Aggravated Felony Attempted Theft: State Unarmed Assault with Intent to Rob or Steal as a Categorical Match under the INA

Introduction

In Samir Fernandes Baptista v. Pamela Jo Bondi, the United States Court of Appeals for the Fourth Circuit addressed whether a Massachusetts conviction for unarmed assault with intent to rob or steal qualifies as an aggravated felony attempted theft offense under the Immigration and Nationality Act (INA). Samir Baptista, a lawful permanent resident admitted in 2005, was later convicted in Massachusetts state court of unarmed assault with the intent to rob or steal and sentenced to nine to ten years’ imprisonment. The Department of Homeland Security initiated removal proceedings on the ground that Baptista had committed an aggravated felony after admission. Both the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) held that Baptista’s state offense constituted an aggravated felony attempted theft, and ordered his removal. Baptista petitioned this court, arguing that his conviction was categorically broader than a federal attempted theft offense because Massachusetts “stealing” can include fraudulently obtained consent and because the assault statute does not require a substantial step.

Summary of the Judgment

The Fourth Circuit, applying de novo review to the BIA’s legal conclusion, denied Baptista’s petition for review. The court held:

By the categorical approach, the elements of Massachusetts unarmed assault with intent to rob or steal are a match to a “theft offense” as defined in 8 U.S.C. § 1101(a)(43)(G) and an “attempt” to commit such an offense under § 1101(a)(43)(U).
The “steal” element in Massachusetts requires a non-consensual taking—reinforced by the force-and-violence requirement and model jury instructions—and thus aligns with the generic federal definition of theft (“without consent”).
Although Massachusetts labels the offense a completed crime, its elements demand intent to commit theft and an overt act (force or threat) that constitutes a substantial step toward that theft. Such conduct qualifies as an inchoate or “attempt” offense under the INA.
The petition was therefore properly denied, and Baptista remains removable as someone convicted of an aggravated felony.

Analysis

4.1 Precedents Cited

The court relied on a robust body of Supreme Court and Fourth Circuit authority to guide its categorical analysis:

Mathis v. United States, 579 U.S. 500 (2016): Defines the categorical approach and “generic offense.”
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007): Establishes non-consensual taking as essential to generic theft.
Moncrieffe v. Holder, 569 U.S. 184 (2013): Prohibits “legal imagination” hypotheticals under the categorical approach.
Castendet-Lewis v. Sessions, 855 F.3d 253 (4th Cir. 2017): Reinforces focus on statutory elements only.
Sanchez v. Sessions, 885 F.3d 782 (4th Cir. 2018): Affirms de novo review of BIA legal conclusions.
Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014): Defines generic federal attempted theft (intent + substantial step).
Taylor v. United States, 495 U.S. 575 (1990): Insists on uniform federal definitions independent of state labels.
Sui v. INS, 250 F.3d 105 (2d Cir. 2001): Rejects limiting INA “attempt” to state-labeled attempt statutes.
Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001) & Ngaeth v. Mukasey, 545 F.3d 796 (9th Cir. 2008): Treat completed breaking-and-entering with intent to steal as attempted theft.

In addition, state‐law precedents shaped the understanding of Massachusetts larceny and assault:

Commonwealth v. Mills, 764 N.E.2d 854 (Mass. 2002): Merged larceny, embezzlement, and false pretenses into a single “stealing” offense.
Commonwealth v. Gauthier, 488 N.E.2d 806 (Mass. App. Ct. 1986): Defines force and violence in assault.
Commonwealth v. Jorritsma, 2001 WL 1561861 (Mass. App. Ct. 2001): Emphasizes mens rea for threatened battery.
Porro & other model jury instructions: Require non‐consensual taking “against the victim’s will” for robbery/assault.
Correia, 457 N.E.2d 648 (Mass. App. Ct. 1983) & Assad, 476 N.E.2d 629 (Mass. App. Ct. 1985): Show assault as a substantial step when linked to continuing intent to steal.
Kemokai v. U.S. Atty Gen., 83 F.4th 886 (11th Cir. 2023): Rejects overbroad reading of “steal” in Massachusetts robbery statutes.

4.2 Legal Reasoning

The court’s reasoning unfolded in two main stages under the categorical approach:

Generic Theft Matching:
- Generic federal theft requires a non-consensual taking with intent permanently to deprive.
- Although Massachusetts “steal” encompasses historic common‐law categories (larceny, embezzlement, false pretenses), robbery and unarmed assault (chapter 265 offenses) demand force or threatened force “against the victim’s will.” Model jury instructions reinforce the victim’s lack of consent.
- The “force and violence” element makes consensual taking impossible, so the state offense is no broader than generic federal theft.
Attempt Analysis:
- INA § 1101(a)(43)(U) treats “attempt to commit” a theft offense as an aggravated felony.
- The Fourth Circuit, joined by other circuits, refuses to confine “attempt” to state statutes labeled “attempt.” Instead, any state offense whose elements match intent + overt act (substantial step) is an attempt under federal law.
- Massachusetts unarmed assault requires intent to rob or steal and an overt act (force or threat) that places the victim in fear—a classic “substantial step.”
- State decisions like Correia and Assad confirm the assault must further the ongoing intent to steal, thus qualifying as a substantial step toward theft.

4.3 Impact

This decision carries significant implications:

Immigration Enforcement: Clarifies that sizable categories of state assault convictions—whether labeled “complete” crimes—may trigger aggravated-felony removal if they satisfy generic attempt elements.
Plea Counseling: Criminal defense and immigration counsel must apply the categorical approach when advising noncitizen clients about guilty pleas to assault‐with‐intent charges.
State Criminal Codes: States cannot avoid federal immigration consequences by labeling offenses as completed rather than inchoate; federal definitions remain uniform.
Future Litigation: Reinforces the principle that the INA’s aggravated felony definitions focus on the substance of statutory elements, not labels, likely affecting challenges to other state inchoate‐type offenses.

Complex Concepts Simplified

Categorical Approach: Compare only statutory elements (not individual facts) against a uniform federal “generic” definition.
Generic Federal Theft: Taking property “without consent,” with intent permanently to deprive.
Aggravated Felony Definitions: INA § 1101(a)(43)(G) covers theft offenses with ≥1-year imprisonment; § 1101(a)(43)(U) covers attempts to commit such a theft.
Overt Act / Substantial Step: A concrete act strongly corroborating criminal intent, beyond mere preparation.
Divisible vs. Indivisible Statute: Whether a statute lists alternative elements (divisible) or only alternative means (indivisible), affecting which generic offenses it can match.

Conclusion

Samir Baptista v. Bondi establishes that a state conviction for unarmed assault with intent to rob or steal—though labeled a completed crime—can be an aggravated felony attempted theft under the INA when its elements require non-consensual taking and a substantive, force-based step toward theft. The Fourth Circuit’s decision underscores the primacy of element-based analysis over state statutory labels, shaping removal jurisprudence and reinforcing the uniform application of federal aggravated-felony definitions. Immigration practitioners and state criminal defense counsel alike must now account for this broad construction when assessing the removal risks of inchoate and assault‐related convictions.