SARAH E.

BLACKELL, ESQUIRE
Blackwell Law Group, S.C.
700 W. Virginia St., Suite 301
Milwaukee, WI 53204
Name: RIOS-BUSTAMANTE, JAVIER
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5/07 leesb11rg Pike, S11ite 2000
Falls Ch11rch, Vrinia 12041
OHS/ICE Ofice of Chief Counsel - CHI
55 East Monroe Street, Suite 1700
Chicago, IL 60603
A037-585-346
Date of this notice: 12/30/2011
Enclosed is a copy of the Boad's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Javier Rios-Bustamante, A037 585 346 (BIA Dec. 30, 2011)
U.S. Deparent of Justice
Executive Ofce fr Imigation Review
Decision of the Board of Imigration Appeals
Falls Church, Viginia 22041
File: A037 585 346 - Chicago, IL Date:
In re: JAVIER RIOS-BUST AMANTE a.k.a. Javier B. Rios
I RMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Sarah E. Blackwell, Esquire
ON BEHALF OF OHS:
CHARGE:
Anastasie M. Senat
Assistant Chief Counsel
DEC 80 2011
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggavated flony
APPLICATION: Terination of proceedings
The Department of Homeland Security ("DHS") appeals the Immigation Judge's decision dated
July 6, 2011, ganting the respondent's motion to terinate his proceedings. The appeal will be
dismissed.
In his decision, the Immigration Judge granted the respondent's motion to terinate based on
his conclusion that the OHS did not eet its burden in establishing that the respondent's 2004
conviction fr the ofense of tansfr of another's propert in violation of section 943.25(2)(a) of the
Wisconsin State Statutes is an aggavated felony as defned in section 101(a)(43)(M)(i) of the
Immigration and Nationality Act, 8 U.S. C. 1101 (a)( 4 3 )(M)(i), rendering the respondent removable
as charged (l.J. at 5-6). Specifcally, the Immigation Judge frst concluded that the respondent's
ofense was not, by statutor defnition, a "categorical" aggavated flony because it did not have
as an element an amount of loss (l.J. at 2; Exh. 3). The Immigation Judge went on to fnd te record
of conviction inconclusive as to the amount of loss (1.J. at 2; Exh. 3).
Based on his determinations, the Immigation Judge, relying on the Seventh Circuit's decision
in Knutsen v. Gonales, 429 F.3d 733 (7th Cir. 2005), concluded that because the respondent pied
guilty only to Count I of the indictment, the DHS could not rely on the other dismissed counts in
calculating the amount of loss fr puroses of meeting their burden of proof on removability (l.J. at
2). The Immigration Judge also fund that the conviction documents were inconclusive as to
whether the respondent engaged in an "overaching scheme of faud" which, under Knutsen, would
allow consideration of the dismissed charges in calculating the amount of loss under section
101(a)(43)(M)(i) of the Act (1.J. at 4-6). Based on his fndings, the Immigation Judge terminated
the respondent's proceedings. The DHS appeals.
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Cite as: Javier Rios-Bustamante, A037 585 346 (BIA Dec. 30, 2011)
A037 585.346
Initially, we agree with the OHS that the Immigation Judge incorectly applied the analytical
famework fom the Board's decision in Mater of Silva-Trevino, 24 l&N Dec. 687 (A.G. 2008), in
calc
u
lating the loss to the victims in this case. See OHS' s Brief at 7-9. It appears that in calculating
the loss to the victim, the Immigration Judge frst looked to the statute of conviction to determine
if the ofense was a "categorical" aggavated felony, then engaged in a modifed categorical inquir
by examining the record of conviction, and then went on to a third level of analysis considering other
evidence in the record to calculate the amount of loss (l.J. at 2; Exh. 3). However, as pointed out
by the OHS, the proper analysis is that fund in Nihawan v. Holder, 129 S.Ct. 2294 (2009), wherein
the Court held that a "circumstance-specifc," not a "categorical," interretation is needed to
appropriately calculate the $10,000 threshold as defned in section 101(a)(43)(M) of the Act.
The issue remains, however, as to whether Count I of the indictment covers all proper befre
June 2002, as argued by the OHS in support of its assertion that it has established the $10,000
threshold fr purposes of the respondent's removability. In applying Nihawan, and in light of the
narative accompanying the complaint, we will not disturb th
e
Imigration Judge's conclusion that
Count I encompassed only the boat and tailer which were valued at less tha $10,000 (l.J. at 3-5).
