Carlos-blaza v. Holder

• Decision Date: 30 June 2010
• Docket Number: No. 07-70632.,07-70632.
• Citation: 611 F.3d 583
• Parties: Aurora CARLOS-BLAZA, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

611 F.3d 583

Aurora CARLOS-BLAZA, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 07-70632.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 8, 2009.

Filed June 30, 2010.

COPYRIGHT MATERIAL OMITTED

Sin Yen Ling, San Francisco, CA, for petitioner Carlos Blaza.

James Arthur Hunolt, Senior Litigation Counsel, United States Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Ronald E. LeFevre, Department of Homeland Security, San Francisco, CA, Aviva Poczter, Senior Litigation Counsel, United States Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for respondent Eric Holder.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A040-317-082.

Before DIARMUID F. O'SCANNLAIN, JOHNNIE B. RAWLINSON, and CARLOS T. BEA, Circuit Judges.

OPINION

BEA, Circuit Judge:

We are called on to decide whether a bank employee who “knowingly stole, embezzled, and misapplied moneys” in the amount of $65,000 committed a crime that “involves fraud or deceit.” Unsurprisingly, we answer that question “yes.”

Aurora Carlos-Blaza, a native and citizen of the Philippines and legal permanent resident of the United States, appeals from the Immigration Judge's (“IJ's”) order removing her from the United States as an aggravated felon pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). The IJ entered the order on remand from the Board of Immigration Appeals (“BIA”) after the BIA decided that Carlos-Blaza's guilty plea to stealing, embezzling, and misapplying $65,000 of bank funds in violation of 18 U.S.C. § 656 qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i), which defines an aggravated felony as “an offense that ... involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” In this appeal, Carlos-Blaza contends the BIA erred when it decided she was an aggravated felon because her offense did not involve fraud or deceit. Because Carlos-Blaza pleaded guilty to knowing misapplication of funds, and the knowing misapplication of funds necessarily involves fraud, we hold that she was convicted of an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(M)(i). Therefore, we deny Carlos-Blaza's petition for review.

Factual and Procedural Background

Aurora Carlos-Blaza entered the United States as the child of a lawful permanent resident on December 21, 1985. From 2000 to 2003, she worked as a Financial Services Representative for Bank of the Sierra in Fresno, California. On April 18, 2005, Carlos-Blaza entered a plea agreement in the United States District Court for the Eastern District of California in which she stipulated that, as a Bank of the Sierra employee, she “knowingly stole, embezzled, and misapplied moneys” in violation of 18 U.S.C. § 656 when she “obtained numerous lines of credit and/or increases in the amounts of lines of credit” that resulted in approximately $65,000 of loss to the bank.¹

Section 656 provides:

Whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, depository institution holding company, national bank, insured bank embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank, branch, agency, or organization or holding company or any moneys, funds, assets or securities intrusted to the custody or care of such bank, branch, agency, or organization, or holding company or to the custody or care of any such agent, officer, director, employee or receiver, shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both; but if the amount embezzled, abstracted, purloined or misapplied does not exceed $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

18 U.S.C. § 656 (emphasis added). The elements of a § 656 violation are: (1) the defendant was an employee (2) of a federally connected bank (3) who embezzled, abstracted, purloined or willfully misapplied the bank's funds (4) with the intent to injure or defraud the bank.²

United States v. Wolfswinkel, 44 F.3d 782, 786 (9th Cir.1995).

As provided in her plea agreement, Carlos-Blaza was sentenced to eleven months' imprisonment, sentenced to sixty months' supervised release, and ordered to pay restitution of $65,000 to Bank of the Sierra.³

In May 2006, the United States served Carlos-Blaza with a Notice to Appear which stated that, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), she was subject to removal for conviction of an aggravated felony.

In July 2006, the IJ granted Carlos-Blaza's Motion to Terminate Removal Proceedings, finding that Carlos-Blaza's conviction under § 656 did not constitute an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i) because it was not an offense involving fraud or deceit. The government appealed to the BIA.

The BIA reversed and remanded, finding that Carlos-Blaza's conviction did qualify as an offense involving fraud or deceit. Pursuant to the BIA's instructions, the IJ ordered Carlos-Blaza removed from the United States. Carlos-Blaza timely appealed to this court.⁴ Carlos-Blaza contends the BIA erroneously concluded that her conviction under 18 U.S.C. § 656 involved fraud or deceit.

