Sayed Omargharib v. Eric Holder, Jr.
2014 U.S. App. LEXIS 24289
| 4th Cir. | 2014Background
- Sayed Gad Omargharib, a lawful permanent resident, was convicted in Virginia state court of grand larceny under Va. Code § 18.2-95 for taking two pool cues (value > $200) and received a suspended 12-month sentence.
- DHS sought removal, arguing the conviction was an INA "aggravated felony" as a "theft offense" under 8 U.S.C. § 1101(a)(43)(G) (one-year imprisonment threshold also required).
- The IJ found no categorical match but applied the modified categorical approach and concluded the conviction was theft (not fraud), making Omargharib removable; the BIA affirmed.
- Omargharib petitioned the Fourth Circuit, which reviewed de novo and required the government to prove aggravated-felony status by clear and convincing evidence.
- The central legal question: whether Virginia larceny is "divisible" (so the modified categorical approach may be used) or "indivisible" (so only the categorical approach applies), given Virginia defines larceny as the "wrongful or fraudulent taking" of property.
Issues
| Issue | Plaintiff's Argument (Omargharib) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Virginia larceny is a categorical match with INA "theft offense" | Virginia larceny encompasses fraud, so it is broader than the INA theft offense and thus does not categorically match | Virginia larceny can be crimes of theft (matching INA) — the record can show which variant | Held: No categorical match; Virginia larceny sweeps more broadly than INA theft |
| Whether the modified categorical approach applies | Because Virginia larceny is indivisible ("wrongful or fraudulent" are alternative means), the modified approach is not available | The disjunctive "or" makes the statute divisible into alternative elements (theft vs. fraud), permitting the modified approach | Held: Statute is indivisible as a matter of law; the modified categorical approach does not apply |
| Whether Shepard documents could identify a qualifying theft | If indivisible, only categorical comparison matters; but even under modified approach, Shepard documents do not show a fraud conviction here | Government relied on record (plea/record) to show theft variant | Held: Court did not need to and did not apply modified approach; government failed to prove aggravated-felony status by clear and convincing evidence |
| Whether Omargharib's conviction constitutes an aggravated felony requiring mandatory removal | Conviction is not an INA "theft offense," so not an aggravated felony under § 1101(a)(43)(G) | Conviction constitutes theft making him removable and ineligible for discretionary relief | Held: Conviction is not an aggravated felony; petition granted, BIA decision reversed and remanded to vacate removal order |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (clarifies that the modified categorical approach applies only to divisible statutes that list alternative elements)
- Taylor v. United States, 495 U.S. 575 (1990) (establishes categorical approach focusing on statutory elements, not facts)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (discusses consequences of avoiding aggravated-felony classification and discretionary relief)
- Johnson v. United States, 559 U.S. 133 (2010) (Shepard documents and limitations on inquiry into prior convictions)
- Nijhawan v. Holder, 557 U.S. 29 (2009) (addresses statutes with phrases covering several different crimes)
- Karimi v. Holder, 715 F.3d 561 (4th Cir. 2013) (Fourth Circuit precedent on reviewing BIA interpretations and burden of proof)
- United States v. Royal, 731 F.3d 333 (4th Cir. 2013) (useful precedent distinguishing alternative means from alternative elements)
- United States v. Montes-Flores, 736 F.3d 357 (4th Cir. 2013) (defines divisibility concept under Descamps)
- Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005) (held certain Virginia fraud convictions do not qualify as INA theft offenses)