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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Bennion, Charles Wridge OHS/ICE Office of Chief Counsel - LVG
Ellsworth & Bennion 3373 Pepper Lane
777 N Rainbow Blvd., Suite 270 Las Vegas, NV 89120
Las Vegas, NV 89107

Name: VASQUEZ, ROGIE LAQUIAN A 046-562-059

Date of this notice: 1/19/2017

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

Sincerely,

Doruu_, cCt./VL)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Guendelsberger, John
Malphrus, Garry D.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Rogie Laquian Vasquez, A046 562 059 (BIA Jan. 19, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A046 562 059 - Las Vegas, NV Date:

In re: ROGIE LAQUIAN VASOUEZ JAN 1 9 2017

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Charles W. Bennion, Esquire

ON BEHALF OF DHS: Christian Parke

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Convicted of aggravated felony under section 101(a)(43)(G) (withdrawn)

Lodged: 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 the Philippines, appeals from the Immigration Judge's
October 20, 2015, decision sustaining the lodged charge of removability and ordering him
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 l0l(a)(43)(M)(i) of the Immigration and Nationality Act, 8 U.S.C.
l 10l(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 (Exh. IA). In 2015 he was convicted in Nevada of theft in violation
of Nev. Rev. Stat. 205.0832 (Exhs. 1, 3). That statute reads:

l. Except as otherwise provided in subsection 2, a person commits theft if, without lawful
authority, the person knowingly:
(a) Controls any property of another person with the intent to deprive that person of the
property.

1 The original charge that the respondent is removable under section 237(a)(2)(A)(iii) of the
Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), as an alien convicted of an
aggravated felony under section 10l(a)(43)(G) of the Act, 8 U.S.C. l10l(a)(43)(G), was
withdrawn by the Department of Homeland Security (Exh. I; Tr. at 13).

Cite as: Rogie Laquian Vasquez, A046 562 059 (BIA Jan. 19, 2017)
A046 562059

(b) Converts, makes an unauthorized transfer of an interest in, or without authorization

controls any property of another person, or uses the services or property of another
person entrusted to him or her or placed in his or her possession for a limited, authorized
period of determined or prescribed duration or for a limited use.
(c) Obtains real, personal or intangible property or the services of another person by a

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material misrepresentation with intent to deprive that person of the property or services.
As used in this paragraph, "material misrepresentation" means the use of any pretense, or
the making of any promise, representation or statement of present, past or future fact
which is fraudulent and which, when used or made, is instrumental in causing the
wrongful control or transfer of property or services. The pretense may be verbal or it may
be a physical act.
(d) Comes into control of lost, mislaid or misdelivered property of another person under
circumstances providing means of inquiry as to the true owner and appropriates that
property to his or her own use or that of another person without reasonable efforts to
notify the true owner.
(e) Controls property of another person knowing or having reason to know that the
property was stolen.
(f) Obtains services, including, without limitation, audio or visual services, or parts,
products or other items related to such services which the person knows or, in the case of
audio or visual services, should have known are available only for compensation without
paying or agreeing to pay compensation or diverts the services of another person to his or
her own benefit or that of another person without lawful authority to do so.
(g) Takes, destroys, conceals or disposes of property in which another person has a
security interest, with intent to defraud that person.
(h) Commits any act that is declared to be theft by a specific statute.
(i) Draws or passes a check, and in exchange obtains property or services, if the person
knows that the check will not be paid when presented.
G) Obtains gasoline or other fuel or automotive products which are available only for
compensation without paying or agreeing to pay compensation.
2. A person who commits an act that is prohibited by subsection 1 which involves the
repair of a vehicle has not committed theft unless, before the repair was made, the person
received a written estimate of the cost of the repair.

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 l&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 101(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.

Cite as: Rogie Laquian Vasquez,2A046 562 059 (BIA Jan. 19, 2017)
1
A046 562 059

We conclude that Nev. Rev. Stat. 205.0832 is divisible. The Supreme Court of Nevada has
recognized that this statute's subsections define separate offenses, which may be charged
individually. See Walch v. State, 909 P.2d 1184, 1187-89 (Nev. 1996) (discussing a prior but
substantially similar version of the statute); see also Seaton v. State, 2016 WL 207673, at 2 (Nev.
Jan. 15, 2016) (unpublished) (recognizing a discrete offense under subsection (l)(e) of Nev. Rev.

