U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 2204 I

DHS LIT./York Co. Prison/YOR

3400 Concord Road
York, PA 17402

Name: PAZI-ALVAREZ, DANIELE

A 047-350-423
Date of this notice: 12/12/2016

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

DorutL Ct11Vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Creppy, Michael J.
Pauley, Roger
Geller, Joan 8

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Daniele Pazi-Alvarez, A047 350 423 (BIA Dec. 12, 2016)

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STAMBAUGH, ROSINA CARMELINA

THE LAW OFFICE OF ROSINA C.
STAMBAUGH
1423 E. MARKET ST
YORK, PA 17403

U.S. Department of Justice

Executive Office for Immigration Review

Board o.f'lmmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS LIT.Nork Co. PrisonNOR

3400 Concord Road
York, PA 17402

Name: PAZI-ALVAREZ, DANIELE

A 047-350-423
Date of this notice: 12/12/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). 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 the decision.
Sincerely,

borutL C

t1/V'1.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Creppy, Michael J.
Pauley, Roger
Geller, Joan B

Userteam:

Cite as: Daniele Pazi-Alvarez, A047 350 423 (BIA Dec. 12, 2016)

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PAZI-ALVAREZ, DANIELE
A047-350-423
YORK COUNTY
3400 CONCORD ROAD
YORK, PA 17402

U.S. Department of Justice

Executive Office for lltl}lligration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 22041

File: A047 350 423- York, PA

Date:

DEC 12 2016-

In re: DANIELE PAZI-ALV AREZ a.k.a. Daniele Pazi Alvarenga

APPEAL
ON BEHALF OF RESPONDENT: Rosina C. Stambaugh, Esquire
ON BEHALF OF DHS: Jeffrey Forrest Boyles
Assistant Chief Counsel
CHARGE:
Notice: Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony under section 101(a)(43)(M)

APPLICATION: Removability
The respondent, a native and citizen of Brazil, appeals from the Immigration Judge's
March 30, 2016, decision sustaining the charge of removability and ordering her removed. 1 We
review questions of law, discretion, and judgment arising in appeals from decisions of
Immigration Judges de novo, whereas we review findings of fact in such appeals under a "clearly
erroneous" standard. See 8 C.F.R. 1003.l(d)(3)(i), (ii). The appeal will be sustained, and
proceedings will be terminated.
The respondent is charged with being removable as an alien convicted of an aggravated
felony under section I01(a)(43)(M)(i) of the Immigration and Nationality Act, 8 U.S.C.
1101(a)(43)(M)(i), i.e., an offense that involves fraud or deceit in which the loss to the-victim
or victims exceeds $10,000.2 She was convicted in 2014 of violating 18 U.S.C. 641, which
reads in pertinent part:
641. Public money, property or records
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of
another, or without authority, sells, conveys or disposes of any record, voucher, money,
The Immigration Judge's March 30, 2016, decision incorporates his March 28, 2016, decision
denying the respondent's motion to terminate. Cites to the Immigration Judge's decision in this
order refer to his March 28, 2016, decision.
1

The charge in the Notice to Appear refers to sections 10I(a)(43)(M)(i) and (ii) of the Act, but
there is no dispute in this case that section 10I(a)(43)(M)(ii) of the Act (relating to tax evasion)
is not at issue (I.J. at 1; Tr. at 3). See DHS Motion for Summary Affirmance; Brief for
Respondent at 3.
Cite as: Daniele Pazi-Alvarez, A047 350 423 (BIA Dec. 12, 2016)

