HEBBAR, BENYIAHIA

A079-37 4-882
P.O. BOX 6300
FLORENCE, A 85132
Name: HEBBAR, BENYIAHIA
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesbur Pike, Suite 2000
Fls C111rc1. Virinia 2 2041
OHS/ICE Ofice of Chief Counsel - FLO
P .0. Box 25158
Phoenix, A 85002
A079-37 4-882
Date of this notice: 6/11 /2012
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Greer, Anne J.
Mullane, Hugh G.
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Benyiahia Hebbar, A079 374 882 (BIA Jun. 11, 2012)
For more unpublished BIA decisions, visit www.irac.net/unpublished
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I
U.S. Deparent of Justice
Executive Ofce fr I igation Review
Falls Chuh, Virgia 2201
File: A079 374 882 - Florence, A
I re: BENY HEBBAR a.k.a. Ben Hebba
I RMOVAL PROCEEDIGS
APPEAL
ON BEHLF OF RSPONENT: Pro se
ON BEHALF OF DHS:
CHARGE:
Dion A. Morood
Assistant Chief Counsel
Decision of the Boad oflmigation Appeals
Date: JUN 11 201Z
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.
S.C. 1227(a)(2)(A)(iii)
] -
Convicted of aggravated felony
Lodged: Sec. 237(a)(2)(A)(ii), I&N Act [8 U.S.C. 1227(a)(2)(A)(ii)] -
Convicted of two or more crimes involving moral turpitde
APPLICATION: Terination
The respondent appeals fom an Immigation Judge's Janua 18, 2012, decision ordering him
removed fom the United States. The Depaent of Homeland Securit ("DHS") opposes the
appeal. The record will be remaded.
Te respondent, a native ad citizen of France ad a lawfl peranent resident of the
United States, has two convictions that ae pertinent here: (1) a 2010 conviction fr attempted thef
in violation of Nev. Rev. Stat. 193.330 ad 205.0832, fr which he was sentenced to 12 months
in jail (Exh. 5, tab D); ad (2) a 2011 conviction fr thef in violation of Nev. Rev. Stat. 205.0832,
fr which he wa sentenced to 120 days in jail (Exh. 5, tab G).
In an aended notice to appear that was initially fled in October 2011, te DHS alleged tat the
respondent's 2010 conviction renders him deportable as an alien convicted of a aggavated felony,
namely, a attempted ''thef ofense" fr which the ter of imprisonment is at least 1 yea. Sections
101(a)(43)(G), 101(a)(43)(U), ad 237(a)(2)(A)(iii) of the Immigation ad Nationalit Act, 8 U.S.C.
1101(a)(43)(G), 110l (a)(43)(U), 1227(a)(2)(A)(iii) (2006). The DHS also alleges that the
respondent's 2010 and 2011 convictions, taken together, render him deportable as an alien convicted
of to crimes involving moral turitude ("CIMT") not arising fom a single scheme of criminal
misconduct. Section 23 7(a)(2)(A)(ii) of the Act. The Immigtion Judge sustained both charges ad
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Cite as: Benyiahia Hebbar, A079 374 882 (BIA Jun. 11, 2012)
I
`t+
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. A079374 882
ordered the respondent removed, but the respondent has appealed, aguing that the DHS' s evidence
is insuf cient to prove either chage. For the fllowing reasons, we agee with the respondent.
We deal frst with the aggavated felony chage, since the existence of an aggavated felony
conviction would render the respondent both removable ad ineligible fr most frs of relief fom
removal. As noted, the respondent wa fund removable fr having been convicted of a attempted
''thef ofense" aggavated flony under sections 101(a)(43)(G) and 101(a)(43)(U) of the Act. Te
respondent does not appear to dispute that the fll rage of conduct punishable as an "attempt" uder
Nevada law would also qualif as a "attempt" under section 10l(a)(43)(U) of the Act; thus, we
confne our discussion to whether the crime that wa the object of the respondent's attempt is a
''thef ofense" under section 101(a)(43)(G).
To qualif as a "thef ofense," a crime must involve a taking of, or exercise of contol over,
propert without consent ad with the criminal intent to deprve the ower of the rights and benefts
of owership, even if such deprivation is less tha total or peranent. Matter of Gacia-Madruga,
24 I&N Dec. 436 (BIA 2008). Nevada's thef statute is stcturally divisible; that is, it defnes thef
disjunctively, by reference to various types of conduct listed in 10 discrete statutory subparagaphs.
Nev. Rev. Stat. 205.0832(1)(a)-(i). Furtherore, several of those 10 subpaagaphs are in t
divided into sepaate clauses, each of which describes a unique tye of conduct. May of the acts
proscribed by 205.0832 would qualif as generic ''thef ofenses" under section 101(a)(43)(0), but
te statute also covers acts-such as thef of serices, thef by faud, or passing an in cient-fnds
check-tat do not so qualif. See Nev. Rev. Stat. 205.0832(1)(c), (f, (g), (i); see also
Huerta-Guevara v. Ashcrof, 321 F.3d 883, 887 (9th Cir. 2003) (holding that thef of serices is not
a generic ''thef ofense"); Matter of Garcia-Madruga, supra (holding tat thef by faud or decepton
is not a generic ''thef ofense").
