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Lewin v. Attorney General of United States

United States Court of Appeals, Third Circuit

March 20, 2018

OMAR NORVIL WHYLIE LEWIN, AKA Omar Lewin, AKA Omar N. Lewin, AKA Lewin Omard, AKA Lewin N. Oman, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent

          Submitted Under Third Circuit LAR 34.1(a) January 11, 2018

         On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA 1:A041-353-654) Immigration Judge: Hon. Mirlande Tadal

          Joseph C. Hohenstein Counsel for Petitioner

          Jefferson B. Sessions, III Anna Juarez Anthony J. Messuri United States Department of Justice Office of Immigration Litigation Counsel for Respondent

          Before: JORDAN, ROTH, Circuit Judges and MARIANI [*], District Judge.

          OPINION

          JORDAN, Circuit Judge.

         This immigration case raises a single question: whether the petitioner's conviction under New Jersey's Receiving Stolen Property Statute, N.J. Stat. Ann. § 2C:20-7(a), constitutes an "aggravated felony" under the Immigration and Nationality Act ("INA"), 66 Stat. 163, as amended. 8 U.S.C. § 1101(a)(43)(G). We conclude that it does and, accordingly, will deny the petition for review.

         I. BACKGROUND

         Omar Norvil Whylie Lewin, a native and citizen of Jamaica, was admitted to the United States in 1987 as a legal permanent resident. In 2000, Lewin was convicted of receiving stolen property in the third degree, in violation of New Jersey law, N.J. Stat. Ann. § 2C:20-7(a), and was sentenced to five years of probation. Seven years later, following a finding that he violated the terms of his probation, Lewin was resentenced to a term of four years of imprisonment.[1] Another seven years later, Lewin received a Notice to Appear, charging him as removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii)-(iii).

         An Immigration Judge ("IJ") concluded that Lewin is removable for having been convicted of an aggravated felony under § 1101(a)(43)(G), based on his 2000 New Jersey conviction for receipt of stolen property and later resentencing, and that the conviction also barred him from relief in the form of cancellation of removal. The IJ therefore pretermitted Lewin's application for cancellation of removal. Lewin then filed a motion for reconsideration, which was denied. His case was ultimately transferred to a second IJ, who adopted the original IJ's conclusions regarding Lewin's removability and ineligibility for cancellation of removal.

         Lewin appealed that decision to the Board of Immigration Appeals ("BIA"), arguing that his New Jersey conviction did not categorically constitute an aggravated felony under § 1101(a)(43)(G) and that the IJ had prematurely pretermitted his application for cancellation of removal under 8 U.S.C. § 1229b(a). The BIA affirmed the IJ's decision. It too concluded that, because Lewin's New Jersey receipt of stolen property conviction categorically constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), he is ineligible for cancellation of removal. It thus dismissed Lewin's appeal. He responded with this petition for review.[2]

          II. DISCUSSION[3]

         Lewin's petition challenges only the sufficiency of the mens rea element of his New Jersey offense: he says that the minimum mens rea under New Jersey's § 2C:20-7(a) - "believing that [the property] is probably stolen" - renders that offense insufficient to categorically constitute an aggravated felony under the INA, specifically under § 1101(a)(43)(G). He argues that, although the BIA properly applied a "strict categorical approach" when determining whether his conviction constituted an aggravated felony under the INA, it reached the wrong result. (Opening Br. at 7.)

         We apply the categorical approach's element-by-element analysis to determine whether Lewin's New Jersey receiving stolen property conviction "fits" the generic definition of receiving stolen property that is contemplated by the INA under § 1101(a)(43)(G). Rojas v. Att'y Gen., 728 F.3d 203, 214 (3d Cir. 2013); see also Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (employing categorical approach for aggravated felony determination). Lewin's "actual conduct is irrelevant to the inquiry, " and we must "presume that the conviction rested upon nothing more than the least of the acts criminalized under the [New Jersey] statute." Mellouli v. Lynch, 135 S.Ct. 1980, 1986 (2015) (quotation marks and citation omitted). However, "our focus on the minimum conduct criminalized by the state statute is not an invitation to apply 'legal imagination' to the state offense; there must be 'a ...


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