Mowlana v. Lynch

• Decision Date: 30 September 2015
• Docket Number: No. 14–1320.,14–1320.
• Parties: Jeylani MOWLANA, Petitioner v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

803 F.3d 923

Jeylani MOWLANA, Petitioner

v.Loretta E. LYNCH, Attorney General of the United States¹ , Respondent.

No. 14–1320.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 14, 2015.

Filed: Sept. 30, 2015.

Corrected: Oct. 1, 2015.

Matthew L. Hoppock, argued and on the brief, Kansas City, MO, for Petitioner.

Kiley Kane, Senior Litigation Counsel, argued, Stuart F. Delery, Assistant Attorney General, Karen Stewart, on the brief, Washington, DC, for Respondent.

Before RILEY, Chief Judge, BEAM and COLLOTON, Circuit Judges.

Opinion

COLLOTON, Circuit Judge.

Jeylani Shariff Mowlana, a native of Somalia, was ordered removed from the United States after the Board of Immigration Appeals concluded that he had been convicted of an aggravated felony. The Board cited Mowlana's prior conviction under 7 U.S.C. § 2024(b), which forbids the knowing use, transfer, acquisition, alteration, or possession of benefits in a manner contrary to the statutes and regulations of the Supplemental Nutrition Assistance Program, administered by the United States Department of Agriculture. On Mowlana's petition for review, we conclude that his offense was an aggravated felony, and we therefore deny the petition.

I.

Mowlana was admitted to the United States as a refugee in 2000 and became a lawful permanent resident in 2002. In January 2011, Mowlana pleaded guilty to the unauthorized use, transfer, acquisition, and possession of “food stamp benefits ... of a value of $5,000 or more,” in violation of 7 U.S.C. § 2024(b). Mowlana was ordered to make restitution of $206,634.68 to the Department of Agriculture's Food and Nutrition Service.

In September 2011, the Department of Homeland Security commenced removal proceedings against Mowlana, alleging he was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of an aggravated felony. An alien who is convicted of an “aggravated felony” is subject to removal. 8 U.S.C. § 1227(a)(2)(A)(iii). An aggravated felony includes any offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i).

In this case, an immigration judge ruled that Mowlana's conviction was for a crime “involving fraud or deceit” because, inter alia, a violation of 7 U.S.C. § 2024(b) involves “a deliberate deception of the government and an impairment of its lawful functions.” The Board agreed, reasoning that because a violation of § 2024(b)(1) required the defendant to know his conduct was unlawful, “[i]n all violations, the defendant commits a fraud upon the United States by falsely representing proper use of the food stamps, with full knowledge that the items are food stamps and that the federal government would not permit such use.” We review the Board's legal determinations de novo, according deference to the Board's interpretation of ambiguous provisions in the statutes it administers. Tian v. Holder, 576 F.3d 890, 895 (8th Cir.2009). Because the Board adopted and affirmed the IJ's decision, we review both decisions on appeal.

To determine whether Mowlana's conviction under § 2024(b) “involve [d] fraud or deceit,” we apply the so-called categorical approach. See Kawashima v. Holder, ––– U.S. ––––, 132 S.Ct. 1166, 1172, 182 L.Ed.2d 1 (2012). Under that analysis, we look “ ‘not to the facts of the particular prior case,’ ” but to whether the elements of the statute of conviction “categorically fit[ ] within the ‘generic’ federal definition of a corresponding aggravated felony.” Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (quoting Gonzales v. Duenas–Alvarez, 549 U.S. 183, 186, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ). We consider whether a conviction under the statute “necessarily involve[s]” facts that equate to the defined aggravated felony. Id. (internal quotation omitted). In this case, therefore, the question is whether a violation of § 2024(b) necessarily involves facts that “involve[ ] fraud or deceit.”

To show that § 2024(b) creates an offense outside the scope of the listed aggravated felony, Mowlana must demonstrate a “realistic probability” that the government would apply the statute to conduct that does not involve fraud or deceit. Duenas–Alvarez, 549 U.S. at 193, 127 S.Ct. 815 ; Armenta–Lagunas v. Holder, 724 F.3d 1019, 1021, 1024 (8th Cir.2013). Our analysis of realistic probability must go beyond the text of the statute of conviction to inquire whether the government actually prosecutes offenses under § 2024(b) in cases involving hypothetical conduct that would not qualify as an aggravated felony. Moncrieffe, 133 S.Ct. at 1686–87, 1693. The concurring opinion seems to conclude that the “realistic probability” inquiry applies only when analyzing a state-law offense. Post, at 930. This court, however, already has endorsed applying Duenas–Alvarez to determine whether a federal offense is categorically a crime involving moral turpitude. Bobadilla v. Holder, 679 F.3d 1052, 1055–57 (8th Cir.2012) ; see Rios–Diaz v. Holder, 543 Fed.Appx. 617, 618 (8th Cir.2013). In line with decisions from at least three other circuits, we see no reason why fanciful hypotheticals or theoretical possibilities should preclude a categorical conclusion that a federal offense is an aggravated felony. See Sampathkumar v. Holder, 573 Fed.Appx. 55, 57 (2d Cir.2014) ; Familia Rosario v. Holder, 655 F.3d 739, 749 (7th Cir.2011) ; Accardo v. U.S. Att'y Gen., 634 F.3d 1333, 1337 (11th Cir.2011).

