U.S.

Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5 I 07 Leesburg Pike. Suite 2000
Fals Church, Vrginia 20530
Jeremy R. Frost, Esquire OHS/ICE Ofce of Chief Counsel - SND
Law Ofice of Jeremy R. Frost & Associates 880 Front St., Room 1234
643 S. Olive Street, Suite 850 San Diego, CA 92101-8834
Los Angeles, CA 90014
Name: RODRIGUEZ - RAMIREZ, MARIA ... A 076-732-051
Date of this notice: 8/7/2014
Enclosed is a copy of the Board's decision and order i the above-referenced case.
Enclosure
Panel Members:
Greer, Anne J.
Pauley, Roger
Cole, Patricia A.
Sincerely,
Donna Carr
Chief Clerk
lucasdi
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Maria Rosario Rodriguez-Ramirez, A076 732 051 (BIA Aug. 7, 2014)
U.S. Deparment of Justice
Executive Ofce fr Ipigat!on Review
Decision of the Board of Imigation Appeals
Falls Chuch, Virginia 20530
File: A076 732 051-San Diego, CA
I re: MARIA ROSARIO RODRIGUEZ-RAMIREZ
I REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Jeremy R. Frost, Esquire
ON BEHALF OF DHS:
CHARGE:
Julia Cline
Senor Atorey
.AUG 0 7 2014
Notice: Sec. 237(a)(2)(A)(i), l&N Act [8 U.S.C. 1227(a)(2)(A)(i)
] -
Convicted of crime involving moral turpitude
APPLICATION: Termination; voluntay departure
I a decision dated December 21, 2012, a Immigation Judge fund the respondent
removable as charged and denied her applications fr cancellation of removal ad voluntary
departre. Te respondent appeals fom that decision. Te Depaent of Homeland Secut
("DHS") opposes the appeal. The appeal wll be dismissed in par and sustained in part ad te
record will be remaded.
The respondent, a native ad citizen of Mexico, was admited to the United States as a lawfl
peraent resident in April 2000. In Mach 2001, she was convicted of flony grand thef in
violation of section 487()(3) of the Califria Penal Code. Like te Immigration Judge, we
conclude that this conviction renders the respondent removable fom the Unted States as a
alien convicted of a crme involving moral turitde, commited wtin 5 yeas afer the date of
admission, fr which a sentence of 1 year or longer may be imposed. Section 237(a)(2)(A)(i) of
the Iigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(i).
Tere is no dispute on appeal that the respondent committed grad thef wthin 5 yeas afer
the date of her admission in 2000, nor does the respondent deny tat gand tef uder Cal. Penal
Code 487(b)(3) is an ofense fr which a sentence of imprisonent of 1 year or longer may be
imposed. The respondent does maintain, however, tat grad tef under Califra law is not a
crime involving moral tpitde. Tat argument is squaely freclosed by applicable precedents
of the United States Cou of Appeals fr the Ninth Circuit, which hold tat
''thef" uder Califria law-wheter grand or petty-is a categorical crime involving moral
titude. Rahtabadi v. IS, 23 F.3d 1562, 1568 (9 Cir. 1994); see also Mendoza v. Holder,
623 F.3d 1299, 1304 & n. 8 (9th Cir. 2010); Castillo-Cruz v. Holder, 581 F.3d 1154, 1160
(9 Cir. 2009); Flores Juarez v. Muksey, 530 F.3d 1020, 1022 (9th Cir. 2008); United States
v. Esparza-Ponce, 193 F.3d 1133, 1136 (9th Cir. 1999), cert. denied, 531 U.S. 842 (2000). In
accordace wit those precedents, we af rm the Immigation Judge's decision sustaining the
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Cite as: Maria Rosario Rodriguez-Ramirez, A076 732 051 (BIA Aug. 7, 2014)
A076 732 051
charge of removal under section 237(a)(2)(A)(i) of the Act. 1 Having determined that the
respondent is removable, we now tum to the question of her eligibilit fr relief fom removal.
