Goldstein, Steven A., Esq.

Pozo Goldstein Gomez, LLp

2121 SW 3rd Avenue, Suite 501
Miami, FL 33129
Name:NUNEZ,LESMANY
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Vrginia 22041
OHS/ICE Ofice of Chief Counsel - SOC
146 CCA Road
Lumpkin, GA 31815
A074-019-561
Date of this notice: 2/9/2011
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Filppu, Lauri S.
Pauley, Roger
Sincerely,
Donna Car
Chief Clerk
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Cite as: Lesmany Nunez, A074 019 651 (BIA Feb. 9, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
NUNEZ, LESMANY (A074 019 561)
STEWART DETENTION CENTER
146 CCA RD
LUMPKIN, GA 31815
Name:NUNEZ,LESMANY
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesb11rg Pike, S11ite 2000
Falls C11rcl1. Vrinia 22041
OHS/ICE Ofice of Chief Counsel SOC
146 CCA Road
Lumpkin, GA 31815
A074019561
Date of this notice: 2/9/2011
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been sered with this
decision pursuant to 8 C.F R 1292.5(a). If the attached decision orders that you be removed
from the United States or affirms an Immigration Judge's decision ordering that you be
removed, any petition for review of the attached decision must be filed with and received by the
appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Cole, Patricia A.
Filppu, Lauri S.
Pauley, Roger
Sincerelv.
Donna Car
Chief Clerk
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Cite as: Lesmany Nunez, A074 019 651 (BIA Feb. 9, 2011)
+ s
U.S. Deparent of Justice
Executive Ofce fr Imigation Review
Decision of the Board of Imigration Appeals
Falls Church, Virginia 2201
File: A074 019 561 - Lumpkin, GA
I re: LESMANY NUNEZ
I REMOVAL PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Steven A. Goldstein, Esquire
ON BEHALF OF OHS:
CHARGE:
Anthony M. Cacavio
Assistant Chief Counsel
FEB 9 2011
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggavated felony under section 101(a)(43)(M)(i)
(not sustained)
Lodged:' Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggavated flony under section 101(a)(43)(G)
APPLICATION: Termination
The respondent appeals an Immigation Judge's October 25, 2010, decision fnding him
removable as charged under section 237(a)(2)(A)(iii) of the Immigation and Nationality Act,
8 U.S.C. 1227(a)(2)(A)(iii), fr an aggavated flony thef conviction pursuant to section
101 (a)( 4 3 )(G) of the Act. The Department of Homelad Securit moves fr a sumar afrance
of the Immigration Judge's decision. The respondent's appeal will be sustained, and the removal
proceedings will be terinated.
Te respondent contends that his conviction fr violating 18 U.S.C. 1030(a), the statute
criminalizing computer faud and related activity, is not a conviction fr an aggravated flony thef
ofense as contemplated under section 101(a)(43)(G) of the Act. We concur.
The respondent was convicted under 1030(a)(5)(A)(ii), which provides:
[Whoever] intentionally accesses a protected computer without authorization, and as a result
of such conduct, recklessly causes damage
* * *
shall be punished as provided in subsection ( c) of this section.
1 The record does not contain a Form I-261, Additional Charges oflnadmissibility/Deportability.
However, neither party disputes that the additional chage was lodged.
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Cite as: Lesmany Nunez, A074 019 651 (BIA Feb. 9, 2011)
A04019 561
18 U.S.C. 1030(a)(5)(ii) (2008). The statute defnes "damage" as "ay impairent to te integrity
or availability of data, a progam, a system, or infration." 18 U .S.C. 1030( e )(8).
To deterine whether the respondent's conviction under that statute constitutes a thef ofense
under the Act's aggravated felony defnition, we examine whether the ofense substantially
coresponds to the generic fderal defnition of thef. Obasohan v. US. Att ' Gen., 4 79 F.3d 785, 788
(11th Cir. 2007); Matter of Batista-Herandez, 21 I&N Dec. 955, 971 (BIA 1997), citing Talor v.
United States, 495 U.S. 575 (1990). A thef ofense is defned as "the taking of property or an
exercise of control over property without consent with the criminal intent to deprive the owner of
rigts and benefts of ownership, even if such deprivation is less than total or permanent." Gonales
v. Duenas-Alvarez, 127 S.Ct. 815, 820 (2007); Maller o/Garcia-Madruga, 24 l&N Dec. 436, 438
(BIA 2008).
