In a published decision, the Fourth Circuit addressed  18 USC 659, a statute criminalizing actions related to stolen and embezzled property.  The petitioner was convicted of possession of stolen or embezzled property.  The Board of Immigration Appeals (Board) deemed his offense to be a theft aggravated felony.  Though the Board acknowledged that possession of embezzled property would not fit the typical definition of a theft offense because embezzlement requires obtaining the property with the owner's consent through fraudulent means while theft requires obtaining the property without the owner's consent, it noted that the aggravated felony provision actually encompasses "a theft offense (including receipt of stolen property.)"  Thus, the Board concluded that possession of embezzled property fell within the ambit of "receipt of stolen property," despite the absence of a requirement that the property be obtained without the owner's consent.  The Fourth Circuit disagreed, construing the receipt of stolen property parenthetical as a subset of the larger definition of a theft offense, and thus, determined that a receipt of stolen property offense still requires that the property be obtained without the owner's consent.  As such, receipt of embezzled property would fall outside the ambit of the aggravated felony provision.  The Court concluded that the second paragraph of section 659 is not a “theft offense (including receipt of stolen property).”

The full text of Mena v. Lynch can be found here: