YACUB, IVAN, ESQ. YACUB LAW OFFICES, LLC 307 E. ANNANDALE RD, Suite 201 FALLS CHURCH, VA 22042-0000

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Leesburg Pike. Suite 2000 Falls Cll11rclz, Virginia 20530

OHS/ICE Office 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-referenced case.

Enclosure

Panel Members: Cole, Patricia A.

Sincerely,

DOWtL c WlA)

Donna Carr Chief Clerk

Trane Usertea m: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Luis Miguel Ramirez-Moz, A072 377 892 (BIA Mar. 31, 2014)

U.S. Department of Justice Executive Office 'for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 20530

File: A072 377 892 - Arlington, VA

In re: LUIS MIGUEL RAMIREZ-MOZ

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Ivan Yacub, Esquire

ON BEHALF OF DHS:

CHARGE:

Stacie L. Chapman Assistant 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Convicted of aggravated felony (as defined in section 10l(a)(43)(F)) (withdrawn)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 felony (as defined in section 101(a)(43)(G)) (sustained)

APPLICATION: Termination

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.

The Board reviews an Immigration Judge's findings of fact for clear error. § 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 Ann. § 18.2-95, and sentenced to 2 years of imprisonment (l.J. at 1 ). In determining whether a conviction qualifies as an aggravated felony for removal purposes, the United States Court of Appeals for the Fourth Circuit, in whose jurisdiction this case arises, follows the analytical model set forth 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 focus on the statutory definition of the crime rather than the facts underlying the respondent's particular violation. Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013).

The respondent argues that he was not convicted of an aggravated felony involving theft pursuant to the categorical approach because Va. Code Ann. § 18.2-95 can also apply to fraud offenses, which do not come within section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 110I(a)(43)(G). See Soliman, supra, at 283; Matter of Garcia-Madruga, 24 I&N Dec. 436, 440 (2008). The Immigration Judge found that the controlling distinction

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A072 377 892·

between a theft and fraud offense is that theft occurs without the owner's consent, whereas fraud occurs with consent that has been unlawfully obtained (I.J. at 2). Soliman, supra, at 282; Matter of Garcia-Madruga, supra, at 440-41. Grand larceny under Va. Code Ann. § 18.2-95 includes all the elements of common law larceny, which are: (I) the wrongful or fraudulent taking; (2) of property; (3) of another; (4) without his permission; (5) with the intent to permanently deprive the owner of that property (l.J. at 2). Britt v. Commonwealth, 667 S.E.2d 763, 765 (Va. 2008). Focusing on the element "without his permission," the Immigration Judge concluded that because Va. Code Ann. § 18.2-95 requires an owner's lack of consent, Va. Code Ann. § 18.2-95 cannot apply to fraud offenses, as defined in Soliman (I.J. at 2). See Soliman, supra, at 281. He further determined that the elements of Va. Code Ann . § 18.2-95 match the elements of section 10l(a)(43)(G) of the Act, to wit: (1) the tal<lng; (2) of property; (3) of another; (4) without consent; (5) with intent to deprive the owner of the rights and benefits 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 [for] at least one year," the Immigration Judge held that the respondent has been convicted of an aggravated felony under the categorical approach (l.J. at 3). Section 1 Ol(a)(43)(G) of the Act.

The respondent observes that Virginia courts have interpreted the grand larceny statute at Va. Code Ann. § 18.2-95 to include when the accused takes property without the consent of the owner (i.e., a "classic theft" offense), as well as when the victim voluntarily surrenders his or her property (i.e., a "fraudulent taking"). 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 wrongful and fraudulent takings of property, with the latter offense not constituting an aggravated felony under the Act). As such, Va. Code Ann . § 18.2-95 criminalizes both conduct that does and conduct that does not qualify as an aggravated felony. The Immigration Judge thus erred in holding that a conviction under this statute categorically qualifies as an aggravated felony "theft" offense, as described in section 101(a)(43)(G) of the Act.

Since the Department of Homeland Security ("DHS") has not demonstrated that the respondent was convicted of a categorical crime of violence, we must next decide whether any basis exists to conduct a "modified 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 modified categorical approach is a tool that helps courts implement the categorical approach by supplying them with a mechanism to identify the "elements" of offenses arising under "divisible" criminal statutes. See Descamps v. United States, 133 S. Ct. 2276, 2285 (2013). Under Descamps, the modified categorical approach applies only if: ( 1) the statute of conviction is "divisible" in the sense that it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of elements, more than one combination of which could support a conviction; and (2) some (but not all) of those listed offenses or combinations of disjunctive elements are a categorical match to the relevant generic standard . .

