Offense
Theft (petty or grand)
Section 484 provides the definition for PC 487 and 490, including when the offenses appear at 666, 666.1. This section will refer to “PC 484” to mean any of these offenses.
Aggravated Felony (AF)
PC 484/487 is extremely useful because it can take a year or more without becoming an AF as theft. It also can take a loss to the victim/s exceeding $10k without becoming an AF as fraud or deceit.
But PC 484 cannot take both 1 yr and loss > $10k on a single count. Where both factors are present, get expert help to craft a plea, probably to multiple offenses, and see Advice.
Crime Involving Moral Turpitude (CIMT)
A current plea to 484 is a CIMT. To avoid a CIMT, consider PC 459, 529(a)(3), 530.5 (which all can take 1 year without becoming an AF), or PC 496, VC 10851 (which cannot).
For past convictions, there is a strong argument that a 484 conviction from between approximately 1998 until November 16, 2016 is not a CIMT, although unfortunately it will require an en banc Ninth Circuit decision to apply this. See discussion of Silva v. Barr. Because there is not yet precedent, advocates should act conservatively and not file affirmative applications based upon the argument, although they should assert it as a defense to removal proceedings. Defenders evaluating a client’s priors can consider this possibility in the analysis.
Other Removal Grounds
No.
Advice and Comments
Advice: Note that while PC 484 has some advantages, if the client entered the U.S. without being “admitted,” any 484 offense will subject them to LRA mandatory detention without bond. See Mandatory Detention, LRA, below.
A 484 conviction is not an AF if either a 1 yr sentence was imposed, or the loss to the victim/s exceeded $10k (but not both; see below).
This plea is safe to avoid AF regardless of whether D specified theft, fraud, or neither one in the ROC. But to further protect D, who may be unrepresented in proceedings where immigration authorities are not familiar with the law on PC 484, the best practice is to try to create an ROC that shows the following:
- If 1 yr will be imposed, but loss to victim/s does not exceed $10k, plead to a specific fraud offense in 484.
- If loss to victim/s exceeds $10k, but 1 year will not be imposed, plead to a specific theft offense in 484.
- If a specific plea is not possible, create a sanitized ROC that is vague as to whether theft or fraud was involved.
But again, if all of the above failed, as a matter of law, under the categorical approach, D still does not have an aggravated felony because the statute is not divisible between theft and fraud. The goal of the above instructions is just to make things very clear to immigration authorities.
Why does this work? Authorities recognize that fraud (taking by deceit, with consent) is an AF if loss to the victim/s exceeds $10k, but not if 1 yr is imposed. 8 USC 1101(a) (43)(M). Thus, embezzlement or other 484 deceit offense with a year imposed is not an AF, as long as there is no $10k loss. Theft (taking by stealth, without consent) is an AF if 1 yr or more is imposed on a single count, but not if loss to victim/s exceeds $10k. 8 USC 1101(a)(43)(G). Thus, stealing or other 484 theft can take a loss exceeding $10k, as long as sentence is less than 1 yr. However, a single count cannot take both loss exceeding $10k and sentence of 1 yr or more. See federal court and BIA cases.1The Ninth Circuit held that no conviction of Pen C § 484/487 theft is an AF as “theft” even if a 1-year sentence is imposed, because the § 484 definition also includes fraud, which does not become an AF if 1 year is imposed, and § 484 is not divisible between theft and fraud. See Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015), and see ILRC, How to Use the Categorical Approach Now (2021) for more information on divisibility. Also, section 484/487 is not an AF as fraud even if loss to the victim/s exceeds $10,000.
However, do not permit both a sentence or a year or more and admission, order of restitution, or other evidence of loss to the victim/s exceeding $10,000 to settle on a single count of § 487, or the conviction will be deemed an AF. See Matter of Reyes, 28 I&N Dec. 52 (A.G. 2020) and see IDP, ILRC, NIPNLG Practice Alert: Matter of Reyes (August 2020) at https://www.ilrc.org/practice-alert-matter-reyes-28-dec-52-ag-2020 .
The BIA similarly finds that theft and fraud are different offenses, and that they require different factors to become an aggravated felony (sentence of a year or more for theft, loss to victim/s exceeding $10,000 for fraud). See discussion of the distinction between theft and fraud in Matter of Garcia-Madruga, 24 I&N Dec. 436, 440 (BIA 2008), citing Soliman v. Gonzales, 419 F.3d 276, 282-284 (4th Cir. 2005). The Ninth Circuit recognizes this distinction. See Carlos-Blaza v. Holder, 611 F.3d 583 (9th Cir. 2010); Carrillo-Jaime v. Holder, 572 F.3d 747, 752 (9th Cir. 2009), and regarding Pen C § 484, U.S. v. Rivera, 658 F.3d 1073, 1077 (9th Cir. 2011) (noting that Pen C §§ 484(a) and 666 is not categorically a theft aggravated felony because it covers offenses that do not come within generic theft, such as theft of labor, false credit reporting, and theft by false pretenses) and Garcia v. Lynch, 786 F.3d 789, 794-795 (9th Cir. 2015) (if specific theory of theft under Pen C §§ 484, 487 is not identified, a sentence of one year or more does not make the offense an aggravated felony; court did not reach the issue of whether the statute is divisible between different theories of theft).
Note on loss exceeding $10k: Officials are not limited by the categorical approach, and to some extent can use evidence from outside the ROC, to prove the $ amount of loss. If one must plead to an offense involving fraud or deceit where the loss actually exceeded $10k, and/or where restitution of more than $10k is ordered, see discussion at PC 470 for how to control the record. But the most secure way to avoid the $10k problem is the one described above: plead to PC 484-type theft offense, rather than fraud or deceit, so that the amount of loss is irrelevant.
LRA Mandatory Detention: If client D was not “admitted” to the U.S ., any conviction or pending charge for this offense will trigger mandatory detention without bond under LRA. To avoid LRA, have this charge dropped and plead to a non-theft offense (e.g., 32, 415, 594, 602) or if that is not possible, to 496, 530.5, or 10851 – ICE may argue that these trigger LRA as well, but there are at least good arguments that they do not. See advice on PC 496 and explanation of mandatory detention in the Overview. (Note that people not admitted to U.S. also are subject to MD if they are inadmissible for crimes, and people admitted to the U.S. are subject to MD if they are deportable for certain crimes. See advice on Mandatory Detention.)
SB54: As a straight misdemeanor (loss under $950), law enforcement notification / transfer to ICE is not permitted for PC 484/, 487. Felony convictions for 487 and 490 permit law enforcement cooperation with ICE for 15 years and 5 years for misdemeanors. See SB 54 advisory at www.ilrc.org/crimes-summaries.