CARLOS-BLAZA v. Holder

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AURORA CARLOS-BLAZA,  Petitioner, No. 07-70632 v.  Agency No. A040-317-082 ERIC H. HOLDER JR., Attorney General, OPINION Respondent.  On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 8, 2009—San Francisco, California Filed June 30, 2010 Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson, and Carlos T. Bea, Circuit Judges. Opinion by Judge Bea 9469 CARLOS-BLAZA v. HOLDER 9471 COUNSEL Sin Yen Ling, San Francisco, California, for petitioner Carlos Blaza. James Arthur Hunolt, Senior Litigation Counsel, United States Department of Justice, Civil Division/Office of Immi- gration Litigation, Washington, DC, Ronald E. LeFevre, Department of Homeland Security, San Francisco, California, Aviva Poczter, Senior Litigation Counsel, United States Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for respondent Eric Holder. OPINION BEA, Circuit Judge: We are called on to decide whether a bank employee who “knowingly stole, embezzled, and misapplied moneys” in the 9472 CARLOS-BLAZA v. HOLDER amount of $65,000 committed a crime that “involves fraud or deceit.” Unsurprisingly, we answer that question “yes.” Aurora Carlos-Blaza, a native and citizen of the Philippines and legal permanent resident of the United States, appeals from the Immigration Judge’s (“IJ’s”) order removing her from the United States as an aggravated felon pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). The IJ entered the order on remand from the Board of Immigration Appeals (“BIA”) after the BIA decided that Carlos-Blaza’s guilty plea to stealing, embezzling, and misapplying $65,000 of bank funds in viola- tion of 18 U.S.C. § 656 qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i), which defines an aggra- vated felony as “an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” In this appeal, Carlos-Blaza contends the BIA erred when it decided she was an aggravated felon because her offense did not involve fraud or deceit. Because Carlos-Blaza pleaded guilty to knowing misapplication of funds, and the knowing misapplication of funds necessarily involves fraud, we hold that she was convicted of an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(M)(i). Therefore, we deny Carlos-Blaza’s petition for review. Factual and Procedural Background Aurora Carlos-Blaza entered the United States as the child of a lawful permanent resident on December 21, 1985. From 2000 to 2003, she worked as a Financial Services Representa- tive for Bank of the Sierra in Fresno, California. On April 18, 2005, Carlos-Blaza entered a plea agreement in the United States District Court for the Eastern District of California in which she stipulated that, as a Bank of the Sierra employee, she “knowingly stole, embezzled, and misapplied moneys” in violation of 18 U.S.C. § 656 when she “obtained numerous CARLOS-BLAZA v. HOLDER 9473 lines of credit and/or increases in the amounts of lines of cred- it” that resulted in approximately $65,000 of loss to the bank.1 Section 656 provides: Whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, depository institution holding company, national bank, insured bank . . . embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank, branch, agency, or organization or hold- ing company or any moneys, funds, assets or securi- ties intrusted to the custody or care of such bank, branch, agency, or organization, or holding company or to the custody or care of any such agent, officer, director, employee or receiver, shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both; but if the amount embezzled, 1 The record does not reveal any further detail about just how Carlos- Blaza accomplished the crime. Her plea agreement contains the following stipulation: Between on or about November 7, 2000, to on or about Novem- ber 18, 2003, in Fresno County, within the State and Eastern Dis- trict of California, and elsewhere, the defendant knowingly stole, embezzled, and misapplied moneys, funds, or credits that belonged to a financial institution or which were intrusted to the custody or care of a financial institution. Specifically, the defen- dant obtained numerous lines of credit and/or increases in the amounts of lines of credit. As of February 1, 2005, the amount of loss to the victims in this case is approximately $65,000. At all relevant times herein, defendant was employed as a Finan- cial Services Representative employed by branches of the Bank of the Sierra which were located in Dinuba, California and Fresno, California. At all relevant times herein, Bank of the Sierra was a financial institution with funds and/or deposits that were insured by the Federal Deposit Insurance Corporation. ER 99 (emphasis added). 