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Keywords

defendantstatuteappealfelonyprobationmens rea
statutewillfelonyprobationmens rea

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Lewin v. AG

Facts

Omar Norvil Whylie Lewin, a Jamaican citizen, was admitted to the U.S. as a legal permanent resident in 1987. In 2000, he was convicted of receiving stolen property in New Jersey and sentenced to probation, which he later violated, resulting in a four-year prison sentence. After being charged as removable due to his conviction, Lewin's application for cancellation of removal was pretermitted by an Immigration Judge, leading to his appeal to the Board of Immigration Appeals.

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.

Issue

Whether Lewin's conviction under New Jersey's Receiving Stolen Property Statute constitutes an 'aggravated felony' under the Immigration and Nationality Act.

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).

Rule

To qualify as an aggravated felony under the INA, the theft offense must include a mens rea of knowledge or belief regarding the stolen nature of the property, and the term of imprisonment must be at least one year.

The INA includes a generic theft offense within its list of specified aggravated felonies, and it requires that, to fit the definition of aggravated felony, the 'theft offense (including receipt of stolen property) … [must be one] for which the term of imprisonment [is] at least one year[.]' 4 8 U.S.C. 1101(a)(43)(G).

Analysis

The court applied the categorical approach to determine if Lewin's conviction fit the generic definition of receiving stolen property under the INA. It found that the New Jersey statute's requirement for a defendant to know or believe that the property was stolen satisfied the mens rea requirement for an aggravated felony. The court emphasized that the BIA's interpretation of the statute was correct and that Lewin's arguments did not undermine this conclusion.

We agree with the BIA's conclusion that the mens rea element of New Jersey's receiving stolen property statute is categorically sufficient to constitute an aggravated felony under 1101(a)(43)(G).

Conclusion

The court denied Lewin's petition for review, affirming that his conviction for receiving stolen property constituted an aggravated felony under the INA.

For the foregoing reasons, we will deny Lewin's petition for review.

Who won?

The government prevailed in the case, as the court upheld the BIA's determination that Lewin's conviction met the criteria for an aggravated felony.

The government argues that Matter of Deang forecloses Lewin's argument that New Jersey's receipt of stolen property statute, with its 'knowing … or believing' mens rea, N.J. Stat. Ann. 2C:20-7(a), is insufficient to constitute an aggravated felony under the INA.

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