Omari v. Alberto Gonzalez. Omari, a Kenyan, was a member of a gang of travel agency burglars. After stealing 3,000 blank airline tickets, he was indicted and pled guilty to violating 18 U.S.C. Section 371, which prohibits conspiring to commit any offence against the United States. He got one to six months in the clink. The INS initiated deportation proceedings, alleging that he was deportable for having committed an aggravated felony. To be an aggravated felony under the relevant provision, however, the crime has to involve "fraud" or "deceit."
The issue involved in the appeal is precisely what offense Omari pled guilty to conspiring to commit against the United States. It was clear that the indictment alleged a conspiracy to commit a violation of 18 U.S.C. Section 2314. That provision contains multiple paragraphs, each describing a separate offense, some of which involve fraud and some that do not. In determining whether a criminal statute defines an aggravated felony, the court applies a "categorical approach." To be an aggravated felony within the meaning of the INA, a violation of the statute must necessarily have involved fraud or deceit.
Applying this standard, the BIA was reversed and the depoprtation order vacated.
Comments