Soliman v. Gonzales ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
OMIMA IBRAHIM SOLIMAN, 
Petitioner,
v.
 No. 04-1990
ALBERTO R. GONZALES, Attorney
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals.
(A45-292-699)
Argued: May 24, 2005
Decided: August 22, 2005
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Petition for review granted and order of removal vacated by published
opinion. Judge King wrote the opinion, in which Judge Williams and
Judge Gregory joined.
COUNSEL
ARGUED: Thomas Kirk Ragland, ELLIOT & MAYOCK, Washing-
ton, D.C., for Petitioner. Daniel Eric Goldman, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent. ON BRIEF: Thomas A. Elliot,
Fabienne Chatain, ELLIOT & MAYOCK, Washington, D.C., for
Petitioner. Peter D. Keisler, Assistant Attorney General, Civil Divi-
2 SOLIMAN v. GONZALES
sion, James A. Hunolt, Senior Litigation Counsel, Michele Y. F.
Sarko, Civil Division, Office of Immigration Litigation, Washington,
D.C., for Respondent.
OPINION
KING, Circuit Judge:
Petitioner Omima Ibrahim Soliman has filed a petition seeking
review by this Court of the July 13, 2004 decision of the Board of
Immigration Appeals ("BIA") ordering her removal to Egypt. By our
Order of June 21, 2005, we have granted the petition for review and
vacated the BIA’s order of removal, in that the BIA’s order was
premised on the erroneous determination that Soliman had been pre-
viously convicted of an "aggravated felony," as that term is defined
in 8 U.S.C. § 1101(a)(43)(A)-(U).1 This opinion further explains the
rulings embodied in our June 21, 2005 Order, and it is filed pursuant
thereto.
I.
Soliman is a native of Egypt, and she immigrated to this country
on May 31, 1996. On May 20, 2002, Soliman was indicted in Fairfax
County, Virginia, for the offense of "Fraudulent Use of a Credit
Card," in violation of Virginia Code § 18.2-195, for having repre-
sented that she was the holder of a credit card belonging to someone
else, without the card holder’s consent, to obtain property in excess
of $200.2 Soliman was convicted on June 10, 2002 and, on October
1
More specifically, our Order of June 21, 2005 provided: "The Court
grants petitioner’s motion for an expedited decision, grants her petition
for review and vacates the order of removal. An opinion will follow in
due course."
2
The state court indictment returned against Soliman in Virginia spe-
cifically alleged that she "did feloniously and with the intent to defraud
obtain property valued in excess of $200.00, by representing, without the
consent of the cardholder, that she was the holder of a Visa check card,
issued to Helen Best. Va. Code § 18.2-195."
SOLIMAN v. GONZALES 3
21, 2002, the court sentenced her to two years of incarceration, all
suspended, plus two years of probation.
On December 16, 2003, the Immigration and Naturalization Ser-
vice (the "INS") issued Soliman a Notice to Appear and initiated
removal proceedings against her. The Notice to Appear classified
Soliman as removable from this country pursuant to the provisions of
8 U.S.C. § 1227(a)(2)(A)(iii), which gives the Attorney General the
authority to deport "[a]ny alien who is convicted of an aggravated fel-
ony at any time after admission." The aggravated felonies subject to
this statutory provision are enumerated in 8 U.S.C. § 1101(a)(43)(A)-
(U).3 Of importance here, these aggravated felonies include "a theft
offense (including receipt of stolen property) or burglary offense for
which the term of imprisonment [is] at least one year,"
§ 1101(a)(43)(G) ("Subsection (G)"), and "an offense that . . .
involves fraud or deceit in which the loss to the victim or victims
exceeds $10,000," § 1101(a)(43)(M)(i) ("Subsection (M)(i)").
