Submitted: May 15, 2019
Petition for Review of an Order of the Board of Immigration
COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
Inzunza Reyna, a citizen of Mexico, petitions for review of a
decision of the Board of Immigration Appeals that he is
ineligible for cancellation of removal because he sustained a
prior conviction for a crime involving moral turpitude. We
agree with the Board and therefore deny the petition.
entered the United States from Mexico illegally in 1998. In
September 2008, he pleaded guilty to theft by receiving
stolen property, in violation of Neb. Rev. Stat. §
28-517 (1977). The Nebraska statute declares that "[a]
person commits theft if he receives, retains, or disposes of
stolen movable property of another knowing that it has been
stolen, or believing that it has been stolen, unless the
property is received, retained, or disposed with intention to
restore it to the owner." Id. § 28-517.
Reyna's theft by receiving offense was a Class I
misdemeanor, punishable by up to one year of imprisonment.
See id. § 28-106(1).
government commenced removal proceedings against Reyna in
2008. Reyna conceded removability but applied for
cancellation of removal under 8 U.S.C. § 1229b. An
immigration judge denied the application, and the Board
dismissed Reyna's administrative appeal. The Board
concluded that Reyna was ineligible for cancellation of
removal because his Nebraska theft by receiving offense was
categorically a crime involving moral turpitude. See
id. §§ 1229b(b)(1)(C), 1227(a)(2)(A)(i). Reyna
disputes that conclusion, and we review the Board's legal
determination de novo. See Gomez-Gutierrez v.
Lynch, 811 F.3d 1053, 1058 (8th Cir. 2016).
threshold matter, Reyna contends that neither the immigration
judge nor the Board had subject matter jurisdiction over his
removal proceedings, because the initial notice to appear
served on Reyna did not include information about when and
where to appear. We recently rejected the same argument in
Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019), and
Reyna's preliminary contention is foreclosed by that
Immigration and Nationality Act provides that an alien who is
convicted of a crime involving moral turpitude is ineligible
for cancellation of removal where the offense is punishable
by a sentence of one year or longer. See 8 U.S.C.
§§ 1229b(b)(1)(C), 1227(a)(2)(A)(i); Pereida v.
Barr, 916 F.3d 1128, 1133 n.2 (8th Cir. 2019). Congress
did not define "crime involving moral turpitude,"
and we have accepted the Board's interpretation that such
crimes require conduct that is "inherently base, vile,
or depraved, and contrary to accepted rules of morality and
the duties owed between persons or to society in
general." Pereida, 916 F.3d at 1131 (internal
quotation omitted). At the time of Reyna's theft by
receiving offense, the Board had long concluded that theft
crimes involve moral turpitude, but "only when a
permanent taking is intended." Dominguez-Herrera v.
Sessions, 850 F.3d 411, 418 (8th Cir. 2017) (quoting
In re Grazley, 14 I. & N. Dec. 330, 333 (B.I.A.
the so-called categorical approach to determine whether
Reyna's theft offense is a crime involving moral
turpitude. Under that approach, we consider whether the
elements of his offense necessarily fit within the
Board's generic definitions. See Pereida, 916
F.3d at 1131-32. We proceed by presuming that Reyna's
conviction rested on no more than "the least of the acts
criminalized" by the Nebraska statute, but this analysis
is not "an invitation to apply 'legal
imagination' to the state offense."
Gomez-Gutierrez, 811 F.3d at 1058 (internal
quotations omitted). For an offense to fall outside of the
generic definition of a crime involving moral turpitude,
"there must be a realistic probability, not a
theoretical possibility, that the State would apply its
statute to conduct that falls outside the generic
definition." Id. (internal quotation omitted).
Reyna has the burden of establishing that realistic
probability. See 8 U.S.C. § 1229a(c)(4)(A)(i);
Pereida, 916 F.3d at 1132; Villatoro v.
Holder, 760 F.3d 872, 879 (8th Cir. 2014).
offense of theft by receiving under Neb. Rev. Stat. §
28-517 is categorically a crime involving moral turpitude.
The statute prohibits receiving, retaining, or disposing of
stolen movable property while knowing or believing the
property to be stolen, unless undertaken "with intention
to restore it to the owner." Lack of intent to restore
the property to its owner is an element of the crime.
State v. Hubbard, 673 N.W.2d 567, 575 (Neb. 2004).
Proving a lack of intent to restore property to its owner is
functionally equivalent to establishing an intent to deprive
an owner of property permanently. The Nebraska Supreme Court
has quoted favorably commentary on § 223.6 of the Model
Penal Code-upon which § 28-517 is based-that equates the
two intent standards:
Theft convictions generally require a purpose to deprive
another of his property. In terms, Section 223.6 does not
require such a purpose for criminal receiving, but the
net effect of its provisions is the same. . . . Since a
purpose to restore defeats conviction, and since the
prosecution must establish beyond a reasonable doubt that the
actor did not have such a purpose, the culpability
required under Section 223.6 can properly be assimilated to a
purpose to deprive the victim of his property. As a
practical matter, the absence of a purpose to restore will be
proved by showing that it was part of the receiver's plan
to avoid detection and to realize for himself the benefits of
Id. at 574-75 (emphases added) (quoting Model
Penal Code & Commentaries § 223.6 cmt. 4(a)
(Am. Law Inst. 1980)).
contends that there is daylight between lacking intent to
restore property to an owner and intending to deprive an
owner permanently. He offers a type of "joyriding"
as an example: a person who drives a stolen vehicle and then
abandons it might not care whether the vehicle ultimately
ends up back in the hands of the rightful owner. That person,
Reyna argues, would not have intent to deprive the owner