CA11 on Theft, Fraud, Consent...and Inconsistent BIA Rulings: Vassell v. U.S. Atty. Gen.

Vassell v. U.S. Attorney General, June 13, 2016 - "The Board of Immigration Appeals (BIA) ruled that Winsome Vassell is deportable because she pleaded guilty to “theft by taking” in violation of Georgia Code § 16-8-2. Mrs. Vassell has filed a petition for review saying that this crime is not “a theft offense” as that term is used in the Immigration and Nationality Act’s (INA) list of grounds for deportation. Whether a state theft conviction is “a theft offense” for the INA turns on whether the state offense contains the elements of the generic definition of theft. Mrs. Vassell says Georgia “theft by taking” doesn’t require property to be taken “without consent,” as is required for generic theft. The BIA initially took this view too, so it ruled that Mrs. Vassell’s § 16-8-2 violation was not “a theft offense.” The BIA had held the same about § 16-8-2 in cases before Mrs. Vassell’s, and it has continued to do so after. But after its initial ruling, a BIA official granted a motion to reconsider in Mrs. Vassell’s case and ruled the second time around that the crime is generic theft. Mrs. Vassell’s appeal therefore requires us to consider how to treat inconsistent rulings by the BIA on the same question presented in different cases. The government defends the BIA’s last ruling in Mrs. Vassell’s case, though it concedes nearly everything that we need to know to decide this view is wrong. First, the government concedes that generic theft contains a “without consent” element. The government also concedes that the Georgia offense “criminalizes the conduct of obtaining another’s property by consent fraudulently obtained.” All the government disputes is whether theft based on taking property through fraudulently obtained consent is “without consent.” This isn’t much of an open question though, because the BIA answered no to it years ago in a published opinion. We thus grant Mrs. Vassell’s petition."

[Hats off to Benjamin Osorio!]