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Stat. 205.0832); State v. Thomas, 2013 WL 5476622, at 2 (Nev. Sept. 26, 2013) (unpublished)
(recognizing a discrete offense under subsection (l)(b) of Nev. Rev. Stat. 205.0832). The court
stated in Walch: "Because Walch was charged under NRS 205.0832, we need not struggle with
technical distinctions between embezzlement, larceny, and other similar offenses, as long as the
State charged the appropriate subsection or subsections of the statute." 909 P.2d at 1188. The
court then cited with approval a Kansas Supreme Court decision which had stated that "if the
prosecutor is unsure 'as to what the evidence will disclose at trial, the correct procedure is to
charge the defendant in the alternative under those subsections to [the consolidated theft statute]
which may possibly be established by the evidence."' Id. at 1189 (quoting State v. Saylor,
618 P.2d 1166, 1171 (Kan. 1980)). Finally, we note that the United States Court of Appeals for
the Ninth Circuit has also recognized the existence of several discrete offenses under Nev. Rev.
Stat. 205.0832. See United States v. Lopez-Pastrana, 244 F.3d 1025, 1028-29 (9th Cir. 2001)
(discussing the offenses of shoplifting and passing a check with insufficient funds under a prior
but virtually identical version of the statute).

Having concluded that Nev. Rev. Stat. 205.0832 is divisible, we 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
Information to which the respondent pied guilty charged that the respondent had "willfully,
knowingly, feloniously and without lawful authority, use[d] the services or property of another
person entrusted to him or placed in his possession for a limited, authorized period of
,

determined or prescribed duration or for a limited use" (Exh. 3). This is an offense under
subsection (l)(b) of Nev. Rev. Stat. 205.0832, which states that it is theft "if, without lawful
authority, [a] person knowingly ... uses the services or property of another person entrusted to
him or her or placed in his or her possession for a limited, authorized period of determined or
prescribed duration or for a limited use."

If this offense is found to involve fraud or deceit where the loss to the victim or victims
exceeded $10,000, then the respondent is removable as charged under section 101(a)(43)(M)(i)
of the Act. To determine whether the respondent's crime involved fraud or deceit, "we employ a
categorical approach by looking to the statute defining the crime of conviction, rather than to the
specific facts underlying the crime." 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[eJ' fraud or deceit - meaning offenses with elements that
necessarily entail fraudulent or deceitful conduct." Id. 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 the respondent's offense under Nev. Rev. Stat.
205.0832(1)(b) necessarily entailed fraudulent or deceitful conduct, not whether it did in this

3
Cite as: Rogie Laquian Vasquez, A046 562 059 (BIA Jan. 19, 2017)
A046 562 059

2
particular case. The Department of Homeland Security (OHS) has pointed to no authority, and
our research has revealed none, 3 for a conclusion that the respondent's offense necessarily
entailed fraud or deceit. The description of the offense - that the respondent "knowingly" and
"without lawful authority" "use[d] the services or property of another person entrusted to his, or
placed in his possession for a limited, authorized period of determined or prescribed duration or
for a limited use" does not appear on its face to require fraud or deceit. By contrast, the

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-

offense described in subsection (1 )(c) of the same statute requires the State to prove "material
misrepresentation." See Watson v. State, 867 P.2d 400, 402 n.2 (Nev. 1994) (discussing the
"material misrepresentation" offense proscribed under virtually identical language in a prior
version of the statute); see also Munoz v. State, 2016 WL 207660, at 3 (Nev. Jan. 15, 2016).
Therefore, given the plain language of the respondent's offense under Nev. Rev. Stat.
205.0832(l)(b) and the absence of any authority that such language categorically entails fraud or
deceit, we conclude that OHS has not met its burden of proving that the respondent is removable
for a fraud or deceit aggravated felony under section 10l(a)(43)(M)(i) of the Act due to his
conviction under Nev. Rev. Stat. 205.0832(l)(b).

Accordingly, the following order will be entered.

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

'
FOR THE BOARD

2
The Immigration Judge's decision reflects that he considered the specific facts and
circumstances of the respondent's offense (l.J. at 4) rather than determining whether the
respondent's offense categorically involved fraud or deceit.

3 In Nijhawan v. Holder, 557 U.S. 29, 47-48 (2009), the Supreme Court included Nev. Rev. Stat.
205.0832 on a list of statutes involving fraud or deceit. However, the Court qualified the list's
contents by stating that "perhaps questions could be raised about whether certain of the statutes
listed below involve 'fraud or deceit' as required by subparagraph (M)(i)" of section 10l(a)(43)
of the Act. 557 U.S. at 47. Moreover, it is unclear to which portion of the statute the Court
referred. It is reasonable to conclude that the Court referred only to those offenses clearly
requiring fraud or deceit, such as those proscribed in subsection (l)(c), which requires a showing
of a "material misrepresentation" for a conviction.

