Soliman v. GonzalesSoliman v. Gonzales
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.
COUNSEL
sion, James A. Hunolt, Senior Litigation Counsel, Michele Y. F. Sarko, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.
OPINION
KING, Circuit Judge:
Petitioner Omima Ibrahim Soliman has filed a petition seeking review by this
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
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
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
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
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 (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
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.
(citing Calcano-Martinez v. INS, 533 U.S. 348, 350 n.2 (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
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
with respect to imputing Subsection (M)(i)‘s minimum threshold to Subsection (G).
1.
The Supreme Court has determined that the special deference rules of Chevron apply to BIA interpretations of the statutes it administers. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999); see also Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir. 2004) (applying Chevron to BIA interpretations of INS regulations). As the Court has explained, such deference is premised on the proposition that “‘the power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.‘” Chevron, 467 U.S. at 843 (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)). When Chevron deference applies, a court in reviewing an agency action “is confronted with two questions“:
First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.
Id. at 842-43. More specifically, Chevron deference applies to the BIA‘s interpretations of the Immigration and Nationality Act, the statute at issue here. See Aguirre-Aguirre, 526 U.S. at 424; see also Blanco de Belbruno, 362 F.3d at 278.
Pursuant to the foregoing, we are obliged to apply the principles of Chevron to the BIA‘s determination of the underlying issue in this case — the meaning of Subsection (G). However, we need not accord deference to the BIA‘s ultimate finding that Soliman‘s particular offense was an aggravated felony, which involves an issue of our appellate jurisdiction and an interpretation of Virginia criminal law, neither of which lies within the BIA‘s authority or expertise. See Aguirre-Aguirre, 526 U.S. at 424-25 (deferring to BIA interpretation of statute it administers); Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000) (declining to apply Chevron deference to enforcement of federal jurisdiction limitations).
2.
Under Chevron, we are first obliged to consider whether Congress has spoken on the precise question at issue — here, whether a “theft offense” includes fraud. See Chevron, 467 U.S. at 842. If Congress‘s intention is clear, the inquiry ends there, as “pure questions of statutory construction [are] for the courts to decide.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987). The BIA Order determined that “the common definition of the term ‘theft’ includes fraud” and applied the definition of “theft offense” to encompass fraud. As explained below, however, that determination was contrary to the intention of Congress.
In assessing Congress‘s intent, we are obliged to look to and apply the “traditional tools of statutory construction.” Cardoza-Fonseca, 480 U.S. at 446. And under settled rules, the plain
The plain text of
year.” Subsection (M)(i), on the other hand, provides for an aggravated felony classification for “an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” Congress thus decided to treat fraud as a distinct offense from theft within
The classic definitions of “theft” and “fraud,” as those terms were commonly used at the time of the Act‘s adoption in 1952, appear to have key differences. For example, the crime of theft was then generally described as
[a] fraudulent taking of corporeal personal property belonging to another, from his possession, or from the possession of some person holding the same for him, without his consent, with the intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.
Black‘s Law Dictionary 1647-48 (4th ed. 1951) (emphasis added); see also Black‘s Law Dictionary 1477 (6th ed. 1990) (defining theft as “[t]he act of taking property without the owner‘s consent“). Under this definition, a theft involved five elements: (1) a taking; (2) of property; (3) from its owner or his representative; (4) without that person‘s consent; (5) with intent to deprive the owner to the benefit of the thief.6
On the other hand, the crime of fraud was then generally described as:
An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right; a false
representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his injury.
Id. at 788 (emphasis added). When a theft offense has occurred, property has been obtained from its owner “without consent“; in a fraud scheme, the owner has voluntarily “surrendered” his property, because of an “intentional perversion of truth,” or otherwise “act[ed] upon” a false representation to his injury. The key and controlling distinction between these two crimes is therefore the “consent” element — theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained.