Section 1030(a)(5)(ii) contains the element of lack of consent, but does not require the ''taking
or exercise of control over property." Nor does that statute contain as an element the "intent to
deprive the ower of rights or benefts of ownership" fr any duration. When the statute of
conviction contains elements that are broader than those included in the generic defnition of a crime,
we apply the modifed categorical2, rather than the categorical, approach to deterine whether a
respondent was convicted of an aggavated flony. Jaggernauth v. US. Att ' Gen. 432 F .3d 1346,
1353 (1 lt Cir. 2005). In this case, however, 18 U.S.C. 1030(a)(5)(ii) contains basically none of
the substantive elements of the generic defnition of a thef ofense.
The Immigration Judge interpreted 18 U.S.C. 1030(a)(5)(ii) to constitute a thef ofense
because it required the respondent to take contol of property by accessing a computer without the
owner's consent, resulting in a deprivation of the owner's rights and benefts of ownership (l.J. at
3). The Board has described "exercise of control" as "an indirect ' taking' or a situation where the
owner originally relinquished the property on a consensual, nonfaudulently induced basis." Maller
of Garcia-Madruga, supra, at 440-41 n.6 (providing example of taking as keeping property that was
originally lent fr a limited time or purpose). However, 1030(a)(5)(ii) criminalizes impairment to
the integity or availabilit, rather than a ''taking," of computer data, progams, systems, or
infration. Section (a)(l) of the statute identifes "obtain[ing] infration" without authoriztion
as a criminal activity, which aguably may constitute a thef ofense fr "taking," but te respondent
was not charged or convicted under that provision.
We fnd that the respondent was not convicted under a statute proscrbing ''thef" as
contemplated by section 101(a)(43)(G) of the Act ad thus was not convicted of an aggravated
flony. Since the sole sustained charge of removability was section 237(a)(2)(A)(iii) fr an
aggravated flony thef conviction, the proceedings should be terminated.
Accordingly, the fllowing orders will be entered.
2 We obsere that even if it were appropriate to apply the modifed categorical approach, the only
document of conviction in the record is the Judgment, which supplies no infration about the
specifc conduct fr which the respondent was adjudicated guilty, and would not sere to prove that
he was removable as charged.
2
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Cite as: Lesmany Nunez, A074 019 651 (BIA Feb. 9, 2011)
M
4`"
:
A074019561
ORER: Te appeal is sustained and te Immigation Judge's order is vacated.
FUTER ORDER: Te respondent's removal proceedings are terminated.
3
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Cite as: Lesmany Nunez, A074 019 651 (BIA Feb. 9, 2011)
'
Pozo & Goldstein, LLP
Goldstein, Steven
UITED STATES DEPATMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
IMIGRTION COURT
146 CCA ROA
LUPKIN, GA 31815
2121 SW 3rd Avenue Suite 501
Miami, FL 33129
IN THE MTTER OF
NEZ, LESM
FILE A 074-019-561
UABLE TO FORWAD - NO ADRESS PROVIDED
DATE: Oct 26, 2010
ATTACHED IS A COPY OF THE DECISION OF THE IMIGRATION JUGE. THIS DECISION
IS FINAL ULESS A APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPAING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUETS, A FEE OR FEE WAIVER REQUEST
MUST BE MILED TO: BOAD OF IMIGRTION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALS CHUCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMIGRATION JUGE A THE RESULT
OF YOU FAILURE TO APPEA AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEAING.
THIS DECISION IS FINA ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMIGRTION A NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6)
8 u.s.c. SECTION 1229a(c) (6) IN REMOVA PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOU MOTION MUST BE FILED WITH THIS COURT:
IMIGRATION COURT
146 CCA ROA
LUPKIN, GA
C-
CC: OFFICE OF CHIEF COUNSEL-LUPKIN
146 CCA ROA
LUPKIN, GA, 31815
IMMIGRTION COURT FF
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' ,
,
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LUMPKIN, GEORGIA
IN THE MATTER OF
)
)
)
)
)
IN REMOVAL PROCEEDINGS
NUNEZ, Lesmany File No. A#074-019-561
Respondent
CHARGES: Section 237(a)(2){A)(iii) of the Immigration and Nationality Act ("INA"
or "Act"), as amended, in that any time afer admission, Respondent has
been convicted of an aggravated felony as defned in section
10l(a)(43)(M)(i) of the Act, a crime of faud or deceit in which the loss to
the victim(s) exceeds $10,000;
Section 237(a)(2)(A)(iii) of the Act, as amended, in that any time afer
admission, Respondent has been convicted of an aggavated felony as
defned in section 101(a)(43)(G) of the Act, a thef ofense (including
receipt of stolen property) or burglary ofense fr which the ter of
imprsonment [is] at least one year.