9474 CARLOS-BLAZA v. HOLDER abstracted, purloined or misapplied does not exceed $1,000, he shall be fined under this title or impris- oned not more than one year, or both. 18 U.S.C. § 656 (emphasis added). The elements of a § 656 violation are: (1) the defendant was an employee (2) of a fed- erally connected bank (3) who embezzled, abstracted, pur- loined or willfully misapplied the bank’s funds (4) with the intent to injure or defraud the bank.2 United States v. Wolf- swinkel, 44 F.3d 782, 786 (9th Cir. 1995). As provided in her plea agreement, Carlos-Blaza was sen- tenced to eleven months’ imprisonment, sentenced to sixty months’ supervised release, and ordered to pay restitution of $65,000 to Bank of the Sierra.3 In May 2006, the United States served Carlos-Blaza with a Notice to Appear which stated that, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), she was subject to removal for convic- tion of an aggravated felony. In July 2006, the IJ granted Carlos-Blaza’s Motion to Ter- minate Removal Proceedings, finding that Carlos-Blaza’s conviction under § 656 did not constitute an aggravated fel- ony under 8 U.S.C. § 1101(a)(43)(M)(i) because it was not an 2 The “intent to injure or defraud” element is not contained in the text of § 656. Section 656 expressly stated an “intent to injure or defraud” ele- ment until, in a 1948 revision, Congress apparently inadvertently omitted that language. Ramirez v. United States, 318 F.2d 155, 157-58 (9th Cir. 1963). “Despite the omission of these words from the text of section 656, it is clear that ‘an intent to injure or defraud’ remains an essential element of any crime under that statute and accordingly must be proved.” Id. at 158. 3 Had Carlos-Blaza been sentenced to twelve months rather than eleven, her conviction would render her deportable regardless whether it involved fraud or deceit. Included in 8 U.S.C. § 1101(a)(43)’s definition of aggra- vated felony are “theft offense[s] . . . for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). CARLOS-BLAZA v. HOLDER 9475 offense involving fraud or deceit. The government appealed to the BIA. The BIA reversed and remanded, finding that Carlos- Blaza’s conviction did qualify as an offense involving fraud or deceit. Pursuant to the BIA’s instructions, the IJ ordered Carlos-Blaza removed from the United States. Carlos-Blaza timely appealed to this court.4 Carlos-Blaza contends the BIA erroneously concluded that her conviction under 18 U.S.C. § 656 involved fraud or deceit. Jurisdiction and Standard of Review This court has jurisdiction under 8 U.S.C. § 1252. This court reviews de novo whether a particular conviction quali- fies as an aggravated felony.5 Li v. Ashcroft, 389 F.3d 892, 895 (9th Cir. 2004). Analysis The only issue on appeal is whether Carlos-Blaza’s convic- tion under § 656 constitutes an “offense that involves fraud or 4 An appeal to the BIA for the second time was unnecessary because the BIA decision to reverse and remand was final and the remand was non- substantive. See Castrejon-Garcia v. INS, 60 F.3d 1359, 1361-62 (9th Cir. 1995). 5 The government contends this court owes substantial deference to the BIA’s decision under Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Because this court owes Chevron def- erence only to BIA interpretations of ambiguous immigration statutes and regulations, and because this case does not require the interpretation of an immigration statute but of a garden variety property theft statute (18 U.S.C. § 656), we owe no such deference to the BIA’s decision. See Singh v. Ashcroft, 386 F.3d 1228, 1230-31 (9th Cir. 2004) (holding that Chevron deference did not apply to the interpretation of whether an immigrant’s conviction under Oregon’s harassment law was a “crime of domestic vio- lence” that rendered him removable under 8 U.S.C. § 1227(a)(2)(E)(i)). 