U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Of. fice ofthe Clerk
5 /07 Leesburg Pike. Suile 2000
Falls Church, Virginia 20530

OHS LIT.Nork Co. PrisonNOR

A043-721-663
YORK COUNTY
3400 CONCORD ROAD

3400 Concord Road

York, PA 17402

YORK, PA 17402

Name: MILLER, DALTON DONOVAN

A 043-721-663

Date of this notice: 1/12/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincere]y,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Dalton Donovan Miller, A043 721 663 (BIA Jan. 12, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

MILLER, DALTON DONOVAN

U.S. Depai:tment of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

F ile:

Date:

A043 721 663 -York, PA

JAN 1 2 2015

In re: DALTONDONOVAN MILLER a.k.a. Michael ChristopherF owler

APPEAL
ON BEHALF OF RESPONDENT:

Pro se

CHARGE:
Notice: Sec.

Sec.

APPLICATION:

237(a)(2)(A)(iii), I&N Act [8U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravatedfelony under section 10I (a)(43)(G) of the Act
(sustained)
237(a){2)(A)(ii), I&N Act [8U.S.C. 1227(a)(2)(A)(ii)] Convicted of two or more crimes involving moral turpitude
(not sustained)

Removability

The respondent appeals the Immigration Judge's September 17, 2014, decision finding him
removable. We review findings of fact for clear error, but questions of law, discretion, and
judgment, and all other issues in appeals, de novo. 8 C.F .R. 1003.l(d)(3)(i), (ii). The record
will be remanded tothe Immigration Courtfor further proceedings.
The respondent is a native and citizen of Jamaica and a lawful permanent resident of the
United States.1 On August 8, 2003, the respondent sustained a conviction for 3 counts of
violating title 11, section 841 of the DEL A WARE CODE ANN OTA TED (11 DCA 841), felony
theft (Exh. 2 at 11). F or each count, he was sentenced to 2 years' incarceration, suspended
(Exh. 2 at 11-12). He was further sentenced to I year of probation consecutive to two 2-year
consecutive terms of probation and was ordered to pay restitution in the amount of $27, 132.39 in
addition to fees andfines (Exh. 2 at 11-14).
The Immigration Judge reviewed the record of conviction, which included the indictment and
the abstract ofjudgment, and found that the respondent's conviction was specifically for 11DCA
841 (a), which provides:
A person is guilty of theft when the person takes, exercises control over or
obtains property of another person intending to deprive that person of it or
1

The respondent was admitted to the United States as a conditional resident in 1992; in 2001,
the conditions of his statuswere removed, and he became a lawful permanent resident(Exh. 1 )
.

Cite as: Dalton Donovan Miller, A043 721 663 (BIA Jan. 12, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A043 721 663

appropriate it. Theft includes the acts described in this section, as well as those
described in 841A-846 ofthis title.

--

In September andOctober 2014, the respondent submitted documents to the court, which the
Immigration Judge construed as a timely motion to reconsider (October 8, 2014, I.J. Order
Denying Motion to Reconsider at 1 ). The Immigration Judge reviewed his decision in detail,
noted that the respondent failed to state any error of fact or law in the court's decision. and
denied the respondent's motion to reconsider.
On appeal, the respondent argues that although his offense of conviction constitutes a crime
involving moral turpitude (CIMT), it was not committed within 5 years of his entry into the
United States andarose out of a single scheme of criminal misconduct (Respondent's Br. at 5-7).
Because the Immigration Judge did not make a determination regarding CIMTs and did not
sustain the second charge of removability, we need not address this argument.
The respondent also argues that his theft offense is not an aggravated felony (Respondent's
Br. at 8-16). To the extent that the respondent argues that the charging document, the
indictment, makes no statutory reference to a substantive offense, he is incorrect (Respondent's
Br. at 13-15). The indictment specifically states, in each count, that the respondent violated
"Title 11, Section 841 of the Delaware Code" (Exh. 2 at 9-10). On de novo review, we affirm
the Immigration Judge's determination that the respondent's theft offense constitutes an
aggravated felony.
On appeal, the respondent contends that the Immigration Judgefailed to identify withholding
of removal and protection under the Convention Against Torture (CAT) as available forms
of relief pursuant to 8 C.F.R. 1240.1 l(a)(2) (Respondent's Br. at 16-19). See 8 C.F.R.
1240.1l(c)(l). The respondent requests the Board to remand the proceedings so that he may
2
Cite as: Dalton Donovan Miller, A043 721 663 (BIA Jan. 12, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

