The Board has published a new decision holding that to qualify as a “theft offense” for purposes of determining whether a conviction is an Aggravated Felony, the criminal statute must require an “intent to deprive the owner of rights and benefits of ownership” and that attempted possession of a stolen vehicle under Nevada law did not require an intent to deprive.
Thus, because the criminal statute only required proof that the recipient had a “reason to believe” the property was stolen, that intent was not sufficient to qualify as a “theft offense” and the conviction was not an Aggravated Felony. Matter of Sierra, 26 I&N Dec. 288 (BIA 2014).
Although the decision seems limited to the Nevada statute, it is helpful because it confirms that “theft” requires an actual intent to deprive the owner of possession of his property.
Under the immigration statute, a “theft offense” with a sentence of at least one year is considered an “aggravated felony.” So practitioners must review the criminal statute to determine if the crime is in fact a “theft offense.” If the criminal statute doesn’t require a permanent intent to deprive, then it isn’t technically a “theft offense.”