19-2334 Zeng v. Barr BIA A040 009 879 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of September, two thousand twenty.

PRESENT: JON O. NEWMAN, REENA RAGGI, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

YA YI ZENG, AKA ZENG YA YI Petitioner,

v. 19-2334 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: MATTHEW L. GUADAGNO, Law Office of Matthew L. Guadagno, New York, NY (Kerry W. Bretz, Bretz & Coven, LLP, New York, NY, on the brief).

FOR RESPONDENT: ERICA B. MILES (Lindsay B. Glauner, on the brief), United States Department of Justice, Office of Immigration Litigation, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a Board

of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

ADJUDGED, AND DECREED that the petition for review is DENIED.

Petitioner Ya Yi Zeng, a native and citizen of the People’s

Republic of China, seeks review of a BIA decision denying his

motion to terminate and affirming his order of removal. In re Ya

Yi Zeng, No. A040 009 879 (B.I.A. June 27, 2019). Zeng challenges

the BIA’s determination that his extortion conviction, under

(b)(2), was an aggravated felony “theft offense” under

the Immigration and Nationality Act (“INA”),

(a)(43)(G). More specifically, Zeng argues that (1) the

Department of Homeland Security (“DHS”) waived the theft offense

charge before the agency by failing to pursue it throughout the

proceedings, and (2) his federal conviction is not categorically

an aggravated felony “theft offense” because extortion under

§ 1951(b)(2) involves the taking of property with consent, while

the BIA has defined a “theft offense” as the taking of property

without consent.

Our jurisdiction to review a final order of removal where, as

here, the non-citizen is ordered removed for an aggravated felony,

is limited to constitutional claims and questions of law.

(a)(2)(C), (D). Zeng’s challenge to the BIA’s aggravated

felony determination presents a question of law that we review de

2 novo. See Pierre v. Holder,

(2d Cir. 2009). We

assume the parties’ familiarity with the underlying facts and

procedural history, which we reference only as necessary to explain

our decision to deny the petition for review.

As a threshold matter, we consider Zeng’s argument that DHS

waived this theft offense charge of removability by failing to

brief it earlier in his removal proceedings, and that permitting

the Government to rely on the theft offense after waiving it denied

him due process. We find this argument unpersuasive. Although

Zeng was initially charged as removable in 1998 on the ground that

his extortion conviction was an aggravated felony crime of

violence, with DHS only later, in 2001, adding a charge that the

same conviction rendered him removable for an aggravated felony

theft offense, federal regulations allow DHS to file additional or

replacement charges of removability “[a]t any time” during ongoing

removal proceedings and provide the applicant time to respond to

those charges. See

. Moreover, “[t]o establish

a violation of due process, an alien must show that [he] was denied

a full and fair opportunity to present [his] claims or that the IJ

or BIA otherwise deprived [him] of fundamental fairness.” Burger

v. Gonzales,

(2d Cir. 2007)(quotation marks

omitted); see also Garcia-Villeda v. Mukasey,

(2d Cir. 2008) (“Parties claiming denial of due process in

3 immigration cases must, in order to prevail, allege some cognizable

prejudice fairly attributable to the challenged process.”

(quotation marks omitted)). Here, Zeng received notice of this

charge in 2001 and had a full opportunity to challenge it before

the agency. Accordingly, the theft offense charge of removability

was not waived, and its addition as a charge in 2001 did not

violate due process.

With respect to the merits, in determining whether a

conviction is an aggravated felony, we employ a “categorical

approach,” under which “we consider the offense generically,”

examining it “in terms of how the law defines the offense and not

in terms of how an individual offender might have committed it on

a particular occasion.” United States v. Beardsley,

(2d Cir. 2012) (quoting Begay v. United States,

(2008)). Generally, if there is not a categorical match, the

agency or court must determine whether the statute of conviction

is divisible; if so, the agency identifies the section of the

statute under which the non-citizen was convicted and then

determines whether a conviction under that section is

categorically an aggravated felony. Moncrieffe v. Holder,

(2013); see also Descamps v. United States,

(2013); Mendez v. Mukasey,

(2d Cir.

2008).

4 The parties do not dispute divisibility in this case and,

thus, for purposes of this decision, we limit our review to whether

a conviction under

(b)(2) for extortion, defined

as “obtaining of property from another, with his consent, induced

by wrongful use of actual or threatened force, violence, or fear”

is categorically an aggravated felony under

(a)(43)(G), defined as “a theft offense (including receipt

of stolen property) or burglary offense for which the term of

imprisonment [is] at least one year.”

Because the INA does not define “theft offense,” this Court

has already held that we must defer to the BIA’s reasonable

interpretation of that term. See Abimbola v. Ashcroft,

, 175–76 (2d Cir. 2004) (holding that when a term in INA is

undefined, the “BIA’s interpretation is ‘given controlling weight

unless [it is] arbitrary, capricious, or manifestly contrary to

the statute’” (alteration in original) (quoting Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council,

(1984))).

In distinguishing between theft offenses and fraud offenses,

see

(a)(43)(M), the BIA has defined the former as

“the taking 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,” Matter of Delgado,

,

5 101 (B.I.A. 2017) (quotation marks omitted). 1 The definition,

however, is necessarily read in light of the BIA’s decision a year

earlier in Matter of Ibarra,

(B.I.A. 2016),

which indicates that the “without consent” prong means without

voluntary consent. As the BIA explained in Ibarra,

The phrase “without consent” need not appear in the text of a statute for the prohibited crime to be a theft offense. Rather, we conclude that theft refers more broadly to offenses that involve a taking against the voluntary assent of the victim—meaning offenses with elements that necessarily involve conduct that coerces compliance.

