Mendez v. Mukasey (2d Cir. 11/6/08, no. 07-1114-ag)
KATZMANN, Sack, Rakoff
Petitioner argued that her CT conviction for first degree larceny in the form of "defrauding a public community" was not a crime involving moral turpitude. The 2d Circuit reviewed the Board's determination that the crime was a CIMT de novo, according no deference to the Board's construction of state criminal statutes. See Gill v. INS, 420 F.3d 82, 89 (2d Cir. 2005). However, the court also found that the crime was a CIMT and denied the petition.
The court applied the modified categorical approach, finding that the statute under which Petitioner was convicted was divisible and thus looking to the record of conviction - which evidenced a conviction for larceny by defrauding a public community. Petitioner argued that this conviction - under Conn. Gen. Stat. 53a-119(6) - was not a CIMT because the state did not need to prove an intent to defraud in order to obtain a conviction under this particular subsection of the statute. She argued that the statutory language in 53a-119 defining larceny as "wrongfully tak[ing]" property from another "with intent to deprive" that person of the property was simply prefatory language and that a person could be convicted under (6) without either an intent to defraud or prejudice the government. The court rejected this argument, finding in accordance with an earlier decision, Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004) that the "intent to deprive" language in 53a-119 was mandatory throughout the statute's subsections. Although Abimbola did not control the case at hand as it dealt with third degree larceny, dicta in Abimbola recognized that the intent to deprive requirement also applied to first and second degree larceny.
Finally, the court rejected Petitioner's arguments that the CT Appellate Court's decision in State v. Robins vitiated the statutory requirement of intent, finding that Robins stood for the much narrower proposition that the state need not prove that a person making a fraudulent claim otherwise would not be entitled to benefits. In addition, the court found that while not every offense under the CT larceny statute constitutes a CIMT, defrauding a public community does since the temporary v. permanent taking distinction that applies to theft does not apply to offenses involving an intent to defraud. See Wala v. Mukasey, 511 F.3d 102(2d Cir. 2007).