The INS’s Notice to Appear alleged that Soliman’s Virginia con-
viction for credit card fraud constituted a "theft offense" under Sub-
section (G). Soliman maintained otherwise, however, asserting that
her offense was not a "theft offense" under Subsection (G), but rather
a fraud offense, covered by Subsection (M)(i). According to Soliman,
3
Section 1101(a)(43) of Title 8, United States Code, spells out the spe-
cific "aggravated felonies" which may result in deportation. Two of those
aggravated felonies are relevant to our discussion today,
§ 1101(a)(43)(G) and (M)(i). These subsections provide:
(43) The term "aggravated felony" means—
...
(G) a theft offense (including receipt of stolen property) or bur-
glary offense for which the term of imprisonment [is] at least one
year;
...
(M) an offense that—
(i) involves fraud or deceit in which the loss to the victim or vic-
tims exceeds $10,000. . . .
8 U.S.C. § 1101(a)(43)(G), (M)(i).
4 SOLIMAN v. GONZALES
the offense for which she was convicted involved less than the
$10,000 specified in Subsection (M)(i), and thus is not an aggravated
felony and a proper basis for deportation.4
By decision of January 29, 2004, the Immigration Judge (the "IJ")
rejected each of Soliman’s contentions, agreeing with the INS and
concluding that her conviction was for a theft offense under Subsec-
tion (G). In so ruling, the IJ defined a "theft offense" as a criminal
offense where there is "a criminal intent to deprive the owner of the
rights and benefits of ownership." The IJ reasoned that, because Soli-
man "was not entitled to obtain the property that she did under the
statute under which she was convicted," her crime involved theft
within the meaning of Subsection (G).
The BIA affirmed the IJ’s ruling by its Order of July 13, 2004 (the
"BIA Order"), from which Soliman’s petition for review emanates.5
Although the BIA agreed with Soliman that her offense "by its terms,
involves fraud," it nonetheless concluded that the theft and fraud sub-
sections of § 1101(a)(43), spelled out in Subsections (G) and (M)(i),
"are not mutually exclusive," and ruled that "a crime which involves
fraud may also involve theft." BIA Order at 1. "Indeed," the BIA
observed, "the common definition of the term ‘theft’ includes fraud."
Id. (citing Black’s Law Dictionary, defining theft as a "popular name
for larceny . . . [t]he fraudulent taking of personal property belonging
to another . . . without his consent, with the intent to deprive the
owner of the value of the same"). The BIA then defined a "theft
offense" as "the unlawful taking of property, whenever there is a
criminal intent to deprive the owner of the rights or benefits of owner-
ship, either permanently or less so." Id. at 2.
4
The Virginia indictment specified only that Soliman’s offense
involved "more than $200." The parties agree that the actual amount
involved in the offense was $ 1,427.38.
5
The BIA Order was issued by a single member of the BIA only. Soli-
man objected to this procedure as contrary to the BIA’s regulations for
the first time in her reply brief, but her objection is not properly before
us and is not resolved here. See United States v. Lewis, 235 F.3d 215,
218 n.3 (4th Cir. 2000) ("[A]n issue first argued in a reply brief is not
properly before a court of appeals.").
SOLIMAN v. GONZALES 5
In assessing whether Soliman’s conviction was for a theft offense,
the BIA applied the "categorical approach" set forth and explained by
the Supreme Court in Taylor v. United States, 495 U.S. 575, 598-600
(1990) (explaining that court analyzing prior conviction must first
look to categorical nature of statute of prior conviction, and then, if
necessary, look to certain facts underlying conviction). In so doing,
the BIA first concluded that Virginia Code § 18.2-195, under which
Soliman was convicted, is not a "categorical" theft statute — in other
words, its elements are not the same as the elements of a theft offense
under federal law. Looking then to Soliman’s indictment to determine
the particular facts underlying her conviction, the BIA found that the
actual conduct underlying her offense was the functional equivalent
of a theft offense as the BIA had defined it: "the unlawful taking of
property, whenever there is a criminal intent to deprive the owner of
the rights of benefits of ownership, either permanently or less so."
BIA Order at 2. Specifically, the BIA concluded that, in Soliman’s
prosecution in Fairfax County, there had been an "unlawful taking of
property" from the merchant because "[t]he fraud renders the taking
unlawful"; further, it found there was "criminal intent to deprive the
owner of the rights and benefits of ownership" because Soliman had
deprived "the card’s true owner of his or her benefits or rights of
ownership." Id. (emphasis added).