As 205.0832 covers some crimes that qualif as ''thef ofenses" and others that do not, the
respondent's aggavated felony charge ca only be sustained if the Immigation Judge determines,
upon consideraton of admissible portions of the conviction record, that the respondent's ofense of
conviction included all the elements of a generic "thef ofense." E.g., Verdugo-Gonalez v. Holder,
581 F.3d 1059, 1060-61 (9 Cir. 2009). Here, the Immigation Judge sustained the respondent's
aggravated flony charge afer considering, among oter things, the narative portion of a
Presentence Investigation Report ("PSR") prepared in anticipation of the respondent's sentencing
by the Nevada Departent of Paole and Probation (l.J. at 3; Exh. 5, tab F). Withn the jurisdiction
of the United States Cour of Appeals fr the Nint Circuit, however, a PSR is not aong the
documents an Immigation Judge may consider under the "modifed categorical" approach. E.g.,
Reina-Rodriguez v. United States, 655 F.3d 1182, 1191-92 (9th Cir. 2011).
As the Immigation Judge relied in part upon impermissible evidence to conclude that the
respondent was convicted of a generic "thef ofense" under the modifed categorical approach, we
fnd ourselves unable to afr her decision sustaining the aggravated flony chage. Furterore,
on the present record we canot discer whether the Immigation Judge would have sustained that
charge had she confned her inquir to perissible evidence. Accordingly, we will vacate the
Immigation Judge's decision sustaining the aggavated felony chage and remand the record.
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Cite as: Benyiahia Hebbar, A079 374 882 (BIA Jun. 11, 2012)
1
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A079374 882
We now t to te multple CIT chge under section 237(a)(2)(A)(ii) of the Act. We have
long held tat tef crimes a CIMTs only if the defendat necessaily intended t efect a
peraent taking. E.g., Matter of V-Z-S-, 22 l&N Dec. 1338, 1346 n.12 (BIA 2000); Mater of
Graley, 14 I&N Dec. 330, 333 (BIA 1973). Although Nev. Rev. Stat. 205.0832 covers many
praent takings, it also encompases ofenses in which non-permanent takings (or even no takings
at all) were intended, such as where property that is lawflly possessed by a agent of te ower is
used fr a pwose beyond that authorized by the agency relationship. See Nev. Rev. Stat.
205.0832(1 )(b ). A the ofenses fr which the respondent was convicted in 2010 ad 2011 ae not
categorical CIMTs, the section 237(a)(2)(A)(ii) chage ca only be sustained if te respondent's
conviction records refect that he entered guilty plea to ofenses in which peraent takings were
intended.
The Immigation Judge deterined tat te respondent's conviction records refected convictons
fr peraent takings (l.J. at 4), but we are unable to afr tat judgent. I concluding tat the
respondent's 2011 conviction was fr a ofense involving a peraent taking, the
Immigation Judge looked to te description of the ofense set frt in a criminal complaint which
chaged him with gad larceny under Nev. Rev. Stat. 205.220 (l.J. Dec. at 3, Exh. 5, tb G). I
is undisputed, however, that the resondent was not ultimately convicted of gand laceny; rther,
he w perited to enter a plea to the lesser ofense of thef under 205 .0832. I the Nint Circuit,
allegations set frt in a charging document may not be considered under the modifed categoric
approach if the defendant pied guilty to a ofense diferent fom the one charged. E.g., Ruiz-Vdl
v. Gonales, 473 F.3d 1072, 1079 (9th Cir. 2007); Cisneros-Perez v. Gonales, 465 F.3d 386, 393
(9th Cir. 2006); Martinez-Perez v. Gonzales, 417 F.3d 1022, 1029 (9th Cir. 2005). The
Immigtion Judge was not perited to infer that the respondent's thef conviction was based on
the same fcts that had been alleged in support of the gnd larceny chage. See Cisneros-Perez
v. Gonzales, supra, at 393. As the Immigtion Judge exceeded the proper scope of the modifed
categorical approach, we will vacate her decision sustaining the multiple CIMT chage ad remand
the record.
In conclusion, te Immigation Judge's removabilit determinations are not sustainable because
they were based in pa upon imperissible evidence. Under the circumstaces, we will sustain the
respondent's appeal, vacate the Immigaton Judge's decision, and remand the mater on a open
record fr fher consideration of the removal charges and fr the ent of a new decision tat
applies the modifed categorical approach in a maer consistent with Ninth Circuit requirements.
