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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virginia 22041

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F -A , M OHS/ICE Office of Chief Counsel - LVG
501 South Las Vegas Blvd.,Suite 200
Las Vegas, NV 89101

Name: F -A , M A 24

Date of this notice: 12/4/2017

Enclosed is a copy of the Board's decision in the above-referenced case. If the attached
decision orders that you be removed from the United States or affirms 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
this decision.

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Kelly, Edward F.
Mann, Ana
Grant, Edward R.

Userteam: Docket
For more unpublished BIA decisions, visit
www.irac.net/unpublished/index

Cite as: M-F-A-, AXXX XXX 424 (BIA Dec. 4, 2017)


U.S. Department of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 424 - Las Vegas, NV Date:


DEC -
4 2017

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In re: M F -A

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro se

APPLICATION: Cancellation of removal

The respondent, a native and citizen of Mexico, has appealed the Immigration Judge's
October 27, 2015, decision to the extent that the Immigration Judge found him ineligible for
cancellation of removal pursuant to section 240A(b)(l) of the Immigration and Nationality Act,
8 U.S.C. § 1229b(b)(l).1 The record will be remanded.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge underthe "clearly erroneous" standard. 8 C.F.R § 1003.l(d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo standard.
8 C.F.R § l003 .l(d)(3)(ii).

The central issue on appeal is whether the respondent is ineligible for cancellation of removal
based on his criminal conviction. See section 240A(b)(l)(C) of the Act; see also
section l0l(a)(43)(R) of the Act, 8 U.S.C. § ll0l(a)(43)(R). 2 The statute at issue is
section 205.110 of the Nevada Revised Statutes, which concerns forged instruments. The
Immigration Judge found that, because it included the three elements of generic forgery at common
law, the offense categorically qualified as one relating to forgery (U at 2). The respondent argues
on appeal that the statute is overbroad, as it includes destruction of a document. See
section 205.110 of the Nevada Revised Statutes (including "dispose of'). The respondent's
contention is supported by an unpublished decision of the United States Court of Appeals for the
Ninth Circuit. In Moreno-Avendano v. Lynch, 629 F.App'x. 807, 809-10 (9th Cir. 2015), the court
held that a similar Nevada forgery statute (section 205.090 of the Nevada Revised Statutes) did
not constitute an "offense relating to forgery" and did not qualify as an aggravated felony because
the statute proscribed conduct- specifically, the destruction of a document- that was broader than
the federal common law crime of forgery. Further, the court found that the statute was not
divisible. Id at 810.

1 To the extent that the respondent raises arguments concerning a continuance request below, our
review of the record does not indicate that any such request was made.

2 Although the Immigration Judge referenced the good moral character requirement, the
respondent's 1996 conviction would fall outside of the relevant 10-year period.

Cite as: M-F-A-, AXXX XXX 424 (BIA Dec. 4, 2017)


' \

424

In light of the presence of the term "dispose of' in the statute, as well as the Ninth Circuit's
decision concerning a similar Nevada statute, we agree with the respondent that the statute is
overbroad and not divisible, rendering section 240A(b)(1)(C) of the Act inapplicable. See also
section 101(a)(43)(R) of the Act. Thus, we will remand the record for the Immigration Judge to
consider the respondent's application for cancellation of removal.

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Accordingly, the following order shall be issued.

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

Cite as: M-F-A-, AXXX XXX 424 (BIA Dec. 4, 2017)


(

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LAS VEGAS, NEVADA

FILE: 424 )

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)
IN THE MATIER OF ) IN REMOVAL PROCEEDINGS
)
J F -A Respondent )
)

CHARGE: § 212(a)(6)(A)(i) of the Immigration and Nationality Act (the Act)--Alien


present in the United States without having been admitted or paroled

APPLICATIONS: Cancellation of Removal for non-permanent residents; Voluntary Departure

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE DHS:

Joel Wolff, Attorney at Law Christian Parke


P.O. Box 80537 Assistant Chief Counsel
Las Vegas, NV 89180

WRITTEN DECISION OF THE IMMIGRATION JUDGE

The respondent is a 45-year-old married male who is a native and citizen of Mexico. The
Department of Homeland Security ("DHS") issued a charging document, the Notice to Appear
(NTA) dated April 10, 2014, charging the respondent with inadmissibility pursuant to section
212(a)(6)(A)(i) of the Immigration and Nationality Act ("the Act"). The DHS alleged in the NTA
that the respondent is an alien who is present in the United States without having been admitted or
paroled. A copy of the NTA is included in the Record of Proceedings as Exhibit 1.

