U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - CHI

525 West Van Buren Street
Chicago, IL 60607

Name: MAHD, HUSSEIN MOHD

A 044-688-449

Date of this notice: 11/21/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DlinltL cf1/1AJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Liebowitz, Ellen C
Malphrus, Garry D.
Mullane, Hugh G.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
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Ahmad, Wael M.
Ahmad Law Office, PLLC
333 West Vine St., Suite 400
Lexington, KY 40507

U.S. Department of Justice

Executive Office for Immigration Review

Board o.llmmigration Appeals
Office ofthe Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 2204 I

DHS/ICE Office of Chief Counsel - CHI

525 West Van Buren Street
Chicago, IL 60607

Name: MAHD, HUSSEIN MOHD

A 044-688-449

Date of this notice: 11/21/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

DorutL ca.AA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Liebowitz, Ellen C
Malphrus, Garry D.
Mullane, Hugh G.

Userteam:

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MAHD, HUSSEIN MOHD

A044-688-449
BOONE COUNTY JAIL
P.O. BOX 898, 3020 CONCORD LN.
BURLINGTON, KY 41005

 U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A044 688 449 - Chicago, Illinois

Date:

In re: HUSSEIN MOHD MAHD a.k.a. Hussein Mahmoud

NOV 2 t 2016

APPEAL
ON BEHALF OF RESPONDENT: Wael M. Ahmad, Esquire
ON BEHALF OF OHS:

Marc A. Jones
Assistant Chief Counsel

CHARGE:
Notice:

Lodged:

Sec.

237(a)(2)(A)(ii), I&N Act [8 U.S.C. 1227(a)(2)(A)(ii)] Convicted of two crimes involving moral turpitude not arising out of a
single scheme of criminal misconduct

Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)]

Convicted of aggravated felony (controlled substance trafficking)
(withdrawn)

Sec.

237(a)(2)(B)(i), l&N Act (8 U.S. C. 1227(a)(2)(B)(i)] Convicted of controlled substance violation (withdrawn)

Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)]

Convicted of aggravated felony (theft offense)

APPLICATION: Termination
The respondent, a native and citizen of Jordan, and a lawful permanent resident of the United
States, has appealed the Immigration Judge's March 4, 2016, decision which found him subject
to removal as charged under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
8 U.S.C. 1227(a)(2)(A)(iii), through section 101(a)(43)(G) of the Act, 8 U.S.C.
1101(a)(43)(G), and ordered him removed from the United States. The Department of
Homeland Security ("DHS") filed a brief in opposition. The appeal will be dismissed. 1

At a hearing on December 9, 2015, the Immigration Judge denied the respondent's October 14,
2015, motion to terminate, and indicated that she later would issue a written decision (Tr. at 51).
At a hearing on February 17, 2016, the respondent withdrew his asylum application (Tr. at 64).
Because she sustained the aggravated felony removability charge on February 17, 2016, the
Immigration Judge did not address the charge of removability under section 237(a)(2)(A)(ii)
(I.J. at 4, n. 2). The OHS withdrew the charges of removability under section 237(a)(2)(A)(iii)
and section 237(a)(2)(B)(i) (Exh. IA).
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IN REMOVAL PROCEEDINGS

A044 688 449

We review an Immigration Judge's findings of fact, including the credibility determination,
under the "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues,
including whether the parties have met the relevant burden of proof, and issues involving
questions of law, judgment and discretion, under a de novo standard. 8 C.F.R. I003.l(d)(3)(ii).

We affirm the Immigration Judge's decision that the respondent is subject to removal under
section 237(a)(2)(A)(iii) of the Act as an alien convicted of an aggravated felony theft offense
within the scope of section 10l(a)(43)(G) of the Act, 8 U.S.C. 1101(a)(43)(G), due to his
conviction for receipt of stolen property under KRS 514.110.
We agree with the Immigration Judge that KRS 514.110 is a categorical match to the
generic offense of theft including "receipt of stolen property." To determine whether a state
conviction qualifies as an aggravated felony, "we examine the state statute under which the alien
was convicted, and compare it to the 'generic' corresponding aggravated felony under the [] Act."
Lopez v. Lynch, 810 F.3d 484, 488-89 (7th Cir. 2016) citing Moncrieffe v. Holder, -U.S.--,
133 S.Ct. 1678, 1684 (2013) (citation and internal quotation marks omitted); see also Matter of
Elvis Guzman-Polanco, 26 I&N Dec. 713, 715 (BIA 2016).
The Court of Appeals for the Seventh Circuit has noted that a ''theft offense (including
receipt of stolen property)" under section 101(a)(43)(G) of the Act encompasses many crimes,
and found that "Congress indicated that the phrase ought to be given broad read." Hernandez
Mancilla v. INS, 246 F.3d 1002, 1008 (7th Cir. 2001). The court concluded that the "modern,
generic and broad definition of the phrase" is, "a talcing of property or an exercise of control over
property without consent with the criminal intent to deprive the owner of rights and benefits of
ownership, even is such deprivation is less than total or permanent." Id. at 1009. This comports
with our determination in Matter of Bahia, 22 l&N Dec. 1381, 1392 (BIA 2000), that the
reference to "receipt of stolen property" in section 101(a)(43)(G) of the Act was intended in a
generic sense to include the category of offenses involving knowing receipt, possession, or
retention of property from its rightful owner.
The respondent argues that KRS 514.110 is not a categorical match to the generic offense
of theft (including receipt of stolen property) inasmuch as the mens rea of "reason to believe" is
not a sufficiently culpable mental state to qualify as an aggravated felony. The respondent
maintains that when a receipt of stolen property offense only requires a mental state of "reason to
On April 30, 2014, he was convicted in a Kentucky state court of trafficking in synthetic drugs
in violation ofKRS 218A.1430, and he was sentenced to 12 months imprisonment.

