Akinsade v. Holder
678 F.3d 138
| 2d Cir. | 2012Background
- Akinsade is a Nigerian noncitizen who entered the U.S. in 1988 and became a lawful permanent resident in 2000.
- In March 2000 he was charged with embezzlement by a bank employee under 18 U.S.C. § 656 for about $16,400.
- During plea, Akinsade admitted to acts described in the plea and the information but no explicit admission of intent to defraud.
- He was sentenced to one month in prison (with community confinement), three years of supervised release, and restitution.
- In 2009 DHS charged removability as an alien convicted of an aggravated felony under § 1227(a)(2)(A)(iii) based on § 656, and the IJ held the conviction involved fraud or deceit; the BIA adopted that ruling.
- The petition for review challenged the determination that the underlying conviction necessarily showed intent to defraud; the D.C. removed proceedings were remanded to the BIA for further proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the conviction under § 656 is an aggravated felony. | Akinsade argues his record does not show fraud intent; the statute is divisible and his plea does not establish fraud. | DHS contends the record supports that Akinsade acted with intent to defraud, making the conviction an aggravated felony. | The BIA erred; the record does not necessarily show intent to defraud. |
| Whether the government may rely on the record to determine the intent under a divisible statute. | Akinsade contends the record does not reveal whether he acted with intent to defraud. | The government argues the record supports intent to defraud as required for removal. | The BIA cannot infer fraud intent from the plea record; the record does not necessarily establish fraud. |
| Whether the modified categorical approach was correctly applied to Akinsade’s case. | Akinsade asserts the approach cannot infer fraud intent from the record. | The government maintains the approach supports removal given the divisible statute. | The court vacates the BIA’s conclusion and remands for further proceedings. |
Key Cases Cited
- Wala v. Mukasey, 511 F.3d 102 (2d Cir. 2007) (modified categorical approach; cannot infer fraud intent from plea)
- Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116 (2d Cir. 2007) (record of conviction materials for divisible statutes)
- Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002) (conviction under § 656; ambiguity on fraud vs. injure intent)
- Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. 2003) (divisible statutes and scope of modified categorical approach)
- Ming Lam Sui v. INS, 250 F.3d 105 (2d Cir. 2001) (categorical approach; interpretation of offense elements)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (deportation consequences of criminal pleas; need for precision)