(l.J. at 2). In determining whether the respondent's offense of conviction was an aggravated
felony theft offense under section 10l(a)(43)(G) of the Immigration and Nationality Act,
8U.S.C. 110l(a)(43)(G) of the Act, the Immigration Judge employed the categorical approach
as required by Taylor v. United States, 495 U.S. 575, 598-99 (1990) (outlining the categorical
approach to analyzing criminal statutes) (l.J. at 2-3). See Descamps v. United States, --- U.S.---,
133 S. Ct. 2276 (2013); Moncrieffe v. Holder, - U.S. ---, 133 S. Ct. 1678 (2013); Shepard
v. United States, 544 U.S. 13, 16, 26 (2005).
The Immigration Judge determined that the
subsection under which the respondent had been convicted was divisible in that it included an
intent to deprive as well as an intent to appropriate. In interpreting the statute, the Immigration
Judge relied primarily on the commentary on the Delaware Criminal Code prepared by the State
of Delaware regarding this particular statute (l.J. at 3-4). The commentary indicated that an
"appropriation," even if temporary, required that it be for such an extended period of time as to
acquire a major portion of the property's economic value or benefit (l.J. at 4). On this basis, the
Immigration Judge determined that the least culpable behavior under the statute constituted an
aggravated felony theft offense. See Matter of Garcia-Madruga, 24 I&N Dec. 436, 440 (BIA
2008); Matter of V-Z-S-, 22 l&N Dec. 1338, 1344-45 (BIA 2000). Thus, the Immigration Judge
determined that the respondent was removable. The respondent made no applications for relief,
and the Immigration Judge ordered the respondent removed.

A043 721 663

'
pursue such relief. He asserts that he fears persecution upon his return toJamaica on account of
his familial associations (Respondent's Br. at 16-18). In an abundance of caution, we will
remand the record to the Immigration Judge to provide the respondent with the appropriate
advisals under 8 C.F.R. 1240. 1 l(c)(l)(i)-(ii) and the opportunity to apply for withholding of
removal2 under section 24l(b)(3) of the Immigration and Nationality Act, 8U.S.C. 123l(b)(3),
and requestfor protection under the Convention AgainstTorture, 8 C. F.R. 1208.16-.18.

Accordingly, thefollowing order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with theforegoing opinion and entry of a new decision.

The respondent is not eligible for asylum because he has been convicted of an aggravated
felony. See section 208(b)(2)(B)(i) of the Act, 8 U.S. C. 1158(b)(2)(B)(i); 8 C. F.R.
1208.13(c)(l) (2013).

3
Cite as: Dalton Donovan Miller, A043 721 663 (BIA Jan. 12, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

To the extent that the respondent claims ineffective assistance of counsel (Respondent's
Br. at 19-21), he has not substantially complied with an y of the requirements for making such
a claim, as described in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), Rranci v. US. Att'y
Gen., 540 F.3d 165, 172 (3d Cir. 2008) (requiring substantial compliance with Matter of Lozada
requirements); Lu v. Ashcroft, 259 F . 3d 127, 129 (3d Cir. 2001) (holding that Hthe Lozada
requirements are a reasonable exercise of the Board1s discretion."
' ). These requirements include
filing an affidavit describing the scope of the representation agreement, notify ing the prior
attorney of the allegations, and lodging a complaint against the attorney with the proper
disciplinary authorities. Matter of Lozada, supra, at 639.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
YORK, PENNSYLVANIA

In the Matter of

)
)
)
)

DALTON DONOVAN MILLER

RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

APPLICATIONS:

ON BEHALF OF RESPONDENT: STEVEN CONVERSE

ON BEHALF OF OHS: RICHARD O'BRIEN

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is a 34-year-old male, native and citizen of Jamaica. On August 22,
.