4
Cite as: Rogie Laquian Vasquez, A046 562 059 (BIA Jan. 19, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LAS VEGAS, NEVADA

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File: A046-562-059 October 20, 2015

In the Matter of

)
ROGIE LAQUIAN VASQUEZ ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: Section 237(a)(2)(A)(iii) of the Nationality Act (the Act) -

convicted of aggravated felony under Section 101(a)(43)(G) of
the Act.

LODGED CHARGE: Section 237(a)(2)(A)(iii) of the Act - convicted of aggravated

felony under Section 101(a)(43)(M)(i) of the Act.

APPLICATIONS: Termination of proceedings.

ON BEHALF OF RESPONDENT: CHARLES W. BENNION, Attorney-at-Law

777 North Rainbow Blvd., Suite 270
Las Vegas, NV 89107

ON BEHALF OF OHS: CHRISTIAN H. PARKE, Assistant Chief Counsel

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE

The respondent is a 38-year-old male who is a native and citizen of the

Philippines. He was admitted to the United States as a lawful permanent resident on

June 8, 1998, just prior to his 21st birthday. On June 25, 2015, the Department of

Homeland Security (OHS) issued a Notice to Appear (NTA) against the respondent.

1
 The NTA was filed with the Immigration Court in Las Vegas on June 30, 2015. See

Exhibit 1.

The respondent, through counsel, has admitted the four factual allegations in the

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NTA. This includes that the respondent was convicted, in the District Court for Clark

County, Nevada, of a felony theft offense, in violation of Nevada Revised Statute

Sections 205.0832 and 205.0835.3. See Exhibit 3. The record reflects that the

respondent was sentenced to a maximum of 30 months, and a minimum of 12 months,

in the Nevada Department of Corrections. The sentence was suspended and the

respondent was placed on probation for a period not to exceed two years.

The OHS initially charged the respondent with deportability as an alien who has

been convicted of an aggravated felony within the meaning of Section 101(a)(43)(G) of

the Act. However, that charge was withdrawn on today's date.

In its place, the OHS lodged a charge of deportability, alleging that the

respondent's criminal offense renders him subject to removal as an alien convicted of

an aggravated felony within the meaning of Section 101(a)(43)(M)(i) of the Act. See

Exhibit 1-A.

The OHS bears the burden of establishing the respondent's deportability by clear

and convincing evidence. See Section 240(c)(3) of the Act. In pertinent part, Section

101(a)(43)(M)(i) of the Act concerns offenses involving "fraud or deceit," in which the

loss to the victim is $10,000 or more. The issue of whether the respondent's conviction

constitutes an "aggravated felony" as defined in Section 101(a)(43)(M)(i) of the Act is

controlled by the United States Supreme Court decision in Niihawan v. Holder, 129

S.Ct. 2294 (2009). In that case, the Supreme Court described the analysis under

Section 101(a)(43)(M)(i) of the Act as being circumstance-specific, rather than

necessitating a categorical or modified categorical analysis, because the $10,000 "loss

A046-562-059 2 October 20, 2015

\
to the victim" is c-';,,,h:'.-L.:ly a statutory element of a criminal offense. See also Matter of

Babaisakov, 24 l&N Dec. 306 (BIA 2007) (requiring that "loss to the victim" be tied to

the criminal misconduct for which the alien was actually convicted). Therefore, the

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phrase "in which the loss to the victim or victims exceeds $10,000" is not subject to the

limitations of the categorical approach, the moified categorical approach, or a

divisibility analysis. See Niihawan v. Holder, supra; Matter of Babaisakov, supra, at

316. The Court may look to evidence outside the record of conviction to determine the

amount of loss to the victim, provided that the loss is still shown to relate to the conduct

for which the person was convicted. See Matter of Babaisakov, supra, at 321. In the

final analysis, OHS bears the burden to establish by clear and convincing evidence that

the offense is one which involved fraud or deceit and involved an actual loss to the

victim in excess of $10,000. See Kwashima v. Holder, 615 F.3d 1043, 1055-56 (9th Cir.

2010).