In 2000, the statute was amended to insert the phrase, "or having reason to believe that it has
been stolen" prior to "unless the property is received, retained, or disposed of with intent to
restore it to the owner."
2
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On April 25, 2014, the respondent was convicted in a Kentucky state court of receiving
stolen property in violation of Kentucky Revised Statutes ("KRS") 514.110, and was sentenced
to 2 years imprisonment.2 On the date of the respondent's conviction, KRS 514.110 provided
that, "[a] person is guilty of receiving stolen property when he receives, retains, or disposes of
movable property of another knowing that it has been stolen, or having reason to believe that it
has been stolen, unless the property is received, retained, or disposed of with intent to restore it
to the owner."3

'AO-:l4 688 449

believe" that the property was stolen, no valid inference can be drawn that the offender "intended
to deprive" the true owner of the rights and benefits of ownership (Resp. Br. at 3). He cites our
decisions in Matter of Cardiel-Guerrero, 25 I&N Dec. 12 (BIA 2009) and Matter of Sierra, 26
I&N Dec. 288 (BIA 2014), in support.

In Matter ofSierra, supra, we held that, under the lw of the United States Court of Appeals
for the Ninth Circuit, the offense of attempted possession of a stolen vehicle under Nevada law,
requiring only a mental state of "reason to believe," is not categorically an aggravated felony
theft offense under section I0l(a)(43)(G) of the Act. We noted that the court concluded that
there was no conviction for an aggravated felony theft offense under a similar Arizona law in the
absence of a showing of knowledge. Id. at 291-92, citing Huerta-Guevara v. Ashcroft,
321 F.3d 883, 887 (9th Cir. 2003). While the respondent acknowledges that Matter of Sierra,
supra, applies only in the Ninth Circuit, he requests that its reasoning be applied in his case
(Resp. Br. at 4). In Matter of Sierra, we recognized that the "reason to believe" standard is
something different from, and less than, actual knowledge, but we specifically reserved the
question of what Congress meant by the term "receipt of stolen property" in section
I01(a)(43)(G) of the Act for a future case where circuit law did not dictate that such an offense
requires a showing that the defendant had an intent to deprive the owner of his property. See id
at 292, n. 1.
We must, therefore, determine the requisite mens rea for the generic offense of "receipt of
stolen property." We define the generic offense based on the "generic, contemporary meaning"
of the statutory words at the time the statute was enacted. Taylor v. United States, 495 U.S. 575,
598 (1990). The respondent agrees that we should, as done in Matter of Cardiel-Guerrero, supra,
survey the federal and state statutes and the Model Penal Code provisions in effect at the time
that the relevant version of section I01(a)(43)(G) of the Act was enacted (Resp. Br. at 4). See
also U.S. v. Zuniga-Galeana, 799 F.3d 801, 805-06 (7th Cir. 2015).
The definition of receipt of stolen property has evolved considerably. At common law it was
a crime to buy or receive stolen goods knowing them to be stolen. See 4 W. Blackstone,
Commentaries on the Laws of England 39, 133 (1769). American jurisdictions also "made
receiving stolen property knowing it to be stolen a separate substantive offense." See W. LaFave
& A. Scott, Substantive Criminal Law 20.2 (2015). However, as recognized by LaFave, in
"modem times," there has been a trend to broaden the scope of the offense's definition by
including conduct like concealing and withholding stolen property with knowledge, by covering
3
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Our analysis in those two decisions does not go as far as the respondent suggests. In Matter
of Cardiel-Guerrero, supra, we decided that the alien's conviction for receipt of stolen property
under section 496(a) of the California Penal Code, with a sentence of imprisonment of at least 1
year, categorically qualifies as a receipt of stolen property aggravated felony conviction under
section I0l(a)(43)(G) of the Act. In doing so, we concluded that "receipt of stolen property" is
not merely a subset of ''theft" as that term is used in section I0l(a)(43)(G) of the Act, because
each can be considered to be a distinct and separate offense. Id. at 14. We also determined that
under the prevailing circuit law, although the intent to deprive was not explicitly stated in the
California statute, it was implicit or properly inferred from the statute's scienter of "knowledge"
in the context of a receipt offense. Id. at 24-25. Although the respondent argues that our
decision supports his theory that a lower "reason to believe" standard cannot be the basis for an
inference of the defendant's intent to deprive, we decline to make that leap in analysis.