The only frm of relief the respondent requested below was voluntary depature, but the
Immigration Judge fund her ineligible fr such relief on the ground that her violation of
Cal. Penal Code 487(b)(3) was an "aggravated flony" under section 10l(a)(43)(M)(i) of te
Act, 8 U.S.C. 11Ol(a)(43)(M)(i), that is, an ofense involving "faud or deceit" in which the
loss to the victim exceeded $10,000.
2
We are unable to affr that determination.
In denying voluntay depare, the Immigation Judge stated, "the record refects that the
respondent's ofense involved faud or deceit .... " (l.J. at 2); however, the Imigration Judge did
not specif which part of the "the record" he was referring to. Ordinaly, an ofense involves
"faud or deceit" under section 101(a)(43)(M)(i) of the Act only if it entails a taing or
acquisition of propery with consent that has been faudulently obtained. See Matter of
Garcia-Madruga, 24 l&N Dec. 436, 440 (BIA 2008) (explaining that the presence or absence of
consent is what distinguishes generic "thef" fom generic "faud or deceit"). In this instance,
however, the respondent's conviction record-including his flony complaint ad wtten plea
agreement-appears to show that he was convicted of unlawflly taking and stealing money
fom his employer without consent (Exh. 3).
3
Under the circumstances, we conclude that the
present conviction record does not establish the respondent's ineligibility fr voluntary departure.
Accordingly, the record will be remanded fr frther consideration of the respondent's
application fr such relief. See generally Matter of Arguelles, 22 I&N Dec. 811 (BIA 1999).
In conclusion, we will affrm the Immigration Judge's decision fnding the respondent
removable as charged, but we will sustain the respondent's appeal to the extent it challenges the
denial of her application fr voluntary departure.
ORER: The appeal is dismissed in par and sustained in part, and the record is remaded
fr frther proceedings consistent with the fregoing opinion.
1 As the ofense defned by Cal. Penal Code 487(b)(3) is a categorical crime involving moral
tpitde, we fnd it unnecessary to address the respondent's appellate arguments pertaining to
the applicability of the "modifed categorical approach."
2
An alien convicted of a aggravated felony is ineligible fr volunta deparure pursuant to
8 C.F.R. 1240.26(c)(l )(iii).
3
Califria defnes thef" to encompass some faudulent takings, see Ca. Penal Code 484(a),
and thus we do not discount the possibility that an individual convicted of "thef by deception" or
"faudulent appropriation" under Califria law could be rendered removable as an alien
convicted of a "faud or deceit" aggavated felony in an appropriate case. Id. at 440 n. 5.
2
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Cite as: Maria Rosario Rodriguez-Ramirez, A076 732 051 (BIA Aug. 7, 2014)
UITED STATES DEPATMENT OF JUSTICE
EXECUTIV OFFICE FOR IMMIGRTION REVIEW
IMMIGRATION COURT
401 WEST A STREET, SUITE #800
SA DIEGO, C 92101
Law Off ice of Jeremy Frost and Associates
QUINTAA, DENISE., ESQ.
643 s. Olive St. Suite 850
Los Angeles, CA 90014
cc:
Date: Dec 21, 2012
File A076-732-051
In the Matter of:
RODRIGUEZ - RIREZ, MIA ROSAIO
Attached is a copy of the written decision of the Immigration Judge.
This decision is final unless an appeal is taken to the Board of
Immigration Appeals. The enclosed copies of FOR EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, must be filed with the Board of
Immigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).
Enclosed is a copy of the oral decision.
Enclosed is a transcript of the testimony of record.
You are granted until to submit a brief
to this office in support of your appeal.
Opposing counsel is granted until
brief in opposition to the appeal.
to submit a
Enclosed is a copy of the order/decision of the Immigration Judge.
All papers filed with the Court shall b accompanied by proof
of service upon opposing counsel.
Immigration Court Clerk
CLINE, JULIA, ASSISTAT CHIEF COUSEL
880 FRONT ST #2246
SA DIEGO, C 921010000
UL
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UNITED STATES DEPARTMNT OF JSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
UNITED STATES IMMIGRATION COURT
401 West A Street, Suite 800
San Diego, California 92101
File No.: 076-732-051 ) Date: December 21, 2012
)
I the Matter of
Maria Rosario Rodriguez Ramirez,
Respondent
ON BEHALF OF RESPONDENT:
Denise Quintaa, Esq.(Primary Attorey)
Aaron Morrison, Esq. (Non Prima Atorey)
Isabel O'Donell, Esq. (Non Primary Attorey)
)
) IN REMOVAL PROCEEDINGS
)
)
)
ON BEHALF OF DEPARTMNT OF
HOMLAND SECURTY:
Julia Cline, Esq.