By her petition for review, Soliman has raised a single issue:
whether the BIA erred in determining that she was deportable because
her Virginia conviction constituted an aggravated felony, i.e., a "theft
offense" pursuant to Subsection(G).
II.
As an initial matter, we recognize that our jurisdiction to consider
and resolve petitions for review from the decisions of the BIA is lim-
ited. Section 1252(a)(2)(C) of Title 8, United States Code, provides
that no court has jurisdiction to review any final order of removal
against an alien who is removable by reason of having committed a
criminal offense. We have recognized, however, that we possess lim-
ited "jurisdiction to review factual determinations that trigger the
jurisdiction-stripping provision" — specifically, (1) whether Soliman
is an alien, and (2) whether she has been convicted of an aggravated
felony. See Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002)
6 SOLIMAN v. GONZALES
(citing Calcano-Martinez v. INS, 533 U.S. 348, 350 n.2 (2001)). If
either of these two factual determinations is found to be erroneous, we
possess jurisdiction over Soliman’s petition for review; otherwise, we
are obliged to dismiss her petition. See Lewis v. INS, 194 F.3d 539,
542 (4th Cir. 1999) (explaining that "jurisdiction turns on presence,
or lack thereof, of these two facts" and court therefore has "jurisdic-
tion to review them").
By her petition for review, Soliman admits the fact that she is an
alien. The only jurisdictional fact she contests is whether she was con-
victed in Virginia state court of an "aggravated felony" within the
meaning of 8 U.S.C. § 1101(a)(43).
III.
In support of her position in this proceeding, Soliman makes two
contentions. First, she maintains that her conviction in Virginia was
for an offense that involves fraud or deceit, that she was not convicted
of a theft offense, and that the BIA erred in improperly characterizing
her conviction as a theft offense under Subsection (G). In support of
this contention, she points to the definitions of "theft offense" adopted
in similar proceedings by our sister circuits. See Nugent v. Ashcroft,
367 F.3d 162, 174 (3d Cir. 2004) (defining theft offense as "a taking
of property or an exercise of control over property without consent")
(emphasis added); United States v. Corona-Sanchez, 291 F.3d 1201,
1205 (9th Cir. 2002) (same); United States v. Vasquez-Flores, 265
F.3d 1122, 1125 (10th Cir. 2001) (same); Hernandez-Mancilla v. INS,
246 F.3d 1002, 1009 (7th Cir. 2001) (same). Second, and alterna-
tively, Soliman maintains that if her Virginia conviction included both
theft and fraud, we should adhere to the reasoning of the Third Circuit
in Nugent, and apply the $10,000 minimum threshold of Subsection
(M)(i) to any such hybrid offense. 367 F.3d at 176. The Attorney
General contends in response, first, that the BIA properly categorized
Soliman’s conviction as a "theft offense," and thus as an aggravated
felony, and second, that the BIA’s interpretation of 8 U.S.C.
§ 1101(a)(43) is entitled to deference under Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
Because we are able to resolve Soliman’s petition for review by find-
ing that Soliman’s conviction was not for a theft offense under Sub-
section (G), we need not reach and address her alternative contention
SOLIMAN v. GONZALES 7
with respect to imputing Subsection (M)(i)’s minimum threshold to
Subsection (G).
A.
1.
The Supreme Court has determined that the special deference rules
of Chevron apply to BIA interpretations of the statutes it administers.
See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999); see also
Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir. 2004)
(applying Chevron to BIA interpretations of INS regulations). As the
Court has explained, such deference is premised on the proposition
that "‘the power of an administrative agency to administer a congres-
sionally created . . . program necessarily requires the formulation of
policy and the making of rules to fill any gap left, implicitly or explic-
itly, by Congress.’" Chevron, 467 U.S. at 843 (quoting Morton v.
