Submitted January 14, 2015.
Petition for Review of an Order of the Board of Immigration Appeals.
For Jeylani Mowlana, Petitioner: Matthew Lorn Hoppock, Hoppock Law Firm, LLC, Overland Park, KS.
For Eric H. Holder, Jr., Respondent: Kevin J. Conway, Karen Yolanda Drummond, Kiley Kane, Senior Litigation Counsel, Carl H. McIntyre, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC.
Before RILEY, Chief Judge, BEAM and COLLOTON, Circuit Judges. BEAM, Circuit Judge, concurring.
COLLOTON, Circuit Judge.
Jeylani Shariff Mowlana, a native of Somalia, was ordered removed from the United States after the Board of Immigration Appeals concluded that he had been convicted of an aggravated felony. The Board cited Mowlana's prior conviction under 7 U.S.C. § 2024(b), which forbids the knowing use, transfer, acquisition, alteration, or possession of benefits in a manner contrary to the statutes and regulations of the Supplemental Nutrition Assistance Program, administered by the United States Department of Agriculture. On Mowlana's petition for review, we conclude that his offense was an aggravated felony, and we therefore deny the petition.
Mowlana was admitted to the United States as a refugee in 2000 and became a lawful permanent resident in 2002. In January 2011, Mowlana pleaded guilty to the unauthorized use, transfer, acquisition, and possession of " food stamp benefits . . . of a value of $5,000 or more," in violation of 7 U.S.C. § 2024(b). Mowlana was ordered to make restitution of $206,634.68 to the Department of Agriculture's Food and Nutrition Service.
In September 2011, the Department of Homeland Security commenced removal proceedings against Mowlana, alleging he was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of an aggravated felony. An alien who is convicted of an " aggravated felony" is subject to removal. 8 U.S.C. § 1227(a)(2)(A)(iii). An aggravated felony includes any offense that " involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." 8 U.S.C. § 1101(a)(43)(M)(i).
In this case, an immigration judge ruled that Mowlana's conviction was for a crime " involving fraud or deceit" because, inter alia, a violation of 7 U.S.C. § 2024(b) involves " a deliberate deception of the government and an impairment of its lawful functions." The Board agreed, reasoning that because a violation of § 2024(b)(1) required the defendant to know his conduct was unlawful, " [i]n all violations, the defendant commits a fraud upon the United States by falsely representing proper use of the food stamps, with full knowledge that the items are food stamps and that
the federal government would not permit such use." We review the Board's legal determinations de novo, according deference to the Board's interpretation of ambiguous provisions in the statutes it administers. Tian v. Holder, 576 F.3d 890, 895 (8th Cir. 2009). Because the Board adopted and affirmed the IJ's decision, we review both decisions on appeal.
To determine whether Mowlana's conviction under § 2024(b) " involve[d] fraud or deceit," we apply the so-called categorical approach. See Kawashima v. Holder, 132 S.Ct. 1166, 1172, 182 L.Ed.2d 1 (2012). Under that analysis, we look " 'not to the facts of the particular prior case,'" but to whether the elements of the statute of conviction " categorically fit within the 'generic' federal definition of a corresponding aggravated felony." Moncrieffe v. Holder, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). We consider whether a conviction under the statute " necessarily involve[s]" facts that equate to the defined aggravated felony. Id. (internal quotation omitted). In this case, therefore, the question is whether a violation of § 2024(b) necessarily involves facts that " involve fraud or deceit."
To show that § 2024(b) creates an offense outside the scope of the listed aggravated felony, Mowlana must demonstrate a " realistic probability" that the government would apply the statute to conduct that does not involve fraud or deceit. Duenas-Alvarez, 549 U.S. at 193; Armenta-Lagunas v. Holder, 724 F.3d 1019, 1021, 1024 (8th Cir. 2013). Our analysis of realistic probability must go beyond the text of the statute of conviction to inquire whether the government actually prosecutes offenses under § 2024(b) in cases involving hypothetical conduct that would not qualify as an aggravated felony. Moncrieffe, 133 S.Ct. at 1686-87, 1693. The concurring opinion seems to conclude that the " realistic probability" inquiry applies only when analyzing a state-law offense. Post, at . This court, however, already has endorsed applying Duenas-Alvarez to determine whether a federal offense is categorically a crime involving moral turpitude. Bobadilla v. Holder, 679 F.3d 1052, 1055-57 (8th Cir. 2012); see Rios-Diaz v. Holder, 543 Fed.Appx. 617, 618 (8th Cir. 2013). In line with decisions from at least three other circuits, we see no reason why fanciful hypotheticals or theoretical possibilities should preclude a categorical conclusion that a federal offense is an aggravated felony. See Sampathkumar v. Holder, 573 Fed.Appx. 55, 57 (2d Cir. 2014); Familia Rosario v. Holder, 655 F.3d 739, 749 (7th Cir. 2011); Accardo v. U.S. Att'y Gen., 634 F.3d 1333, 1337 (11th Cir. 2011).
The terms " fraud" and " deceit" are not defined in the Immigration and Nationality Act, so we look to ordinary meanings when the statute was enacted. " Deceit" means " the act or practice of deceiving (as by falsification, concealment, or cheating)." Webster's Third New International Dictionary 584 (1993); see Kawashima, 132 S.Ct. at 1172. " Fraud" is defined as " an instance or an act of trickery or deceit esp. when involving misrepresentation : an act of deluding." Webster's Third New International Dictionary 904 (1993). The accompanying term " involves" is broadening, and an offense " involves fraud or deceit" under subsection (M)(i) as long as it contains elements that " necessarily entail fraudulent or deceitful conduct." Kawashima, 132 S.Ct. at 1172. An offense may involve fraud or deceit even if the terms " fraud" ...