In this unpublished decision, the Board of Immigration Appeals (BIA) held that grand larceny under Va. Code Ann. 18.2-95 is not a categorical theft-related aggravated felony under INA 101(a)(43)(G) because the statute can be applied to fraud offenses. The Board also stated that the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013), overruled Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), on whether a criminal statute is divisible. The Board concluded, however, that Va. Code Ann. 18.2-95 is divisible under Descamps and that the conviction record demonstrated that the respondent committed a theft- rather than fraud-related offense. The decision was written by Member Patricia Cole.
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In this unpublished decision, the Board of Immigration Appeals (BIA) held that grand larceny under Va. Code Ann. 18.2-95 is not a categorical theft-related aggravated felony under INA 101(a)(43)(G) because the statute can be applied to fraud offenses. The Board also stated that the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013), overruled Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), on whether a criminal statute is divisible. The Board concluded, however, that Va. Code Ann. 18.2-95 is divisible under Descamps and that the conviction record demonstrated that the respondent committed a theft- rather than fraud-related offense. The decision was written by Member Patricia Cole.
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In this unpublished decision, the Board of Immigration Appeals (BIA) held that grand larceny under Va. Code Ann. 18.2-95 is not a categorical theft-related aggravated felony under INA 101(a)(43)(G) because the statute can be applied to fraud offenses. The Board also stated that the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013), overruled Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), on whether a criminal statute is divisible. The Board concluded, however, that Va. Code Ann. 18.2-95 is divisible under Descamps and that the conviction record demonstrated that the respondent committed a theft- rather than fraud-related offense. The decision was written by Member Patricia Cole.
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307 E. ANNANDALE RD, Suite 201 FALLS CHURCH, VA 22042-0000 U.S. Department of Justice Executive Ofce fr Immigration Review Board of Immigration Appeals Ofce of the Clerk 5107 Leeburg Pike. Suite 2000 Fls Cl11rcl, Vrginia 20530 OHS/ICE Ofice of Chief Counsel - WAS 500 12th St., SW, Mail Stop 5902 Washington, DC 20536 Name: RAMIREZ MOZ, LUIS MIGUEL A 072-377-892 Date of this notice: 3/31/2014 Enclosed is a copy of the Board's decision and order in the above-refrenced case. Enclosure Panel Members: Cole, Patricia A. Sincerely, DO c W Donna Carr Chief Clerk Trane Usertea m: Docket For more unpublished BIA decisions, visit www.irac.net/unpublished I m m i g r a n t
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w w w . i r a c . n e t Cite as: Luis Miguel Ramirez-Moz, A072 377 892 (BIA Mar. 31, 2014) U.S. Department of Justice Executive Ofce 'fr Immigration Review Decision of the Board oflmmigration Appeals Falls Church, Viginia 20530 File: A072 377 892 - Arlington, VA In re: LUIS MIGUEL RAMIREZ-MOZ I REMOVAL PROCEEDIGS APPEAL ON BEHALF OF RESPONDENT: Iva Yacub, Esquire ON BEHALF OF DHS: CHARGE: Stacie L. Chapma Assistat Chief Counsel Date: Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] - MAR 31 2014 Convicted of aggavated felony (a defned in section 10l(a)(43)(F)) (withdrawn) Lodged: Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S .C. 1227(a)(2)(A)(iii)] - Convicted of aggravated flony (a defned in section 101(a)(43)(G)) (sustained) APPLICATION: Terination The respondent, a native and citizen of El Salvador, appeals the June 27, 2012, denial of his motion to terminate these removal proceedings. The appeal will be dismissed. Te Board reviews an Immigration Judge's fndings of fct fr clear eror. 1003.l(d)(3)(i). We review issues of law, discretion, or judgment de novo. 1003.l(d)(J)(ii). 