Ruiz, 415 U.S. 199, 231 (1974)). When Chevron deference applies, a
court in reviewing an agency action "is confronted with two ques-
tions":
First, always, is the question whether Congress has directly
spoken to the precise question at issue. If the intent of Con-
gress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously
expressed intent of Congress. If, however, the court deter-
mines Congress has not directly addressed the precise ques-
tion at issue, the court does not simply impose its own
construction on the statute, as would be necessary in the
absence of an administrative interpretation. Rather, if the
statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the statute.
Id. at 842-43. More specifically, Chevron deference applies to the
BIA’s interpretations of the Immigration and Nationality Act, the stat-
ute at issue here. See Aguirre-Aguirre, 526 U.S. at 424; see also
Blanco de Belbruno, 362 F.3d at 278.
8 SOLIMAN v. GONZALES
Pursuant to the foregoing, we are obliged to apply the principles of
Chevron to the BIA’s determination of the underlying issue in this
case — the meaning of Subsection (G). However, we need not accord
deference to the BIA’s ultimate finding that Soliman’s particular
offense was an aggravated felony, which involves an issue of our
appellate jurisdiction and an interpretation of Virginia criminal law,
neither of which lies within the BIA’s authority or expertise. See
Aguirre-Aguirre, 526 U.S. at 424-25 (deferring to BIA interpretation
of statute it administers); Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th
Cir. 2000) (declining to apply Chevron deference to enforcement of
federal jurisdiction limitations).
2.
Under Chevron, we are first obliged to consider whether Congress
has spoken on the precise question at issue — here, whether a "theft
offense" includes fraud. See Chevron, 467 U.S. at 842. If Congress’s
intention is clear, the inquiry ends there, as "pure questions of statu-
tory construction [are] for the courts to decide." INS v. Cardoza-
Fonseca, 480 U.S. 421, 446 (1987). The BIA Order determined that
"the common definition of the term ‘theft’ includes fraud" and applied
the definition of "theft offense" to encompass fraud. As explained
below, however, that determination was contrary to the intention of
Congress.
In assessing Congress’s intent, we are obliged to look to and apply
the "traditional tools of statutory construction." Cardoza-Fonseca,
480 U.S. at 446. And under settled rules, the plain language of the
statute in question is deemed the most reliable indicator of Congres-
sional intent. We are obliged to look to the statutory language as a
whole, construing each section in harmony with every other part or
section, because "Act[s] of Congress . . . should not be read as a series
of unrelated and isolated provisions." Gustafson v. Alloyd Corp., 513
U.S. 561, 570 (1995).
The plain text of § 1101(a)(43) shows that Congress specifically
distinguished fraud from theft, and that it meant for the two offenses
to be treated differently. Subsection (G) provides that an aggravated
felony is "a theft offense (including receipt of stolen property) or bur-
glary offense for which the term of imprisonment [is] at least one
SOLIMAN v. GONZALES 9
year." Subsection (M)(i), on the other hand, provides for an aggra-
vated felony classification for "an offense that involves fraud or
deceit in which the loss to the victim or victims exceeds $10,000."
Congress thus decided to treat fraud as a distinct offense from theft
within § 1101(a)(43), and it prescribed a $10,000 threshold before a
fraud offense can qualify as an "aggravated felony."
The classic definitions of "theft" and "fraud," as those terms were
commonly used at the time of the Act’s adoption in 1952, appear to
have key differences. For example, the crime of theft was then gener-
ally described as
[a] fraudulent taking of corporeal personal property belong-
ing to another, from his possession, or from the possession
of some person holding the same for him, without his con-
sent, with the intent to deprive the owner of the value of the
same, and to appropriate it to the use or benefit of the person
taking.
