OMAR NORVIL WHYLIE LEWIN, AKA Omar Lewin, AKA Omar N. Lewin, AKA Lewin Omard, AKA Lewin N. Oman, Petitioner
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent
Submitted Under Third Circuit LAR 34.1(a) January 11, 2018
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
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.
JORDAN, Circuit Judge.
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
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. 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).
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.
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.
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.)
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