Virginia Embezzlement Is Not Categorically a “Fraud or Deceit” Aggravated Felony Under INA § 1101(a)(43)(M)(i)

Case: Maximino Ramos v. Todd Blanche
Court: United States Court of Appeals for the Fourth Circuit
Date: July 9, 2026
Disposition: Petition for review granted; removal order vacated; remanded to the agency

1. Introduction

This published Fourth Circuit decision addresses a recurring “crimmigration” problem: whether a state theft-like conviction triggers the federal immigration label of an “aggravated felony,” which carries severe consequences (mandatory removability, detention, and ineligibility for several forms of relief). The Department of Homeland Security charged Maximino Ramos, a lawful permanent resident from Honduras, as removable on the theory that his Virginia embezzlement conviction was an aggravated felony “offense that involves fraud or deceit” with loss exceeding $10,000 under 8 U.S.C. § 1101(a)(43)(M)(i). An immigration judge and the Board of Immigration Appeals agreed and ordered removal.

The central issue on review was purely categorical: Do the elements of Virginia’s embezzlement statute, Va. Code Ann. § 18.2-111, necessarily require “fraud or deceit”? If not, the charged aggravated-felony ground fails even if the underlying conduct looked fraudulent in ordinary language.

2. Summary of the Opinion

Holding: A conviction under Va. Code Ann. § 18.2-111 is not categorically an offense that “involves fraud or deceit” within the meaning of 8 U.S.C. § 1101(a)(43)(M)(i), because the statute’s elements do not necessarily require misrepresentation, trickery, or intentional concealment.

Chief Judge Diaz (joined by Judges Richardson and Heytens) applied the categorical approach and concluded that Virginia’s embezzlement statute can be violated without any fraudulent or deceitful act. In particular:

  • The word “fraudulently” in § 18.2-111, as interpreted by Virginia courts, denotes wrongful or felonious intent—not “fraud” in the federal aggravated-felony sense.
  • Concealment may be common in embezzlement fact patterns, but it is not an element; one can embezzle openly or even after disclosing the intent to take the property.

Because Ramos’s conviction did not match the charged aggravated-felony category, the court granted the petition, vacated the final removal order, and remanded. The court did not reach Ramos’s separate challenge to the immigration judge’s denial of a continuance.

3. Analysis

3.1. Precedents Cited

A. Framework for reviewing removability and the categorical approach

  • Castendet- Lewis v. Sessions, 855 F.3d 253 (4th Cir. 2017): Cited for the standard of review—whether a conviction is an aggravated felony is reviewed de novo. This situates the question as a legal classification issue rather than a discretionary agency determination.
  • Kawashima v. Holder, 565 U.S. 478 (2012): Supplies the governing interpretation of “involves fraud or deceit” and underscores the categorical requirement that the offense “necessarily entail” fraudulent or deceitful conduct. The opinion also uses Kawashima’s contrast between crimes that require misrepresentation (e.g., filing a false return) and crimes that can be committed without misrepresentation (tax evasion) to illuminate why Virginia embezzlement does not qualify.
  • Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014): Reiterates that the categorical approach examines statutory elements, not the defendant’s real-world conduct.
  • Moncrieffe v. Holder, 569 U.S. 184 (2013): Provides the “least of the acts criminalized” presumption—the court must assume the conviction rested on the minimum conduct criminalized and ask whether that minimum necessarily involves fraud or deceit.
  • Ai Hua Chen v. Holder, 742 F.3d 171 (4th Cir. 2014): Explains the scope of review when the Board affirms but adds its own reasoning; the court reviews both the immigration judge’s and the Board’s decisions.

B. Defining “fraud” and “deceit” for INA § 1101(a)(43)(M)(i)

  • Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005): Supplies a detailed definition of “fraud” emphasizing an “intent to deceive or trick.” The Ramos court uses Soliman to draw a bright line: wrongdoing is not enough; there must be a deceitful act (misrepresentation, trickery, or intentional concealment).
  • Kawashima v. Holder, 565 U.S. 478 (2012): Also provides the definition of “deceit” and the key principle that the offense must necessarily entail fraudulent or deceitful conduct.