In order to give proper effect to the intention of Congress that theft and fraud offenses are to be treated differently for purposes of an “aggravated felony” issue, a proper definition of the term “theft offense” must distinguish between such an offense and a fraud scheme. And the key distinction on that point is the “without consent” element, present in the classic definition of a theft offense. This key distinction was eliminated by the definition of “theft offense” used by the BIA in this proceeding, substituting the term “unlawful” for “without con-
sent” of the property owner. BIA Order at 2. In so doing, the BIA authorized a fraud offense to satisfy the “unlawful taking” requirement of a theft, and thus be subsumed within the term “theft offense.” Such a result is contrary to the intention of Congress, as evidenced by its separate and different treatment of fraud. See Cardoza-Fonseca, 480 U.S. at 432. Indeed, the BIA‘s definition of “theft offense” makes the fraud provision of Subsection (M)(i) superfluous, and it results in an outcome that is contrary to Congress‘s explicit inclusion of a $10,000 threshold for fraud offenses into Subsection (M)(i) — transforming all fraud offenses into theft offenses, and thus also into aggravated felonies under
Our conclusion that a taking of property “without consent” is an essential element of a theft offense is also consistent with the theft offense definitions adopted and utilized by the courts of appeals to previously consider this issue. These courts have concluded that a “theft offense” is “a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” Hernandez-Mancilla, 246 F.3d at 1009; see also Nugent, 367 F.3d at 174; Vasquez-Flores, 265 F.3d at 1125; Corona-Sanchez, 291 F.3d at 1205. But cf. Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004) (describing BIA definition of theft as “similar” to definition adopted by Third, Seventh, Ninth, and Tenth Circuits, and distinguishing Corona-Sanchez).
As a result, we must conclude that the BIA‘s definition of a theft offense in the aggravated felony context, as including a fraud scheme, is contrary to congressional intent. That alone, however, is not dispositive
B.
In assessing whether Soliman‘s Virginia state court conviction was for a theft offense, we are obliged to utilize the categorical analysis
approach spelled out in Taylor v. United States, 495 U.S. 575, 598-600 (1990). This analysis requires that we first examine whether the statutory elements of credit card fraud in Virginia, under
1.
Importantly for this analysis, the Commonwealth of Virginia has created separate statutory provisions for “credit card theft,” on the one hand, and “credit card fraud,” on the other. In
a credit card or credit card number from the person, possession, custody or control of another without the cardholder‘s consent . . . with intent to use it or sell it, or to transfer it to a person other than the issuer or the cardholder.
(1) A person is guilty of credit card fraud when, with intent to defraud any person, he:
(a) Uses for the purpose of obtaining money, goods, services or anything else of value a credit card or credit card number obtained or retained in violation of
§ 18.2-192 or a credit
card or credit card number which he knows is expired or revoked; [or]
(b) Obtains money, goods, services or anything else of value by representing (i) without the consent of the cardholder that he is the holder of a specified card or credit card number or (ii) that he is the holder of a card or credit card number and such card or credit card number has not in fact been issued.
. . .
2.
Soliman was convicted in Virginia state court in 2002 of violating
was convicted is thus not a “categorical” match for a Subsection (G) offense, as required by Taylor, 495 U.S. at 602.
Although the bare offense of Soliman‘s conviction is not a categorical match for a Subsection (G) theft offense, we are also obliged to apply a “modified” categorical approach, looking beyond the mere fact of her state conviction, to examine the charging papers and similar documents in the state court, to assess what Soliman‘s conviction “necessarily rested on.” Shepard, 125 S.Ct. at 1259-61 (describing limitations of such inquiry in plea context); Randhawa v. Ashcroft, 298 F.3d 1148, 1152 (9th Cir. 2002) (discussing applicability of modified categorical approach to assessment of whether petitioner had committed theft offense). In this regard, the indictment specifies that Soliman “did feloniously and with the intent to defraud obtain property valued in excess of $200.00, by representing, without the consent of the cardholder, that she was the holder of a Visa check card, issued to Helen Best.
First, the indictment does not charge Soliman with taking goods without the consent of the merchant, and thus she was not convicted of a theft offense against the merchant. Second, although the indictment does allege, as part of the fraud charge, that Soliman used the credit card itself without consent of its owner, the allegations of the indictment for her fraud conviction, fail to demonstrate that she was convicted of each element of credit card theft. In particular, the indictment tracks the provisions of
ple, requires that the card be “used” to obtain such property. Thus, it is not conclusive from the indictment that Soliman‘s Virginia conviction required proof of the elements of credit card theft. See Shepard, 125 S.Ct. at 1263; Taylor, 495 U.S. at 602. As a result, we must reject the BIA‘s contention that Soliman was convicted of a “theft offense” within the meaning of Subsection (G). She therefore has not been convicted of an “aggravated felony” within the meaning of
IV.
Because the BIA erred in determining that Soliman had been previously convicted in the Virginia state court of an aggravated felony, her petition for review must be granted and the BIA‘s order for her removal must be vacated.
PETITION FOR REVIEW GRANTED AND ORDER OF REMOVAL VACATED
Notes
(43) The term “aggravated felony” means—
. . .
(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year;
. . .
(M) an offense that—
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000. . . .