Black’s Law Dictionary 1647-48 (4th ed. 1951) (emphasis added); see
also Black’s Law Dictionary 1477 (6th ed. 1990) (defining theft as
"[t]he act of taking property without the owner’s consent"). Under this
definition, a theft involved five elements: (1) a taking; (2) of property;
(3) from its owner or his representative; (4) without that person’s con-
sent; (5) with intent to deprive the owner to the benefit of the thief.6
On the other hand, the crime of fraud was then generally described
as:
An intentional perversion of truth for the purpose of induc-
ing another in reliance upon it to part with some valuable
thing belonging to him or to surrender a legal right; a false
6
The line between the crimes of theft and fraud seems to be less clearly
drawn in the most recent edition of Black’s Law Dictionary. That edition
provides two definitions of theft: first, "the felonious taking and remov-
ing of another’s personal property with the intent of depriving the true
owner of it; larceny"; and second, "[b]roadly, any act or instance of steal-
ing, including larceny . . . and false pretenses." Black’s Law Dictionary
1516 (8th Ed. 2004).
10 SOLIMAN v. GONZALES
representation of a matter of fact, whether by words or by
conduct, by false or misleading allegations, or by conceal-
ment of that which should have been disclosed, which
deceives and is intended to deceive another so that he shall
act upon it to his injury.
Id. at 788 (emphasis added). When a theft offense has occurred, prop-
erty has been obtained from its owner "without consent"; in a fraud
scheme, the owner has voluntarily "surrendered" his property,
because of an "intentional perversion of truth," or otherwise "act[ed]
upon" a false representation to his injury. The key and controlling dis-
tinction between these two crimes is therefore the "consent" element
— theft occurs without consent, while fraud occurs with consent that
has been unlawfully obtained.
Where Congress has utilized distinct terms within the same statute,
the applicable canons of statutory construction require that we
endeavor to give different meanings to those different terms — here
"fraud" and "theft." See, e.g., United States v. Nordic Village, 503
U.S. 30, 36 (1992). Similarly, statutory provisions are to be construed
as a whole, and we are not to give one word of a statute a meaning
"so broad that it is inconsistent" with its accompanying words.
Gustafson, 513 U.S. at 575. Further, "where Congress includes partic-
ular language in one section of a statute but omits it in another provi-
sion of the same Act, it is generally presumed that Congress acts
intentionally and purposefully in the disparate inclusion or exclusion."
Cardoza-Fonseca, 480 U.S. at 432 (internal quotation marks omitted).
Finally, we are "loath" to read one statutory provision so as to render
another provision of the same statute superfluous. Cooper Indus. v.
Aviall Serv., Inc., 125 S. Ct. 577, 583 (2004); see also Norman J.
Singer, Statutes and Statutory Construction § 46.06 (6th ed. 2000).
In order to give proper effect to the intention of Congress that theft
and fraud offenses are to be treated differently for purposes of an "ag-
gravated felony" issue, a proper definition of the term "theft offense"
must distinguish between such an offense and a fraud scheme. And
the key distinction on that point is the "without consent" element,
present in the classic definition of a theft offense. This key distinction
was eliminated by the definition of "theft offense" used by the BIA
in this proceeding, substituting the term "unlawful" for "without con-
SOLIMAN v. GONZALES 11
sent" of the property owner. BIA Order at 2. In so doing, the BIA
authorized a fraud offense to satisfy the "unlawful taking" require-
ment of a theft, and thus be subsumed within the term "theft offense."
Such a result is contrary to the intention of Congress, as evidenced by
its separate and different treatment of fraud. See Cardoza-Fonseca,
480 U.S. at 432. Indeed, the BIA’s definition of "theft offense" makes
the fraud provision of Subsection (M)(i) superfluous, and it results in
an outcome that is contrary to Congress’s explicit inclusion of a
$10,000 threshold for fraud offenses into Subsection (M)(i) — trans-
forming all fraud offenses into theft offenses, and thus also into
aggravated felonies under § 1101(a)(43). See Cooper Indus., 125
S. Ct. at 583 (cautioning against reading statute so as to make portions
superfluous).