A04 688 449

property obtained by embezzlement and false pretenses, and by requiring something less than
actual knowledge of the stolen character of the property. Id.

Even though under most federal provisions, the United States must establish that the
defendant had subjective knowledge that the property was stolen, the federal courts have
recognized that, in the absence of a reasonable explanation supporting an innocent possession, a
jury is entitled to draw a permissive inference that one who has possession of recently stolen
goods also has the knowledge required to convict him of the crime in possessing the stolen goods
knowing the same to have been stolen.6 See, e. g. , United States v. Minieri, 303 F.2d 550, 554
(2d Cir. 1962); United States v. Smith, 833 F.2d 213, 218 (10th Cir. 1987); United States
v. Bamberger, 456 F.2d 1119, 1134 (3d Cir. 1972) (citing 1 Wharton, Criminal Evidence 135
(12th ed. 1955)); United States v. Ross, 424 F.2d 1016, 1020-21 (4th Cir 1970); Hale v. United
States, 410 F.2d 147, 151 (5th Cir. 1969); Aron v. United States, 382 F.2d 965, 971 (8th
Cir. 1967); United States v. Scruggs, 549 F.2d 1097, 1104 (6th Cir. 1977).
Additionally, in 1994, nineteen (19) states and the District of Columbia had general receipt of
stolen property statutes that incorporated both the subjective "knowledge" standard and a "reason

INTCA of 1994, Pub. L. No. 103-416, 108 Stat. 4305, 4321 (Oct. 25, 1994).

The "reasonable cause to believe" standard is also used when the question is what the
defendant thought would happen after his central act. For example, under 21 U.S.C. 841(d)(2)
(1994), the United States must prove beyond a reasonable doubt that the defendant possessed or
distributed certain chemicals "knowing or having reasonable cause to believe" that the chemicals
"would be used" to make controlled substances. See also 18 U.S.C. 231(a)(2) (firearms in civil
disorders) (1994); 21 U.S.C. 960(d) (1994) (importing or exporting certain chemicals). The
Seventh Circuit recognized a circuit court split, however, on the interpretation of "reason to
believe" in this context - whether the phrase requires a strictly subjective standard or allows for
an objective alternative. See United States v. Khattab, 536 F.3d 765, 769 (7th Cir. 2008)
(pointing out the split but declining to weigh in on the issue).
5

As recognized by the Supreme Court, "[p]ossession of fruits of crime, recently after its
commission, justifies the inference that the possession is guilty possession, and though only
prima facie evidence of guilt, may be of controlling weight, unless explained by the
circumstances or accounted for in some way consistent with innocence." Wilson v. United States,
162 U.S. 613, 619 (1896).

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On October 25, 1994, Congress passed the Immigration and Nationality Technical
Corrections Act of 1994 ("INTCA"), making various amendments to the Act by, inter alia,
adding various burglary and theft offenses, including receipt of stolen property, within the class
of aggravated felonies.4 In 1994, the federal criminal code generally required proof beyond a
reasonable doubt that an individual accused of receiving stolen property have subjective
knowledge that the property was stolen. See 18 U.S.C. 641, 659, 662, 1660, 1708, 2113(c),
2313, 2315, 2317 (1994). However, federal criminal statutes involving firearms and explosive
materials included a "reasonable cause to believe" as well as the subjective requirement of actual
knowledge. See 18 U.S.C. 842(h) (dealing in explosive materials), 922(i), G) (shipping and
receiving stolen firearms) (1994). 5

A044 688 449

Several of the foregoing jurisdictions were divided between the know or should have known
and reason to believe mens rea standards, and some jurisdictions essentially adopted both, using
different mens rea standards for receipt of stolen property generally, as opposed to receipt of
stolen property involving a motor vehicle.9
Meanwhile, thirty (30) states had general receipt of stolen property statutes which required
subjective knowledge or belief that the goods were stolen.10 The Model Penal Code employed
the same standard. See Model Penal Code 223.6 ("knowing ...or ...believing").
7