9476 CARLOS-BLAZA v. HOLDER deceit” and, therefore, an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i).6 (A) The Taylor Categorical Approach We apply the categorical approach of Taylor v. United States, 495 U.S. 575 (1990), to determine whether a particular offense, such as Carlos-Blaza’s 18 U.S.C. § 656 conviction here, qualifies as an aggravated felony under § 1101(a)(43)(M)(i). See Li, 389 F.3d at 895-96. Under Taylor, we compare the statute of conviction to the removal statute’s definition of aggravated felony. Id. If every conviction under the statute of conviction is also an aggra- vated felony, then there is a “categorical match” and the defendant’s conviction perforce qualifies as an aggravated fel- ony. There is a “categorical match” between 18 U.S.C. § 656 and 8 U.S.C. § 1101(a)(43)(M)(i) if every conviction under § 656 involved fraud or deceit.7 If, on the other hand, the statute of conviction prohibits some conduct that does not constitute an aggravated felony, then there is no “categorical match.” Id. In that case, we pro- ceed under a “modified categorical analysis” by looking to the documents of conviction and determining whether the particu- lar conviction at issue “unequivocally” constitutes an aggra- vated felony. Id. “[T]he modified categorical approach applies only if the statute of conviction is divisible into several crimes, some of which involve an aggravated felony and some 6 Carlos-Blaza concedes her conviction involved a loss of $10,000 or more under 8 U.S.C. § 1101(a)(43)(M)(i), which defines “aggravated felo- ny” to include, inter alia, an offense involving fraud or deceit and from which the loss to the victim(s) exceeds $10,000. 7 The statute of conviction need not have an element requiring more than a $10,000 loss before a court can find a “categorical match” between § 1101(a)(43)(M)(i) and the statute of conviction. Nijhawan v. Holder, 129 S. Ct. 2294, 2297-98 (2009). CARLOS-BLAZA v. HOLDER 9477 of which do not.” Aguilar-Turcios v. Holder, 582 F.3d 1093, 1097 (9th Cir. 2009). (B) No Categorical Match [1] The elements of a § 656 violation are: (1) the defendant was an employee (2) of a federally connected bank8 (3) who embezzled, abstracted, purloined, or willfully misapplied the bank’s funds (4) with the intent to injure or defraud the bank. Wolfswinkel, 44 F.3d at 786. We hold there is no “categorical match” between § 656 and definition of “aggravated felony” in § 1101(a)(43)(M)(i) because not every conviction under § 656 involves fraud or deceit.9 Section 656 is divisible into several crimes, some of which could include pure theft offenses (“abstract[ing]” and “purloin[ing]”).10 Section 656’s imputed “intent to injure or defraud” element also is divisible into the “intent to injure” or the “intent to defraud.” United States v. Castro, 887 F.2d 988, 994-95 (9th Cir. 1989) (affirming defendant’s conviction for misapplication under § 656 despite lack of intent to injure and explaining that “[i]ntent to injure need not be shown if there is intent to deceive or defraud”). Although we hold that a conviction for 8 It is undisputed that Carlos-Blaza was an employee of a federally con- nected bank. 9 The aggravated felony definition in 8 U.S.C. § 1101(a)(43)(M)(i) requires that an aggravated felony involves fraud or deceit. The word “in- volves” broadens the scope of crimes to include not just the crime of fraud, but, inter alia, crimes for which fraud is a necessary element. See James v. Gonzales, 464 F.3d 505, 508 (5th Cir. 2006) (“[W]hether an offense ‘involves’ fraud is a broader question than whether it constitutes fraud.”) (concluding that alien’s conviction for aiding and abetting bank fraud under 18 U.S.C. § 1344 necessarily entailed fraud), cf. Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 273 (1995) (holding, in light of statute’s language, structure, and background, that Federal Arbitration Act’s phrase “involving commerce” was necessarily “broader than the often-found words of art ‘in commerce.’ ”). 10 That 18 U.S.C. § 656 is entitled “Theft, embezzlement, or misapplica- tion by bank officer or employee” reinforces that mere theft offenses can suffice. 