2014, the Department of Homeland Security filed a Notice to Appear in this matter. The
filing of the Notice to Appear vested jurisdiction to this Court. That document is marked
as Exhibit No. 1. On August 28, 2014, the Court took pleadings. The respondent
admitted allegations 1 through 4 and denied allegations 5 through 9 and denied
removability. The Court set the matter over for the Government to submit conviction
documents on September 17, 2014. The Court received a packet of documents which
are marked as Exhibit No. 2. Based on the Court's review of Exhibit No. 2, tab C, the

Immigrant & Refugee Appellate Center | www.irac.net

September 17, 2014

File: A043-721-663

Court finds that allegations 5, 6, 7 and 8 are established by clear and convincing
evidence.
The respondent was convicted under 11 Delaware Code, Section 841. That

One is a direction to a reviewing court. Based on the Court's review of Exhibit No. 2,
tab C, the indictment in the respondent's criminal case, the Court finds that the
respondent received three convictions for violating 11 Delaware Code, Section 841A.{g}.
That provision states: "A person is guilty of theft when the person takes, exercises
control over or obtains property of another person intending to deprive that person of it
or appropriate it. Theft includes the acts described in this section as well as those
described in Sections 841A-846 of this title."
As a review of the section of conviction shows that the statute is divisible, the
Court would find that the subsection under which the respondent was convicted is also
divisible. Where the statute under which an alien is convicted is divisible, that is, that
certain sections of the statute of conviction criminalize different acts, the Court is
required to look at the record of conviction and other documents admissible as evidence
in proving a criminal conviction to determine whether the specific offense for which the
alien was convicted constitutes a crime that would render the alien amenable to
removal. See Matter of Pichardo, 21 l&N Dec. 330 (BIA 1996); Matter of Madrigal, 21
l&N Dec. 323 (BIA 1996); Matter of Teixeira, 21 l&N Dec. 316 (BIA 1996).
The record of conviction includes the charge, indictment, plea, judgment or
verdict, sentence and transcript from court proceedings. Matter of Madrigal, 21 l&N
Dec. fil._325. The indictment shows that the respondent was convicted of taking and
obtaining with the intent to appropriate property belonging to another with a value of
more than $1,000. See Exhibit 2, tab C. For each of these two counts, respondent

A043-721-663

September 17, 2014

Immigrant & Refugee Appellate Center | www.irac.net

provision contains four subsections. Three of them actually contain different offenses.

received a two-year suspended sentence. On the basis of my review of the conviction

documents related to his Delaware conviction, I find that the respondent was convicted
under 11 Delaware Code, Section 841A of taking and obtaining with intent to

The question for the Court is whether the respondent's conviction is an

aggravated felony as that term is defined in Section 101 (a)(43)(G) of the INA. Section
101 (a)(43)(G) of the INA defines the term aggravated felony as "a theft defense
{including receipt of stolen property) or burglary offense for which the term of
imprisonment at least one year was imposed." In Matter of V-Z-S-, the Board of
Immigration Appeals held that the taking of property constitutes a "theft" offense under
Section 101(a)(43)(G) of the INA "whenever there is criminal intent to deprive the owner
of the rights and benefits of ownership even if such deprivation is less than total or
permanent." Matter of V-Z-S-, 22 l&N Dec. 1338, 1346 (BIA 2000).
As noted, the respondent was convicted under Delaware law of taking and
obtaining property with the intent to appropriate it. See Exhibit 2, tab C. The question
is, then, whether respondent's offenses constitute "theft" offenses under Matter of V-Z
S-. I conclude that each of these convictions does. There is scant law interpreting the
provision in question. There is an extensive commentary prepared by the State of
Delaware on it, however. The Delaware Criminal Code was signed into law on July 6,
1972. In 1973, the state issued a copy of the criminal code with the commentary. The
Court notes before going forward that the provision under which the respondent was
convicted is essentially the same as that signed into law in 1972, with the exception of
the fact that the statutory language was made gender-neutral in the intervening period
and the quantum for felony treatment has been raised from 100 to $1,000.
As the commentary explained, "the problem seems at first blush a simple one.

A043-721-663

September 17, 2014

Immigrant & Refugee Appellate Center | www.irac.net

appropriate property belonging to another.

