Soliman v. Gonzales

• Decision Date: 22 August 2005
• Docket Number: No. 04-1990.,04-1990.
• Citation: 419 F.3d 276
• Parties: Omima Ibrahim SOLIMAN, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

419 F.3d 276

Omima Ibrahim SOLIMAN, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-1990.

United States Court of Appeals, Fourth Circuit.

Argued May 24, 2005.

Decided August 22, 2005.

ARGUED:

Thomas Kirk Ragland, Elliot & Mayock, Washington, D.C., for Petitioner. Daniel Eric Goldman, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

ON BRIEF:

Thomas A. Elliot, Fabienne Chatain, Elliot & Mayock, Washington, D.C., for Petitioner. Peter D. Keisler, Assistant Attorney General, Civil Division, James A. Hunolt, Senior Litigation, Michele Y.F. Sarko, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before WILLIAMS, KING, and GREGORY, Circuit Judges.

Petition for review granted and order of removal vacated by published opinion. Judge KING wrote the opinion, in which Judge WILLIAMS and Judge GREGORY joined.

OPINION

KING, Circuit Judge.

Petitioner Omima Ibrahim Soliman has filed a petition seeking review by this Court of the July 13, 2004, 2004 WL 1739198 decision of the Board of Immigration Appeals ("BIA") ordering her removal to Egypt. By our Order of June 21, 2005, we have granted the petition for review and vacated the BIA's order of removal, in that the BIA's order was premised on the erroneous determination that Soliman had been previously convicted of an "aggravated felony," as that term is defined in 8 U.S.C. § 1101(a)(43)(A)-(U).¹ This opinion further explains the rulings embodied in our June 21, 2005 Order, and it is filed pursuant thereto.

I.

Soliman is a native of Egypt, and she immigrated to this country on May 31, 1996. On May 20, 2002, Soliman was indicted in Fairfax County, Virginia, for the offense of "Fraudulent Use of a Credit Card," in violation of Virginia Code § 18.2-195, for having represented that she was the holder of a credit card belonging to someone else, without the card holder's consent, to obtain property in excess of $200.² Soliman was convicted on June 10, 2002 and, on October 21, 2002, the court sentenced her to two years of incarceration, all suspended, plus two years of probation.

On December 16, 2003, the Immigration and Naturalization Service (the "INS") issued Soliman a Notice to Appear and initiated removal proceedings against her. The Notice to Appear classified Soliman as removable from this country pursuant to the provisions of 8 U.S.C. § 1227(a)(2)(A)(iii), which gives the Attorney General the authority to deport "[a]ny alien who is convicted of an aggravated felony at any time after admission." The aggravated felonies subject to this statutory provision are enumerated in 8 U.S.C. § 1101(a)(43)(A)-(U).³ Of importance here, these aggravated felonies include "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year," § 1101(a)(43)(G) ("Subsection (G)"), and "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000," § 1101(a)(43)(M)(i) ("Subsection (M)(i)").

The INS's Notice to Appear alleged that Soliman's Virginia conviction for credit card fraud constituted a "theft offense" under Subsection (G). Soliman maintained otherwise, however, asserting that her offense was not a "theft offense" under Subsection (G), but rather a fraud offense, covered by Subsection (M)(i). According to Soliman, the offense for which she was convicted involved less than the $10,000 specified in Subsection (M)(i), and thus is not an aggravated felony and a proper basis for deportation.⁴

By decision of January 29, 2004, the Immigration Judge (the "IJ") rejected each of Soliman's contentions, agreeing with the INS and concluding that her conviction was for a theft offense under Subsection (G). In so ruling, the IJ defined a "theft offense" as a criminal offense where there is "a criminal intent to deprive the owner of the rights and benefits of ownership." The IJ reasoned that, because Soliman "was not entitled to obtain the property that she did under the statute under which she was convicted," her crime involved theft within the meaning of Subsection (G).

