Omargharib v. Holder

• Decision Date: 23 December 2014
• Docket Number: No. 13–2229.,13–2229.
• Citation: 775 F.3d 192
• Parties: Sayed Gad OMARGHARIB, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. Capital Area Immigrants' Rights Coalition; Immigrant and Refugee Appellate Center, LLC, Amici Supporting Petitioner.
• Court: U.S. Court of Appeals — Fourth Circuit

775 F.3d 192

Sayed Gad OMARGHARIB, Petitioner,

v. Eric H. HOLDER, Jr., Attorney General, Respondent.Capital Area Immigrants' Rights Coalition; Immigrant and Refugee Appellate Center, LLC, Amici Supporting Petitioner.

No. 13–2229.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 16, 2014.

Decided: Dec. 23, 2014.

ARGUED:Steffanie Jones Lewis, International Business Law Firm, PC, Washington, D.C., for Petitioner. Aimee J. Carmichael, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Stuart F. Delery, Assistant Attorney General, Civil Division, John S. Hogan, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent. Heidi Altman, Morgan MacDonald, Capital Area Immigrants' Rights Coalition, Washington, D.C.; Ben Winograd, Immigrant & Refugee Appellate Center, LLC, Alexandria, Virginia, for Amici Supporting Petitioner.

Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.

Petition for review granted; reversed and remanded with instructions by published opinion. Judge FLOYD wrote the opinion, in which Judge NIEMEYER and Judge WYNN joined. Judge NIEMEYER wrote a separate concurring opinion.

FLOYD, Circuit Judge:

In this appeal, we consider whether Sayed Gad Omargharib's conviction under Virginia's grand larceny statute, Va.Code Ann. § 18.2–95, constitutes an “aggravated felony” under the Immigration and Nationality Act (INA) § 101, 8 U.S.C. § 1101(a)(43). The Board of Immigration Appeals (BIA) answered this question in the affirmative using the so-called modified categorical approach, as clarified by Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Under Descamps, the modified categorical approach applies only if Virginia's definition of “larceny” is “divisible”—that is, if it lists potential offense elements in the alternative, thus creating multiple versions of the crime. The BIA concluded that Virginia larceny is divisible because Virginia state courts have defined it to include either theft or fraud.

Consistent with our prior precedent on this issue, however, we conclude that mere use of the disjunctive “or” in the definition of a crime does not automatically render it divisible. We further hold that, under our recent decisions construing Descamps, the Virginia crime of larceny is indivisible as a matter of law. As such, we agree with Omargharib that the modified categorical approach has no role to play in this case. Instead, the categorical approach applies, and under that approach Omargharib's grand larceny conviction does not constitute an aggravated felony under the INA. We therefore grant Omargharib's petition for review, reverse the BIA's ruling, and remand with instructions to vacate the order of removal.

I.

Omargharib, an Egyptian native and citizen, entered the United States in 1985 and became a lawful permanent resident in 1990. In 2011, he was convicted in Virginia state court of grand larceny under Va.Code Ann. § 18.2–95 for “tak [ing], steal[ing], and carry[ing] away” two pool cues valued in excess of $200 following a dispute with his opponent in a local pool league. J.A. 452. Omargharib received a suspended sentence of twelve months.¹

Following his conviction, the Department of Homeland Security sought Omargharib's removal, contending that his conviction constituted an “aggravated felony” under the INA—namely, “a theft offense ... for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G); see8 U.S.C. § 1227(a)(2)(A)(iii) (rendering deportable an alien who is convicted of an aggravated felony). Before an immigration judge (IJ), Omargharib denied that his conviction made him removable. Omargharib argued that, under the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the IJ could only compare the elements of larceny under Virginia law with the generic elements of a “theft offense” in the INA and determine whether they match. According to Omargharib, the elements do not match because Virginia law broadly defines larceny to include both theft and fraud, whereas the INA's aggravated felony statute distinguishes between theft and fraud. Compare8 U.S.C. § 1101(a)(43)(G) (theft)with id. § 1101(a)(43)(M)(i) (fraud).²

Under the categorical approach, it is thus possible that Omargharib's grand larceny conviction rested on facts amounting to fraud, not theft. It is undisputed that Omargharib's conviction does not constitute a fraud offense under the INA.³ And under the categorical approach, the IJ was not free to review the record to determine whether Omargharib's grand larceny conviction was based on theft, not fraud.

