Valansi v. Ashcroft: 3d Circuit Finds Embezzlement Conviction Not an Aggravated Felony

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

VALANSI V. ASHCROFT: 3D CIRCUIT FINDS EMBEZZLEMENT CONVICTION NOT AN AGGRAVATED FELONY
Immigrants' Rights Update, Vol. 16, No. 1, February 28, 2002

The United States Court of Appeals for the Third Circuit has ruled that an Israeli woman's conviction under 18 U.S.C. section 656 for embezzling bank funds over $400,000 from her employer is not an aggravated felony. The court found that a conviction under section 656 need not involve fraud or deceit and that in order to determine whether a conviction under this section is encompassed within the aggravated felony definition of section 101(a)(43)(M) of the Immigration and Nationality Act (for offenses involving fraud or deceit in which the loss to the victim(s) exceeds $10,000) it is necessary to examine the specific circumstances of the conviction.

The respondent in this case, a Ms. Valansi, first came to the U.S. from Israel at the age of one and a half months, and has been a lawful permanent resident since 1990. In October 1998, she pled guilty to a charge of embezzlement under 18 U.S.C. section 656. She was sentenced to six months' imprisonment followed by five years' supervised release. After she served her prison term, the Immigration and Naturalization Service initiated removal proceedings against her. At her hearing, the immigration judge found that she was removable for having been convicted of an aggravated felony. The Board of Immigration Appeals affirmed that decision, and Valansi then filed a petition for review with the court of appeals.

Ruling on the appeal, the Third Circuit first noted that if Valansi's offense constitutes an aggravated felony, then the court does not have jurisdiction over the case. However, the court found that it does have jurisdiction to determine the issue of whether the offense is an aggravated felony.

Section 101(a)(43)(M)(i) of the INA defines as an aggravated felony an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." The court concluded that this provision encompasses not only the specific crime of fraud but also other offenses that include fraud or deceit as a necessary component.

The offense for which Valansi was convicted, 18 U.S.C. section 656, has five necessary elements: (1) the defendant must be an employee, (2) of a federally connected bank, (3) who took cash or other assets, (4) in the custody or care of the bank, (5) with the intent to injure or defraud the bank. The court found that the fifth element can be satisfied by showing either an intent to injure or an intent to defraud. Embezzlement committed with intent to defraud the bank is encompassed within the aggravated felony definition of INA section 101(a)(43)(M)(i); embezzlement committed only with intent to injure the bank is not.

The indictment against Valansi charged that she acted "with intent to injure and defraud the bank." However, at the time that Valansi pled guilty the judge questioned her extensively to ensure that her plea was voluntary and intelligent. Reviewing this plea colloquy, the Third Circuit concluded that it demonstrates that Valansi had the intent to injure her employer by depriving it of its property, but it does not demonstrate that she specifically intended to defraud the bank. The court therefore concluded that her conviction cannot be considered an aggravated felony.

Valansi v. Ashcroft, 278 F.3d 203 (3rd Cir. 2002).