Ala. Code 13A-8-16 (1994) ("reasonable grounds to believe"); Miss. Code Ann. 97-17-70
(1994) (same); N.C. Gen. Stat. 14-72 (1994) (same); Ariz. Rev. Stat. Ann. 13-1802(A)(5)
(1994) ("reason to know"); Minn. Stat. 609.53(1) (1994) (same); Ark. Code Ann. 5-36-106
(1994) ("'good reason to believe"); La. Rev. Stat. Ann. 14:69 (1994) (same); D.C. Stat.
22-3831 (1994) ("reason to believe"); S.C. Code Ann. 16-13-180 (1993) (same); W. Va.
Code 61-3-18 (1994) (same); Fla.Stat.Ann. 812.019 (1994) ("should know''); Ga. Code Ann.
16-8-7 (same); Idaho Code Ann. 18-2403(4) ("under such circumstances as would reasonably
induce...belie[t] ..."); 720 Ill. Comp.Stat.5/16-1 (1994) (same); Nev.Rev. Stat. 205.275 (1993)
("under such circumstances as should have caused a reasonable man to know"); Iowa Stat.
714.1(4)(1994) ("reasonable cause to believe"); Ohio Rev. Code Ann. 2913.51 (1994) (same);
Okla. Stat. Tit. 21 1713(1) (1994) (same); Or. Rev. Stat. 164.095 (1994) ("good reason to
know"); Wyo.Stat. 6-3-403 (1994) ("believes or has reasonable cause to believe").
Alaska Stat. Ann. 11.46.190 (1994) ("reckless disregard"); see also Ariz. Rev. Stat.
13-2307(A) (1994) (applying a "reckless" standard for trafficking in stolen property), as
distinct from the 13-1802(A)(5) (theft - control of stolen property).
8

For example, in 1994, Delaware required evidence of subjective knowledge regarding receipt
of stolen property generally (infra n.9), but only a "knows or has reason to believe" standard for
receipt or possession of a stolen vehicle.See Del. Code Ann. Tit. 21, 6704 (1994). Conversely,
three states used an objective standard for receipt of stolen property generally, but a subjective
standard for receipt or possession of a stolen motor vehicle. See 625 Ill. Comp. Stat. 5/4-103
(1994); Okla. Stat. Tit.47, 4-103 (1994); S.C. Code Ann. 16-21-80 (1993). However, in one
of these states-- Illinois--the courts applied an objective standard for receipt of a stolen vehicle,
notwithstanding the statutory language.See People v. Whitfield, 573 N.E.2d 1267, 1272 (Ill. App.
Ct. 1991) (holding that, in receipt of stolen vehicle cases, a "[d]efendant's knowledge may be
established by proof of circumstances that would cause a reasonable person to believe property
had been stolen").
9

Sixteen jurisdictions used a "knowing" standard in 1994 when the ITCA was implemented.
Cal. Penal Code 496 (1994) ("knowing"); Haw. Rev. Stat. 708-830(7) (1994) (same); Kan.
Stat. Ann. 21-3701 (1994) (same); Ky. Rev. Stat. 514.110 (1994) (same); Mass. Gen. Laws
5
10

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to believe."7 For example, the 1994 version of the Wyoming statute provides criminal penalties
for "a person who buys, receives, conceals, or disposes of property which he knows, believes, or
has reasonable cause to believe was obtained in violation of law." See Wyo. Stat. 6-3-403
(1994). Likewise, the 1994 Arkansas statute employs a standard requiring that the defendant act
"knowing that [the item] ... was stolen or having good reason to believe" the property received
was stolen. See Ark. Code Ann. 5-36-I06(a) (1994). Only one state had a "reckless"
requirement in establishing the general offense of receipt of stolen property.8

