Background
Maximino Ramos, a Honduran citizen and lawful permanent resident, was convicted under Virginia Code Section eighteen point two point one one one for embezzlement after taking scrap metal wiring from his employer. The Department of Homeland Security charged him as removable, arguing his conviction was an aggravated felony involving fraud or deceit. An immigration judge and the Board of Immigration Appeals agreed, ordering his removal to Honduras. The government later mistakenly deported him, brought him back, and granted his visa petition after the Board’s decision, though the visa had no practical effect on the concluded removal proceeding.
The court’s reasoning
The court applied the categorical approach to determine if the offense necessarily involved fraud or deceit. It defined fraud as an intentional perversion of truth or false representation intended to deceive, and deceit as the act of deceiving through falsification or concealment. The court found that while the Virginia statute uses the term fraudulently, state precedent clarifies this means wrongful or felonious intent rather than deceptive conduct. Furthermore, the statute does not require concealment as an element, as a person can be guilty of embezzlement even if they openly disclose their intent to take the property. Because the statute does not categorically require misrepresentation, trickery, or intentional concealment, the conviction does not qualify as a crime of fraud or deceit.
Virginia’s unusual embezzlement statute doesn’t categorically require fraudulent or deceitful conduct.
What it means going forward
The final order of removal against Ramos is vacated, and the case is remanded to the immigration agency for further proceedings consistent with the court’s opinion that the conviction is not an aggravated felony.