoer’s hands with the owner’s consent”); Lopez-
Valencia v. Lynch, 798 F.3d 863, 868 (9th Cir. 2015) (holding
that California theft is not a theft offense because it could be
committed through theft by false pretenses); Castillo v. Holder,
776 F.3d 262, 268–70 (4th Cir. 2015) (holding that Virginia
unauthorized use of a motor vehicle is not a theft offense
because a conviction is possible for “a defendant’s use of a
vehicle in a manner not specifically authorized by its owner,
even if such use is consistent with the owner’s general policy
regarding use, occurs during the period the vehicle is entrusted
to the defendant, and results in no damage to the vehicle”);
Omargharib v. Holder, 775 F.3d 192, 197 n.9 (4th Cir. 2014)
(holding that Virginia grand larceny is not a theft offense
because “under the generic federal definition of ‘theft,’
fraudulent takings do not constitute takings ‘without consent’”
(citation omitted)); Carrillo-Jaime, 572 F.3d at 750–54
(holding that, in California, owning or operating a premises
where any person has engaged in destroying a car or car parts
“known to be illegally obtained by theft, fraud, or conspiracy
to defraud” is not a theft offense because the car or car parts
could be obtained through theft by false pretenses, fraud in the
inducement, or through similar conspiracies to defraud
(citation omitted)).
12
aggravated felonies, the prevailing legal understanding of
‘theft’ described the offense as including the following:
The taking of property without the owner’s
consent or from the possession of some person
holding the same for him, with intent to deprive
the owner of the value of the same, and to
appropriate it to the use or benefit of the person
taking.
Theft, Black’s Law Dictionary (6th ed. 1990) (emphasis
added). See generally Wis. Cent. Ltd. v. United States, 138 S.
Ct. 2067, 2070 (2018) (observing that a court’s “job is to
interpret the words consistent with their ‘ordinary meaning . . .
at the time Congress enacted the statute’” (quoting Perrin v.
United States, 444 U.S. 37, 42 (1979))). This definition of
‘theft’ continued, expressly including within the offense’s
scope “swindling; embezzlement; theft by deception; theft by
threat or extortion; theft by false pretext; and theft of services.”
Theft, Black’s Law Dictionary (6th ed. 1990). But some of
those crimes could not be considered thefts if the without-
consent element meant only ‘without assent,’ as opposed to
‘without voluntary and intelligent assent.’ Similarly, the
Model Penal Code consolidated theft and related offenses into
a single offense. See Model Penal Code § 223.1(1) (1962). In
grouping together related theft offenses as thefts, the Model
Penal Code specifically included categories of theft that could
not be thefts if the without-consent element were read to mean
only ‘without assent.’ Those include theft by unlawful taking
or disposition; theft by deception; theft by extortion; theft of
property lost, mislaid, or delivered by mistake; receiving stolen
property; theft of services; theft by failure to make required
disposition of funds received; and unauthorized use of
13
automobiles and other vehicles. See id. §§ 223.2–223.9. Thus,
when Congress added the term “theft offense” to the INA’s list
of aggravated felonies, the comparatively narrower term,
‘theft’ was understood to include crimes that can be committed
only without ‘voluntary and intelligent assent.’ That is telling,
as it is implausible that without any indication in the statutory
text, Congress intended for the comparatively broader term
“theft offense” to exclude crimes that were generally
understood to be ‘thefts.’
Third, the historical evolution of theft crimes indicates that
the without-consent element now means ‘without voluntary
and intelligent assent.’ Theft originated from common-law
larceny, which occurred “when one person misappropriated
another’s property by means of taking it from his possession
without his consent.” Wayne R. LaFave, 3 Substantive
Criminal Law § 19.1(a) (3d ed. Oct. 2020 update). But over
time, larceny by trick emerged as a common-law offense for
obtaining possession of another’s property through a lie, with
the intention of, and succeeding in, misappropriating that
property. See id. In the eighteenth century, the English
Parliament established the related crime of false pretenses (and
it later recognized embezzlement as well). See id. § 19.1(b).
The Model Penal Code remained true to that tradition by
defining consent to exclude instances in which assent alone
was given. Those circumstances include legal incompetency,
youth, mental disease, intoxication, improvident consent, and
inducement “by force, duress or deception of a kind sought to
be prevented by the law defining the offense.” Model Penal
Code § 2.11(3). Deeply engrained in Anglo-American
jurisprudence is the principle that “an apparent consent is not
effective unless, as a factual matter, it is voluntary and
intelligent.” Charles E. Torcia, 1 Wharton’s Criminal Law
14
§ 46 (15th ed. Aug. 2020 update). It would contravene that
legal heritage to apply a different understanding of consent to
the without-consent element of the federal generic theft
offense.