CHARGE: Section 237(a)(2)(A)(i) of the Imigration ad Nationalit Act - crime
involving moral turitude
APLICATION: Motion to Terminate
DECISION AND ORDER OF TH IMMIGRATION JDGE
The Governent's motions to extend the fling deadline and accept late fling are grated. Te
conviction records are admitted at Exhibit 3.
The respondent's motion to terminate is denied. The Cou of Appeals fr the Ninth Circuit has
held tat gand thef is categorically a crime involving moral tpitde. Rahtabadi v. IS, 23 F.3d
1562 (9t Cir. 1994). Alteratively, even uder the modifed categorcal approach the Court fnds
tat te Goverent has show by clear ad convincing evidence that the respondent's witten plea
in which she admits: "I took approx $40,000 fom employer unlawflly ad w/out consent to
remove spell" in ay 12 consecutive month period is a permanent taking ad is not a taing oflabor
fr purposes of establishing a crime involving moral turpitude. The third prong of Matter ofSilva
Trevino, 24 l&N Dec. 687 (A.G. 2008) is not reached in this case. The Goverent's motion to
admit the arrest and probation reports is granted, as both reports are relevant to the respondent's
request fr voluta depaure, however neither is relied upon in reaching the conclusion that the
respondent is removable a charged. The commission of the ofense occured within 5 yeas of
admission ad was fr a crime fr which a sentence of one yea or longer may be imposed. Te
respondent specifcally admitted te possibility of a 3 year prison ter in pleading to the flony
charge. The respondent is removable as charged.
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The only relief fom removability sought by the respondent is voluntary depature at te conclusion
of the proceedings. See Record of Master Calendar Pre-Trial Appearance and Order, dated June
20, 2012, at Exhibit 5. Te respondent does not show eligibilit fr volunta deparre at the
conclusion of proceedings a the record refects that the respondent's ofense involved faud or
deceit which resulted in a loss to the victim exceeding $10, 000. The written plea specifes tat the
loss to te victim was approximately $40,000, and the actual restitution ordered by the Court wa
$57, 099.25. The respondent is therefre ineligible fr voluntary deparre as an alien convicted of
an aggravated flony under section 1 Ol(a)(43)(M) of the Act. Nihaan v. Holder, 129 S.Ct. 2294
(2009); Kawashima v. Holder, 132 S.Ct. 1166 (2012); Matter of Babaisakov, 24 I&N Dec. 306
(BIA 2007).
The respondent did not seek, and does not appear eligible fr, cancellation of removal fr lawl
permanent residents under section 240A(a) of the Act where time has been cut of and the alien has
been convicted of a aggavated flony. The respondent specifcally waived pre-conclusion
voluntay deparue, see Exhibit 5, and the respondent would not be eligible, inter alia, as an alien
convicted of an aggravated felony. The respondent did not seek adjustment of status and has not
shown eligibilit fr a waiver under section 212(h) as a lawl peraent resident convicted of an
aggavated flony. The respondent desigated Mexico as the county of removal and expressed no
far of retu. See Exhibit 5. There being no other application befre the Cour, the fllowing
orders are entered:
ORERS
IT IS ORERED that the respondent's motion to terinate is denied.
IT IS FURTHER ORERED that the respondent's sole application fr voluntar
departure is denied.
IT IS FURTHER ORDERED that the respondent be removed fom te United States to
Mexico on te charge contained in the Notice to Appear, and the Febrar 6, 2013, hearing
is cacelled.
APPEAL RIGHTS: Both parties have the right to appeal the decision. Any appeal must be
received by the Board of Immigation Appeals on or befre 30 calenda days fom the date
of service of ts decision.
cc: Ms. Quintana fr the Respondent.
Ms. Cline fr the DHS.
076-732-051 2 December 21, 2012
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