PC 484, 487, 490, 666

PC 484, 487, 490, 666

Offense

Theft (petty or grand)

Section 484 provides the definition for PC 487, 490, and 666. This section will refer to a “PC 484” to mean any of these offenses.

Aggravated Felony (AF)

PC 484 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 before November 16, 2016 is not a CIMT, although unfortunately it will require an en banc decision to confirm this. See discussion of Silva v. Barr.1While PC 484/487 has long been held a CIMT, this might change for some past convictions. The panel in Silva v. Barr, 965 F.3d 724, 731 (9th Cir. 2020) stated that it would have held that convictions of PC 487 from before Nov. 16, 2016 are not CIMTs, except that it is bound by prior, incorrect Ninth Circuit precedent to the contrary. Mr. Silva has filed a petition for rehearing en banc, where the court could make this ruling.

The argument is strong although a bit convoluted. On November 16, 2016, the BIA expanded the definition of theft as a CIMT in Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA Nov. 16, 2016); see also Matter of Obeya, 26 I&N Dec. 856 (BIA 2016). Before Diaz-Lizarraga, the BIA had held that theft is a CIMT only if the intent is to deprive the owner permanently, as opposed to temporarily as in joyriding. In 2016, Diaz-Lizarraga held that theft is a CIMT “if it involves an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded.” Id. at 853 (emphasis supplied). This expanded definition caused additional offenses to be defined as CIMTs. The Ninth Circuit held that the BIA’s decision to abandon the literally-permanent deprivation test” constituted an abrupt change in law that would impose “a new and severe burden” if applied to persons who were convicted while the “old rule was extant.” Therefore, it held that for convictions that occurred before November 16, 2016, the date that Matter of Diaz-Lizarraga was published, an offense is a CIMT if only if it required intent to deprive permanently; it is not a CIMT if it required only the substantial erosion of property rights. See Garcia-Martinez v. Sessions, 886 F.3d 1291, 1295–96 (9th Cir. 2018), and see summary at Silva, 965 F.3d at 732-33.

Silva then looked at the definition of Pen C § 484/487 and found that it did and does include intent to substantially erode the owner’s rights. This is reflected in California decisions beginning in 1998, culminating in a 2002 Supreme Court ruling, People v. Avery, 27 Cal. 4th 49, 55, 115 Cal.Rptr.2d 403, 38 P.3d 1 (2002). See Silva, pp. 733-34. Therefore, Pen § 484/487 convictions that occurred before Nov. 16, 2016 should not be held CIMTs: they did not meet the CIMT definition at the time (because the theft could be committed by intent to deprive substantially), and Garcia-Martinez found that the new CIMT definition could not fairly be applied retroactively to convictions before Matter of Diaz-Lizarraga set out the new rule.

The panel concluded that if they “were writing on a clean slate,” they would find that Mr. Silva was not deportable for CIMTs – or at least for the two committed after 1998. Silva, pp. 733-34. However, they were bound by the prior precedent. “Only an en banc court has the power to fix these errors.” Id. at 734, 735. Thank you and congratulations to Francisco Ugarte and San Francisco Office of the Public Defender, who brought the Silva case.

Note that offenses that involve true temporary intent, such as joyriding (which includes depriving the owner of property for a few hours or days), do not meet the new definition of CIMT. See Matter of Diaz-Lizarraga at  850-51 and n. 10. For example, Pen C 496 and Veh C 10851 include intent to commit joyriding and should not be held CIMTs regardless of the date of conviction.
Because there is not yet precedent, advocates should act conservatively and not file affirmative applications based upon it, although they should assert the argument 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

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 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.2The 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 n. 4, above for more on the categorical approach. 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). For further explanation, see ILRC, How to Use the Categorical Approach Now (December 2019) at https://www.ilrc.org/how-use-categorical-approach-now.

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.

2020-10-22T22:19:22+00:00Updated January 29th, 2020|