Maximino Ramos v. Blanche — Fourth Circuit reverses removal, holds Virginia embezzlement statute doesn’t categorically involve fraud or deceit

The Court’s Holding

The Fourth Circuit reversed, holding that Virginia’s embezzlement statute does not categorically require fraudulent or deceitful conduct and therefore does not automatically qualify as an aggravated felony. While the statute uses the word “fraudulently,” Virginia courts have consistently interpreted this term to mean only “wrongful or felonious intent,” not fraud or deceit as those terms are legally defined.

The court defined fraud as requiring “an intentional perversion of truth” or “false representation of a matter of fact” intended to deceive, and deceit as requiring deceptive conduct involving falsification, concealment, or cheating. Critically, the court found that Virginia’s embezzlement statute does not, by its elements, require misrepresentation, trickery, or intentional concealment. While concealment may occur in many embezzlement cases and may even be typical, it is not a required element of the offense. The court illustrated this by noting a person could commit embezzlement by openly taking an employer’s property without any concealment or false statement—the statute punishes the wrongful taking itself, regardless of whether the perpetrator conceals the act.

Applying the categorical approach required by Supreme Court precedent, the court found that because embezzlement can be committed without any of the elements that constitute fraud or deceit, it does not categorically involve such conduct. The petition was granted, the removal order vacated, and the case remanded to the immigration agency for further proceedings.

Key Takeaways

• Virginia’s embezzlement statute, as interpreted by Virginia courts, is essentially a form of larceny beginning with the perpetrator in lawful possession of the stolen property, not a fraud-based offense
• The “fraudulently” language in the statute refers only to the mens rea (wrongful intent), not to fraudulent or deceitful conduct as required for an aggravated felony
• Under the categorical approach, an offense must necessarily involve fraud or deceit to qualify; conduct that is typically dishonest or morally wrong is insufficient
• The court rejected prior dicta from United States v. Good (2003) suggesting embezzlement involves fraud, finding it did not squarely address whether the statute’s elements categorically require fraud

Why It Matters

This decision significantly impacts the immigration consequences for noncitizens convicted of embezzlement in Virginia. Convictions under Va. Code § 18.2-111 no longer categorically trigger mandatory deportation as an aggravated felony. This distinction matters because aggravated felony convictions subject noncitizens to mandatory detention, ineligibility for asylum, cancellation of removal, and voluntary departure—among other severe consequences. The decision requires immigration judges and the Board to conduct individualized review of the specific facts underlying an embezzlement conviction to determine whether the conduct involved the requisite elements of fraud or deceit, rather than categorically removing all Virginia embezzlement convicts.

The ruling also illustrates a fundamental tension in immigration law: the distinction between conduct that is morally or ethically dishonest and conduct that is legally fraudulent or deceitful. Under the categorical approach mandated by Supreme Court precedent, this distinction controls, even when it produces counterintuitive results. The Fourth Circuit’s decision clarifies that statutes must be evaluated by their minimum elements, not by the typical conduct prosecuted under them or colloquial understandings of the crime.