Our conclusion that a taking of property "without consent" is an
essential element of a theft offense is also consistent with the theft
offense definitions adopted and utilized by the courts of appeals to
previously consider this issue. These courts have concluded that a
"theft offense" is "a taking of property or an exercise of control over
property without consent with the criminal intent to deprive the owner
of rights and benefits of ownership, even if such deprivation is less
than total or permanent." Hernandez-Mancilla, 246 F.3d at 1009; see
also Nugent, 367 F.3d at 174; Vasquez-Flores, 265 F.3d at 1125;
Corona-Sanchez, 291 F.3d at 1205. But cf. Abimbola v. Ashcroft, 378
F.3d 173 (2d Cir. 2004) (describing BIA definition of theft as "simi-
lar" to definition adopted by Third, Seventh, Ninth, and Tenth Cir-
cuits, and distinguishing Corona-Sanchez).
As a result, we must conclude that the BIA’s definition of a theft
offense in the aggravated felony context, as including a fraud scheme,
is contrary to congressional intent. That alone, however, is not dispo-
sitive of our resolution of Soliman’s petition for review. In order to
complete that determination, we must also assess whether, applying
the proper "without consent" element of theft, Soliman has been pre-
viously convicted of an "aggravated felony."
B.
In assessing whether Soliman’s Virginia state court conviction was
for a theft offense, we are obliged to utilize the categorical analysis
12 SOLIMAN v. GONZALES
approach spelled out in Taylor v. United States, 495 U.S. 575, 598-
600 (1990). This analysis requires that we first examine whether the
statutory elements of credit card fraud in Virginia, under Virginia
Code § 18.2-195, include the elements of an aggravated felony theft
offense, under Subsection (G), "regardless of [the] exact definition or
label" of the Virginia crime. Taylor, 495 U.S. at 599. If the statute of
conviction may, but does not necessarily, include all the elements of
"theft" under Subsection (G), we are then obliged to look to the
indictment (or information) and similar documents for the state law
offense, and assess whether the state court, in adjudging guilt, was
required to find the elements of theft required by federal law. Shepard
v. United States, 125 S. Ct. 1254, 1263 (2005); Taylor, 495 U.S. at
602.
1.
Importantly for this analysis, the Commonwealth of Virginia has
created separate statutory provisions for "credit card theft," on the one
hand, and "credit card fraud," on the other. In Virginia Code § 18.2-
192, entitled "Credit card theft," an offender’s unauthorized taking of
money from a credit card owner is criminalized. This provision speci-
fies that a person is guilty of credit card theft when, inter alia, the
offender takes
a credit card or credit card number from the person, posses-
sion, custody or control of another without the cardholder’s
consent . . . with intent to use it or sell it, or to transfer it
to a person other than the issuer or the cardholder.
§ 18.2-192(a). A separate provision of the Virginia Code, § 18.2-195,
entitled "Credit card fraud," creates the distinct crime of credit card
fraud and specifies, inter alia, that:
(1) A person is guilty of credit card fraud when, with intent
to defraud any person, he:
(a) Uses for the purpose of obtaining money, goods, services
or anything else of value a credit card or credit card number
obtained or retained in violation of § 18.2-192 or a credit
SOLIMAN v. GONZALES 13
card or credit card number which he knows is expired or
revoked; [or]
(b) Obtains money, goods, services or anything else of value
by representing (i) without the consent of the cardholder that
he is the holder of a specified card or credit card number or
(ii) that he is the holder of a card or credit card number and
such card or credit card number has not in fact been issued.
...
Va. Stat. § 18.2-195 (emphasis added). The credit card fraud provi-
sion of the Virginia Code thus criminalizes the utilization of another’s
credit card number to obtain something of value from a third person
or institution, whether money, goods, or services, or security for a
debt; and this provision also criminalizes the use of an offender’s own
credit card number or a fictional number under certain circumstances.
And, the Virginia Court of Appeals has ruled that, in order to prove
the offense of "credit card fraud," in violation of § 18.2-195, the pros-
ecution is obliged to demonstrate a specific intent to defraud, which
is characterized as the "‘intent to deceive or trick.’" Harrison v. Com-
monwealth, 529 S.E.2d 330, 333 (Va. Ct. App. 2000) (quoting Camp-
bell v. Commonwealth, 421 S.E.2d 652, 654 (Va. Ct. App. 1992)).
2.