. A044 688 449

Other state courts actually went farther and injected an objective component into the
statutory subjective test. See Commonwealth v. Morrissey, 654 A.2d 1049, 1054 (Pa 1995)
(explaining that a conviction can be secured where the Commonwealth establishes "possession
of a stolen item and that the possessor knew, or had reason to know, that the item was stolen");
Kessler v. State, 220 Tenn. 82, 414 S.W.2d 115 (1967) (''the existence of guilty knowledge is to
be regarded as established when the circumstances surrounding the receipt of the property were
such as would charge a reasonable man with notice or knowledge or would put a reasonable man
upon inquiry which if pursued would disclose that conclusion.").
Still other states that used a subjective standard allowed, either by statute or in case law, an
inference of guilty knowledge by the defendant's possession alone, if he did not provide a
sufficient rebuttal. See R.I. Gen. Laws 11-41-2 (1994) ("The possession of any stolen property
shall be evidence of guilty knowledge by the person having possession that the property was
stolen, unless the person shows that it was acquired in the due course of trade and for adequate
Ann. Ch. 266 60 (1994) (same); Mich. Comp. Laws 750.535(1) (1994) (same); Mont. Code
Ann. 45-6-301(3) (1994) (same); N.Y. Penal Law 165.54 (1994) (same); N.D. Cent. Code
12.1-23-02(3) (1993) (same); R.I. Gen. Laws 11-41-2 (1994) (same); Tenn. Code Ann.
39-14-103 (1994) (same); Tex. Penal Code Ann. 31.03(b) (1994) (same); Va Code Ann.
18.2-108 (same); Wash. Rev. Code 9A.56.140 (1994) (same); Ind. Code 35-43-4-2(b)
(1994) ("knowingly or intentionally"); Wis. Stat. 943.34 (1994) ("intentionally"). Another 14
jurisdictions used a knowing or believing standard. Colo. Rev. Stat. 18-4-410 (1994)
("knowing or believing"); Conn. Gen. Stat. 53a-119(8) (1994) (same); Del. Code Ann.
Tit. 11 851 (1994) (same); Me. Rev. Stat. Ann. Tit. 17-A 359(1) (1994) (same); Md. Code
Ann. Crim. Law Art. 27, 342(c)(l) (1994) (same); Mo. Rev. Stat. 570.080(1) (1994) (same);
Neb. Rev. Stat. 28-517 (same); N.M. Stat. 30-16-11 (same); N.H. Rev. Stat. Ann. 637:7(i)
(1994) (same); N.J. Stat. Ann. 2C:20-7 (1994) (same); Pa. Cons. Stat. Tit. 18, 3925 (1994)
(same); S.D. Codified Laws 22-30A-7 (1993) (same); Utah Code Ann. 76-6-408(1) (1994)
(same); Vt. Stat. Ann. Tit. 13 2561 (same).
6
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However, when we more closely consider the ,application of those statutes, the picture
becomes less clear. Some of those thirty state jurisdictions allowed juries to infer subjective
knowledge or belief regarding the stolen character of the property at issue so long as the accused
had actual knowledge of facts that put him "on notice" that the property was stolen. See State
v. Bandt, 549 P.2d 936, 940 (Kan. 1976) (explaining that "[t]he offense [of receiving stolen
property] simply requires proof by the state that the defendant at the time he received stolen
property had a belief or a reasonable suspicion from all of the circumstances known to him that
the property was stolen"); State v. Currier, 521 A.2d 295, 299 (Me. 1987) (requiring that ''to
prove the requisite [knowing or believing] mens rea for [theft by receiving], the State must show
that the defendant was aware of circumstances that would cause him to entertain the subjective
belief that the property was stolen"); State v. Ricci, 472 A.2d 291, 300 (R.1. 1984) (holding that a
trial judge in a receipt of stolen property case had properly instructed the jury on the element of
knowledge when he said that the prosecution must demonstrate beyond a reasonable doubt that
the accused "knew that [the goods] . . . were stolen goods, or at the time of receiving the property
he knew of facts sufficient to satisfy a reasonable person that the property was stolen"); State
v. Rockett, 493 P.2d 321, 323 (Wash Ct. App. 1972) (providing that "[o]n the question of
whether the defendant had knowledge that the [property was] . . . stolen, actual knowledge is
unnecessary. It is sufficient if [the defendant] . . . had knowledge of facts sufficient to put him on
notice that [the property was . . .] stolen.").

. A044 688 449

The respondent argues that, as only 40 percent of states had adopted the "reason to believe"
standard for receipt of stolen property in 1994, that phrase may not be deemed to be part of the
"ordinary, contemporary, and common meaning" of receipt of stolen property (Resp. Br. at 5).
However, as we have described, there were a variety of mens rea standards used for receipt of
stolen property offenses in different jurisdictions at the time of enactment of the INTCA. We
have never held that a numerical majority of states is necessary to meet the common and
ordinary meaning standard. This is not a situation where there is a single state using an outlier
standard. On the contrary, Congress itself, has used this more expansive standard for certain
federal criminal statutes. Thus, we cannot conclude that Congress meant to exclude the "reason
to believe" standard applied in a large minority of states, including Kentucky, for the receipt of
stolen property offense.
Moreover, a requirement that receipt of stolen property be defined with respect to the
absolute knowledge mens rea present at common law is unduly restrictive, as "[t]he arcane
distinctions embedded in the common law definition have little relevance to modem law
enforcement concerns." See Taylor v. United States, supra, at 593-94. Notably, the INTCA
amendments to the Act were motivated, in part, by Congressional dissatisfaction with this
country's immigration laws to criminal aliens and an intent to expand the classes of aliens
deportable as aggravated felons. This sentiment is further reflected in Matter of Bahta, supra,
where the Board concluded that receiving stolen property should be defined to include a number
of closely related offenses, as opposed to a limited number of''traditional" offenses.
Narrowly defining "receipt of stolen property" to only include offenses which require the
state to prove beyond a reasonable doubt that a person accused of receiving stolen property had
subjective knowledge that the property was stolen would also immunize aliens, like this
respondent, who have committed serious crimes in states which choose to more broadly define
receipt of stolen property. Application of such a narrow definition would further lead to
inconsistent results, as an alien who receives stolen property in a jurisdiction employing the more
expansive definition would not be removable, whereas essentially the same conduct in a
jurisdiction using the more narrow definition would make the alien removable. See Taylor v.
United States, supra, at 591, citing Dickerson v. New Banner Institute, Inc., 460 U.S. 103,
119-20 (1983) (recognizing that absent plain indication to the contrary, federal laws are not to be
construed so that their application is dependent on state law, "because the application of federal
legislation is nationwide and at times the federal program would be impaired if state law were to
control"). Our immigration laws should not be construed to lead to such unwarranted
inconsistencies among jurisdictions where the immigration proceedings arise. See Taylor v.
United States, supra, at 595 (recognizing that construing "burglary" to mean common law
burglary would come close to nullifying that term's effect in the statute).
7
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consideration."); see also e.g., People v. Shope, 180 Cal.Rptr. 567, 128 C.A.3d 816 (Cal. Ct.
App. 1982) ("In a prosecution for receiving stolen property, although knowledge that property
has been stolen can seldom be proved by direct evidence, possession of stolen property
accompanied by no explanation or unsatisfactory explanation will justify inference that goods
were received with knowledge that they were stolen; corroboration need only be slight and this
may be furnished by conduct of defendant tending to show his guilt."); State v. Woods,
117 Wis.2d 701, 709-10, 345 N.W.2d 457 (Wis. 1984) ("while mere possession of stolen
property raises no inference of guilt, the unexplained possession of recently stolen property
raises an inference of greater or less weight depending upon the circumstances.").

