Mohamed Ibrahim Hassan v. Pamela J. Bondi

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 16, 2026
• Docket: 25-1049
• Status: Published
• Author: Scudder

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________

No. 25-1049 MOHAMED IBRAHIM HASSAN, Petitioner,

v.

PAMELA J. BONDI, Attorney General of the United States, Respondent. ____________________

Petition for Review of an Order of the Board of Immigration Appeals. A094-662-067. ____________________

ARGUED FEBRUARY 10, 2026 — DECIDED MARCH 16, 2026 ____________________

Before EASTERBROOK, SCUDDER, and KIRSCH, Circuit Judges. SCUDDER, Circuit Judge. The Department of Homeland Se- curity initiated removal proceedings against Mohamed Ibra- him Hassan because it believed he had been convicted of an aggravated felony. It pointed to his conviction under Section 514.110 of the Kentucky Revised Statutes, which prohibits the receipt of stolen property. We must decide whether the Ken- tucky statute categorically matches the federal deęnition for aggravated felony receipt of stolen property. The federal 2 No. 25-1049

deęnition rešuires showing that the defendant had a sub“ec- tive knowledge or belief that the property was stolen. But we cannot conędently discern whether Section 514.110 of Ken- tucky law rešuires something less. We certify this šuestion to the Kentucky Supreme Court. I Mohamed Ibrahim Hassan is a lawful permanent resi- dent of the United States. In March 2019, he pleaded guilty to aĴempting to receive stolen property in violation of Kentucky law. See K.R.S. §§ 514.110, 506.010. A few years later, in Octo- ber 2022, the Department of Homeland Security served him with a Notice to Appear in immigration court. DHS charged Hassan with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), which provides that “[a]ny alien who is convicted of an ag- gravated felony at any time after admission is deportable.” Hassan moved to terminate the removal proceedings. He contended that Section 514.110 of the Kentucky Revised Statutes prohibited some conduct that would not count as a federal aggravated felony. The immigration “udge agreed and granted his motion. The Board of Immigration Appeals disa- greed and reversed. Hassan then petitioned for our review. He claims that his Kentucky conviction does not šualify as an aggravated fel- ony for federal immigration purposes and that it therefore cannot make him removable from the United States. We have “urisdiction to review this “šuestion[] of law.” Oluwajana v. Garland, řř F.4th 411, 414 (7th Cir. 2022) (šuoting 8 U.S.C. § 1252(a)(2)(D)). No. 25-1049 3

II Under the Immigration and Nationality Act, DHS “may remove noncitizens for a variety of reasons, including if they commit an ‘aggravated felony at any time after admis- sion’ to the United States.” Aguirre-Zuniga v. Garland, 37 F.4th 446, 449 (7th Cir. 2022) (šuoting 8 U.S.C. § 1227(a)(2)(A)(iii)). Congress has deęned “aggravated felony” to include many diěerent types of generic crimes. See 8 U.S.C. § 1101(a)(43). To determine whether a noncitizen has commiĴed an aggravated felony, courts “employ a categorical approach by looking to the statute … of conviction, rather than to the spe- cięc facts underlying the crime.” Esquivel-Quintana v. Sessions, 581 U.S. 385, 389 (2017) (cleaned up). This approach “rešuires courts to assess the minimum conduct rešuired for a convic- tion under the state statutes in šuestion.” Mwendapeke v. Gar- land, 87 F.4th 860, 867 (7th Cir. 2023). “If that conduct would not be suĜcient for conviction under the generic federal def- initions of that crime, the statute is overbroad.” Id. Congress included within the list of generic crimes that count as an aggravated felony “a theft oěense (including re- ceipt of stolen property) … for which the term of imprison- ment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). We have deęned this oěense as the “taking of property or an e¡ercise of control over property without consent with the criminal in- tent to deprive the owner of rights and beneęts of ownership, even if such deprivation is less than total or permanent.” Her- nandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir. 2001). When it comes to the receipt of stolen property, both parties agree that someone acts with the rešuisite criminal intent only if they have a sub“ective “knowledge or belief” that the prop- erty was stolen. Khan v. Garland, 69 F.4th 265, 269 (5th Cir. 4 No. 25-1049