Jurisdiction and Standard of Review

This court has jurisdiction under 8 U.S.C. § 1252. This court reviews de novo whether a particular conviction qualifies as an aggravated felony.⁵ Li v. Ashcroft, 389 F.3d 892, 895 (9th Cir.2004).

Analysis

The only issue on appeal is whether Carlos-Blaza's conviction under § 656 constitutes an “offense that involves fraud or deceit” and, therefore, an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i).⁶

(A) The Taylor Categorical Approach

We apply the categorical approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether a particular offense, such as Carlos-Blaza's 18 U.S.C. § 656 conviction here, qualifies as an aggravated felony under § 1101(a)(43)(M)(i). See Li, 389 F.3d at 895-96.

Under Taylor, we compare the statute of conviction to the removal statute's definition of aggravated felony. Id. If every conviction under the statute of conviction is also an aggravated felony, then there is a “categorical match” and the defendant's conviction perforce qualifies as an aggravated felony. There is a “categorical match” between 18 U.S.C. § 656 and 8 U.S.C. § 1101(a)(43)(M)(i) if every conviction under § 656 involved fraud or deceit.⁷

If, on the other hand, the statute of conviction prohibits some conduct that does not constitute an aggravated felony, then there is no “categorical match.” Id. In that case, we proceed under a “modified categorical analysis” by looking to the documents of conviction and determining whether the particular conviction at issue “unequivocally” constitutes an aggravated felony. Id. “[T]he modified categorical approach applies only if the statute of conviction is divisible into several crimes, some of which involve an aggravated felony and some of which do not.” Aguilar-Turcios v. Holder, 582 F.3d 1093, 1097 (9th Cir.2009).

(B) No Categorical Match

The elements of a § 656 violation are: (1) the defendant was an employee (2) of a federally connected bank ⁸ (3) who embezzled, abstracted, purloined, or willfully misapplied the bank's funds (4) with the intent to injure or defraud the bank. Wolfswinkel, 44 F.3d at 786. We hold there is no “categorical match” between § 656 and definition of “aggravated felony” in § 1101(a)(43)(M)(i) because not every conviction under § 656 involves fraud or deceit.⁹ Section 656 is divisible into several crimes, some of which could include pure theft offenses (“abstract [ing]” and “purloin[ing]”).¹⁰ Section 656's imputed “intent to injure or defraud” element also is divisible into the “intent to injure” or the “intent to defraud.” United States v. Castro, 887 F.2d 988, 994-95 (9th Cir.1989) (affirming defendant's conviction for misapplication under § 656 despite lack of intent to injure and explaining that “[i]ntent to injure need not be shown if there is intent to deceive or defraud”). Although we hold that a conviction for misapplication under § 656 necessarily involves intent to defraud see infra, other pure theft offenses in violation of § 656 can be committed with a mere “intent to injure” and no “intent to defraud.” For example, a bank employee (e.g., a janitor) could be convicted of “purloining” under § 656 if he simply walked out the door with bags of money, even if he deceived or defrauded no one, because he intended to injure the bank when he took the cash. See, e.g., United States v. Gillett, 249 F.3d 1200, 1201-02 (9th Cir.2001) (affirming conviction for theft under 18 U.S.C. § 656 where a Brinks armored car guard stole bags of money from Bank of America during night deposit transports).

Because we hold that there is no “categorical match” between § 656 and the aggravated felony definition in § 1101(a)(43)(M)(i), we turn to the modified categorical analysis.

(C) Modified Categorical Analysis

Under the modified categorical analysis, we look to the documents of conviction to determine whether the particular conviction at issue “unequivocally” satisfies the aggravated felony definition. Li, 389 F.3d at 895-96. In applying this approach to determine whether Carlos-Blaza's conviction was for an offense involving fraud or deceit, then, we compare to the statutory definition the following types of documents: the charging document, the written plea agreement, the transcript of plea colloquy, any explicit factual finding by the trial judge to which the defendant assented, and comparable judicial records. See United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir.2008) (en banc) (per curiam).

In her plea agreement, Carlos-Blaza acknowledged that she “knowingly stole, embezzled, and misapplied moneys” by obtaining or increasing lines of credit from Bank of the...