. Thus, the BIA concluded that conviction under a

California statute that “proscribes generic extortion” (in

addition to other offenses) was for an aggravated felony because

“theft offense” “encompasses extortionate takings, in which

consent is coerced by the wrongful use of force, fear, or threats.”

; see also Matter of Cardiel-Guerrero,

(B.I.A. 2009).

In considering the reasonableness of the BIA’s construction

of “theft offense” under the INA to include extortion crimes, we

are mindful that this construction comports with the broad

1 The BIA defines “an offense that . . . involves fraud or deceit”— which can also be an aggravated felony if the victim’s loss exceeds $10,000,

(a)(43)(M)—as “the taking or acquisition of property with consent that has been fraudulently obtained,” Matter of Garcia-Madruga,

(B.I.A. 2008). 6 understanding of “theft” as defined in the Model Penal Code, which

does not differentiate between takings with or without consent and

encompasses a broad range of offenses, including “Theft by

Extortion.” See Model Penal Code §§ 223.2–223.9. Similarly,

Black’s Law Dictionary defines theft as an umbrella term, under

which many modern penal codes have consolidated a variety of

offenses, including extortion crimes. Theft, Black’s Law

Dictionary (11th ed. 2019). This broad concept of “theft” aligns

with statements in a summary order in which we remanded for the

agency to consider the distinction between fraud and theft crimes

in the immigration context, while nevertheless stating that

obtaining property by extortion is a means of “taking without

consent.” Bastian-Mojica v. Sessions,

, 47 (2d

Cir. 2017).

Considering the broad concept of theft and the support for

the BIA’s interpretation of extortion as a “theft offense,” we

find its interpretation reasonable and defer to it. See Chevron,

; see also Almeida v. Holder,

, 784–

85 (2d Cir. 2009) (noting that “the BIA concluded that any crime

meeting the Model Code’s broad definition of ‘theft’ qualified as

a ‘theft offense’ for purposes of the INA” and deferring to the

BIA’s “decision to construe ‘theft offense’ as a broad, generic

term”); Abimbola,

(“[T]his Circuit has already

7 concluded that the legislative history of [§ 1101(a)(43)(G)] and

its plain language indicate a clear congressional intent to expand

the definition of aggravated felony as applied to theft offenses

to bring more convictions within its ambit.”). Specifically, we

defer to the BIA’s definition of a “theft offense” under the INA

to include the extortionate taking of property even with consent

where that consent is coerced.

Here, the BIA concluded that Zeng’s statute of conviction,

Hobbs Act extortion, matches the generic definition of “theft

offense” as articulated in its precedents. That statute comports

with the BIA’s recognition of extortion as a “theft offense”

because it contains an element of consent that must be “induced by

wrongful use of actual or threatened force, violence, or fear.”

(b)(2); see Ocasio v. United States,

(2016) (characterizing Hobbs Act extortion as requiring

“grudging consent” induced by threat); United States v. Zhou,

(2d Cir. 2005) (explaining victim of Hobbs Act

extortion “acts from fear, whether of violence or exposure”).

Zeng’s several arguments against this conclusion are

unavailing. First, he argues that the consent element of Hobbs

Act extortion precludes it from categorical classification as a

“theft offense.” This contention, however, overlooks the BIA’s

holding that extortion statutes qualify as theft offenses only if,

8 like the Hobbs Act, they contain an element of consent “coerced by

the wrongful use of force, fear, or threats.” Matter of Ibarra,

. Such coerced consent “does not connote a

voluntary conferral of property” and, thus, maintains the

distinction between theft and fraud offenses, while comporting

with the BIA’s definition of “theft offense” as “refer[ring] more

broadly to offenses that involve a taking against the voluntary

assent of the victim.”

.

Next, Zeng argues that Hobbs Act extortion does not match the

generic definition of “theft offense” because it does not contain

a mens rea element. This contention is defeated by precedent,

which holds that

(b)(2) requires proof “that the

defendant knowingly and willfully created or instilled fear, or

used or exploited existing fear with the specific purpose of

inducing another to part with property.” See United States v.

Coppola,

(2d Cir. 2012).

Last, Zeng argues that we should utilize the rule of lenity

to reject the BIA’s conclusion that Hobbs Act extortion is a “theft

offense” under the INA; we disagree. The rule of lenity may be

invoked only “when none of the other canons of statutory

interpretation is capable of resolving the statute’s meaning and

the BIA has not offered a reasonable interpretation of the

statute.” Adams v. Holder,

(2d Cir. 2012)

9 (quotation marks omitted). Because Zeng identifies no ambiguity

in the Hobbs Act and we find the BIA’s interpretation of the INA

to be reasonable, we decline Zeng’s invitation to resort to this

canon of construction.

Applying the BIA’s “theft offense” definition here, although

Zeng’s statute of conviction involved an extortionate taking with

consent, because that consent was “induced by wrongful use of

actual or threatened force, violence, or fear,”

(b)(2), we agree with the BIA that his conviction under

§ 1951(b)(2) is categorically a “theft offense” under

(a)(43)(G), and he is removable on the basis of that

aggravated felony.

For the foregoing reasons, the petition for review is DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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