8 C.F.R. 8 C.F.R. On August 12, 2008, the respondent was convicted of grand larceny in violation of Va. Code A. 18.2-95, and sentenced to 2 years of imprisonent (l.J. at 1 ). In deterining whether a conviction qualifes as an aggravated flony fr removal purposes, te United States Cour of Appeals fr te Fourth Circuit, in whose jurisdiction this case arises, fllows the analytical model set frh in Taylor v. United States, 495 U.S. 575 (1990). See Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005). Under this "categorical" approach, we fcus on the statutory defnition of te crime rater than the fcts underlying the respondent's particular violation. Moncriefe v. Holder, 133 S. Ct. 1678, 1684-85 (2013). Te respondent argues that he was not convicted of an aggravated flony involving thef pursuant to te categorical approach because Va. Code An. 18.2-95 can also apply to faud ofenses, which do not come witin section 101(a)(43)(G) of the Immigration ad Nationality Act, 8 U.S.C. 110I(a)(43)(G). See Soliman, supra, at 283; Mater of Garcia-Madruga, 24 I&N Dec. 436, 440 (2008). The Immigration Judge fud that the controlling distinction - G y I m m i g r a n t
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w w w . i r a c . n e t Cite as: Luis Miguel Ramirez-Moz, A072 377 892 (BIA Mar. 31, 2014) A072 377 892 between a thef and faud ofense is that thef occus without the owner's consent, whereas faud occurs with consent that has been unlawflly obtained (I.J. at 2). Soliman, supra, at 282; Matter of Garcia-Madruga, supra, at 440-41. Grand larceny under Va. Code An. 18.2-95 includes all the elements of common law laceny, which are: (I) the wrongfl or faudulent taking; (2) of property; (3) of another; (4) without his permission; (5) with the intent to permanently deprive the owner of that propery (l.J. at 2). Britt v. Commonwealth, 667 S.E.2d 763, 765 (Va. 2008). Focusing on the element "without his perission," the Immigration Judge concluded that because Va. Code An. 18.2-95 requires an owner's lack of consent, Va. Code An. 18.2-95 canot apply to faud ofenses, as defned in Soliman (I.J. at 2). See Soliman, supra, at 281. He fer determined that te elements of Va. Code Ann. 18.2-95 match te elements of section 10l(a)(43)(G) of the Act, to wit: (1) the talng; (2) of propery; (3) of another; (4) without consent; (5) with intent to deprive the owner of the rights and benefts of ownership (l.J. at 2-3). Soliman, supra, at 282; Matter of Garcia-Madruga, supra, at 441. Since a conviction under Va. Code Ann. 18.2-95 is also punishable by "imprisonment [fr] at least one year," the Immigration Judge held that the respondent has been convicted of an aggravated flony under te categorical approach (l.J. at 3). Section 1 Ol(a)(43)(G) of the Act. Te respondent observes that Virginia cours have interpreted the grand laceny statute at Va. Code An. 18.2-95 to include when the accused takes property without the consent of the owner (i.e., a "classic thef" ofense), as well as when the victim voluntaily surrenders his or her propery (i.e., a "faudulent taing"). See Britt, supra, at 765; see also Salem v. Holder, 64 7 F .3d 111, 113-14 (4th Cir. 2011) (stating that Va. Code Ann. 18.2-96 (petit larceny) is divisible, as it criminalizes both wrongfl and faudulent takings of property, with the latter ofense not constitting an aggravated flony under te Act). As such, Va. Code An. 18.2-95 criminalizes bot conduct that does and conduct that does not qualif as a aggravated flony. The Immigration Judge thus ered in holding that a conviction under this statute categorically qualifes as an aggravated flony "thef" ofense, as described in section 101(a)(43)(G) of the Act. Since the Deparent of Homeland Security ("DHS") has not demonstated that the respondent was convicted of a categorical crime of violence, we must next decide whether ay basis exists to conduct a "modifed categorical" inquiry of the sort contemplated in Shepard v. United States, 544 U.S. 13 (2005). As the United States Supreme Court recently explained, the modifed categorical approach is a tool that helps courts implement the categorical approach by supplying tem with a mechaism to identif te "elements" of ofenses arising under "divisible" crimina statutes. See Descamps v. United States, 133 S. Ct. 2276, 2285 (2013). Under Descamps, the modifed categorical approach applies only if: ( 1) te statute of conviction is "divisible" in te sense that it lists multiple discrete ofenses as enumerated alteratives or defnes a single ofense by refrence to disjunctive sets of elements, more ta one combination of which could suppor a conviction; and (2) some (but not all) of those listed ofenses or combinations of disjunctive elements are a categorical match to the relevant generic standad . . Id. at 2281, 2283. The modifed categorical approach does not apply merely because