Ninth Circuit Finds that Washington Conviction for Possession of a Stolen Vehicle is an Aggravated Felony

In the case of Vitaliy Chmukh v. Garland, the Ninth Circuit Court of Appeals has determined that a Washington conviction for possession of a stolen vehicle qualifies as an aggravated felony. This holds true if it is accompanied by a sentence of at least one year of imprisonment. The court also held that this conviction was a “particularly serious crime.” Therefore, it made the petitioner, Vitaliy Chmukh, ineligible for asylum and withholding of removal. The court’s decision affirms the prior rulings of the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA).

Background of the Case

Vitaliy Chmukh, a native and citizen of Ukraine, came to the United States as a refugee in 2001. Chmukh pleaded guilty to possession of a stolen vehicle under Washington law (RCW § 9A.56.068). He also pleaded to a separate charge of possession of a controlled substance. A Washington judge sentenced him to a concurrent sentence of 43 months for the stolen vehicle offense. Of which, he ultimately served 38 months.

The Department of Homeland Security (DHS) initiated removal proceedings against Chmukh. They charged that his conviction for possession of a stolen vehicle was an “aggravated felony” as defined in the Immigration and Nationality Act (INA). Chmukh subsequently applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). He was claiming a fear of persecution in Ukraine. The IJ and BIA denied his applications, leading to his petition for review by the Ninth Circuit.

Ninth Circuit’s Legal Reasoning

The Ninth Circuit’s decision rested on two main points: whether Chmukh’s conviction was an aggravated felony and whether it was a “particularly serious crime.”

Aggravated Felony

The court employed a

categorical approach, comparing the elements of the Washington statute to the generic federal definition of a theft offense. The court’s analysis found that Washington’s statute for possession of a stolen vehicle is a categorical match to the generic federal offense of receipt of stolen property. The court reasoned that “actual knowledge requires an intent to deprive the owner of his property, [so] the state statute also matches the generic offense’s intent requirement”.

The court relied on a Washington Supreme Court decision which clarified that “dispose of” is not a separate criminal act. Rather, it is a “facet[] of the same criminal conduct” as possession. Therefore, there is no “realistic” probability that Washington would apply the statute to conduct that falls outside the generic definition.

Particularly Serious Crime

The court also affirmed the BIA’s determination that Chmukh’s crime was a “particularly serious crime,” which bars an individual from withholding of removal. The court applied the

Frentescu factors—the nature of the conviction, the sentence imposed, and whether the circumstances indicate the alien is a danger to the community. The court noted that Chmukh’s conviction, as an aggravated felony, is one of the types of crimes “most likely to be” particularly serious.

The court found that the BIA did not err by failing to explicitly list the elements of the crime. Similarly, it did not err by not specifically mentioning how Chmukh posed a “danger to the community”. The court concluded that the BIA’s analysis of the nature and circumstances of the conviction along with the sentence imposed was sufficient. This justified its conclusion that the crime was particularly serious.

Concurring and Dissenting Opinions

While the main opinion was in full agreement, there were a concurring and a partially dissenting opinion. Judge VanDyke concurred to criticize the Ninth Circuit’s precedent on the

exhaustion doctrine, arguing that the Abebe v. Gonzales case encourages “perverse gamesmanship” where petitioners can withhold arguments from the BIA. They might do this in the hopes of securing a remand. This could delay their removal. Judge Sanchez partially concurred and dissented. He agreed that the conviction was an aggravated felony, but argued that the BIA violated its own precedent in the “particularly serious crime” determination. He contended that the BIA failed to perform the required elements-only inquiry. The BIA also did not adequately explain why Chmukh’s non-violent offense justified a finding that he was a “danger to the community”. Ultimately, the court denied Chmukh’s petition for review. What are the specific elements of the Washington statute? How does this ruling affect other theft convictions? What are the implications for someone facing similar charges?