Manning

MEMORANDUM **

Petitioner Joycelyn Manning challenges a final order of removal, which found her removable on the basis that her conviction was an aggravated felony under 8 U.S.C. § 1101 (a)(43)(M)(i) as an offense that involved fraud or deceit in which the loss to the victim or victims exceeded $10,000.

We have jurisdiction to consider issues of law under 8 U.S.C. § 1252 (a)(D); Morales-Alegria v. Gonzales, 449 F.3d 1051, 1053 (9th Cir.2006). We review de novo whether a crime is an aggravated felony. Kharana v. Gonzales, 487 F.3d 1280, 1283 (9th Cir.2007). We review the BIA’s decision because it conducted an independent *633 review of the record. Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003). As the parties are familiar with the facts and procedural history of this case, we do not recite them here, except as necessary to explain our decision.

To determine whether a crime is an aggravated felony, we “compare its elements to the relevant definition of an aggravated felony in 8 U.S.C. § 1101 (a)(43).” Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002) (citing Taylor v. United States, 495 U.S. 575, 602 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990)). Manning was convicted of…

dissenting:

I respectfully dissent.

I agree with the majority’s conclusion that the Court should apply the modified categorical approach to determine if petitioner was convicted of an aggravated felony within the meaning of 8 U.S.C. *634 § 1101 (a)(43)(M)(i). I also agree with the majority’s conclusion that, absent a specific manifestation of the parties’ intent to incorporate the findings of the PSR as part of the factual basis of the plea, the Court may not rely on the facts set forth therein.

However, unlike the majority, I would conclude that petitioner’s admission during the plea colloquy that she was not authorized to enter into the relevant transactions is an admission that she committed an offense “involving fraud or deceit.” Viewed in the context presented by the documents of conviction, by admitting she made unauthorized transactions, petitioner necessarily admitted that either she had no authority to make the transfers or she exceeded the authority delegated to her by her employer to make the transfers. In either circumstance, to effectuate those transfers, she would have by necessity made either an affirmative representation that she was authorized to do so, or she…