Soliman was convicted in Virginia state court in 2002 of violating
§ 18.2-195, the "credit card fraud" provision of the Virginia Code. In
ruling that this offense was an aggravated felony and that Soliman
was deportable because of it, the BIA correctly concluded that her
offense was not categorically a theft offense, because the credit card
fraud statute criminalizes a wide range of conduct. As evident from
the many activities which it criminalizes, however, a person could be
convicted under the credit card fraud statute for: "[o]btain[ing] control
over a credit card number as security for debt," or "[r]emit[ting] to an
issuer or acquirer a record of a credit card or credit card number trans-
action which is in excess of the monetary amount authorized by the
cardholder." § 18.2-195(1)(c), (2)(a). Neither of these activities
involves the "taking of property." As a result, Virginia’s "credit card
fraud" offense does not "substantially correspond" to a theft offense
under Subsection (G), and the Virginia offense for which Soliman
14 SOLIMAN v. GONZALES
was convicted is thus not a "categorical" match for a Subsection (G)
offense, as required by Taylor, 495 U.S. at 602.
Although the bare offense of Soliman’s conviction is not a categor-
ical match for a Subsection (G) theft offense, we are also obliged to
apply a "modified" categorical approach, looking beyond the mere
fact of her state conviction, to examine the charging papers and simi-
lar documents in the state court, to assess what Soliman’s conviction
"necessarily rested on." Shepard, 125 S. Ct. at 1259-61 (describing
limitations of such inquiry in plea context); Randhawa v. Ashcroft,
298 F.3d 1148, 1152 (9th Cir. 2002) (discussing applicability of mod-
ified categorical approach to assessment of whether petitioner had
committed theft offense). In this regard, the indictment specifies that
Soliman "did feloniously and with the intent to defraud obtain prop-
erty valued in excess of $200.00, by representing, without the consent
of the cardholder, that she was the holder of a Visa check card, issued
to Helen Best. Va. Code § 18.2-195." For multiple reasons, this
indictment allegation does not show that Soliman was convicted of all
the elements of a "theft offense" under Subsection (G).
First, the indictment does not charge Soliman with taking goods
without the consent of the merchant, and thus she was not convicted
of a theft offense against the merchant. Second, although the indict-
ment does allege, as part of the fraud charge, that Soliman used the
credit card itself without consent of its owner, the allegations of the
indictment for her fraud conviction, fail to demonstrate that she was
convicted of each element of credit card theft. In particular, the indict-
ment tracks the provisions of § 18.2-195(1)(b)(i) of Virginia’s credit
card fraud statute, which makes it unlawful for any person, with the
intent to defraud, to "obtain[ ] money, goods, services or anything
else of value by representing . . . without the consent of the cardholder
that he is the holder of a specified card or credit card number." Impor-
tantly, the indictment does not track § 18.2-195(1)(a) of the statute,
which deals with the situation where a fraud scheme arises from an
underlying credit card theft — where the card used to obtain property
has been obtained "in violation of 18.2-192," the credit card theft stat-
ute. Nor is it conclusive, from the indictment, that Soliman actually
obtained any property from the cardholder — the indictment merely
alleges that she "represented" that the card was hers in order to obtain
property from a merchant, whereas § 18.2-195(1)(a), by way of exam-
SOLIMAN v. GONZALES 15
ple, requires that the card be "used" to obtain such property. Thus, it
is not conclusive from the indictment that Soliman’s Virginia convic-
tion required proof of the elements of credit card theft. See Shepard,
125 S. Ct. at 1263; Taylor, 495 U.S. at 602. As a result, we must reject
the BIA’s contention that Soliman was convicted of a "theft offense"
within the meaning of Subsection (G). She therefore has not been
convicted of an "aggravated felony" within the meaning of
§ 1101(a)(43), and our Order of June 21, 2005, must be sustained.
IV.
Because the BIA erred in determining that Soliman had been previ-
ously convicted in the Virginia state court of an aggravated felony,
her petition for review must be granted and the BIA’s order for her
removal must be vacated.
PETITION FOR REVIEW GRANTED AND
ORDER OF REMOVAL VACATED