Therefre, we fnd the Immigration Judge's determination that te OHS did not meet its burden of
proof in establishing the respondent's removability as charged to be sufciently supported by the
record (l.J. at 3-5).
Accordingly, the appeal will be dismissed.
ORER: The appeal is dismissed.

2
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Cite as: Javier Rios-Bustamante, A037 585 346 (BIA Dec. 30, 2011)

(
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
Chicago, Illinois
File No. : A 037 585 346 Date: July 6, 2011
In the Matter of
JAVIER RIOS-BUSTAMANTE IN REMOVAL PROCEEDINGS
Respondent
CHARGE: Section 237(a) (2) (A) (iii) of the Inigration and
Nationality Act.
APPLICATION: Motion to terminate.
ON BEHALF OF RESPONDENT: ON BEHALF OF OHS:
Sarah E. Blackwell
Esquire
Anastasie M. Senat
Assistant Chief Counsel
Department of Homeland 1572 East Capital Drive
P. 0. Box 11431 Security
Milwaukee, Wisconsin 53211 55 East Monroe Street
Chicago, Illinois 60603
ORAL DECISION
The respondent is an adult male, native and citizen of
Mexico who was issued a Notice to Appear on May 14, 2011. The
respondent appeared in Court at an initial Master Calendar
hearing on June 7, 2011. The matter was continued to June 28.
The Court heard arguments. The Court has received memorandums
from both parties and the matter was continued to July 6 for the
Court to make a ruling on the motion to terminate.
The Notice to Appear has been marked as Exhibit 1. The Form
I-213 is Exhibit 2. The conviction documents are marked as Group
v
1
MM_,WJ F ,,, WWMW,Q M N #. __
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(
Exhibit 3. The respondent's memorandum with attached exhibits is
group Exhibit 4. The transcript of the proceedings is Exhibit 5.
The Department of Homeland Security memorandum is Exhibit 6.
The offense for which the respondent was convicted does not
have as an element the amount of loss and, therefore, is not
categorically an aggravated felon{ The charging document is
inconclusive as to the amount. It reflects that he was convicted
of Count I. The other counts were, by agreement, to be
considered in determining the restitution. So, that is
inconclusive. That would take the Court then to the third level
of the analysis and that is reviewing relevant documents, such as
transcripts, sworn police affidavits and the like.
For purposes of determining whether a conviction for a theft
related offense reaches the $10,000 amount required for an
aggravated felony status, the Immigration Court may not add
losses steming from charges that have been dismissed. Knutsen
v. Gonzales, 429 F. 3d 733 (7th Cir. 2005). However, if the
evidence shows that there was a single overarching scheme to
defraud then losses from other charges may be considered.
It must first be determined what the respondent was actually
convicted of doing.
The judgment of conviction, at Exhibit 3, shows that there
was a conviction for transfer of another's personal property
pursuant to Section 943. 25(2) (a) committed before June 20, 2002.
The sumary of conference and recommended disposition, also found
A 037 585 346 2 July 6, 2011
MW "' "" .. -,,--..5.:
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..
. F
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(
at Exhibit 3, does not alter the conviction. It recites an
amendment of Count I to correct an error. The original Count I
alleged real property under Subsection I, citing the statutory
provision for real property. The amendment corrected the charge
. to personal property, and thus Subsection II.
The critical date, according to these dates, is before
June 20, 2002. The sumary of conference provides at the bottom
"state moves to dismiss and read in for sentencing and
restitution purposes Counts II through VI, amended to 943.25{2) .
Thus, it is clear that parties contemplated that lost attributed
to the dismissed counts was to be considered for restitution
purposes.
The narrative by the Berlin Police Department in its request
for charge makes it clear that Count I was related.to a boat and
trailer, that Count II was related to Jeep Grand Cherokee
vehicle, that Count II}was related to a 1997 GMC truck, that
Count IV was related to a 1997 Ford truck, that Count V was
related to a 1997 GMC truck and that Count VI was related to a
1997 Ford truck. The only evidence of value is the Chatel
Security Agreement at page 2 of Exhibit 3, which lists the boat
and trailer at $5,000, as of April 21, 2000. Count I, of which
the respondent was convicted, did not result in a loss exceeding
$10, 000 because it was tied to the boat and trailer which was
valued approximately 2 years earlier at $5,000. Even if Count I
were not limited to the boat and trailer, it would only apply to
A 037 585 346 3 July 6., 2011
D ?* . "
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M W
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I
!
conveyances on or before June 20, 2002, according to the
conviction documents.
