Marcel Szczypka v. William Barr

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCEL F. SZCZYPKA, No. 19-71555
Petitioner, Agency No. A089-448-597
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 15, 2020
San Francisco, California
Before: IKUTA and HURWITZ, Circuit Judges, and TAGLE,** District Judge.
Marcel Szczypka, a Polish citizen and lawful permanent resident of the United
States, was convicted of robbery in violation of Nev. Rev. Stat. (“N.R.S.”)
§ 200.380. He was then charged as removable for having committed an “aggravated
felony,” namely, a felony theft offense. See 8 U.S.C. § 1101(a)(43)(G). Szczypka
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Hilda G. Tagle, United States District Judge for the
Southern District of Texas, sitting by designation.
moved to terminate the removal proceedings, arguing that the Nevada conviction
was not a felony theft offense. An Immigration Judge (“IJ”) denied the motion and
ordered Szczypka removed; the Board of Immigration Appeals (“BIA”) dismissed
his appeal. We have jurisdiction to consider Szczypka’s petition for review under 8
U.S.C. § 1252(a) and deny the petition.
We apply the categorical approach to determine whether Szczypka’s Nevada
conviction qualifies as a “theft offense” under 8 U.S.C. § 1101(a)(43)(G). See
United States v. Alvarado-Pineda, 774 F.3d 1198, 1202 (9th Cir. 2014). Under the
categorical approach, the Nevada conviction is a qualifying offense if the elements
of N.R.S. § 200.380 are the same as or narrower than those of a generic federal “theft
offense.” See id. Thus, the analysis requires comparison of the elements of the state
crime to those of the federal generic offense. However, none of Szczypka’s briefing,
either to the agency or this Court, engaged in the required analysis.
Both before the IJ and the BIA, Szczypka argued that the elements of Nevada
robbery under N.R.S. § 200.380 are narrower than the elements of Nevada’s felony
theft and larceny offenses, N.R.S. §§ 205.0832 and 205.240. The BIA, although
expressly noting that “Nevada’s theft and larceny statutes are not at issue here and
are not the appropriate comparison vehicles for determining whether there is a
categorical match,” nonetheless compared the elements of Nevada robbery to the
federal generic crime and found a categorical match. Because the BIA engaged in
2
that analysis, had Szczypka challenged the BIA’s determination that Nevada robbery
was a categorical match for the federal generic theft offense, we would find that his
argument was sufficiently exhausted before the agency. See Rodriguez-Castellon v.
Holder, 733 F.3d 847, 852 (9th Cir. 2013).
But, despite the BIA’s warning, Szczypka’s opening brief in this Court and
his supplemental brief, filed in response to our order that the parties compare the
intent elements of the Nevada and federal generic crimes, persisted in comparing the
Nevada robbery statute to that State’s theft and larceny laws. We therefore find
Szczypka forfeited any argument that the Nevada robbery statute is categorically
broader than the federal generic crime. See Tijani v. Holder, 628 F.3d 1071, 1080
(9th Cir. 2010).1
PETITION FOR REVIEW DENIED.
1
We decline to address Szczypka’s argument that conspiracy to commit
robbery is not a theft offense under 8 U.S.C. § 1101(a)(43)(G). Szczypka was
convicted of robbery under N.R.S. § 200.380, not conspiracy.
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