Immigration: Petit larceny is a crime involving moral turpitude

Where a woman argued that petit larceny did not qualify as a crime involving moral turpitude, rendering her ineligible for cancellation of removal, the court rejected this argument.

Background

Eugenia Bautista Chavez challenges the Board of Immigration Appeal, or BIAs, order of removal based on her 2011 conviction for petit larceny. The BIA held, as had the immigration judge, that petit larceny categorically qualified as a crime involving moral turpitude, rendering Chavez ineligible for cancellation of removal.

Larceny

Chavez asserts that the “reasonable basis” language found in Virginia cases means that “Virginia courts only permit defendants to raise a claim-of-right defense when they had an objectively reasonable belief that they had a right to take the property in question.” The government counters that Virginia courts use the “reasonable basis” language as a threshold determination as to “whether there is sufficient evidence to allow an instruction on abandonment to go to the jury.” The government has the better of the arguments.

Virginia has long held that “there can be no larceny of the property taken if it, in fact, is the property of the taker, or if he, in good faith, believes it is his, for there is lacking the criminal intent which is an essential element of larceny.” None of the cases Chavez cites change that larceny requires an intent to permanently deprive and that this criminal intent may be negated by a good faith claim of right.

While it’s true that a fact finder in Virginia need not unreservedly accept that a defendant’s subjective belief is held in good faith, it’s another long-held principle that a subjective belief “must be sincere and not merely a dishonest pretext.” And Virginia courts may ensure that a defendant’s subjective belief meets this threshold showing without transforming larceny from a specific intent crime or into a criminally negligent one.

De minimis

Chavez argues that the BIA’s position that “petit larceny is reprehensible is inconsistent with [BIA] precedent” governing related crimes.  Second, Chavez asserts that “Virginia petit larceny prohibits the taking of property of de minimis value—including property worth less than a penny, . . . and society does not regard as reprehensible the stealing of property worth a fraction of a cent.” In both instances, Chavez asks that this court define a larceny crime’s moral turpitude based on the monetary value of the item taken rather than on the act of taking. It declines to do so.

For more than 80 years, the BIA has held that theft offenses constitute a crime involving moral turpitude if the taking includes an intent to permanently deprive. And federal courts (including this one) have either found or assumed the same for petit larceny. What’s more, Virginia’s high court has counted petit larceny as a crime involving moral turpitude for purposes of impeaching a witness, opining that “larceny, either grand or petit, is shot through with moral turpitude.”

Chavez contends that the BIA’s cases on larceny crimes are logically inconsistent because they don’t distinguish grand and petit larceny (or substantial and de minimis takings) “from a monetary standpoint.” Yet, says Chavez, for other theft crimes, the BIA does “distinguish between substantial and de minimis takings from a temporal standpoint,” holding that only permanent takings are crimes involving moral turpitude.  Chavez’s description of the cases is correct, but her argument based on them isn’t persuasive.

Chavez next argues that society no longer views petit larceny as reprehensible, and that cases holding otherwise are based on outdated norms. These stray examples and even Chavez’s “argument[s] based on the robust debate about the decriminalization of [petit larceny] do[] not indicate that the broad societal consensus as to the immorality of [petit larceny] has been materially eroded.” To recognize and give credit to such an alleged normative shift in how society now views de minimis takings, this court would need clearer and more objective evidence than this record presents.

BIA

Chavez contends that the BIA erred in denying her reconsideration motion because the temporary board member who decided the motion remained in office beyond the six-month term he could serve under federal regulations. In Salomon-Guillen v. Garland, 123 F.4th 709 (4th Cir. 2024), this court upheld the validity of consecutive appointments of temporary BIA members by the Attorney General. That holding forecloses Chavez’s challenge.

Petition denied.

Chavez v. Bondi, Case No. 23-1379, 23-2059, Apr. 10, 2025. 4th Cir. (Diaz), from Board of Immigration Appeals. Benjamin Ross Winograd for Petitioner. Rodolfo David Saenz for Respondent. VLW 025-2-129. 26 pp.