Id. at 2281, 2283. The modified categorical approach does not apply merely because the elements of the crime can sometimes be proved by reference to conduct that fits the generic federal 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 overruled Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), in which the Board held that a criminal statute is divisible, regardless of its structure, if, based on the elements of the offense, some but

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A072 3 77 892.

not all violations of the statute give rise to grounds for removal or ineligibility for relief. As the Supreme Court explained, the modified categorical approach:

retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach's basic method: comparing those elements with the generic offense's. All the modified categorical approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates "several different . . . crimes." . . . If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of. That is the job, as we have always understood it, of the modified categorical approach: to identify, from among several alternatives, the crime of conviction so that the court can compare it to the generic offense.

Descamps, supra, at 2285 (internal citation omitted).

The statute at issue provides:

Any person who (i) commits larceny from the person of another of money or other thing of value of $5 or more, (ii) commits simple larceny not from the person of another of goods and chattels of the value of $200 or more, or (iii) commits simple larceny not from the person of another of any firearm, regardless of the firearm's value, shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both.

Va. Code Ann. § 18.2-95. Three potential forms of grand larceny, each with specific elements, are listed in the alternative: (1) larceny from another's person of something worth $5 or more; (2) larceny not from another's person of goods and chattels worth $200 or more; and (3) larceny not from another's person of a firearm regardless of the firearm's worth. Also, as discussed previously, Virginia courts have defined "larceny" as a "classic theft" offense or a "fraudulent taking.'' See Britt, supra, at 765 (emphasis added); Salem, supra, at 113-14 (emphasis added). Va Code Ann. § 18.2-95 thus lists discrete offenses as enumerated alternatives, some (but not all) of which have the elements of a theft offense, so as to categorically match section 101(a)(43)(0) of the Act. See Descamps, supra, at 2281, 2283. Therefore, Va. Code Ann. § 18.2-95 is divisible in relation to section 101(a)(43)(G) so as to warrant a modified categorical inquiry. This modified categorical inquiry is not being applied to examine the respondent's conduct; it further is not being applied to supply a missing element contained in section 10l (a)(43)(G) of the Act, but not in Va. Code Ann. § 18.2-95. Cf Matter of Lanferman, supra. Rather, it is being used as a tool that helps us implement the categorical approach to a statute that lists multiple, alternative elements, effectively creating several different crimes, where at least one, but not all of those crimes matches the generic version set forth in section 10l(a)(43)(G) of the Act. See Descamps, supra, at 2285.

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Cite as: Luis Miguel Ramirez-Moz, A072 377 892 (BIA Mar. 31, 2014)

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A072 377 892

Evidence that may be considered in applying the modified categorical approach includes '"the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or ... some comparable judicial record of this information."' Matter of Sanudo, 23 I&N Dec. 968, 974-75 (BIA 2006) (quoting Shepard, supra, at 26). The record contains an Indictment, dated July 21, 2008, charging that on March 23, 2008, the respondent "did feloniously take, steal and carry away property of [a named victim], valued in excess of $200.00." Furthermore, a Warrant of Arrest provides that on March 23, 2008, the respondent did "steal GPS valued at two hundred dollars or more and belonging to [the named victim]." The record also includes a sentencing order showing that on August 12, 2008, the respondent was found guilty of the grand larceny offense committed on March 23, 2008. The record of conviction thus indicates that the respondent was convicted of a "classic theft" and not a "fraudulent taking," for which the term of imprisonment is at least 1 year. See section 101(a)(43)(G) of the Act. Therefore, applying the modified categorical approach per our de novo review, we affirm the Immigration Judge's ultimate holding that the DHS has established removability under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii), by clear and convincing evidence. See 8 C.F.R. § 1240.8(a).

The respondent has not applied for relief from removal and indicated that he did not wish to do so (1.J. at 3; Tr. at 13).

Accordingly, the following order is entered.

ORDER: The appeal is dismissed.

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Cite as: Luis Miguel Ramirez-Moz, A072 377 892 (BIA Mar. 31, 2014)

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

United States Immigration Court 901 North Stuart Street, Suite 1300

Arlington, VA 22203

IN THE MATTER OF: ) ) ) ) ) ) )

IN REMOVAL PROCEEDINGS

RAMIREZ MOZ, Luis Miguel File No. A# 072-377-892

Respondent

CHARGE:

APPLICATION:

FOR THE RESPONDENT: Ivan Yacub 307 East Annandale Road Suite 201 Falls Church, VA 22042

Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA" or "Act"), as amended, as an alien who, at any time after admission, was convicted of an

aggravated felony as defined in INA § 101 (a)(43)(G), a theft offense (including receipt of stolen property) or burglary offense for which the term of imptjsonment is at least one year.

Motion to Terminate Removal Proceedings.

APPEARANCES

FOR THE DHS: Ozlem Barnard Assistant Chief Counsel Department of Homeland Security 901 North Stuart Street, Suite 708 Arlington, VA 22203

DECISION AND ORDER OF THE COURT

I. PROCEDURAL HISTORY

The respondent is a twenty-four year old male, native and citizen of El Salvador. He entered the United States on or about May 9, 1995, and was granted status as a lawful permanent resident ("LPR") on December 5, 2005. On August 12, 2008, the respondent was convicted of grand larceny in the Circuit Court of Fairfax County, in violation of Virginia Code ("Va. Code") § 18.2-95. The respondent was sentenced to a suspended term of two years of incarceration.

