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

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

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In this unpublished decision, the Board of Immigration Appeals (BIA) held that grand larceny under Va.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.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) held that grand larceny under Va.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.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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Published by: Immigrant & Refugee Appellate Center, LLC on Apr 09, 2014
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YACUB, IVAN, ESQ.

YACUB LAW OFFICES, LLC
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
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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
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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
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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.
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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.
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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.
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(�
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 F�3d 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
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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:
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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
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