Nor does anything in the INA’s text or structure undermine
this conclusion. The INA does separately identify offenses
involving “fraud or deceit” as aggravated felonies. See
8 U.S.C. § 1101(a)(43)(M)(i); see also, e.g., Soliman, 419 F.3d
at 282–84 (relying, in part, on this distinction); Vassell, 839
F.3d at 1356–59 (same); In re Garcia-Madruga, 24 I. & N.
Dec. at 439–41 (same). And it may well be that fraud-or-deceit
offenses under the INA require proof of a lack of voluntary-
and-intelligent-assent. But that does not mean that such an
element applies only to fraud-or-deceit offenses. Sitting en
banc, this Court has recognized that the elements of multiple
aggravated felonies can overlap. See Al-Sharif, 734 F.3d at
210 (“Although some of these categories of aggravated
felonies can overlap, each category is separate from the others,
and a particular conviction may constitute an aggravated
felony under multiple sections of [8 U.S.C.]
§ 1101(a)(43).”). Specifically, the elements of the “theft
offense” and the “fraud or deceit” aggravated felonies do
overlap. See id. at 210–12. The same is also true for other
aggravated-felony pairs. See, e.g., Bobb v. Att’y Gen.,
458 F.3d 213, 217–19 (3d Cir. 2006) (explaining that forgery
can be an aggravated felony as either an “fraud or deceit”
offense under § 1101(a)(43)(M)(i) or a “forgery” offense under
§ 1101(a)(43)(R)). Thus, even supposing that fraud-or-deceit
offenses require a lack of voluntary and intelligent assent, that
would not preclude theft offenses from having the same
element.
15
For these reasons, the term ‘consent’ as used in the federal
generic definition of “theft offense” means ‘voluntary and
intelligent assent,’ not merely ‘assent.’ This understanding
embraces the full family of theft-related crimes – an outcome
that is more consistent with the statutory text, the plain and
ordinary meaning of the term ‘theft,’ and the historical legal
conception of consent.
B. The Categorical Approach
The federal generic definition of theft offense establishes
the universe of state-law crimes that qualify as “theft offenses”
under the INA. See 8 U.S.C. § 1101(a)(43)(G). For a state-
law crime to fit within the federal generic definition, the
minimum conduct criminalized by the state-law offense must
categorically match the federal generic definition for that
crime. See Moncrieffe, 569 U.S. at 190; Rosa v. Att’y Gen.,
950 F.3d 67, 73 (3d Cir. 2020). To satisfy that requirement,
the minimum proof required for the state offense must satisfy
each element of the federal generic definition. See Esquivel-
Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017). Making
that determination under the so-called categorical approach
requires a comparison between the elements of the state-law
crime and those of the generic federal offense; the individual
facts associated with the state-law offense committed by the
defendant are immaterial. See Mathis, 136 S. Ct. at 2248.2
2
For certain offenses, specifically those that “list elements in
the alternative, and thereby define multiple crimes,” Mathis,
136 S. Ct. at 2249, courts may “consult a limited class of
documents, such as indictments and jury instructions,”
Descamps v. United States, 570 U.S. 254, 257 (2013), to
16
Applied here, if the minimum proof required for any New
Jersey theft crime does not satisfy each of the elements of the
federal generic theft offense, then that theft crime is not a
categorical match. That is relevant because New Jersey
second-degree robbery – in any of its alternative variations, see
United States v. McCants, 952 F.3d 416, 427 (3d Cir. 2020) –
has commission of a theft crime as a common element. And
thus, for robbery to qualify as an aggravated felony theft
offense under the INA, every New Jersey theft crime must
categorically match the federal generic definition of theft
offense.
C. New Jersey Second-Degree Robbery
Applying the categorical approach here, the inquiry is
whether a conviction for New Jersey second-degree robbery
necessarily meets each element of the federal generic theft
offense. As statutorily defined, second-degree robbery in New
Jersey is premised on the commission of a theft:
A person is guilty of robbery if, in the course of
committing a theft, he:
(1) Inflicts bodily injury or uses force
upon another; or
(2) Threatens another with or
purposely puts him in fear of
immediate bodily injury; or
identify which of those alternatives served as the basis for the
prior conviction.
17
(3) Commits or threatens immediately
to commit any crime of the first or
second degree.
An act shall be deemed to be included in the
phrase “in the course of committing a theft” if it
occurs in an attempt to commit theft or in
immediate flight after the attempt or
commission.