C. State-law interpretation that binds the categorical analysis

  • United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. 2014) (en banc): Cited for the rule that state supreme court interpretations of state statutes “constrain” the federal categorical analysis. This is critical because the meaning of “fraudulently” in § 18.2-111 is a matter of Virginia law.
  • Gwaltney v. Commonwealth, 452 S.E.2d 687 (Va. Ct. App. 1995): Used to characterize Virginia embezzlement as nontraditional—“essentially a form of larceny” beginning with lawful possession. This frames why importing generic “embezzlement equals deceit” assumptions is hazardous.
  • Page v. Commonwealth, 138 S.E. 510 (Va. 1927), and Bain v. Commonwealth, 205 S.E.2d 641 (Va. 1974): Provide the decisive Virginia gloss: “fraudulently” in the embezzlement statute means wrongful/felonious intent, not deceitful conduct. The Fourth Circuit relies on these cases to reject the government’s argument that the statutory word “fraudulently” resolves the federal question.
  • Wells v. Commonwealth, 724 S.E.2d 225 (Va. App. 2012): The Fourth Circuit notes the Board’s mistake in relying on Wells to prove categorical fraud; Wells merely recited the “wrongfully and fraudulently” mens rea without equating it to misrepresentation-based fraud.
  • Pierce v. Commonwealth, 138 S.E.2d 28 (Va. 1964): Used by analogy to show that Virginia’s use of “fraudulently” in a statute (there, robbery) does not transform the crime into one involving fraud or deceit in the federal aggravated-felony sense.
  • OpenRisk LLC v. MicroStrategy Servs. Corp., 876 F.3d 518 (4th Cir. 2017): Cited to reject a related government theory: Virginia embezzlement does not require “entrustment” or a special relationship of trust/confidence, undermining any attempt to smuggle in “concealment” as a necessary feature of the offense via an “abuse of trust” element.

D. Treatment of dicta and scope of stare decisis

  • United States v. Good, 326 F.3d 589 (4th Cir. 2003): The government invoked a statement that “embezzlement is a felony involving dishonesty, fraud, and misrepresentation.” The Fourth Circuit cabins that language as dicta and, more importantly, not a categorical-approach holding about § 18.2-111’s elements.
  • Puentes Fernandez v. Keisler, 502 F.3d 337 (4th Cir. 2007): Cited for the principle that stare decisis applies only to issues “squarely addressed,” supporting the court’s refusal to treat Good as controlling.

3.2. Legal Reasoning

A. The court’s interpretive sequence

The opinion follows the canonical categorical-approach sequence: (1) define the federal generic requirement (“involves fraud or deceit”), (2) identify the minimum conduct criminalized by the state statute as authoritatively construed, and (3) decide whether the minimum conduct necessarily satisfies the federal requirement.

B. “Fraud or deceit” requires an inherently deceptive act

Relying on Soliman v. Gonzales and Kawashima v. Holder, the court emphasized that “fraud or deceit” is not a moral judgment about the defendant’s character or the unethical nature of the offense; it requires conduct that is itself deceptive—misrepresentation, trickery, or intentional concealment intended to mislead. That framing matters because embezzlement is often described colloquially as “fraud,” yet the INA’s aggravated-felony category demands an elements-based, deception-centered fit.

C. The statutory word “fraudulently” in § 18.2-111 is not “fraud” for INA purposes

A key move in the opinion is to disaggregate:

  • Virginia mens rea label: “fraudulently” (as used in § 18.2-111), and
  • Federal aggravated-felony concept: “fraud or deceit” (as used in § 1101(a)(43)(M)(i)).

Under Page v. Commonwealth and Bain v. Commonwealth, “fraudulently” in Virginia embezzlement means wrongful/felonious intent. That definition does not require any victim-facing deception. Therefore, the state statute’s vocabulary cannot do the government’s categorical work.