APPLICATION: Respondent's Motion to Terminate Removal Proceedings
APPEARANCES
ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE GOVERNMENT:
Steven A. Goldstein, Esq.
2121 SW 3r
d
Avenue, Suite 501
Miai, Florida 33129
Assistant Chief Counsel
Department of Homeland Security
146 CCA Road
Lumpkin, Georgia 31815
DECISION OF THE IMMIGRATION JUDGE
I. Procedural Histor
Respondent is a male native and citizen of Cuba. On or about October 24, 1996,
Respondent adjusted his status to that of lawful permanent resident. On July 14, 2009,
Respondent was convicted in the United States District Court fr the Souther District of Florida
fr the ofense of "Computer faud and related activity with computers," in violation of 18
U.S.C. 1030(a)(S){A)(ii). For that ofense, Respondent was sentenced to 12 months and one
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( 1) day of imprisonment and was ordered to pay restitution to his victim in the amount of
$31,560.00.
Based on this conviction, the Department of Homeland Security ("Department") placed
Respondent in removal proceedings through the issuance of a Notice to Appear ("NT A"), dated
March 27, 2010. The Department charged Respondent with removability pursuant to section
237(a)(2)(A)(iii) of the Act fr having been convicted of an aggavated flony as defned in
section 10l(a)(43)(M) of the Act, which defnes an aggravated felony to include "an ofense that
... involves faud or deceit in which the loss to the victim or victims exceeds $10,000." INA
101 (a)(43)(M)(i).
On July 16, 2010, the Department fled a For 1-261, Additional Charges of
Inadmissibility/eportability. The Department amended the charge of removability under
section 237(a)(2)(A)(iii) of the Act and alleged that Respondent has been convicted of an
aggravated felony as defned in section 10l(a)(43)(G) of the Act, which defnes an aggravated
flony to include a thef or burglar ofense fr which the ter of imprisonment is at least one
year.
On August 10, 2010, Respondent fled the instant motion to terminate proceedings. The
court has now considered the arguments of both parties and the entire record careflly. All
evidence has been considered, even if not specifcally discussed further in this decision. For the
fllowing reasons, the Court will deny Respondent's motion to terinate removal proceedings.
II. Discussion
A motion to terinate may be fled by either party afer jurisdictional authority has been
vested in the Immigation Judge with the commencement of the removal proceedings. See
Matter of G-N-C, 22 I. & N. Dec. 281 (BIA 1988). A motion to terinate will not be granted by
the Immigation Judge if it is deterined that the Respondent is properly in removal
proceedings. A Immigration Judge may terinate removal proceedings to perit the alien to
proceed to a fnal hearing on a pending application or petition fr naturalization when the alien
has established prima fcie eligibility fr naturalization and the matter involves exceptionally
appealing or humanitarian fctors; in every other case, the removal hearing shall be completed as
promptly as possible notwithstanding the pendency of an application fr naturalization during
any state of the proceedings. 8 C.F.R. I239.2(t.
A. Respondent's conviction for "Computer fraud and related activity with
computers," in violation of 18 U.S.C. 1030(a)(5)(A)(ii), is an aggravated
felony as defned in section 10l(a)(43)(G) of the Act.
The Department has charged Respondent with removability fr a conviction of an
aggravated felony as defned in section 10l(a)(43)(G) of the Act, which defnes an aggavated
flony to include '"a thef ofense (including receipt of stolen property) or burglary ofense fr
which the ter of imprisonment is at least one year." INA 101(a)(43)(G). The Board of
Immigration Appeals ("BIA" or "Board") has held that a "thef ofense: under section
2
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I01(a)(43)(G) requires the taking of, or exercise of control over, property without consent and
with the criminal intent to deprive the owner of the rights and benefts of ownership, even if such
deprivation is less than total or peranent. Matter of Garcia-Madruga, 24 I. & N. Dec. 436, 440
(BIA 2008).
To deterine whether Respondent's conviction constitutes an aggravated felony, the
court must frst look to the language of the statute of conviction. See Obasoha v. U.S. Att'y
Gen., 479 F.3d 785, 788 (11th Cir. 2007); see also Matter

of Ajami, 22 I. & N. Dec. 949, 950

(BIA 1999). If a statute is divisible, meaning that the statutory language contains some ofenses
that would qualif as aggravated flonies and others that would not, then the court must look to
"the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the
ofense of which the respondent was convicted." Obasohan, 479 F.3d at 788 (citing Ajami, 22 I.