N.J. Stat. Ann. § 2C:15-1(a) (emphasis added).3 As the
statutory text makes clear, although there are three alternative
formulations of New Jersey robbery, they share a common
element: each must occur during the commission of a theft. See
State v. Whitaker, 983 A.2d 181, 190 (N.J. 2009)
(“Committing or attempting to commit a theft is a necessary
element of the crime of robbery.”); State v. Mejia, 662 A.2d
308, 318 (N.J. 1995) (explaining that the New Jersey Code of
Criminal Justice “incorporates theft as an element of robbery”),
superseded by constitutional amendment on other grounds,
N.J. Const. art. I, ¶ 12; see also McCants, 952 F.3d at 425–26
(“[T]he New Jersey robbery statute sets out alternative
elements for sustaining a conviction rather than the means of
committing the offense.”). Thus, it has long been understood
that in New Jersey, “all robberies are thefts.” Mejia, 662 A.2d
at 318; accord State v. Lopez, 900 A.2d 779, 784 (N.J. 2006).
3
In the absence of aggravating circumstances, robbery is
graded as a crime of the second degree. See N.J. Stat. Ann.
§ 2C:15-1(b) (explaining that robbery becomes “a crime of the
first degree if in the course of committing the theft the actor
attempts to kill anyone, or purposely inflicts or attempts to
inflict serious bodily injury, or is armed with, or uses or
threatens the immediate use of a deadly weapon”).
18
When K.A. was convicted of robbery in 2000, New Jersey
recognized eight theft offenses – each of which could form a
basis for robbery. At that time, the New Jersey Code of
Criminal Justice expressly provided that a person who
committed any one of the following offenses was “guilty of
theft”:
(1) Theft by unlawful taking or
disposition, N.J. Stat. Ann. § 2C:20-3;
(2) Theft by deception, N.J. Stat. Ann.
§ 2C:20-4;
(3) Theft by extortion, N.J. Stat. Ann.
§ 2C:20-5;
(4) Theft of property lost, mislaid, or
delivered by mistake, N.J. Stat. Ann.
§ 2C:20-6;
(5) Receiving stolen property, N.J. Stat.
Ann. § 2C:20-7;
(6) Theft of services, N.J. Stat. Ann.
§ 2C:20-8;
(7) Theft by failure to make required
disposition of property received, N.J.
Stat. Ann. § 2C:20-9; and
(8) Computer-related theft, N.J. Stat.
Ann. § 2C:20-25.4
4
Since the time of K.A.’s conviction in 2000, New Jersey has
amended two aspects of its code regarding theft offenses.
Neither of those alters the analysis here. First, in 2003, New
19
Because any of these eight theft crimes could form a basis
for second-degree robbery, they each must satisfy the
categorical approach for robbery to qualify as a “theft offense”
under the INA. They do.
Each of those New Jersey thefts matches the first element
of the federal generic definition of theft offense – the taking of
property or an exercise of control over property. See State v.
Talley, 466 A.2d 78, 81 (N.J. 1983) (“The common unifying
conception in all these [theft offenses] is the ‘involuntary
transfer of property.’” (cleaned up) (quoting Final Report of
the New Jersey Criminal Law Revision Commission, Vol. II:
Commentary (1971), § 2C:20–2, at 216)); accord State v.
Gorman, 185 A.3d 902, 907 (N.J. Super. Ct. App. Div. 2018).
Most of those offenses satisfy this element by explicitly
referencing either the taking of property or the exercise of
control over property. See N.J. Stat. Ann. § 2C:20-3(a), (b)
Jersey changed the denomination of the computer-related theft
crime so that it became a “computer criminal activity” crime,
and not a theft crime. See N.J. Stat. Ann. § 2C:20-25. Second,
in 2008, New Jersey enacted an additional theft crime: removal
of headstones and other markers from gravesites. See id.
§ 2C:20-2.3. That amendment, however, has no bearing on the
INA’s treatment of K.A.’s robbery conviction because the
categorical approach evaluates the range of offenses that could
have served as a basis for the conviction – not conduct
subsequently criminalized. See Moncrieffe, 569 U.S. at 190–
91 (instructing courts to “presume that the conviction rested
upon nothing more than the least of the acts criminalized”
because the categorical approach requires the examination of
“what the state conviction necessarily involved” (internal
quotation, citation, and alterations omitted)).
20
(requiring the taking or exercise of control over movable
property, or the transfer of any interest in immovable
property); id. § 2C:20-4 (requiring the obtaining of property);
id. § 2C:20-5 (requiring the obtaining of property); id.
§ 2C:20-6 (requiring the coming into control of property); id.