D. Concealment is not an element; open embezzlement remains embezzlement

The government’s stronger argument was functional: embezzlement “involves” concealment/omission. The court rejected this as an elements mismatch under Moncrieffe v. Holder and Omargharib v. Holder. The opinion uses simple hypotheticals to illustrate the “least acts criminalized” point: one can commit Virginia embezzlement even if the taking is open or even disclosed in advance. If the crime can be completed without concealment, concealment cannot be treated as a categorical element.

E. Doctrinal discipline: resisting “usual case” reasoning

A notable feature of the opinion is its insistence on categorical rigor. Even if “many” or “most” embezzlement cases feature concealment, the categorical approach forbids converting statistical frequency into an element. The court expressly described this as the “bizarro world” of the categorical approach—an acknowledgment of the doctrine’s counterintuitive results, coupled with fidelity to it.

3.3. Impact

A. Immediate immigration consequences in Virginia embezzlement cases

Within the Fourth Circuit, a conviction under Va. Code Ann. § 18.2-111 cannot, standing alone, sustain removability under the specific charged ground of INA aggravated felony “fraud or deceit” in 8 U.S.C. § 1101(a)(43)(M)(i). This may:

  • Defeat the government’s attempt to impose aggravated-felony consequences (detention and ineligibility for asylum, cancellation, voluntary departure) on that theory.
  • Shift DHS charging strategies toward other aggravated-felony categories (e.g., “theft offense” theories, if applicable) or different removability grounds.

B. Broader doctrinal significance: statutory labels vs. elements

The opinion reinforces a recurring lesson in aggravated-felony litigation: statutory terminology (like “fraudulently”) is not dispositive when state courts define that term in a way that does not track the federal generic concept. This approach can influence future disputes involving state statutes that use “fraud” language to describe a culpable mental state rather than deception as an act.

C. Likely downstream litigation effects

  • Increased focus on state decisional law: litigants will mine state cases (like Page and Bain) to show that “fraud” words do not mean deceitful conduct.
  • Limits on agency reasoning: the opinion’s critique of the Board’s reliance on Wells v. Commonwealth signals that merely quoting statutory text is insufficient; the Board must grapple with authoritative state interpretations.
  • Clarification of dicta’s role: reliance on broad characterizations in older federal cases (like United States v. Good) will face stricter screening for whether the issue was “squarely addressed” per Puentes Fernandez v. Keisler.

4. Complex Concepts Simplified

  • Aggravated felony (immigration): A term of art in federal immigration law that triggers severe consequences. It does not necessarily match “felony” in state criminal law.
  • Categorical approach: A method that compares the elements of the statute of conviction to the federal definition, ignoring the defendant’s specific facts. If the statute covers any conduct outside the federal definition, the conviction does not categorically qualify.
  • “Least of the acts criminalized”: The court assumes the conviction could have been based on the minimum conduct the statute reaches (even if unusual), and asks whether that minimum meets the federal test.
  • Elements vs. facts: “Elements” are what the prosecution must prove to obtain a conviction; “facts” are what actually happened. Immigration aggravated-felony analysis is usually element-driven, not fact-driven.
  • Dicta: Statements in an opinion not necessary to the decision. Dicta can be persuasive but is not binding precedent on the point.

5. Conclusion

Maximino Ramos v. Todd Blanche establishes (for the Fourth Circuit) a clear categorical rule: Virginia embezzlement under Va. Code Ann. § 18.2-111 is not categorically a “fraud or deceit” aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i), because it can be committed without misrepresentation, trickery, or intentional concealment. The decision is significant less for its sympathy to the underlying misconduct—which the court acknowledged is “neither honest nor advisable”—and more for its disciplined insistence that aggravated-felony consequences must track statutory elements as authoritatively defined by state law. In doing so, the court both corrects the agency’s overbroad reading of Virginia embezzlement and reinforces the categorical approach’s core constraint on removability adjudications.