A0:44 688 44
Further, a "knowing" standard may well be too demanding in this context, especially as the
receiver may be especially careful not to learn the truth. See W. LaFave & A. Scott, Substantive
Criminal Law 20.2 (201 5). Even in his Commentaries, supra, published in 1 769, Blackstone
recognized that, in larceny cases, the facts may become so mingled that it is impossible to
recount all the facts which may evidence a felonious intent, wherefore they must be left to the
due and attentive consideration of the court and jury.

Second, as the DHS asserts in its response brief, there may be no need to determine whether
the criminal intent to deprive may be inferred from the provision's "reason to believe" language,
because the subsequent clause in the same paragraph - ''unless the property is received, retained,
or disposed of with intent to restore it to the owner" - provides the requisite intent, albeit in the
affirmative (DHS Br. at 2). KRS 5 1 4. 1 1 0; see also Jackson v. Commonwealth,
670 S.W.2d 828, 832 (Ky. 1984) (concluding that an intent to deprive and the lack of an
intention to return are "simply two ways of saying the same thing").
In light of the foregoing, we agree with the Immigration Judge's conclusion that the
respondent has been convicted of an aggravated felony as it relates to his conviction for receipt
of stolen property under Kentucky law, and that he is removable as charged under section
237(a)(2)(A)(iii) of the Act. 1 1 He has not alleged on appeal that he is eligible for any form of
relief from removal. Accordingly, the following order will be entered.
ORDER: The appeal is dismissed.

FOR THE BOARD

11

Because we conclude that KRS 5 1 4. 1 1 0 is categorical match for theft, it is not necessary to
address the respondent's argument that the Immigration Judge should have decided whether the
statute is divisible.
8
Cite as: Hussein Mohd Mahd, A044 688 449 (BIA Nov. 21, 2016)

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Finally, there are factors to consider about the particular state statute at issue in this case.
First, although Kentucky courts apparently have not analyzed the current "reason to believe"
language as it appears in KRS 5 1 4. 1 1 0 since 2000, the Kentucky Supreme Court has
interpreted the "reason to believe" mental state to be consistent with a jury instruction requiring
"knowledge" in a case involving possession of stolen mail in Commonwealth v. Griffin,
759 S.W. 2d 68, 69 (Ky. 1988) (I.J. at 3-4). Although the respondent alleges that the
Immigration Judge should not have relied on Commonwealth v. Griffin, supra, because it
involved possession of stolen mail under KRS 5 14.1 50, and not receipt of stolen property
under KRS 5 14. 1 1 0, the Immigration Judge's reliance was not in error.

. "

UNITED STA TES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
CHICAGO, ILLINOIS

In the Matter of:

Hussein Mohd MAHD,
Respondent.
CHARGES:

)
)
)
)
)

IN REMOVAL PROCEEDINGS

Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"

or "Act") - Alien who any time after admission has been convicted of an
aggravated felony as defined in Section 1 0 1 (a)(43)(G) of the INA, a law
relating to a theft offense (including receipt of stolen property) or burglary
offense for which the term of imprisonment was at least one year.
Section 237(a)(2)(A)(ii) of the INA - Alien who any time after admission
has been convicted of two crimes involving moral turpitude not arising out
of a single scheme of criminal misconduct.

