The decision of the U.S. Court of Appeals for the Fourth Circuit in Omargharib v. Holder cements the court’s position as a leading venue for halting the removal machine perfected with such cynical efficiency by the Obama administration. In Omargharib, the 4th Circuit ruled that the government could not remove Mr. Omargharib, a twenty-five year resident of the U.S., for his theft of two pool cues during a dispute with a competitor. The government had sought his removal as an individual convicted of an aggravated felony because he had been convicted of a theft offense where the penalty imposed was at least a year. The immigration judge agreed with the government as did the Board of Immigration Appeals. Omargharib sought review from the U.S. Court of Appeals which granted his petition for review and vacated the removal order. The 4th Circuit held that the statute under which Mr. Omargharib was convicted was not categorically a theft offense and therefore could not support removal.
It is a basic premise of immigration law that, in analyzing convictions for deportability, the language of the statute controls over what actually occurred. An immigration judge must determine, for example, in a case where a crime involving moral turpitude is alleged, whether all conduct punishable under the statute involves moral turpitude. If a person can be convicted under the statute in a way that does not involve moral turpitude, the statute does not categorically involve moral turpitude and the individual is not deportable. However, under certain circumstances, an immigration judge may look behind the language of the statute and can consult limited documents to determine whether the individual’s conduct involved moral turpitude. These circumstances arise when a statute is “divisible,” meaning that it criminalizes two or more different crimes with different elements and one of those crimes involves moral turpitude. When a statute is divisible, a court may look at documents such as the indictment, the plea agreement and the judgment to determine which portion of the statute a person was convicted under. If the person was convicted under the section of the law that involves moral turpitude, he would be deportable. It is the same with aggravated felonies. If the statute under which the person was convicted is broader (meaning it criminalizes more conduct than the aggravated felony ground in the i=Immigration & Nationality Act), the offense is not categorically an aggravated felony. If the statute is divisible, the court can look at the documents above to try to determine under which section the individual was convicted.
In Omargharib, the issue was when may a court consider a statute divisible. In this case, the Virginia larceny statute that Mr. Omargharib pleaded to criminalized larceny by fraud or theft. The court found that the Virginia statute was broader than the INA’s definition of a theft offense, because the INA did not include fraud as a way of committing theft. The government urged the court to find the statute divisible and to try to find out whether Mr. Omargharib committed his offense by fraud or theft. The government argued that since the statute was written in the disjunctive (meaning that one could commit larceny by theft OR fraud), the statute was necessarily divisible. The court rejected that and said that a statute is only divisible if it identifies multiple different offenses. The Virginia statute described two different ways to commit the same offense. The court found that a statute was not divisible if it only describes two different means of committing a crime rather than two different crimes. Since the offense did not categorically constitute a theft offense and was not divisible, the government could not prove that Mr. Omargharib was deportable for the aggravated felony of a theft offense.
The Fourth Circuit’s decision springs from the U.S. Supreme Court’s analysis of divisibility in Descamps v. U.S. As courts continue to deal with the impact of Descamps and Omargharib, it is likely that many offenses previously thought to be deportable offenses will be found not to be, opening the way up for noncitizens to prove that they deserve to remain in the U.S.
Omargharib was litigated by Steffanie Lewis with amicus support from the CAIR Coalition and FOBR Ben Winograd. Congrats to all.