CA4 on Divisibility: Omargharib v. Holder

"In this appeal, we consider whether Sayed Gad Omargharib’s conviction under Virginia’s grand larceny statute, Va. Code Ann. § 18.2-95, constitutes an “aggravated felony” under the Immigration and Nationality Act (INA) § 101, 8 U.S.C. § 1101(a)(43). The Board of Immigration Appeals (BIA) answered this question in the affirmative using the so-called modified categorical approach, as clarified by Descamps v. United States, 133 S. Ct. 2276 (2013). Under Descamps, the modified categorical approach applies only if Virginia’s definition of “larceny” is “divisible” — that is, if it lists potential offense elements in the alternative, thus creating multiple versions of the crime. The BIA concluded that Virginia larceny is divisible because Virginia state courts have defined it to include either theft or fraud.

Consistent with our prior precedent on this issue, however, we conclude that mere use of the disjunctive “or” in the definition of a crime does not automatically render it divisible. We further hold that, under our recent decisions construing Descamps, the Virginia crime of larceny is indivisible as a matter of law. As such, we agree with Omargharib that the modified categorical approach has no role to play in this case. Instead, the categorical approach applies, and under that approach Omargharib’s grand larceny conviction does not constitute an aggravated felony under the INA. We therefore grant Omargharib’s petition for review, reverse the BIA’s ruling, and remand with instructions to vacate the order of removal." - Omargharib v. Holder, Dec. 23, 2014.  [Hats off to Steffanie Jones Lewis, Heidi Altman, Morgan Macdonald and Ben Winograd!]