§ 2C:20-7 (requiring the receiving or bringing into the state
movable property of another); id. § 2C:20-9 (requiring the
obtaining or retention of property); id. § 2C:20-25 (requiring
the altering, damaging, taking, destroying of, or exercising of
control over computer-related property). Theft of services also
meets this element – not because services are property, but
because it is through services that property in the form of
compensation for those services or entitlement to those
services is unlawfully obtained or diverted. See id. § 2C:20-
8(a), (b).
The second element of the federal generic offense – the lack
of consent – is also satisfied. Several of New Jersey’s theft
crimes satisfy this element under either meaning of consent (as
‘assent only’ or as ‘voluntarily and intelligent assent’). See id.
§ 2C:20-3(a), (b) (unlawful taking, unlawful control over, or
unlawful transfer); id. § 2C:20-5 (unlawful taking); id.
§ 2C:20-7 (knowing that the property of another has been
stolen or believing that it is probably stolen);5 id. § 2C:20-9
5
At a purely theoretical level, it may be possible for a person
to commit the crime of receiving stolen property, see N.J. Stat.
Ann. § 2C:20-7, based on a mistaken belief that abandoned
property was in fact stolen, which could undermine the
without-consent requirement. But the Supreme Court has
admonished courts not to overindulge in “legal imagination”
and instead to focus on whether there is “a realistic probability,
21
(breach of agreement as evidence of lack of consent); id.
§ 2C:20-25 (without or exceeding authorization). Other thefts
may involve the assent of the victim, but not the victim’s
voluntary and intelligent assent. See id. § 2C:20-4 (theft by
deception); id. § 2C:20-6 (lost, mislaid, or delivered under a
mistake is not voluntary and intelligent assent); id. § 2C:20-
8(a), (b) (obtaining services available for compensation using
deception, threat, or fraud to avoid payment; or diverting
services to the benefit of someone not entitled to them). Those
offenses predicate theft on deception or coercion. But, as
explained above, the better understanding of the without-
consent element of the federal generic definition is ‘without
voluntary and intelligent assent.’ And under that construction,
theft crimes predicated on deception or coercion would be
committed without voluntary and intelligent assent – in
satisfaction of this element. See Talley, 466 A.2d at 81
(identifying another “common unifying conception” in theft
offenses as the appropriation of “property of the victim without
not a theoretical possibility, that the State would apply its
statute to conduct that falls outside the generic definition of a
crime.” Moncrieffe, 569 U.S. at 191 (quoting Duenas-Alvarez,
549 U.S. at 193). Such an imagined conflict is particularly
inappropriate for the New Jersey offense of receiving stolen
property because the INA specifically references one offense
of the entire extended family of theft offenses: receipt of stolen
property. See 8 U.S.C. § 1101(a)(43)(G). This reference to a
specific circumstance may render the categorical approach
unnecessary for this state offense. See, e.g., Nijhawan,
557 U.S. at 32–40 (declining to apply the categorical approach
to a monetary threshold in 8 U.S.C. § 1101(a)(43)(M)(i)).
Regardless, the abandoned-property hypothetical is too remote
a possibility to prevent an otherwise categorical match.
22
his consent or with consent obtained by fraud or coercion”
(quoting Final Report of the New Jersey Criminal Law
Revision Commission, Vol. II: Commentary (1971), § 2C:20–
2, at 216)); accord Gorman, 185 A.3d at 907.
All eight New Jersey theft crimes similarly satisfy the third
element of the federal generic theft offense – the criminal intent
to deprive the owner of rights and benefits of ownership (even
if such deprivation is less than total or permanent). For
purposes of the federal generic theft offense, criminal intent
encompasses any “blameworthy” mental state. See Elonis v.
United States, 575 U.S. 723, 734 (2015) (quoting Morissette v.
United States, 342 U.S. 246, 252 (1952)). The New Jersey
Supreme Court has generally recognized that theft is a specific
intent crime. See Lopez, 900 A.2d at 784 (“Theft is a specific
intent crime. It follows that robbery, as an aggravated form of
theft, is a specific intent crime as well.” (citations omitted));
see also Mejia, 662 A.2d at 316 (“Robbery, like larceny and
the equivalent statutory offense of theft, requires proof of the
defendant’s larcenous intent.”). Consistent with that
assessment, each theft crime requires a criminal mental state
among its elements. See N.J. Stat. Ann. § 2C:20-3(a)
(exercises unlawful control over movable property of another
with purpose to deprive him thereof); id. § 2C:20-3(b)
(transfers any interest in immovable property of another with
purpose to benefit himself or another not entitled thereto); id.
