Ruachkuoth Thok v. Merrick Garland, No. 22-2508 (8th Cir. 2023)
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Petitioner, a native of Sudan and citizen of South Sudan, petitions this Court for review of a Board of Immigration Appeals (BIA) order affirming the immigration judge’s (IJ) decision ordering Petitioner removed and reversing the IJ’s decision granting Petitioner deferral of removal to South Sudan. Petitioner argued that the BIA erred by (1) limiting its review on remand to address only whether he had been convicted of a theft offense, (2) determining that the Nebraska shoplifting statute constitutes an aggravated felony as a theft offense, and (3) reversing the IJ’s grant of deferral of removal to South Sudan.
The Eighth Circuit granted the petition for review, vacated the BIA’s order, and remanded the matter to the BIA for further proceedings. The court explained that for Nebraska’s shoplifting statute to be a categorical match to the generic definition of theft, it must criminalize only those who act with the specific intent to “deprive the owner of the right and benefits of ownership.” The court wrote that contrary to the BIA’s order, that appropriation “necessarily deprives the owner of the rights and benefits of ownership” does not mean that the offender acted with the specific intent for that deprivation to occur. Accordingly, the BIA erred in finding that Petitioner was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions.
Court Description: [Shepherd, Author, with Stras and Kobes, Circuit Judges] Petition for Review - Immigration. The BIA erred in finding petitioner removable for having committed a theft offense, and thus an aggravated felony, based on his conviction for Nebraska shoplifting under Neb. Rev. Stat. Sec. 28-511.01 because the statute's mens rea is broader than the generic definition of theft, as it criminalizes more than those who act with the specific intent to deprive the owner of the right and benefits of ownership of goods or merchandise.
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