2023) (šuoting In re Deang, 27 I. & N. Dec. 57, 61, 63 (B.I.A. 2017)). We must decide if Section 514.110 of Kentucky law re- šuires the same mental state. The statute provides that “[a] person is guilty of receiving stolen property when he or she receives, retains, or disposes of movable property of another knowing that it has been stolen, or having reason to believe that it has been stolen, unless the property is received, retained, or disposed of with intent to restore it to the owner.” K.R.S. § 514.110 (emphasis added). Various federal courts have suggested that a criminal defendant can have reason to believe that something was sto- len without having a sub“ective knowledge or belief on the point. See, e.g., United States v. Flores, 901 F.3d 1150, 1160 (9th Cir. 2018) (“A mens rea ešuivalent to the presence of a reason to believe that the property had been stolen is insuĜcient.”)Dz Khan, 69 F.4th at 268–70 (agreeing that “Pennsylvania courts have not created a “urisprudential ‘reason to believe’ standard and that [the state statute] rešuires purely sub“ective knowledge or belief that an item is stolen” instead)Dz accord In re Deang, 27 I. & N. Dec. at 63 (“We cannot infer that a violator who received property with a ‘reason to believe’ that the property was stolen … intended to deprive the true owner of the rights and beneęts of ownership.”). But the meaning of Section 514.110’s “reason to believe” standard is a šuestion of Kentucky law. We therefore look to the Kentucky Supreme Court for guidance. Kentucky case law supplies no clear answer. In Com- monwealth v. GriĜn, the Kentucky Supreme Court suggested that the “reason to believe” standard may be purely ob“ective. 759 S.W.2d 68, 69 (Ky. 1988). A “ury convicted William GriĜn No. 25-1049 5

of violating Section 514.150, which prohibits the possession of stolen mail when someone acts “knowingly or having reason to believe” that the mail was stolen. K.R.S. § 514.150Dz see Grif- ęn, 759 S.W.2d at 69. The trial court instructed the “ury to con- vict if it found that GriĜn “knew or had reason to believe” as much. GriĜn, 759 S.W.2d at 69. An intermediate court of ap- peals reversed the conviction because it thought this instruc- tion violated a state statute rešuiring nearly all criminal laws to punish only conduct engaged in “intentionally, knowingly, wantonly or recklessly.” Id. (šuoting K.R.S. § 501.030). The Kentucky Supreme Court disagreed, reasoning that “[t]he phrase ‘or had reason to believe’ as used in the instructions [was] within the meaning of the statutory term ‘knowingly.’” Id. It e¡plained that GriĜn was “held to know that which any reasonable person so situated would have known.” Id. To our eye, GriĜn’s e¡planation of the “reason to be- lieve” standard looks like what we have called “constructive knowledge.” Pressley v. Haeger, 977 F.2d 295, 297 (7th Cir. 1992). Constructive knowledge is not actual knowledge. See id. It instead refers to the knowledge someone “should have acšuired … through reasonable diligence.” Allen v. City of Chi- cago, 865 F.3d 936, 938 (7th Cir. 2017). On this view, a Ken- tucky “ury could convict someone of violating Section 514.110 upon ęnding that a reasonable person would have connected the dots and known or believed that the received property was stolen. It would not need to take the added step of ęnd- ing, if only by inference, that the defendant sub“ectively knew or believed as much. But GriĜn is not the only pertinent precedent. More re- cently, in Martin v. Commonwealth, the Kentucky Supreme Court suggested that GriĜn was all about deliberate 6 No. 25-1049

ignorance. See 96 S.W.3d 38, 62 (Ky. 2003). It e¡plained that statutes like Section 514.150, which “rešuire only something similar to constructive knowledge,” “are premised upon a recognition that ‘wilful blindness’ is ešuivalent to knowledge.” Id. (citing Robert G. Lawson & William H. For- tune, Kentucky Criminal Law § 2-2(c)(1) (Le¡is 1998)Dz Rollins M. Perkins, Criminal Law, ch. 7, § 4C (2d ed. Found. Press 1969)). As a result, “Commonwealth v. GriĜn … held that the mens rea element of ‘knowingly or having reason to believe’ in KRS 514.150 was suĜcient to uphold a criminal conviction.” Mar- tin, 96 S.W.3d at 62. On its face, Martin’s gloss on GriĜn resembles what we have called an “ostrich” instruction. Pressley, 977 F.2d at 297. These instructions inform “uries that they “may ęnd that the defendant acted knowingly if [they] ęnd beyond a reasonable doubt that he believed it was highly probable that [the rele- vant fact was true] and that he took deliberate action to avoid learning that fact.” he illiam J. auer PaĴern Criminal Jury Instructions of the Seventh Circuit § 4.10 (2023). They clarify that “a person may not escape criminal liability by pleading igno- rance if he knows or strongly suspects he is involved in crim- inal dealings but deliberately avoids learning more e¡act in- formation about the nature or e¡tent of those dealings.” United States v. Tantchev, 916 F.3d 645, 652–53 (7th Cir. 2019) (cleaned up). Deliberate ignorance counts as a form of actual knowledge in the federal system. See Pressley, 977 F.2d at 297. So Section 514.110 may not be overbroad if its “reason to be- lieve” standard merely captures deliberate ignorance. But deliberate ignorance may mean something diěer- ent in the federal system than it does in Kentucky. In the fed- eral system, “[t]he focus of the ostrich instruction is on the No. 25-1049 7