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IN REMOVAL PROCEEDINGS

A047 350 423

To determine whether the respondent has been convicted of a fraud or deceit aggravated
felony, we employ the "categorical approach" and focus only on the elements of the offense, and
not on the facts surrounding the commission of the crime. See Mathis v. United States,
136 S. Ct. 2243, 2248 (2016); Descamps v. United States, 133 S. Ct. 2276, 2281 (2013); Matter
of Chairez, 26 I&N Dec. 819, 821 (BIA 2016). If the statute is divisible - i.e., it defines multiple
crimes in the alternative, each of which requires a different set of elements to be proven for
conviction - and if at least one, but not all, of these offenses qualifies as an aggravated felony
within the meaning of section 10l(a)(43)(M)(i) of the Act, we must attempt to identify the
respondent's actual crime of conviction for the purpose of determining whether it falls within
section I0l(a)(43)(M)(i) of the Act. See Mathis v. United States, supra, at 2249; Descamps v.
United States, supra, at 2281; Matter of Chairez, supra, at 821-22. To do so, we would employ
the "modified categorical approach" by looking to a limited class of documents in the record of
conviction, such as a charging document, jury instructions, a plea agreement, or a transcript of
the plea colloquy between the defendant and the judge. See Mathis v. United States, supra, at
2249; Descamps v. United States, supra, at 2283-86.
We agree with the Immigration Judge that 18 U.S.C. 641 is divisible. The statute defines
several possible offenses, which are listed in the disjunctive, as the United States Court of
Appeals for the Third Circuit has recognized in an unpublished case:
Under the plain language of the statute, someone is liable under 18 U.S.C. 641 if they
(1) embezzle, steal, purloin, or knowingly convert government property; or (2) without
authority, sell, convey or dispose of any government property; or (3) receive, conceal, or
retain the same with intent to convert it to his use or gain, knowing that it has been
embezzled, stolen, purloined or converted.
United States v. Russo, 166 Fed. Appx. 654, 667 (3d Cir. 2006) (italics in original). The Third
Circuit has recognized that theft of government property is a discrete offense under 18 U.S.C.
641. See, e.g., United States v. Crutchley, 502 F.2d 1195, 1196 n.1 (3d Cir. 1974). The Third
Circuit has also recognized a separate offense for "receipt and possession of stolen goods" under
the second paragraph of 18 U.S.C. 641, having the following elements for a conviction: "l.
receipt, possession, or concealment of, 2. stolen government property, with 3. intent to convert,
and 4. knowledge that it is stolen." United States v. Stuart, 22 F .3d 76, 80 (3d Cir. 1994) (citing
United States v. Trzcinski, 553 F.2d 851, 854-55 (3d Cir. 1976), cert. denied, 431 U.S. 919
(1977)). Therefore, it is clear that 18 U.S.C. 641 lists multiple discrete offenses, and thus it is
divisible. See Mathis v. United States, supra, at 2249.
We therefore next apply the modified categorical approach to attempt to identify the
respondent's actual crime of conviction. See Mathis v. United States, supra, at 2249; Descamps
v. United States, supra, at 2284-85. The Presentence Investigation Report (Exh. 2D) prepared in
connection with the respondent's criminal case states that the offense of which she was convicted
2

Cite as: Daniele Pazi-Alvarez, A047 350 423 (BIA Dec. 12, 2016)

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or .thing of value of the United States or of any department or agency thereof, or any
property made or being made under contract for the United States or any department or
agency thereof; or
Whoever receives, conceals, or retains the same with intent to convert it to his use or
gain, knowing it to have been embezzled, stolen, purloined or converted-Shall be fined under this title or imprisoned not more than ten years, or both ...

A047 350 423

If this offense is found to involve fraud or deceit where the loss to the victim or victims
exceeds $10,000, then the respondent is removable as charged under section 101(a)(43)(M)(i) of
the Act. "To determine whether a crime involves fraud or deceit, we must employ a 'categorical
approach' in which we focus on the crime's statutory elements 'rather than ... the specific facts
underlying the crime."' Singh v. United States Att'y Gen., 677 F.3d 503, 508 (3d Cir. 2012)
(quoting Kawashima v. Holder, 132 S. Ct. 1166, 1172 (2012)). The Supreme Court has advised
that "[t]he scope of [section 101(a)(43)(M)(i) of the Act] is not limited to offenses that include
fraud or deceit as formal elements. Rather, [it] refers more broadly to offenses that 'involv[e]'
fraud or deceit - meaning offenses with elements that necessarily entail fraudulent or deceitful
conduct." Kawashima v. Holder, supra, at 1172. The Court added that for purposes of section
101(a)(43)(M) of the Act, the term "deceit" means "the act or process of deceiving (as by
falsification, concealment, or cheating)." Id. (citing Webster's Third New International
Dictionary 584 (1993)).
Therefore, the proper inquiry is whether conversion under 18 U.S.C. 641 necessarily entails
fraudulent or deceitful conduct, not whether it did in this particular case.4 We conclude that it is
possible to commit this offense without fraud or deceit. The Supreme Court, in discussing
3

The Superseding Information alleged that the respondent:

knowingly converted to the use of herself and others money and things of value
belonging to the United States, that is, approximately 162 United States Treasury checks
totaling approximately $1,147,215.76 issued to pay federal income tax refunds that were
fraudulently specified, requested, and obtained using other people's identities, and the
proceeds of those checks; conveyed and disposed of the same without authority; received,
concealed, and retained the same with intent to convert them to her use and gain,
knowing them to have been stolen, purloined, and converted; and aided and abetted the
same.