The narrative by the Berlin Police Department reflects that
a 1997 Ford truck had been conveyed to a third party by July of
2001 and that a 1997 Ford truck had been purchased by a third
party by July of 2001. However, I find no evidence as to the
.,,\.f
1997 Ford trucks
n
as of the time of the alleged crime. As for the
Jeep Cherokee, according to the narrative, its whereabouts were
unknown. There is no documentary evidence that it had been
conveyed, and even if it had been conveyed there is insufficient
evidence as to its value at the time of the alleged offense. In
the Chatel Security Agreement it is listed at $14,000 as of
April 21, 2000, more than 2 years before June 20, 2002, the date
by which Count I was comitted. There is insufficient evidence
in the record to allow a determination as to how much it had
depreciated, even if it were included in Count I.
I conclude that the respondent was convicted of conveying
the boat and trailer, which as of April 21st, 2000, had been
valued only at $5,000. As for whether the respondent engaged in
an overreaching scheme that includes the dismissed counts it is
significant to note the coments by the sentencing judge who
considered the facts of the case. He states at page 16, of
Exhibit 3, "While some serious felonies were comitted there
seems to be a question of whether there was a true attempt to
defraud somebody in the legal, or the criminal legal sense versus
A 037 585 346 4
% oooov v ~~~ f ( < , , . ' .
July 6, 2011
:.
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(
just a set of circumstances that results in a crime occurring as
financial hardship for failure set into the family. "
The record shows that the respondent took out loans using
vehicles as collateral. Over time the respondent and/or his wife
conveyed or further encumbered vehicles that were already subject
to liens. Apparently this was done over time as financial
exigency dictated rather than done as part of an overreaching
scheme to defraud creditors. There is circumstantial evidence.
For example, the respondent did not flee. There is no evidence
that he had intended or had made plans to flee. He was
operating, according to the evidence, a Mexican restaurant.
Apparently he tried to keep the business going. Health problems
intervened. At best, the evidence is inconclusive whether there
is an overriding scheme. I conclude, therefore, the respondent
was convicted of Count I, which resulted in loss of less than
$5,000, and that even if the Grand Cherokee was included, its
$14,000 value more than 2 years before the relevant date does not
provide proof as to its value as of the time of its alleged
conveyance, which is unknown. Moreover, there is no convincing
evidence that the respondent participated in an overreaching
scheme encompassing losses related to counts that were dismissed.
To the contrary, it appears that the assets were lost one by one,
in progression in response to increasing financial distress.
I find, therefore, that the evidence does not support a
finding that the respondent was convicted of an aggravated felony
A 037 585 346 5 July 6, 2011
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(
in that the loss attributable to the count of which he was
convicted is under $10,000. I conclude, therefore, that the
motion to terminate is well taken.
ORDER
IT IS HEREBY ORDERED that the respondent's motion to
terminate is granted.
Judge
A 037 585 346 6 July 6, 2011
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RIOS-BUSTAMANTE, JAVIER
W6458 BOONESBOROUGH DRIVE
A037 585-346
GREENVILLE, WI 54942
Name: RI OS-BUSTAMANTE, JAVIER
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesbur Pike, Suie 2000
Fals Church, Vrinia 22041
OHS/ICE Ofice of Chief Counsel CHI
55 East Monroe Street, Suite 1700
Chicago, IL 60603
A037 585346
Date of this notice: 12/30/2011
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.S(a). If the attached decision orders that you be removed
from the United States or afirms 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:
Pauley, Roger
Sincere Iv.
Do c t
Donna Carr
Chief Clerk
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before
JUDGE PHILIP L. DiMARZIO, in the matter of:
JAVIER RIOS-BUSTAMANTE
A 037 585 346
Chicago, Illinois
is an accurate, verbatim transcript of the recording as provided by
the Executive Office for Imigration Review and that this is the
original transcript thereof for the file of the Executive Office
for Imigration Review.
August 29, 2011
(completion date)
By submission of this CERTIFICATE PAGE, the Contractor certifies
that a Sony BEC/T-147, 4-channel transcriber or equivalent and/or
CD, as described in Section C, paragraph C. 3. 3. 2 of the contract,
was used to transcribe the Record of Proceeding shown in the above
paragraph.
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