Returning to the facts of the instant case, the Court does not need to go beyond

the record of conviction at Exhibit 3, in determining the loss to the victim or victims in

this matter. Specifically, the information to which the respondent plead guilty provides

in pertinent part that he used the services or property of another person, when present

at the Casablanca Hotel and Casino, by "using player's cards in an unauthorized

manner to split checks and pocket money in the amount of $12,169.89." See

information attached as Exhibit 1 to guilty plea agreement, at page 2. Accordingly, it

appears from the information to which the respondent plead guilty that the amount of

loss to the victim in this matter exceeded $10,000. Furthermore, as evidence that the

loss to the victim exceeded $10,000, the Court minutes from the respondent's

sentencing hearing provide that the respondent was specifically instructed to pay

"$12, 169.89 in restitution." The Court minutes further provide that the respondent's

A046-562-059 3 October 20, 2015

 ------ --- -- --

amount of restitution was to be paid through the Division of Parole and Probation, and

that a schedule of monthly payments was to be arranged by that division. Accordingly,

the Court finds that it has been established by clear and convincing evidence, based on

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the amount of loss identified in the information to which the respondent plead guilty, as

well as the order of restitution made by the District Court Judge at the respondent's

sentencing hearing, that the loss to the victim in the respondent's criminal case

exceeded $10,000.

In addition, Section 101(a)(43)(M)(i) of the Act requires that the offense be one

involving "fraud or deceit." The Court's impression of the information, again to which the

respondent plead guilty, is that it specifies that the respondent used player's cards in an

unauthorized manner for the purpose of obtaining an amount that exceeded $10,000.

Under these circumstances, the Court finds that the respondent was engaged in

criminal misconduct that was inherently deceptiefrY. or involving deceit because he

was using player's cards in an unauthorized manner and for the purpose of obtaining

cash or the personal property of the Casablanca Hotel and Casino.

Therefore, the Court finds that the OHS has established the lodged charge under

Section 101(a)(43)(M)(i) of the Act, with reference to Section 237(a)(2)(A)(iii) of the Act,

by clear and convincing evidence. The respondent designated the Philippines as the

country for removal.

For relief from removal, the respondent's counsel has advised that the

respondent is married to a United States citizen and that he has two United States

citizen children. The respondent is not eligible for cancellation of removal for a lawful

permanent resident because he has been convicted of an aggravated felony offense.

See Section 240A(a)(3) of the Act. At a prior hearing, the respondent's counsel advised

that the respondent may be pursuing post-conviction relief; however, at today's hearing

A046-562-059 4 October 20, 2015

the respondent's counsel indicated that to this point the respondent has not been

successful with respect to any motion for post-conviction relief.

The record reflects that the respondent was admitted to the United States as an

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immigrant, on or about June 8, 1998, at Agana, Guam. See Exhibit 4. He applied for

and received his immigrant visa at the American Embassy at Manila, in the Philippines,

on or about June 3, 1998. The significance of the respondent's admission from the

Philippines with an immigrant visa is that he does not appear eligible to apply for

adjustment of status in conjunction with a Section 212(h} waiver. The present state of

the law is that an alien who receives adjustment of status within the United States is not

considered to have been "admitted," and therefore is not subject to the statutory bar at

Section 212(h) of the Act for aliens who were previously admitted as a lawful

permanent resident but thereafter have been convicted of an aggravated felony offense.

See Negrete-Ramirez v. Holder, 741 F.3d 1047 (9th Cir. 2014). Accordingly, because

the respondent was admitted from abroad as a lawful permanent resident and

apparently never departed the country subsequently, he is subject to the "aggravated

felony" bar that is contained within Section 212(h) of the Act.

The Board held in Matter of Bahta, 22 l&N Dec. 1381, 1392 (BIA 2000), that

although the exercise of prosecutorial discretion is solely a matter within the purview of

the OHS, it may be "the only means for averting the extreme hardship associated with

certain removal cases." The respondent, as explained above, does not appear to be

eligible for any form of relief from removal. As the Court has indicated to the

respondent's counsel, there would be no harm in his making a request for prosecutorial

discretion from OHS, but on the present record the Court must proceed as a matter of

law with the following order:

A046-562-059 5 October 20, 2015

 ORDER

IT IS HEREBY ORDERED that the respondent shall be removed from the United

States to the Philippines pursuant to the charge contained in the Form 1-261.

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Please see the next page for electronic

signature
JEFFREY L. ROMIG
Im.migration Judge

A046-562-059 6 October 20, 2015

 - ------- -- - ---- -- --- --

//s//

Immigration Judge JEFFREY L. ROMIG

romigje on December 14, 2015 at 7:20 PM GMT

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A046-562-059 7 October 20, 2015