& N. Dec at 950); Jagmauth v. U.S. Att'y Gen., 432 F.3d 1346, 1349 n.1 (I Ith Cir. 2005);
Matter of Sweetser, 22 I. & N. Dec. 709, 713-14 (BIA 1999). The cour's fnding that a prior
conviction constitutes an "aggravated flony" must be supported by "clear, unequivocal, and
convincing evidence." Obasohan, 479 F.3d at 788; see also Woodby v. INS, 385 U.S. 276, 286
(1966); INA 240(c)(3)(A).
Here, Respondent was convicted of "Computer faud and related activity with
computers," in violation of 18 U.S.C. 1030(a)(5)(A){ii). This section prohibits, in pertinent
part, "intentionally access[ing] a protected computer without authoriztion, ad as a result of
such conduct, recklessly caus[ing] damage." 18 U.S.C. 1030(a)(5)(A)(ii). Based upon the fce
of 18 U.S.C. 1030(a)(5)(A)(ii), a violation of this subsection requires a person to intentionally
access a computer without authorization and to recklessly cause damage. Stated another way,
the statute requires the intentional and non-consensual taking of property, by accessing a
computer without authorization. Thus, Respondent's ofense is a thef ofense because it
required Respondent to intentionally take control of the property of another by accessing that
person's computer without his or her consent. Although the deprvation was arguably
tempora, the duration of the dispossession is of no import where Respondent's actions resulted
in depriving the owner of all the rights and benefts of ownership. Therefre, the cour fnds that
Respondent has been convicted of an aggravated felony as defned in section 10l (a)(43)(G) of
the Act ad the Department has sustained the charge of removability under section
237(a)(2)(A)(iii) by "clear, unequivocal, and convincing evidence." Obasohan, 479 F.3d at 788;
see also Woodby, 385 U.S. at 286; INA 240(c)(3)(A).
B. Respondent's conviction for "Computer fraud and related activity with
computers," in violation of 18 U.S.C. 1030(a)(5)(A)(ii), is not an aggravated
felony as defned in section 10l(a)(43)(M) of the Act.
The Depament has also charged Respondent with removability fr a conviction of an
aggravated flony as defned in section 101 (a)( 43 )(M) of the Act, which defnes an aggrvated
flony to include "an ofense that ... involves faud or deceit in which the loss to the victim or
victims exceeds $10,000." INA 10l (a)(43)(M)(i). An "ofense that involves fraud or deceit"
under section 10l (a)(43)(M)(i) involves the taking or acquisition of property with consent that
has been faudulently obtained. See Matter of Garcia-Madruga, 24 I. & N. Dec. at 439 (citing
3
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. aa;m .
+
Soliman v. Gonzales, 419 F.3d 276, 282 (4th Cir. 2005) (deterining that the key and controlling
distinction between thef crimes and faud crimes is the consent element-thef occurs without
consent and faud occurs with consent that has been unlawflly obtained)).
As the court ariculated above, in order to deterine whether Respondent's conviction
constitutes an aggavated flony, the court must frst look to the language of the statute of
conviction. See Obasohan, 479 F.3d at 788. Although Respondent was convicted of "Computer
faud and related activity with computers," in violation of 18 U.S.C. l 030(a)(5)(A)(ii), a
conviction under this statute requires that a person act without authorization not with
authorzation that has been unlawflly obtained. Compare 18 U.S.C. 1030(a)(5)(A)(ii) with 18
U.S.C. 1030(a)(4). As such, Respondent's ofense would not qualify as an aggravated flony
"ofense involving faud or deceit" under section l 01(a)(43)(M)(i) as it does not require a person
to access a computer by faud. Therefre, the cour fnds that Respondent has not been convicted
of an aggavated felony as defned in section IOl (a)(43)(M)(i) of the Act and the Deparment ha
not sustaine the charge ofremovability under section 237(a)(2)(A)(iii) of the Act.
III. Conclusion
The Deparment has demonstrated by clear and convincing evidence that Respondent is
removable as charged under section 237(a)(2)(A)(iii) of the Act, in that he has been convicted of
an aggavated flony as defned in section 10l(a)(43)(G) of the Act. Respondent has made no
claim that he fas persecution or tortre if retured to Cuba, and there are no frther claims fr
relief befre the cour.
Accordingly, the court enters the fllowing order:
V VVV .. . . s.o.: ... WP.e
l ht.% .t ,,,,C
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It is ordered that:
It is frher orered that:
2$
ORDER
Respondent's motion to terinate be DENIED.
William A. Cassidy
United States Immigation Judge c_
Atlanta, Georga
5
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