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Temitope Taju Akinsade v. Eric H. Holder

May 1, 2012

TEMITOPE TAJU AKINSADE, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT.



The opinion of the court was delivered by: Katzmann, Circuit Judge:

Argued: February 9, 2012

Amended: May 11, 2012

Before

KATZMANN, CHIN, AND CARNEY, Circuit Judges.

Temitope Taju Akinsade petitions for review of a February 5, 2010 Board of Immigration Appeals ("BIA") order adopting and affirming Immigration Judge John B. Reid's October 23, 2009 decision finding Akinsade removable under Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because his conviction of embezzlement by a bank employee under 18 U.S.C. § 656 constituted an aggravated felony as defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i). We hold that because none of the facts to which Akinsade actually and necessarily pleaded to establish the elements of his embezzlement offense reveals whether that offense was committed with a specific intent to defraud, it was error for the BIA to infer that his conviction was an offense involving fraud or deceit. Accordingly, for the reasons stated below, the petition for review is GRANTED, the BIA's decision is VACATED, and we REMAND for further proceedings consistent with this opinion.

This case requires us to consider whether Temitope Taju Akinsade's ("Akinsade" or "petitioner") record of conviction for embezzlement by a bank employee in violation of 18 U.S.C. § 656 ("§ 656") establishes that he actually and necessarily pleaded to committing an offense that involved fraud or deceit. For the reasons set forth below, we conclude that it was error for the Board of Immigration Appeals ("BIA") to have inferred from Akinsade's plea colloquy that he committed embezzlement with an intent to defraud. Accordingly, we grant Akinsade's petition for review, vacate the BIA's decision, and remand for further proceedings consistent with this opinion.

BACKGROUND

A. Fact Overview

Akinsade is a thirty-one-year-old noncitizen from Nigeria, who was first admitted to the United States on July 30, 1988, at the age of seven, as a B-2 nonimmigrant. In 2000, as a teenager, Akinsade was convicted of a nonviolent crime for which he has fully paid his debt. Since his conviction, he has impressively turned his life around. On May 4, 2000, Akinsade adjusted his status to become a lawful permanent resident. He received a Bachelor of Science degree in computer science and a Masters of Science degree, both from the University of Maryland. He was awarded the prestigious National Science Foundation fellowship, and was chosen to participate in a leadership program at the General Electric Company ("GE"). Now, years after his criminal conviction, Akinsade finds himself in deportation proceedings. In the exercise of its discretion, the federal government instituted deportation proceedings against Akinsade because of the nonviolent crime that he committed nearly a decade before, notwithstanding his apparently unblemished record since.

B. The Criminal Conviction

On March 1, 2000, the United States Attorney for the District of Maryland issued a criminal information charging Akinsade with embezzlement by a bank employee in violation of § 656.*fn1 The information read, in relevant part, that:

Temitope Akinsade being an agent and employee of Chevy Chase Bank . . . did knowingly embezzle, abstract, purloin and willfully misapply monies and funds entrusted to the custody and care of such bank in the approximate amount of $16,400. J.A. 351.

On March 20, 2000, Akinsade pled guilty to a single count in the information.*fn2 During Akinsade's plea colloquy, the Honorable Alexander Williams, Jr., United States District Judge for the District of Maryland, explained to petitioner his rights and received a knowing and voluntary waiver. The district court further explained that by agreeing to plead guilty, Akinsade could be sentenced to thirty years' imprisonment and a fine of one million dollars. Judge Williams also warned Akinsade that if he was not a citizen, he could be deported. Finally, the government stated on-the-record the facts it believed it could prove if the matter went to trial, including that:

on or about July 22, 1999, July 26, 1999 and July 30, 1999, Mr. Akinsade agreed to and did process fraudulent checks presented by accomplices in the amounts of $3,000, $5,900, and $7,500 respectively. Mr. Akinsade deposited some of the proceeds in ...


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