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On August 21, 2008, the Department of Homeland Security ("DHS") filed a Notice to Appear ("NTA") against the respondent. DHS initially charged the respondent with removability pursuant to INA § 237(a)(2)(A)(iii) for having been convicted of an aggravated felony as defined in INA § 10l(a)(43)(F), a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment is at least one year.

On July 21, 2010, DHS filed a Form I-261, Additional Charges of Admissibility/Deportation, withdrawing the original aggravated felony charge under INA § 101(a)(43)(F) and adding a new charge of removability under INA § 237(a)(2)(A)(iii) for having been convicted of an aggravated felony under INA § 101(a)(43)(G), a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year. The respondent contested the charge and filed a motion to terminate the removal proceedings.

For the reasons that follow, the Court sustains the charge of removability and denies the respondent's motion to terminate.

II. ANALYSIS

The respondent denies the charge of removability and moves to terminate proceedings, arguing that his conviction under Va. Code § 18.2-95 is not for an aggravated felony theft offense. A theft offense under INA § 1 Ol(a)(43)(G) requires that the stolen property have been taken without the owner's consent. Matter of Garcia­Madruga, 24 l&N Dec. 436 (BIA 2008). The respondent argues that his statute of conviction is not a categorical match for an aggravated felony theft offense because Va. Code § 18.2-95 ·can also apply to fraud offenses, which do not fall 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 finds that Va. Code § 18.2-95 categorically applies to theft offenses and not crimes of fraud. The controlling distinction between a theft and a fraud offense is that theft occurs without the owner's consent, while fraud occurs with consent that has been unlawfully obtained. Soliman, 419 F.3d at 281. In Virginia, grand larceny includes all the elements of common law larceny, which are: (1) the wrongful or fraudulent taking (2) of property (3) of another (4) without his permission (5) and with the intent to permanently deprive the owner of that property. Britt v. Commonwealth, 667 S.E.2d 763, 765 (Va. 2008) (emphasis added). Because these elements require the owner's lack of consent, Va. Code § 18.2-95 cannot apply to fraud offenses as defined in Soliman. See Soliman, 419 F�3d at 281.

Further, the Court finds that Va. Code § 18.2-95 includes all the elements of an aggravated felony theft offense. A theft offense under INA § 101(a)(43)(G) involves five elements: (1) the taking (2) of property (3) of another (4) without consent (5) with intent to deprive the owner of the rights and benefits of ownership. Soliman, 419 F .3d at 282; Garcia-Madruga, 24 l&N Dec. at 441. This definition mirrors the elements of Virginia's

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common law larceny. See Britt, 667 S.E.2d at 765. Therefore, a conviction under Va. Code § 18.2-195 necessarily implies that the defendant has been found guilty of an aggravated felony theft offense. See Taylor, 495 U.S. at 599.

The respondent relies on Foster v. Commonwealth, 606 S.E.2d 518 (Va. App. 2004 ), to argue that larceny in Virginia includes both theft offenses and crimes of fraud, such as embezzlement 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 guilty of larceny." 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 under the bad check law will be punished as for 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 larceny," this phrase only "pertains 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 "fall[s] outside the common law definition .of larceny"). The Virginia courts are clear that common law larceny, of which grand larceny is a sub-category, requires the owner'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 imprisonment . . . . for not less than one [year]," the respondent's conviction satisfies the requirement that an aggravated felony theft offense involve a term of imprisonment of at least one year. Va. Code § 18.2-95; see INA § 101(a)(43)(G). Thus, based on a categorical analysis of the respondent's statute of conviction, the Court finds that he has been convicted of an aggravated felony that renders him removable under INA § 237(a)(2)(A)(iii).

Both the Respondent and DHS have advanced arguments as to whether Va. Code § 18.2-95 describes a theft offense pursuant to a modified categorical analysis. Because the Court finds that Va. Code § 18.2-95 categorically includes the elements of an aggravated felony theft offense, the Court does not reach the modified-categorical analysis. Taylor, 495 U.S. at 602; Soliman, 419 F.3d at 284.

The Court finds the respondent removable as charged pursuant to INA § 237(a)(2)(A)(iii) as a result of his conviction under Va. Code § 18.2-95, which was for an aggravated felony theft offense under INA § 101(a)(43)(G). Based on this finding, the Court must deny the respondent's motion to terminate. The Respondent has not filed any applications for relief and has indicated that he does not intend to file any such applications.

Accordingly, the Court enters the following order:

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It Is Ordered that:

It is Further Ordered that:

It is Further Ordered that:

� /:J7/t;;-Date

ORDER

The respondent's motion to terminate be DENIED.

The respondent be REMOVED to El Salvador.

The hearing scheduled for September 25, 2012 be CANCELLED.

United States Immigration Judge

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