This unpublished BIA decision which has been posted by The Immigrant & Refugee Appellate Center, LLC, addresses a Maryland statute (Md. Crim. Law, Code Ann. 7-104). The BIA found that the modified categorical approach was inappropriate in this case because the statute was not devisible. The Board found that even though Marlyland Courts have found multiple means of committing the crime, the elements of the crime itself did not contain alternate elements for which a jury must agree upon. The Board therefore applied the categorical approach.

The Board found that applying the categorical approach the statute was not aan aggravated felony "theft offense" because the minimum conduct required by the statute would include a fraudulent taking with the consent of the owner. For a fraud crime to be an aggravated felony the Court looks not at the sentence imposed (as it dose for a theft offense) but rather to the financial loss. To rise to the level of an aggravated felony the fraud must involve a financial loss of $10,000 or more regardless of the sentence imposed.

Written decision can be found here: Matter of Stewart, Feb. 11, 2015, unpub.