the elements of the crime can sometimes be proved by refrence to conduct that fts the generic fderal standard; in the view of the Descamps Court, such crimes are "overbroad," but not "divisible." Id at 2285-86, 2290-92 (emphasis added). Thus, the Supreme Court has overled Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), in which the Boad held that a criminal statte is divisible, regardless of its structure, if, based on the elements of the ofense, some but 2 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Luis Miguel Ramirez-Moz, A072 377 892 (BIA Mar. 31, 2014) W A072 3 77 892. not al violations of te statte give rise to grounds fr removal or ineligibility fr relief. As the Supreme Cou explained, the modifed categorical approach: retains the categorical approach's cental featue: a fcus on te elements, rather than the fcts, of a crime. And it preseres the categorical approach's basic method: compang those elements with the generc ofense's. All the modifed categorical approach adds is a mechanism fr maing that comparison when a statute lists multiple, alterative elements, ad so efectively creates "several diferent . . . crimes. " . . . If at least one, but not all of those crimes matches the generic version, a court needs a way to fnd out whch the defndant wa convicted of That is te job, as we have always understood it, of the modifed categorical approach: to identify, fom aong several alteratives, the crime of conviction so tat the court can compare it to the generic ofense. Descamps, supra, at 2285 (interal citation omitted). The statte at issue provides: Any person who (i) commits laceny fom te person of anoter of money or other thing of value of $5 or more, (ii) commits simple laceny not fom te person of another of goods and chattels of te value of $200 or more, or (iii) commits simple larceny not fom the person of another of any frear, regardless of the frearm's value, shall be guilty of gand laceny, punishable by imprisonment in a state correctional fcility fr not less than one nor more ta twenty yeas or, in the discretion of the jury or cou trying the case without a ju, be confned in jail fr a period not exceeding twelve months or fned not more than $2,500, eiter or both. Va. Code An. 18.2-95. Three potentia frms of grand larceny, each with specifc elements, are listed in te alterative: (1) larceny fom aother's person of something worh $5 or more; (2) laceny not fom aother's person of goods and chattels worh $200 or more; and (3) larceny not fom another's person of a fream regardless of the frea's worh. Also, as discussed previously, Virginia cours have defned "laceny" as a "classic thef" ofense or a "faudulent taking. '' See Brit, supra, at 765 (emphasis added); Salem, supra, at 113-14 (emphasis added). Va Code Ann. 18.2-95 thus lists discrete ofenses as enumerated alteratives, some (but not all) of which have the elements of a thef ofense, so as to categoricaly match section 101(a)(43)(0) of the Act. See Descamps, supra, at 2281, 2283. Terefre, Va. Code An. 18.2-95 is divisible in relation to section 101(a)(43)(G) so as to wa at a modifed categorical inquiry. Tis modifed categorical inquiry is not being applied to examine the respondent's conduct; it fer is not being applied to supply a missing element contained in section 10l (a)(43)(G) of the Act, but not in Va. Code A. 18.2-95. Cf Mater of Lanerman, supra. Rather, it is being used as a tool tat helps us implement the categorical approach to a statute that lists multiple, alterative elements, efectively creating several diferent crmes, where at least one, but not all of those crimes matches the generic version set frth in section 10l(a)(43)(G) of the Act. See Descamps, supra, at 2285. . M FF 3 . . I m m i g r a n t
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w w w . i r a c . n e t Cite as: Luis Miguel Ramirez-Moz, A072 377 892 (BIA Mar. 31, 2014) 1 ' A072 377 892 Evidence that may be considered in applying te modifed categorical approach includes '"te ters of te chaging document, the ters of a plea agreement or tascript of colloquy between judge ad defendat in which the fctual basis fr the plea was confed by te defndant, or ... some compaable judicial record of this infration."' Matter of Sanudo, 23 I&N Dec. 968, 974-75 (BIA 2006) (quoting Shepard, supra, at 26). Te record contans a Indictment, dated July 21, 2008, charging tat on Mach 23, 2008, te respondent "did feloniously take, stea and cary away proper of [a naed