Labor & Employment Law Daily Wrap Up, IMMIGRATION—4th Cir.: Conviction of embezzlement from employer did not necessitate Honduran man’s removal, (Jul 10, 2026)

By Jason Albright, J.D.

Virginia’s unusual embezzlement statute does not categorically require fraudulent or deceitful conduct.

The Department of Homeland Security erred in removing a Honduran man and lawful permanent resident of the U.S. who was convicted in Virginia of embezzlement based on a scheme to take scrap metal wiring from his employer and trade it for cash at a metal recycling facility, the Fourth Circuit held. Applying the required categorical approach to its evaluation of the elements of the Virginia crime, the appeals court found that embezzlement in Virginia did not count as an aggravated felony that would render the former employee deportable pursuant to 8 U.S.C. § 1101(a)(43)(M)(i). An offense counts as an aggravated felony only if it “necessarily entail[s] fraudulent or deceitful conduct,” and in Virginia, it is possible to embezzle without misrepresenting, tricking, or concealing (Ramos v. Blanche, No. 25-2037 (4th Cir. July 9, 2026)).

Lawful permanent resident. The petitioner was a lawful permanent resident of the U.S. His wife is also a lawful permanent resident, and their daughter is a U.S. citizen.

Scrap metal recycling scheme. He participated in a scheme to take scrap metal wiring from his employer and trade it for cash at a metal recycling facility. He and his codefendants made over $46,000 from the sales.

Embezzlement. On those facts, a Virginia court found him guilty of embezzlement under Va. Code Ann. § 18.2-111, which provides, “If any person wrongfully and fraudulently use, dispose of, conceal or embezzle any money, bill, note, check, order, draft, bond, receipt, bill of lading or any other personal property, tangible or intangible, which he shall have received for another or for his employer, principal or bailor, or by virtue of his office, trust, or employment, or which shall have been entrusted or delivered to him by another or by any court, corporation or company, he shall be guilty of embezzlement. Proof of embezzlement shall be sufficient to sustain the charge of larceny. Any person convicted hereunder shall be deemed guilty of larceny and may be indicted as for larceny and upon conviction shall be punished as provided in § 18.2-95 or § 18.2-96.”

Found deportable. After he served his sentence, the Department of Homeland Security (DHS) detained him and charged him as deportable, based on his—alleged—aggravated-felony conviction, under 8 U.S.C. § 1101(a)(43)(M)(i).

Visa petition. Soon thereafter, his daughter filed a family visa petition on his behalf. Although he was a lawful permanent resident, that visa would have permitted him to seek readjustment of his status and avoid removal. He sought several continuances of his removal proceeding to allow U.S. Customs and Immigration Services (USCIS) to adjudicate his visa.

Removal ordered. The immigration judge (IJ) initially granted him three continuances. After the government rejected his motion to expedite visa processing, however, the IJ denied his fourth continuance motion and set a merits hearing. The IJ ultimately found that his embezzlement conviction involved fraud or deceit and thus was an aggravated felony. The IJ accordingly ordered his removal to Honduras.

Mistakenly deported during pending appeal. He appealed to the Board of Immigration Appeals (BIA), but while that appeal was pending, the government mistakenly deported him. The government then brought him back and assured the Fourth Circuit that its error had not impacted his removal proceeding. The government said it had implemented safeguards to ensure this sort of error will not happen again.

Removed again. His appeal proceeded, and BIA agreed that embezzlement counted as a crime of fraud or deceit, and that the immigration judge had not erred in denying his last continuance motion. The petitioner was thus removed to Honduras again.

He petitioned for the Fourth Circuit’s review, and just days later, the government granted his visa petition.

Aggravated felony. The appeals court initially observed that it considers whether a crime counts as an aggravated felony de novo. Relevant here, offenses that “involve[] fraud or deceit in which the loss to the victim or victims exceeds $10,000” are aggravated felonies. 8 U.S.C. § 1101(a)(43)(M)(i).

Categorical approach. “To decide whether an offense fits in that bucket,” the Fourth Circuit noted, “we use the categorical approach. Kawashima v. Holder, 565 U.S. 478, 483 (2012). We ‘consider only the elements of the statute of conviction rather than the... conduct underlying the offense.’”

8 U.S.C. § 1101(a)(43)(M)(i). Turning to the issue of what counts under 8 U.S.C. § 1101(a)(43)(M)(i), the appeals court noted that, under Kawashima, “An offense counts as an aggravated felony only if it ‘necessarily entail[s] fraudulent or deceitful conduct.’” “[F]raudulent or deceitful” conduct, in turn, must involve trickery, misrepresentation, or intentional concealment. “We say ‘intentional concealment’ and not any concealment because for a concealment to count as fraud, it must be a ‘false representation of a matter of fact... intended to deceive another.’” Soliman v. Gonzales, 419 F.3d 276, 282 (4th Cir. 2005). “Conduct,” the appeals court clarified, “isn’t fraudulent or deceitful merely because it’s unethical or dishonest; it must involve a fraudulent or deceitful action.”

The Virginia statute. Turning to the statute here, the Fourth Circuit observed that Virginia’s “definition of embezzlement in Code § 18.2-111 does not parallel the traditional definition of that crime.” Gwaltney v. Commonwealth, 452 S.E.2d 687, 691 (Va. Ct. App. 1995). Instead, what Virginia calls “embezzlement” is essentially a form of larceny that begins with the perpetrator lawfully possessing the stolen property.

“A cursory glance at § 18.2-111,” the appeals court noted, “might leave the impression that it requires fraud because it uses the word ‘fraudulently.’ But we can quickly dispose of that low-hanging fruit. As Virginia’s high court has explained, ‘fraudulently’ under the embezzlement statute means wrongful or felonious intent. See, e.g., Page v. Commonwealth, 138 S.E. 510 (Va. 1927); accord Bain v. Commonwealth, 205 S.E.2d 641, 644 (Va. 1974). It has nothing to do with fraudulent or deceitful conduct.”

Concealment or omission? The government argued that embezzlement in Virginia requires a concealment or omission, and the court acknowledged that indeed many embezzlement cases involve concealment, maybe even most. “But in the bizarro world that is the categorical approach,” the Fourth Circuit noted, “the question isn’t whether embezzlement can, or even usually does, involve concealment; it’s whether embezzlement always involves concealment by its elements.” And under Virginia’s statute, said the court, “a person is no more or less guilty of embezzlement if he discloses his intent to do it. Concealment isn’t part of the calculus.” “[T]he employee is guilty of embezzlement even if he openly carried the stolen goods right past his boss while wishing him a nice weekend. The point is that Virginia law punishes the wrongful act of his taking of the goods, not his failure to tell his boss he was going to do it.”

Thus, finding that, in Virginia, “it’s possible to embezzle without misrepresenting, tricking, or concealing,” the Fourth Circuit concluded that embezzlement there is not categorically a crime of fraud or deceit that would implicate 8 U.S.C. § 1101(a)(43)(M)(i).

The appeals court accordingly granted the former employee’s petition, vacated the final order of removal, and remanded to the BIA.

The case is No. 25-2037.

Judge: Diaz, A.

Attorneys: Benjamin Ross Winograd (Immigrant & Refugee Appellate Center) for Maximino Ramos. Lindsay Brooke Glauner, U.S. Department of Justice, for Todd Blanche.

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