APPLICATION:

Termination.
ON BEHALF OF THE GOVERNMENT:
Seth Fitter, Assistant Chief Counsel
Department of Homeland Security
Chicago, Illinois 60607

ON BEHALF OF THE RESPONDENT:

Wael M. Ahmad, Esq.
Ahmad Law Office, PLLC
Lexington, Kentucky 40507

DECISION OF THE IMMIGRATION JUDGE

For the reasons that follow, the Court finds that the respondent's conviction for receiving
stolen property is an aggravated felony as defined in INA I 0 1 (a)(43){G). The Court therefore
sustains the charge ofremovability and orders the respondent removed to Jordan.
I. BACKGROUND
The respondent is a native and citizen of Jordan. See Exh. I . On April I 9, I 991 , he was
admitted to the United States as a conditional resident, and on December 8, 1 994, his status was
adjusted to that of a lawful permanent resident. See id. On April 25, 2014, he was convicted in
the McCracken Circuit Court of Kentucky of the offense of receiving stolen property under
$ 1 0,000, in violation of KRS 5 1 4.1 1 0. He was sentenced to two years of imprisonment. See id
On April 30, 2014, he was convicted in the McCracken Circuit Court of Kentucky of the offense
1

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Date: March 4, 20 1 6

File #: A044-688-449

of trafficking synthetic drugs, in violation of KRS 2 1 8A. 1 430. See id. He was sentenced to
twelve months of imprisonment. See id.

At a master calendar hearing on August 25, 2015, the respondent admitted factual
allegations 1 -5 and denied allegations 6-8. He also contested all charges of removability. He
declined to designate a country of removal, therefore the Court designated Jordan, his country of
citizenship, pursuant to INA 241 (b)(2)(D). For the reasons below, at a hearing on February 17,
20 16, the Court sustained the charge of removability under INA 237(a)(2)(A)(iii) and ordered
the respondent removed to Jordan.
II. ANALYSIS

"[T]he Service has the burden of establishing by clear and convincing evidence that, in
the case of an alien who has been admitted to the United States, the alien is deportable.'' INA
240(c)(3). The DHS claims that the respondent's conviction for receiving stolen property is an
aggravated felony as defined in INA I 0I (a)(43)(G). The respondent contests the charge of
removability and argues that his statute of conviction is categorically overbroad. For the reasons
that follow, the Court finds that the respondent's conviction for receiving stolen property is
categorically an aggravated felony.
To determine whether a respondent's conviction constitutes an aggravated felony, the
Court employs the categorical approach. See Moncrieffe v. Holder, 1 33 S. Ct. 1 678, 1 684-85
(201 3); Lopez v. Lynch_ F.3d _, No. 1 4-3805, 201 6 WL 1 25532 (7th Cir. 201 6). Under this
approach, the Court examines the state statute under which the alien was convicted, and
compares it to the "generic" corresponding aggravated felony under the INA. See id. The Court
may not look to the particular facts of the case, but instead must evaluate the minimum condct
that is required for a conviction, and then determine whether that conduct necessarily involves
facts that equate to the generic definition. Moncrieffe, 1 33 S. Ct. at 1 684. Evaluating the
minimum conduct criminalized by the statute is "not an invitation to apply 'legal imagination' to
the offense." Id. at 1 684-85. Specifically, there must be "a realistic probability," not simply a
theoretical possibility, that the statute would be applied to conduct that does not meet the generic
definition of the removability ground at issue. Id.
Among the various categories of aggravated felonies defined in the INA is a theft offense
(including receipt of stolen property) or burglary offense for which the term of imprisonment
1

The 1-261 also withdrew factual allegation 7 and the two additional charges of removability that were contained in
the NTA.

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On July 2 1 , 201 5, the Department of Homeland Security ("DHS" or "the Government")

initiated removal proceedings by filing a Notice to Appear ("NTA") with the Chicago
Immigration Court. Exh. 1. On August 25, 201 5, the DHS filed a Form I-261 , Additional
Charges of Inadmissibility/Deportability. Exh. lA. Together, these documents allege the above
facts and charge with respondent with removability pursuant to INA 237(a)(2)(A)(iii)
(aggravated felony - theft offense) and INA 237(a)(2)(A)(ii) (two crimes involving moral
turpitude not arising out of a single scheme). 1