We want to punish anyone who has unlawfully acquired property which does not belong
to him and to which he has no right." Delaware Crim. Code with Commentary, 268-69,
1973 (Commentary). "Taking... is meant to have its ordinary, unembellished meaning; it

gain physical possession of the property." !Q. at 269. "Obtain means to bring about or
receive a transfer or purported transfer of any interest in property whether to the actor or
another person." Id.
Most importantly for this analysis, the commentary states: 11As to criminal
intention, the first paragraph, Section 841 is considerably broader than 'the common law.
Two separate concepts are stated. The actor may intend to deprive the owner of the
property or his mind may be focused on gain to himself or another not entitled thereto.
'Deprived' also includes a disposition making it unlikely that the owner will recover the
property, as where property is left in an isolated place. Note that there is no
requirement that the actor gain anything for himself or for another, but only that he
withhold benefit from the person who is entitled to it. 'Appropriate,' on the other hand,
describes cases in which the actor's motive is personal gain or gain for another not
entitled to it. Again, appropriation may be permanent or temporary. If the latter, it must
be for so extended a period where under such circumstances as to acquire a major
portion of its economic value or benefit. Thus, A takes B's Christmas tree and returns it
on January 30. He is guilty of theft under this subsection even though when he took it,
he meant to return it on January 30." Id. at 270.
Respondent's conviction, thus, required the misappropriation and transfer (real or
purported) of interest in the property of another for his own gain or the gain of another
not entitled to the property either permanently or for so long a period, or under such
circumstances.I. as to acquire a major portion of its economic value or benefit. Taking

A043-721-663

September 17, 2014

Immigrant & Refugee Appellate Center | www.irac.net

will cover most ordinary cases, misappropriation of movable property. The actor must

another's property in this manner "at the very least temporarily deprives the rightful
owner of the [property] of 'the rights and benefits of ownership"'. Matter of V-Z-S-, 22
l&N Dec. at 1349.

of the Delaware criminal code constitutes a "theft" offense under Section 101(a)(43)(G)
of the INA in accordance with the definition of the BIA of theft in Matter of V-Z-S-, 22
l&N Dec. at 1346.
The Court would note that the taking in question must be an illegal taking and not
a legitimate albeit fraudulent taking.:.,_,i!n essence.s.-=- +!he respondent's conviction
satisfies the definition of theft, per se, and not theft by trick or artifice. The Court would
note that a latter theft conviction would not satisfy the definition under Matter of V-Z-S-.
Because the Court has found that the respondent has been convicted of a state
court criminal offense that satisfies the generic definition of :theft: as identified by the
Board of Immigration Appeals for purposes of Section 101 (a)(43)(G) of the INA because
the respondent received a sentence of two years at supervision level five for that
offense (See Exhibit 2, tab C), the Court concludes that the respondent has been
convicted of an aggravated felony as that term is defined in Section 101 (a)(43)(G) of the
INA and that the respondent, a lawfully admitted alien, is removable based on the first
charge of removal.
The Court would find that it is likely that the respondent's convictions arose out of
different schemes of criminal misconduct. However, the Court would conclude that it
lacks sufficient information at this juncture to make that determination. Accordingly, the
Court concludes that it cannot find that allegation no. 9 is established by clear and
convincing evidence. Accordingly, the Court cannot find that the respondent is
removable based on the second charge of removal.

A043-721-663

September 17, 2014

Immigrant & Refugee Appellate Center | www.irac.net

Given these facts, I conclude the respondent's conviction under Section 841.(filA

It does not appear that the respondent is eligible for any relief from removal, and
the respondent makes no such applications. Accordingly, the following is the order of
the Court:

The Court finds that the respondent is removable based on the first charge of
removal.
The Court finds the respondent is not removable based on the second charge of
removal.
The Court orders the respondent removed from the United States to Jamaica
based on the first charge set forth in the Notice to Appear.

Please see the next page for electronic

signature

ANDREW R. ARTHUR
Immigration Judge

A043-721-663

September 17, 2014

Immigrant & Refugee Appellate Center | www.irac.net

ORDER

'

"

//s//
Immigration

Judge ANDREW R.

arthura on November 4,

ARTHUR

2014 at

7:35 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A043-721-663

September 17, 2014