victim], valued in excess of $200.00." Fuherore, a Wa ant of Arest provides that on Mach 23, 2008, te respondent did "steal GPS valued at two hundred dollas or more and belonging to [the naed victim]." The record also includes a sentencing order showing tat on August 12, 2008, te respondent was fund guilty of te grad laceny ofense committed on Mach 23, 2008. The record of conviction thus indicates that the respondent was convicted of a "classic thef" ad not a "faudulent taing," fr which the term of imprisonment is at least 1 yea. See section 101(a)(43)(G) of the Act. Therefre, applying te modifed categorica approach per our de novo review, we a te Immigration Judge's ultimate holding that the DHS has established removabilit uder section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii), by clear and convincing evdence. See 8 C.F.R. 1240.8(a). The respondent has not applied fr relief fom removal and indicated that he did not wish to do so (1.J. at 3; Tr. at 13). Accordingly, the fllowing order is entered. ORDER: The appeal is dismissed. 4 u P W I m m i g r a n t
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w w w . i r a c . n e t Cite as: Luis Miguel Ramirez-Moz, A072 377 892 (BIA Mar. 31, 2014) /- I, UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW United States Immigration Court 901 North Stuart Street, Suite 1300 Arlington, VA 22203 I THE MATTER OF: ) ) ) ) ) ) ) IN REMOVAL PROCEEDINGS RMIREZ MOZ, Luis Miguel File No. A# 072-377-892 Respondent CHRGE: APPLICATION: FOR THE RSPONDENT: Iva Yacub 307 East Annadale Road Suite 201 Falls Chuch, VA 22042 Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("IA" or "Act"), as amended, a a alien who, at any time aer admission, was convicted of a aggravated flony as defned in IA 101 (a)(43)(G), a thef ofense (including receipt of stolen propert) or bugla ofense fr which the term of imptsonent is at least one yea. Motion to Terinate Removal Proceedings. APEARANCES FOR THE DHS: Ozlem Baard Assistant Chief Counsel Departent of Homeland Security 901 North Stuar Street, Suite708 Arlington, VA 22203 DECISION AND ORDER OF THE COURT I. PROCEDUAL HISTORY The respondent is a twenty-fur yea old male, native and citizen of El Salvador. He entered the United States on or about May 9, 1995, ad was grated status as a lawfl permanent resident ("LPR") on December 5, 2005. On August 12, 2008, the respondent was convicted of gand larceny in te Circuit Court of Fairfa County, in violation of Virginia Code ("Va. Code") 18.2-95. The respondent was sentenced to a suspended term of two yeas of incarceration. 1 W-& - - - M . P .... s _ W M I m m i g r a n t
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w w w . i r a c . n e t ( On August 21, 2008, the Depament of Homelad Security ("DHS") fled a Notice to Appear ("NTA") against the respondent. DHS initially chaged the respondent with removability pursuat to IA 237(a)(2)(A)(iii) fr having been convicted of an aggravated flony as defned in INA 10l(a)(43)(F), a crime of violence (as defned in section 16 of ttle 18, United States Code, but not including a purely political ofense) fr which the term of imprisonment is at least one yea. On July 21, 2010, DHS fled a For I-261, Additional Charges of Admissibilit/Deportation, withdrawing the original aggravated felony charge under INA 101(a)(43)(F) ad adding a new chage of removabilit under INA 237(a)(2)(A)(iii) fr having been convicted of an aggravated flony under INA 101(a)(43)(G), a thef ofense (including receipt of stolen property) or burglary ofense fr which the term of imprisonment is at least one yea. The respondent contested the charge ad fled a motion to terminate te removal proceedings. For the reasons that fllow, the Court sustans the charge of removabilit ad denies the respondent's motion to terinate. II. ANALYSIS The respondent denies the charge of removability ad moves to terminate proceedings, aguing that his conviction under Va. Code 18.2-95 is not fr an aggravated flony thef ofense. A thef ofense under INA 1 Ol(a)(43)(G) requires that the stolen property have been taken without the owner's consent. Matter of Garcia Madruga, 24 l&N Dec. 436 (BI 2008). The respondent argues that his statte of conviction is not a categorcal match fr an aggravated felony thef ofense because Va. Code 18.2-95 can also apply to faud ofenses, which do not fll within INA 10l(a)(43)(G). See Taylor v. US, 495 U.S. 575 (1990); Soliman v. Gonzales, 419 F.3d 276, 283 (4th Cir. 