This language includes all three possible offenses under 18 U.S.C. 641. See United States v.
Russo, supra. However, it is acceptable practice for a charging document to state allegations in
the conjunctive, although the "statute . . . lists multiple routes to a conviction in the disjunctive"
and a conviction may rest upon proof of any of the offenses alleged. See United States v.
Navarro, 145 F.3d 580, 591-92 (3d Cir. 1998).
4

The Immigration Judge's decision reflects that he considered the specific facts and
circumstances of the respondent's offense (I.J. at 2) rather than determining whether conversion
in violation of 18 U.S.C. 641 categorically involves fraud or deceit.
3

Cite as: Daniele Pazi-Alvarez, A047 350 423 (BIA Dec. 12, 2016)

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was conversion of public money (or things of value belonging to the United States) in violation
of 18 U.S.C. 641 (Exh. 2 at 16, 19, 22). The respondent was offered the opportunity to object
to the report before sentencing but did not object to the report's statements regarding the offense
to which she had pled guilty (Exh. 2 at 32). The United States Court of Appeals for the Third
Circuit has ruled that a presentence report is a cognizable document when the defendant was
offered the opportunity to review it and did not object. See U.S. v. Siegel, 477 F.3d 87, 93
(3d Cir. 2007). We therefore conclude that the respondent was convicted of conversion under
18 u.s.c. 641.3

A047 350 423

Accordingly, the following order will be entered.

=<u

ORDER: The appeal is sustained, and removal proceedings are terminated.

FOR THE BOARD

:..:::::

4
Cite as: Daniele Pazi-Alvarez, A047
350 423 (BIA Dec. 12, 2016)

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18 U.S.C. 641, has advised that knowing conversions include "intentional and knowing abuses
and unauthorized uses of government property." See Morissette v. United States, 342 U.S. 246,
272 (1952). Conversion "may reach use in an unauthorized manner or to an unauthorized extent
of property placed in one's custody for limited use. Money rightfully taken into one's custody
may be converted without any intent to keep or embezzle it merely by commingling it with the
custodian's own, if he was under a duty to keep it separate and intact." Id. These forms of
knowing conversion do not "necessarily entail fraudulent or deceitful conduct." Kawashima v.
Holder, supra, at 1172. Because conversion under 18 U.S.C. 641 does not necessarily entail
fraudulent or deceitful conduct, the respondent is not removable under section 101(a)(43)(M)(i)
of the Act.

UNITED STATES DEPARTMENT OF JUSTICE

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

In the Matter of

DANIELE PAZI-ALVAREZ
RESPONDENT
CHARGES:

)
)
)
)

IN REMOVAL PROCEEDINGS

Aggravated felony

APPLICATIONS:

ON BEHALF OF RESPONDENT: Rosina Stanbaugh, Esquire

ON BEHALF OF OHS: Jeffrey Boyles, Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is an adult female alien, native and citizen of Brazil admitted
to the United States as a child of a U.S. citizen on January 4, 2000. She became a
permanent resident at that point. She was convicted in November 2014 in federal court
in Massachusetts for theft of federal funds under 18 U.S.C. Section 641. Respondent
was placed into removal proceedings by personal service of the Notice to Appear on
December 7, 2015. She appeared in court with counsel of record, who submitted a
motion to terminate on her behalf. It was received by the court on November 23, 2016.

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March 30, 2016

File: A047-350-423

The government submitted a written opposition to motion to terminate received on

March 22, 2016.

appended to the record. Therein, the court has found that the government has
established by clear and convincing evidence the respondent's conviction constitutes an
aggravated felony under INA Section 101(a)(43)(M)(i). This decision states the reasons
for the finding and is hereby fully incorporated within this oral decision.
Accordingly, based upon the foregoing, the respondent is hereby ordered
removed from the United States to Brazil.

Please see the next page for electronic

signature WO

A047-350-423

WALTER A. DURLING
Immigration Judge

March 30, 2016

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The court issued an order dated March 28, 2016 in writing, and it is

/Isl/
Immigration Judge WALTER A. DURLING

A047-350-423

Immigrant & Refugee Appellate Center, LLC | www.irac.net

durlingw on April 26, 2016 at 12:04 PM GMT

March 30, 2016