The BIA affirmed the IJ's ruling by its Order of July 13, 2004 (the "BIA Order"), from which Soliman's petition for review emanates.⁵ Although the BIA agreed with Soliman that her offense "by its terms, involves fraud," it nonetheless concluded that the theft and fraud subsections of § 1101(a)(43), spelled out in Subsections (G) and (M)(i), "are not mutually exclusive," and ruled that "a crime which involves fraud may also involve theft." BIA Order at 1. "Indeed," the BIA observed, "the common definition of the term `theft' includes fraud." Id. (citing Black's Law Dictionary, defining theft as a "popular name for larceny . . . [t]he fraudulent taking of personal property belonging to another . . . without his consent, with the intent to deprive the owner of the value of the same"). The BIA then defined a "theft offense" as "the unlawful taking of property, whenever there is a criminal intent to deprive the owner of the rights or benefits of ownership, either permanently or less so." Id. at 2.

In assessing whether Soliman's conviction was for a theft offense, the BIA applied the "categorical approach" set forth and explained by the Supreme Court in Taylor v. United States, 495 U.S. 575, 598-600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (explaining that court analyzing prior conviction must first look to categorical nature of statute of prior conviction, and then, if necessary, look to certain facts underlying conviction). In so doing, the BIA first concluded that Virginia Code § 18.2-195, under which Soliman was convicted, is not a "categorical" theft statute — in other words, its elements are not the same as the elements of a theft offense under federal law. Looking then to Soliman's indictment to determine the particular facts underlying her conviction, the BIA found that the actual conduct underlying her offense was the functional equivalent of a theft offense as the BIA had defined it: "the unlawful taking of property, whenever there is a criminal intent to deprive the owner of the rights of benefits of ownership, either permanently or less so." BIA Order at 2. Specifically, the BIA concluded that, in Soliman's prosecution in Fairfax County, there had been an "unlawful taking of property" from the merchant because "[t]he fraud renders the taking unlawful"; further, it found there was "criminal intent to deprive the owner of the rights and benefits of ownership" because Soliman had deprived "the card's true owner of his or her benefits or rights of ownership." Id. (emphasis added).

By her petition for review, Soliman has raised a single issue: whether the BIA erred in determining that she was deportable because her Virginia conviction constituted an aggravated felony, i.e., a "theft offense" pursuant to Subsection(G).

II.

As an initial matter, we recognize that our jurisdiction to consider and resolve petitions for review from the decisions of the BIA is limited. Section 1252(a)(2)(C) of Title 8, United States Code, provides that no court has jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense. We have recognized, however, that we possess limited "jurisdiction to review factual determinations that trigger the jurisdiction-stripping provision" — specifically, (1) whether Soliman is an alien, and (2) whether she has been convicted of an aggravated felony. See Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir.2002) (citing Calcano-Martinez v. INS, 533 U.S. 348, 350 n. 2, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001)). If either of these two factual determinations is found to be erroneous, we possess jurisdiction over Soliman's petition for review; otherwise, we are obliged to dismiss her petition. See Lewis v. INS, 194 F.3d 539, 542 (4th Cir.1999) (explaining that "jurisdiction turns on presence, or lack thereof, of these two facts" and court therefore has "jurisdiction to review them").

By her petition for review, Soliman admits the fact that she is an alien. The only jurisdictional fact she contests is whether she was convicted in Virginia state court of an "aggravated felony" within the meaning of 8 U.S.C. § 1101(a)(43).

III.

In support of her position in this proceeding, Soliman makes two contentions. First, she maintains that her conviction in Virginia was for an offense that involves fraud or deceit, that she was not convicted of a theft offense, and that the BIA erred in improperly characterizing her conviction as a theft offense under Subsection (G). In support of this contention, she points to the definitions of "theft offense" adopted in similar proceedings by our sister circuits. See Nugent v. Ashcroft, 367 F.3d 162, 174 (3d Cir.2004) (defining theft offense as "a taking of property or an exercise of control over property without consent") (emphasis added); United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir.2002) (same); United States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir.2001) (same); Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir.2001) (same). Second, and alternatively, Soliman maintains that if her Virginia conviction included both theft and fraud, we should adhere to the reasoning of the Third Circuit in Nugent, and apply the $10,000 minimum threshold of Subsection (M)(i) to any such hybrid offense. 367 F.3d at 176. The Attorney General contends in response, first, that the BIA properly categorized Soliman's conviction as a "theft offense," and thus as an aggravated felony, and second, that the BIA's interpretation of 8 U.S.C. § 1101(a)(43) is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Because we are able to resolve Soliman's petition for review by finding that Soliman's...