2005); Garcia-Madruga, 24 l&N Dec. at 440. The Court fnds that Va. Code 18.2-95 categorically applies to thef ofenses and not crimes of faud. The contrlling distinction between a thef and a faud ofense is that tef occus witout the owner's consent, while faud occurs with consent that has been unlawflly obtained. Soliman, 419 F.3d at 281. In Virginia, gand larceny includes all the elements of common law larceny, whch are: (1) te wongfl or faudulent taking (2) of property (3) of aoter (4) without his permission (5) and wt the intent to peraently deprive te owner of tat property. Brit v. Commonwealth, 667 S.E.2d 763, 765 (Va. 2008) (emphasis added). Because these elements require the ower's lack of consent, Va. Code 18.2-95 cannot apply to faud ofenses as defned in Soliman. See Soliman, 419 F3d at 281. Futher, the Court fnds that Va. Code 18.2-95 includes all the elements of a aggravated flony thef ofense. A thef ofense under IA 101(a)(43)(G) involves fve elements: (1) te taing (2) of property (3) of aother (4) without consent (5) with intent to deprive the owner of the rights ad benefts of ownership. Soliman, 419 F .3d at 282; Garcia-Madruga, 24 l&N Dec. at 441. Tis defnition mirrors the elements of Virginia's 2 W WW MW I m m i g r a n t
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w w w . i r a c . n e t common law larceny. See Britt, 667 S.E.2d at 765. Therefre, a conviction under Va. Code 18.2-195 necessarily implies that te defndant has been fund guilty of an aggravated flony thef ofense. See Taylor, 495 U.S. at 599. Te respondent relies on Foster v. Commonwealth, 606 S.E.2d 518 (Va. App. 2004 ), to argue that larceny in Virginia includes both thef ofenses and crimes of faud, such as embezlement and uttering a bad check. See Respondent's Motion to Terminate at 5. Virginia's bad check law states that any person who utters a bad check "shall be gilty of laceny." Va. Code 18.2-181; Foster, 606 S.E.2d at 519. This does not mean that the bad check law contains the elements of larceny; instead, this phrase indicates that a person convicted uder the bad check law will be punished as fr larceny. Foster, 606 S.E.2d at 521. Similarly, while Va. Code 18.2-111 provides that a person convicted of embezzlement "shall be deemed guilty of laceny," this phrase only "pertans to the penalty to be imposed." Bruhn v. Commonwealth, 544 S.E.2d 895, 898 (Va. App. 2001); see Gwaltney v. Commonwealth, 452 S.E.2d 687, 691 (Va. App. 1995) (holding that embezzlement under Va. Code 18.2-111 "fll[s] outside the common law defnition .of larceny"). Te Virginia cours are clear that common law larceny, of which grad larceny is a sub-category, requires the ower's lack of consent. See Britt, 667 S.E.2d at 765; Tarpley v. Commonwealth, 542 S.E.2d 761, 763 (Va. 2001). Because a conviction under Va. Code 18.2-95 is "punishable by imprisonent . . . . fr not less tha one [yea]," the respondent's conviction satisfes the requirement that a aggravated flony thef ofense involve a term of imprisonment of at leat one yea. Va. Code 18.2-95; see IA 101(a)(43)(G). Thus, based on a categorical analysis of the respondent's statute of conviction, the Court fnds that he has been convicted of an aggravated flony that renders him removable under IA 237(a)(2)(A)(iii). Both the Respondent ad DHS have advaced aguments as to whether Va. Code 18.2-95 describes a thef ofense pursuant to a modifed categorical aalysis. Because the Cou fnds that Va. Code 18.2-95 categorically includes the elements of a aggravated flony thef ofense, the Court does not reach te modifed-categorical analysis. Talor, 495 U.S. at 602; Soliman, 419 F.3d at 284. The Court fnds te respondent removable as charged pursuant to IA 237(a)(2)(A)(iii) as a result of his conviction under Va. Code 18.2-95, which was fr a aggravated flony thef ofense uder IA 101(a)(43)(G). Based on this fnding, the Cou must deny the respondent's motion to terinate. The Respondent has not fled any applications fr relief ad has indicated that he does not intend to fle any such applications. Accordingly, the Court enters the fllowing order: 3 I m m i g r a n t
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w w w . i r a c . n e t It Is Ordered tat: It is Further Ordered that: It is Further Ordered that: /:7/; Date ORDER Te respondent's motion to terminate be DENIED. The respondent be RMOVED to El Salvador. The hearing scheduled fr September 25, 2012 be CANCELLED. United States Immigration Judge 4 I m m i g r a n t