The terms “fraud” and “deceit” are not defined in the Immigration and Nationality Act, so we look to ordinary meanings when the statute was enacted. “Deceit” means “the act or practice of deceiving (as by falsification, concealment, or cheating).” Webster's Third New International Dictionary 584 (1993); see Kawashima, 132 S.Ct. at 1172. “Fraud” is defined as “an instance or an act of trickery or deceit esp. when involving misrepresentation: an act of deluding.” Webster's Third New International Dictionary 904 (1993). The accompanying term “involves” is broadening, and an offense “involves fraud or deceit” under subsection (M)(i) as long as it contains elements that “necessarily entail fraudulent or deceitful conduct.” Kawashima, 132 S.Ct. at 1172. An offense may involve fraud or deceit even if the terms “fraud” and “deceit” are absent from the text of the statute and are not formal elements of the crime. Id.

Benefits provided under the Supplemental Nutrition Assistance Program, which we will refer to as “SNAP benefits,” are issued to eligible households. They must be used only to purchase food from approved retail stores at prices prevailing in those stores. 7 U.S.C. § 2016(b). To redeem benefits, a beneficiary uses an Electronic Benefits Transfer card, which functions similar to a debit card. See 7 C.F.R. § 274.1(b) (permitting state agencies to issue benefits through the “Electronic Benefit Transfer System” where benefit information is stored electronically, either in a central database or on each benefit card); U.S. Dep't of Agric., Supplemental Nutrition Assistance Program: Electronic Benefits Transfer Fact Sheet for New Retailers (2014), available at http://www.fns.usda.gov/sites/default/files/snap/EBT–Fact–Sheet.pdf. The beneficiary swipes the EBT card at an electronic Point of Sale device, and enters his or her personal identification number. The Point of Sale device then credits the retailer's account for the purchase amount. Information about the transaction is transmitted to a state electronic benefits transfer contractor, which directs funds from a federal account to reimburse the retailer on a daily basis. See U.S. Gov't Accountability Office, GAO–08–415, Food Stamp Program: Options for Delivering Financial Incentives to Participants for Purchasing Targeted Foods 7–8 & fig.1 (2008), available at http://www.gpo.gov/fdsys/pkg/GAOREPORTS–GAO–08–415/pdf/GAOREPORTS–GAO–08–415.pdf.

Mowlana's statute of conviction, 7 U.S.C. § 2024(b)(1) requires proof that a defendant (1) used, transferred, acquired, altered, or possessed benefits contrary to SNAP statutes or regulations, and (2) knew that his conduct was contrary to the statutes or regulations. See Liparota v. United States, 471 U.S. 419, 433, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). The Attorney General suggests that prosecutions under § 2024(b)(1) fall into four categories, and that all of them necessarily involve fraud or deceit.

The first category involves benefit recipients or store owners who provide inaccurate information to the government regarding their eligibility for the program. See, e.g., United States v. Gettler, 46 Fed.Appx. 858, 859 (8th Cir.2002) (per curiam); United States v. Hui, 64 Fed.Appx. 264, 265 (2d Cir.2003) ; United States v. Hebeka, 25 F.3d 287, 290 (6th Cir.1994). This conduct involves deceit because a perpetrator knowingly provides false information to the government. See Kawashima, 132 S.Ct. at 1172.

The second category of prosecutions involves store owners or employees who accept benefits in exchange for ineligible, non-food items, or benefit recipients who use benefits to pay for non-food items. See, e.g., United States v. Mohamed, 727 F.3d 832, 833 (8th Cir.2013) ; United States v. Uddin, 551 F.3d 176, 178 (2d Cir.2009) ; United States v. Kemble, No. 11–10014–05–JTM (D.Kan. Aug. 17, 2011). The Attorney General argues persuasively that such violations “involve deceit” because whenever a benefit recipient knowingly uses an EBT card to redeem benefits for ineligible items, or a store owner knowingly allows a redemption for ineligible goods, the offender makes a false representation. The offender “has falsely represented to the government, through the presentation and debiting of the EBT card, that the transaction is valid and lawful even though each knows that such representation is false.” Resp. Br. 22. Because such a transaction is contrary to SNAP statutes, see, e.g., 7 U.S.C. § 2016(b), the electronic representation is false and...