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.