In a new case decided by the Eleventh Circuit Court of Appeals, the Court held that a retail theft conviction for which the defendant received a sentence of one year imprisonment is not an aggravated felony for immigration purposes. The retail theft charge was filed in Georgia but the Court noted that Georgia’s theft statute is similar to Florida’s so this decision impacts cases in both Georgia and Florida regarding theft convictions.
In general, the Immigration and Nationality Act defines a theft offense for which a sentence of at least one year is imposed as an aggravated felony. Once convicted of an aggravated felony, relief from removal is extremely limited.
Additionally, this case impacts whether a theft offense in Georgia and Florida constitutes a crime involving moral turpitude for immigration purposes. The issue with the theft statutes is that they encompass both an intent to depriveand an intent to appropriate.
To appropriate property of another is not a crime involving moral turpitude. Todeprive someone of their property is. The statutes are divisible meaning that they contain elements that constitute a theft offense and elements that do not. Immigration Judges must look to the record of conviction to determine which elements the defendant admitted to. Usually, this is contained in the “information” or charging document. Almost always, however, the charging document tracks the language of the statute and still a determination cannot be made.
This is an important case law development because the burden of proof is on the Government to prove by clear and convincing evidence that an alien has committed a theft offense if they attempt to deport him. Because a police report is not admissible for this purpose, the Immigration Judge is restricted to the record of conviction which, in many cases, is not dispositive of this issue.
The attorneys at Pozo Goldstein, LLP have extensive experience in this subject matter. The partners are former U.S. Immigration Prosecutors and a former Judge. Seek competent legal representation if you find yourself inremoval proceedings.