The IJ agreed that Virginia's definition of larceny is broader than the INA's corresponding “theft offense” crime and thus that the two crimes are not a categorical match.⁴ But the IJ proceeded to employ the modified categorical approach, which the IJ held permits consideration of the underlying facts surrounding Omargharib's conviction. Applying that approach, the IJ concluded that Omargharib's larceny conviction rested on facts amounting to theft, not fraud. As such, the IJ held that Omargharib's conviction constituted a theft offense under the INA, making Omargharib removable and ineligible for all forms of discretionary relief.⁵

Omargharib appealed the IJ's decision to the BIA. On September 6, 2013, the BIA dismissed Omargharib's appeal and affirmed the IJ's decision in all respects. Like the IJ, the BIA concluded that the modified categorical approach applied because Virginia law defines larceny in the disjunctive to include “wrongful or fraudulent” takings. J.A. 3. Omargharib then timely petitioned this Court for review. We have jurisdiction pursuant to 8 U.S.C. § 1252.

II.

The central issue before us is whether Omargharib's 2011 grand larceny convictionin Virginia constitutes a “theft offense” as defined by 8 U.S.C. § 1101(a)(43)(G), and thus an aggravated felony under the INA that is grounds for removal.

We review the BIA's determination on this issue de novo. Karimi v. Holder, 715 F.3d 561, 566 (4th Cir.2013). “Although we generally defer to the BIA's interpretations of the INA, where, as here, the BIA construes statutes [and state law] over which it has no particular expertise, its interpretations are not entitled to deference.” Id.; see also Matter of Chairez–Castrejon, 26 I. & N. Dec. 349, 353 (BIA 2014) (recognizing that the BIA is bound by this Court's “interpretation of divisibility under Descamps ”). The government has the burden of proving that Omargharib committed an aggravated felony by clear and convincing evidence. Karimi, 715 F.3d at 566.

To qualify as an aggravated felony, Omargharib's conviction must have been “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). Because we conclude that his crime of conviction did not constitute a “theft offense” under the INA, we reverse without reaching Omargharib's alternative argument that his term of imprisonment was for less than one year.

A.

In order to determine whether a state law conviction qualifies as an aggravated felony for removal purposes, we use the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and recently clarified in Descamps. See United States v. Aparicio–Soria, 740 F.3d 152, 160–61 (4th Cir.2014) (en banc). ⁶ Under that approach, we consider only the elements of the statute of conviction rather than the defendant's conduct underlying the offense. Descamps, 133 S.Ct. at 2285 (stating that the categorical approach's “central feature” is “a focus on the elements, rather than the facts, of a crime”). If the state offense has the same elements as the generic INA crime, then the prior conviction constitutes an aggravated felony. See id., 133 S.Ct. at 2283. But, if the state law crime “sweeps more broadly” and criminalizes more conduct than the generic federal crime, the prior conviction cannot count as an aggravated felony. Id. This is true “even if the defendant actually committed the offense in its generic form.” Id.⁷

Like the BIA, we conclude that the Virginia crime of larceny does not categorically match the INA's theft offense crime because Virginia larceny punishes a broader range of conduct than that federal offense. Specifically, Virginia law defines larceny to include both fraud and theft crimes.⁸See Britt v. Commonwealth, 276 Va. 569, 667 S.E.2d 763, 765 (2008) (Keenan, J.) (defining larceny as “the wrongful or fraudulent taking of another's property without his permission and with the intent to permanently deprive the owner of that property” (emphasis added)); see also Stokes v. Commonwealth, 49 Va.App. 401, 641 S.E.2d 780, 782, 784 (2007) (upholding a conviction for grand larceny when the defendant was indicted for defrauding a bank). Indeed, the Supreme Court of Virginia has repeatedly sustained larceny convictions when the property at issue was obtained through fraudulently obtained consent.⁹See, e.g., Skeeter v. Commonwealth, 217 Va. 722, 232 S.E.2d 756, 758 (1977); Bourgeois v. Commonwealth, 217 Va. 268, 227 S.E.2d 714, 717 (1976).

By contrast, the INA expressly distinguishes between theft and fraud offenses. Unlike the INA's theft offense, which is not tied to any dollar threshold, the INA's fraud offense only applies if the loss to the victim exceeds $10,000. Compare8 U.S.C. § 1101(a)(43)(G) (theft)with id. § 1101(a)(43)(M)(i) (fraud). Consistent with this distinction, we have previously held that a conviction for credit card fraud for less than $10,000 under Virginia law does not amount to a “theft offense” or “fraud offense” for purposes of the INA. Soliman, 419 F.3d at 282–83 (noting that any other result would transform all fraud offenses into theft offenses, thus rendering the...