9478 CARLOS-BLAZA v. HOLDER misapplication under § 656 necessarily involves intent to defraud, see infra, other pure theft offenses in violation of § 656 can be committed with a mere “intent to injure” and no “intent to defraud.” For example, a bank employee (e.g., a janitor) could be convicted of “purloining” under§ 656 if he simply walked out the door with bags of money, even if he deceived or defrauded no one, because he intended to injure the bank when he took the cash. See, e.g., United States v. Gillett, 249 F.3d 1200, 1201-02 (9th Cir. 2001) (affirming conviction for theft under 18 U.S.C. § 656 where a Brinks armored car guard stole bags of money from Bank of America during night deposit transports). Because we hold that there is no “categorical match” between § 656 and the aggravated felony definition in § 1101(a)(43)(M)(i), we turn to the modified categorical anal- ysis. (C) Modified Categorical Analysis [2] Under the modified categorical analysis, we look to the documents of conviction to determine whether the particular conviction at issue “unequivocally” satisfies the aggravated felony definition. Li, 389 F.3d at 895-96. In applying this approach to determine whether Carlos-Blaza’s conviction was for an offense involving fraud or deceit, then, we compare to the statutory definition the following types of documents: the charging document, the written plea agreement, the transcript of plea colloquy, any explicit factual finding by the trial judge to which the defendant assented, and comparable judicial records. See United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir. 2008) (en banc) (per curiam). [3] In her plea agreement, Carlos-Blaza acknowledged that she “knowingly stole, embezzled, and misapplied moneys” by obtaining or increasing lines of credit from Bank of the Sierra. We agree with the Eleventh Circuit Court of Appeals and hold that the misapplication of funds by a bank employee in viola- CARLOS-BLAZA v. HOLDER 9479 tion of § 656 necessarily involves fraud or deceit. See Moore v. Ashcroft, 251 F.3d 919, 923 (11th Cir. 2001). In Moore, a legal permanent resident and former bank employee was convicted of misapplication of auction drafts under 18 U.S.C. § 656 and was served with a Notice to Appear charging her with removal as an aggravated felon, as defined in 8 U.S.C. § 1101(a)(43)(M)(i). Id. at 921. The BIA affirmed the IJ’s decision to deny her application for with- holding of removal. Id. The Eleventh Circuit affirmed, noting it had previously determined the “intent to injure or defraud” element of misapplication of bank funds under 18 U.S.C. § 656 is established where the defendant knowingly partici- pated in a deceptive or fraudulent transaction, as she had there. Id. at 923. [4] Our court’s existing definition of the misapplication of funds in Castro further supports our agreement with the Elev- enth Circuit. We have previously defined the misapplication of funds in violation of § 656 as follows: “Funds are misap- plied when they are disbursed under a record containing mis- representations of fact with the intent to deceive bank officials, examiners, or the [FDIC].” Castro, 887 F.2d at 994. Although a bank employee can commit the crime of purloin- ing in violation of § 656 with the intent to injure the bank but without the intent to deceive the bank, one simply cannot knowingly misapply bank funds in violation of § 656 without the intent to deceive the bank. Thus, because Carlos-Blaza pleaded guilty to knowingly misapplying bank funds in viola- tion of 18 U.S.C. § 656, she has pled guilty to a crime that qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i).11 11 Carlos-Blaza cites Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002), for the proposition that not every embezzlement conviction under § 656 involves fraud or deceit. We need not decide and potentially create a cir- cuit split on the question of whether a conviction only for embezzlement under § 656 necessarily involves fraud or deceit because Carlos-Blaza “knowingly stole, embezzled, and misapplied moneys” in violation of § 656. Had we not held that “misapplication” involves fraud or deceit, a serious question would be presented as to whether “embezzlement” involves fraud or deceit. 9480 CARLOS-BLAZA v. HOLDER Conclusion For the foregoing reasons, we hold that, although there is no “categorical match” between 18 U.S.C. § 656 and the aggravated felony definition in 8 U.S.C. § 1101(a)(43)(M)(i), under the modified categorical analysis, a conviction for mis- application of funds under 18 U.S.C. § 656 necessarily involves fraud or deceit and, therefore, constitutes an aggra- vated felony under 8 U.S.C. § 1101(a)(43)(M)(i). Therefore, we deny Carlos-Blaza’s petition for review. PETITION DENIED.