ORDER: The appeal is sued, te Immigation Judge's decision is vacated, ad te record
is remaded fr fer proceedings consistent with the fregoing opinion ad fr the ent of a new
decision.
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Cite as: Benyiahia Hebbar, A079 374 882 (BIA Jun. 11, 2012)
,
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR 'IMIGRTION REVIEW
UITED STATES IMMIGRATION COURT
FLORENCE, ARIZONA
File: A079-374-882 January 18, 2012
In the Matter of
BENIAHIA HEBBAR IN REMOVAL PROCEEDINGS
RESPONDENT
CHRGES:
APPLICATIONS:
ON BEHALF OF RESPONDENT: PRO SE
ON BEHAF OF DHS: DION MORWOOD
ORAL DECISION OF THE IMIGRATION JUGE
The United States Government began this case against
the respondent by filing a Notice to Appear dated August 29,
2011. The document was properly served upon the respondent on
Septemer 29, 2011. In addition the Court filed an I-261,
Exhibit 2, dated October 27, 2011, and a second I-261, Exhibit
3, dated November 29, 2011. In proceedings before the Court on
October 27, 2011, the respondent was given his rights advisals.
, ,,,v -f W ,B M ,,, $ <
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On that same date the respondent admitted in the NTA, Exhibit 1,
allegations 1, 2, 3, and 5. The Department withdrew allegation
4 and replaced that with allegation 4 appearing in the I-261,
Exhibit 2. In addition, the Department on January 5, 2012,
withdrew the charge in the NTA.
On January 5, 2012, the respondent admitted I-261,
Exhibit 2, allegation 4 and he denied the charge therein. On
that same date, January 5, 2012, the respondent admitted I-261,
Exhibit 3, allegation 6 and denied the charge. In proceedings
before the Court held on January 18, 2012, the respondent
continued to deny the charges. The Court found pursuant to the
information contained in Exhibit 5 that the respondent had in
fact been convicted of the crime of attempt to commit theft in
violation of Nevada Revised Statute 193.330 and he was sentenced
to imprisonment for 12 months plus probation. The conviction
occurred on February 4, 2012, at Clark County Nevada district
court. At Exhibit 5, tabs C through F, we have the judgment of
conviction showing that offense for which the respondent was
convicted of attempt to commit theft, a category D felony/gross
misdemeanor. At page 8 we have the criminal information
indicating that the offense date is March 5, 2009. The
information indicates that " ... respondent without lawful
authority and without authorization did attempt to commit theft
by converting making an authorized transfer of an interest in or
without authorization controlling property having a value of
A079-374-882 2 January 18, 2012
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W . .
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$250 or more lawful money of the United States belonging to the
victim, a casino." The presentence investigation report at page
16 indicates that the respondent went into the casino, that the
clerk who worked at the casino heard "someone messing with the
cash register and saw the respondent close the register drawer."
The evidence further indicates that the respondent was observed
by a security surveillance camera taking the money from the
register. The respondent was subsequently contacted through
investigation and was determined to have committed the offense.
The respondent admitted having committed the offense to the
probation officer.
As far as allegation 6 again at Exhibit 5 we have on
page 24, tab D, a criminal complaint charging the respondent in
cout two with the crime of grand larceny. Ad the count
indicates that the respondent did " ... willfully, unlawfully, and
feloniously with the intent to deprive the owner permanently
thereof steal, take, carry, lead, or drive away property owned
by another having a value of $250 or more, that property being a
laptop computer, a computer modem, unlawful money of the United
States." The Court further finds at page 22 that the respondent
pled to count two amended theft. Thereafter, the evidence
indicates that the respondent was adjudged guilty of that crime
and sentenced accordingly. The Court finds that the offenses
for which the respondent is charged occurred on different dates,
there are different victims, different property at issue, and
A079-374-882 3 January 18, 2012
W .~ F W
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therefore they are two separate crimes. The Court finds that
they are categorical CIMT's as they both indicate that the
respondent without lawful authority took property that did not
belong to him and intended to permanently deprive the owner
thereof. Accordingly, the Court will sustain the charges
against the respondent. The respondent is found removable. The
respondent indicated that the France the country of removal.
The respondent indicates he has no fear of returning to France.
The Court finds that the respondent has no relief from
removability. Accordingly, it is ordered that the respondent is
ordered removed from the United States to France. The
respondent reserves appeal.
i ({ J ( P
A R. AELLAO
United States Immigration Judge
A079-374-882 4 January 18, 2012
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\\
CERTIFICATE PAGE
I hereby certify that the attached proceeding before JDGE
SILVIA R. ARELLANO, in the matter of:
BENYIAHIA HEBBAR
A079-374-882
FLORENCE, ARIZONA
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Immigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Imigration Review.
DANA LINTON (Transcriber)
DEPOSITION SERVICES, Inc.
MARCH 9, 2012
(Completion Date)
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