The NTA was filed with the Immigration Court in Las Vegas on April 17, 2014. The
record reflects that the respondent, through counsel, admitted the factual allegations in the NTA,
and he conceded the charge of inadmissibility set forth above. Based upon the respondent's
admissions, the Court finds the respondent to be subject to removal as charged in the NTA. See
section 240(c)(2) of the Act. The Immigration Court designated Mexico as the country for
removal.

The record reflects that the respondent was convicted on or about June 4, 1996, in the
District Court of the Fourth Judicial District, Elko County, Nevada, of possession of a forged
instrument, a felony, in violation of Nevada Revised Statutes (NRS) § 205.110. 1 He was

1
This statute, titled "Uttering forged instruments: Forgery," provides as follows: "Every
(

sentenced to a minimum period of imprisonment of 12 months, with a maximum of 48 months'


imprisorunent, but the sentence was suspended.

The respondent's Form EOIR-42B, application for cancellation of removal, was originally
filed with the Court on May 4, 2015. At a hearing on that same date, the Court inquired as to
whether the respondent would be applying for adjustment of status under section 245(i) of the Act,

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based upon his lawful permanent resident father's petition that was filed on behalf of the
respondent on June 7, 1993. However, the respondent's Form EOIR-42B provides that he
married on November 20, 2013. He accordingly no longer qualifies for an immigrant visa as the
"urunarried son" of a lawful permanent resident, pursuant to section 203(a)(2)(B) of the Act.

The respondent has the burden to prove that he is statutorily eligible for cancellation of
removal, to include that he has not been convicted of an aggravated felony offense. See sections
10l (t)(8) and 240A(b)(l)(B) of the Act. The issues relating to whether the respondent has been
convicted of an offense relating to forgery under section 10l (a)(43)(R) of the Act include whether
NRS § 205. 1 10 constitutes a generic forgery offense, and whether he has been sentenced to a term
of imprisorunent of at least 1 year. First, the offense does qualify as one relating to forgery as a.
categorical matter, since the Nevada statute includes all 3 elements of generic forgery at common
law: 1) a false making of some instrument in writing; 2) a fraudulent intent; and 3) an instrument
apparently capable of effecting a fraud. See Vizcarra-Ayala v. Mukasey, 5 14 F.3d 870, 874 (9th
Cir. 2008). The Nevada statute is distinguishable from the California statute analyzed in
Vizcarra- Ayala v. Mukasey, ™which included within its scope "real or fictitious" checks. Id.
at 875.

Second, the respondent was sentenced.to a period of imprisorunent of 12-48 months,


notwithstanding that the sentence was suspended. See section 10l (a)(48)(B) of the Act.
He accordingly received a "term of imprisonment [of] at least 1 year," for the purpose of section
101(a)(43)(R) of the Act. The respondent therefore is statutorily precluded from receiving
cancellation of removal for certain nonpermanent residents under sections 101(t)(8) and
240A(b)( l )(B) of the Act, and his application will be pretermitted on this basis.

The respondent is also ineligible for post-conclusion voluntary departure, under sections
101(t)(8) and 240B(b)( l )(B) of the Act. Based on the foregoing, the Court will enter the
following orders.

person who, knowing the same to be forged or altered, and with intent to defraud, shall utter, offer,
dispose of or put off as true, or have in his or her possession with intent so to utter, offer, dispose of
or put off any forged writing, instrument or other thing, the false making, forging or altering of
which is punishable as a forgery, shall be guilty of forgery the same as if the person had forged the
same."

2
//'--
1,

ORDERS

IT IS HEREBY ORDERED that the respondent's application for cancellation ofremoval


be DENIED.

IT IS FURTHER ORDERED that the respondent shall be removed from the United States

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to Mexico on the charge contained in the NTA.

APPEAL RIGHTS: The respondent's appeal is due at the Board ofImmigration Appeals on or
before 30 calendar days from the date ofservice ofthis decision.

DATE: 0 c. \. W .). 7, /o I 5
�?
Jeffrey L. Romig
c �

Immigration Judge