Here, the respondent was convicted of receiving stolen property in violation of KRS
5 1 4.1 1 0, which punishes a person who "receives, retains, or disposes of movable property of
another knowing that it has been stolen, or having reason to believe that it has been stolen, unless
the property is received, retained, or disposed of with intent to restore it to the owner." KRS
514. 1 1 0.
The respondent concedes that his term of imprisonment exceeded one year. He does not
argue that the level of control over the property required by this section is insufficient as it
compares to the generic offense. See Hernandez-Mancilla, 246 F.3d at 1009 (holding that a
statute prohibiting the receipt, possession, or disposal of another's property to be an aggravated
felony theft offense).He likewise does not argue that his statute of conviction permits conviction
of a defendant who exerted control over property with the consent of the owner. Rather, he
argues that the minimum conduct punished by KRS 514.1 10 permits conviction of a defendant
who does not have a sufficiently culpable mental state as compared to the generic offense.
Specifically, he argues that the mental state of "reason to believe" permits the conviction of a
defendant who did not have an intent to deprive the owner of the property in question. He cites to
Mauer of Sierra, 26 I&N Dec. 288 (BIA 201 4), for the proposition that the "reason to believe"
mental state is insufficient to constitute an aggravated felony under INA I 0 l (a)(43)(G). He
concedes that the BIA applied Ninth Circuit law in Sierra, and acknowledges that no such
precedent exists in the Seventh Circuit. However, he requests that the Court consider this
precedent to be persuasive in his own case.
The Court finds the respondent's arguments to be unavailing, as KRS 514. 1 1 0 requires
a sufficient mental state to constitute an aggravated felony. Kentucky courts have interpreted the
"knowing" mental state for receiving stolen property to require intent to deprive the owner of the
property. See Jackson v. Commonwealth, 670 S.W.2d 828, 832 (Ky. 1984); Cooley v.
Commonwealth, 82 1 S.W.2d 90 (Ky. 1 99 1 ). In doing so, the courts have equated receiving
property with knowledge that it is stolen with an intent to deprive the owner of that property.See
id The Kentucky courts have not interpreted the "reason to believe" mental state as it relates to
KRS 514.1 10. However, Kentucky courts have interpreted this mental state in the context of
the offense of possession of stolen mail. In Commonwealth v. Griffin, the Kentucky Supreme
Court held that the mental state of "reason to believe . . . is within the meaning of the statutory
tenn 'knowingly."' 759 S.W.2d 68, 69 (Ky. 1 988). Therefore, the court held that a jury
instruction using the mental state of "reason to believe" was proper for a statute requiring
"knowledge."
Accordingly, the Court finds that the inclusion of the "reason to believe" language in
KRS 5 1 4. 1 1 0 does not alter the statute's mens rea requirement such that it is insufficient to
constitute an aggravated felony. Because Kentucky case law explains that the "reason to believe"

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was at least one year. INA 1 0 l (a){43)(G). The Seventh Circuit has interpreted the federal
generic theft offense to be an umbrella label that includes receipt of stolen property offenses.
Hernandez-Mancilla v. INS, 246 F.3d 1 002, 1 008 {7th Cir. 200 1). Thus, the generic theft offense
is "a taldng of property or an exercise of control over property without consent with the criminal
intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less
than total or permanent." Id. at 1 009.

For these reasons, the Court sustained the charge of removability under INA
237(a)(2)(A)(iii).2 Because the respondent did not submit any applications for relief, the Court
ordered him removed to Jordan.3
III. CONCLUSION
The Court finds that the respondent's conviction for receiving stolen property is an
aggravated felony as defined in INA 1 01(a)(43)(G) that renders him removable under INA
237(a)(2)(A)(iii). Therefore, the respondent's motion shall be denied. He has not requested any
additional relief. Accordingly, the following order will be entered:
ORDER OF THE IMMIGRATION JUDGE
IT IS HEREBY ORDERED that the respondent is removable under INA 237(a)(2)(A)(iii).
IT IS FURTHER ORDERED that the respondent's motion to terminate will be DENIED.

Because the Court has sustained removability under INA 237(a)(2)(A)(iii), it need not address the respondent's
removability under INA 237(a)(2)(A)(ii).
3

Prior to the respondent's hearing on January 4, 201 6, he filed a Fonn 1-589, Application for Asylum and for
Withholding of Removal. However, at a hearing on February 1 7, 20 1 6, the respondent, through counsel, withdrew
this application for relief. At this hearing, the respondent indicated that he sought only tennination and would not
apply for any fonn of relief should removability be sustained.

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mental stat is akin to "knowledge," and that knowledge equates to intent to deprive, the
respondent's statute of conviction is a categorical match to the generic offense. Moreover, as the
respondent concedes, there is no Seventh Circuit or BIA precedent, other than Sierra which
relies on Ninth Circuit law, to support the assertion that "reason to believe" is an insufficient
mental state to constitute an aggravated felony theft offense. To the extent that the respondent
argues that the Kentucky definition of "knowledge" is overbroad, he has not established a
realistic probability of prosecution for such overbroad conduct. See Moncrieffe, 1 33 S. Ct. at
1 684-85; Matter ofFerreira, 26 I&N Dec. 415, 420-21 (BIA 201 4). The respondent has not cited
any Kentucky cases where a defendant was successfully prosecuted under KRS 514.110
despite having a mental state less than knowledge. See Matter of Mendoza Osorio, 26 I&N Dec.
703, 707 (BIA 2016). He did not present any other evidence to establish a realistic probability of
prosecution for such conduct.