§ 2C:20-4 (purposely obtains property of another); id. § 2C:20-
5 (purposely obtains property of another); id. § 2C:20-6
(knowing the identity of the owner and with purpose to deprive
that owner); id. § 2C:20-8(a) (purposely obtains services which
he knows are available only for compensation); id. § 2C:20-
8(b) (knowingly diverts services of another to which he is not
entitled); id. § 2C:20-7 (knowingly receives or brings into the
23
state movable property of another knowing that it has been
stolen or believing that it is probably stolen); id. § 2C:20-9
(purposely obtains or retains property upon agreement or
known legal obligation and fails to make the required payment
or disposition); id. § 2C:20-25 (purposely or knowingly alters,
damages, takes, or destroys computer-related property).
For these reasons, each of the theft crimes that could have
formed a basis for robbery in New Jersey at the time of K.A.’s
offense requires all of the elements of the federal generic theft
offense. As a result, each of those crimes constitutes a “theft
offense” under the INA. See 8 U.S.C. § 1101(a)(43)(G).6
With that conclusion, it follows that K.A.’s conviction for
second-degree robbery necessarily required satisfaction of
every element of the federal generic theft offense. Thus, under
the categorical approach, at the time of K.A.’s conviction in
2000, second-degree robbery in New Jersey qualified as a theft
offense under the INA.
K.A. opposes this conclusion for two reasons, neither of
which prevails. First, he contends that New Jersey robbery is
not a categorical match with the federal generic theft offense
because robbery can be predicated on theft by deception –
which, he submits, can be committed with the victim’s consent.
But that argument rests on the above-rejected premise that, for
purposes of the second element of the federal generic theft
6
This does not mean that these are the only New Jersey crimes
that can satisfy each of the elements of the federal generic theft
offense. See, e.g., N.J. Stat. Ann. § 2C:20-10 (unlawful taking
of means of conveyance). It means only that each of these
predicate thefts for New Jersey robbery is necessarily a theft
offense under the INA.
24
offense, ‘consent’ means only ‘assent.’ Under the correct
understanding – that consent means ‘voluntary and intelligent
assent’ – K.A.’s argument fails because assent gained through
deception is not voluntary and intelligent.
Second, K.A. relies on the unavailability of the claim-of-
right affirmative defense to robbery in New Jersey. Under that
defense, proof that the defendant “[a]cted under an honest
claim of right to the property or service involved or that he had
a right to acquire or dispose of it as he did,” generally operates
as an affirmative defense to a theft prosecution. N.J. Stat. Ann.
§ 2C:20-2(c)(2). K.A. couples that with the New Jersey
Supreme Court’s holding that the claim-of-right affirmative
defense is unavailable for robbery, see Mejia, 662 A.2d at 320,
to contend that a robbery conviction could be based on an
honest-but-mistaken claim of right to property. And if so, K.A.
submits that his robbery offense could have been based on
conduct that would not meet the criminal intent element of the
federal generic definition of theft offense. But K.A.
misconstrues the categorical approach, which considers only
the elements of an offense, and not affirmative defenses. See
Grijalva Martinez v. Att’y Gen., 978 F.3d 860, 867 n.4 (3d Cir.
2020); see also Mathis, 136 S. Ct. at 2248–50 (emphasizing
that the categorical approach focuses on the elements of an
offense). And because affirmative defenses have no role in the
categorical approach, the availability of the claim-of-right
defense for theft but not robbery is inconsequential to whether
the elements of K.A.’s robbery conviction categorically match
those of the federal generic theft offense.
For these reasons, neither of K.A.’s arguments alter the
conclusion that, at the time of K.A.’s conviction, all thefts in
25
New Jersey, and thus second-degree robbery in New Jersey,
categorially matched the federal generic theft offense.
***
When K.A. was convicted of second-degree New Jersey
robbery and received a “term of imprisonment [of] at least one
year,” that crime categorically matched the federal generic
“theft offense.” 8 U.S.C. § 1101(a)(43)(G). His conviction
therefore qualifies as an “aggravated felony.” Id.§ 1101(a)(43). And because K.A. was sentenced to at least five
years in prison for his aggravated felony conviction, he
committed a particularly serious crime for purposes of both
asylum and withholding of removal. See id.
§§ 1158(b)(2)(B)(i), 1231(b)(3)(B)(ii). Accordingly, even if
his case were to be reopened – either based on his motion to
reopen or his claim that the BIA should have sua sponte
reopened the proceedings – K.A. would remain ineligible for
both forms of relief he seeks. We will therefore deny the
petition for review.
26