particular defendant, and not a reasonable person.” United States v. Carrillo, 435 F.3d 767, 782 (7th Cir. 2006). “It asks whether the defendant deliberately avoided knowledge by shuĴing his or her eyes,” and it “should only be given where there are facts and evidence that support an inference of de- liberate ignorance.” Id. (cleaned up). Evidence that “a reason- able person would have been strongly suspicious, or that a defendant should have been aware of criminal knowledge,” “does not support an inference that a particular defendant was deliberately ignorant.” Id. We therefore e¡pressly distin- guish between deliberate ignorance and constructive knowledge. See Pressley, 977 F.2d at 297. Martin suggests that when it comes to Kentucky law, a “ury may ęnd deliberate ignorance based on “something sim- ilar to constructive knowledge.” 96 S.W.3d at 62. More specif- ically, the “ury may ęnd that a defendant was deliberately ig- norant of anything “which any reasonable person so situated would have known.” GriĜn, 759 S.W.2d at 69. This under- standing of deliberate ignorance would make Section 514.110 overbroad compared to the federal deęnition of aggravated felony theft. No other Kentucky Supreme Court or Court of Ap- peals case answers whether convicting someone under Sec- tion 514.110 rešuires ęnding they had a sub“ective knowledge or belief that the received property was stolen. The cases dis- cussing Section 514.110 do not resolve whether the mental state rešuirement is sub“ective or ob“ective. See, e.g., Conyers v. Commonwealth, 530 S.W.3d 413, 424 (Ky. 2017) (“Receiving stolen property rešuires proof of the retention or disposition of property with the knowledge that the property has been stolen.”)Dz Lawson v. Commonwealth, 85 S.W.3d 571, 577 n.11 8 No. 25-1049

(Ky. 2002) (e¡plaining that the Kentucky General Assembly amended Section 514.110 “to include persons ‘having reason to believe that it has been stolen’” in an eěort “to e¡tend the culpable mental state” covered by the statute (šuoting 2000 Ky. Acts Ch. 490, § 2)). Out of respect for the province of the Kentucky Supreme Court, we are hesitant to oěer an answer. So we invite the Kentucky Supreme Court to “illumi- nate a clear path on the issue.” Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 639 n.18 (7th Cir. 2002) (cleaned up). Rule 50 of the Kentucky Rules of Appellate Procedure provides that cer- tięcation to the Kentucky Supreme Court is permissible if we are faced with a šuestion of Kentucky law that “may be de- terminative of the cause” and “it appears … that there is no controlling precedent in the decisions of the Supreme Court and the Court of Appeals” of Kentucky. Ky. R. App. P. 50(A). This case meets those criteria. First, the mental state re- šuired by Section 514.110 determines whether Hassan’s stat- ute of conviction is a categorical match to a federal aggravated felony, making him removable from the United States. Sec- ond, Martin’s description of GriĜn leaves us “genuinely un- certain” as to the e¡act ęnding a “ury must make to convict a defendant under Section 514.110. In re Hernandez, 918 F.3d 563, 570 (7th Cir. 2019) (cleaned up). This šuestion also presents “an important issue of pub- lic concern” and is “likely to recur.” Martin v. Goodrich Corp., 95 F.4th 475, 481 (7th Cir. 2024) (cleaned up). The government routinely contends that state law convictions fall within the federal deęnition of receipt of stolen property. See, e.g., Chmukh v. Garland, 124 F.4th 670, 676–78 (9th Cir. 2024)Dz Khan, 69 F.4th at 267Dz Flores, 901 F.3d at 1154Dz In re Deang, 27 I. & N. No. 25-1049 9

Dec. at 58. We have no doubt this issue will arise again in Ken- tucky. For these reasons, we certify the following šuestion to the Kentucky Supreme Court: Does Section 514.110 of the Kentucky Revised Statutes rešuire a sub“ective knowledge or be- lief that the received property was stolen? More specięcally, could a Kentucky “ury convict a de- fendant under Section 514.110 merely by ęnd- ing that a reasonable person would have known the property was stolen, even absent any evi- dence that the defendant deliberately avoided that knowledge? By oěering this specięc framing, we do not intend to limit the scope of the Kentucky Supreme Court’s inšuiry. We welcome any guidance from the Justices. QUESTION CERTIFIED.