Update: On December 23, 2014, the U.S. Court of Appeals for the Fourth Circuit ruled in Omargharib v. Holder (Case No. 13-2229) that Virginia grand larceny is not a theft aggravated felony under immigration law. As explained below, CAIR Coalition submitted an amicus brief in the Omargharib case asking the court to reach this holding. The court agreed with CAIR Coalition's argument that Virginia's grand larceny statute is categorically overbroad with regard to the aggravated felony theft offense in the Immigration and Nationality Act.
Grand Larceny Amicus Briefing
CAIR Coalition recently launched the Virginia Justice Program (VJP) in response to the widespread shortfall in resources to assist immigrants in Virginia accused of crimes. As part of the VJP, CAIR Coalition engages in litigation focused on minimizing the disproportionate penalties noncitizen residents of Virginia face as a result of even minor criminal convictions. CAIR Coalition frequently provides services to individuals in Virginia facing such consequences, including men and women who are mandatorily detained and may be deported without any chance to seek relief from an immigration judge. Criminal convictions often have a particularly disproportionate impact on longtime residents of the United States, whose deportation means that spouses, children, and communities will be left behind.
AMICUS BRIEFS
Through its work in Virginia, CAIR Coalition has seen that convictions under Virginia’s larceny statutes can have severe and disproportionate consequences for immigrants. Accordingly, CAIR Coalition partnered with the Immigrant & Refugee Appellate Center (IRAC) to submit amicus curiae briefs in two cases before the United States Court of Appeals for the Fourth Circuit addressing whether Virginia’s grand larceny statute qualifies as an “aggravated felony” theft offense under the Immigration and Nationality Act.
The briefs relied on the Supreme Court’s watershed ruling in Descamps v. United States (2013), in which the Court clarified the scope of the “categorical approach” that is used to determine whether a state law criminal conviction, standing alone, can serve as the basis for a penalty under federal law, including a charge of deportation against a noncitizen. In most cases, according to Descamps, a court considering whether to apply a federal penalty as a result of a state criminal conviction may only look to the elements of the state criminal statute to determine whether those elements match the elements for the same offense under federal law. Accordingly, CAIR Coalition and IRAC argued that the Fourth Circuit should hold that Virginia’s grand larceny statute is overbroad under the categorical approach because the key provision of the statute comprises a single set of elements that is not “divisible” and that criminalizes both fraudulent conduct and classic theft conduct, making it impossible for a reviewing court to tell whether a noncitizen actually committed the elements of “theft” under federal law. The briefs also ask the Fourth Circuit to apply the Board of Immigration Appeals’ recent holding in Matter of Chairez (2014) and to find that the government bears the burden of proof as to the divisibility of a state criminal statute.
CONSEQUENCES
As CAIR Coalition and IRAC argued in the briefs, allowing the government to continue its approach of seeking to deport noncitizens based on Virginia’s grand larceny statute would have draconian consequences due to the breadth of the statute and because the same legal concerns are applicable to Virginia’s petit larceny statute. A lawful permanent resident who stole as little as $5 could be charged with deportation under the aggravated felony theft ground, subject to mandatory detention, and ineligible for nearly all forms of discretionary relief, including asylum and cancellation of removal. Among other consequences, a nonpermanent resident or conditional permanent resident convicted of larceny could be deported without a hearing. Accordingly, the briefs seek to resolve a legal question that will preserve non-citizens’ ability to present critically important defenses, including asylum, when facing deportation.
AUTHORS
Heidi Altman and Morgan Macdonald (CAIR Coalition) and Ben Winograd (IRAC) authored the briefs, which were filed in the cases of Omargharib v. Holder (13-2229) and Ramirez-Moz v. Holder (14-1390). The briefs can be accessed at the following links:
