Beruflich Dokumente
Kultur Dokumente
Department of Justice
Executive Office for Immigration Review
A 092-920-374
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
D CWV'LJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Mullane, Hugh G.
Userteam: Docket
Kalir, Doron M.
Cleveland-Marshall College of Law
Civil Litigation Clinic
2121 Euclid Ave., LB 138
Cleveland, OH 44115
A 092-920-374
Date of this notice: 5/11/2016
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,
DurutL C
(1/\A)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Mullane, Hugh G.
Userteam:
Cite as: Rene Wilfredo Acevedo Solis, A092 920 374 (BIA May 11, 2016)
Date:
MAY 1 i 2016
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Doron M. Kalir, Esquire
ON BEHALF OF DHS: Carolyn M. Thompkins
Assistant Chief Counsel
CHARGE:
Notice: Sec.
In re: RENE WILFREDO ACEVEDO SOLIS a.k.a. Rene Wilfredo Solis a.k.a. Rene Solis
a.k.a. Rene Wilfredo Solia
.,
.)
We affirm the Immigration Judge's decision. The dispositive issue for purposes of the
present appeal is whether or not the OHS satisfied its burden of establishing, by clear and
. convincing evidence, that the respondent's convictions for the offense of procuring or offering
false or forged instrument under Cal. Penal Code Il5(a), or for the offense of forgery under
Cal. Penal Code 470(d), caused a loss to the victims that exceeded $10,000. We agree with the
Immigration Judge that the OHS did not satisfy its burden of proof in this regard.
The OHS submitted a copy of the Felony Abstract of Judgment ("abstract") that listed the
respondent's convictions for Cal. Penal Code 115(a) (procure/offer false or forged
instrument) and 470(d) (forgery), as well as his conviction for conspiracy to commit grand theft,
in violation of Cal. Penal Code 182(a)(l) (Exh. 2). While the abstract indicates that the
respondent was ordered to pay restitution pursuant to Cal. Penal Code 1202.4(f) in the amount
exceeding $10,000, there is no further indication in the abstract or in any of the evidence
submitted by the DHS, that this restitution amount was the amount of loss caused by the
respondent's commission of the offenses that involved fraud or deceit, which the DHS alleged
were for the offenses described under Cal. Penal Code 115(a) and 470(d). As observed by the
Immigration Judge, there is nothing in the evidence submitted by the DHS that linked all or part
of the restitution amount to these particular offenses, rather than for his conviction for the
offense of conspiracy to commit grand theft under Cal. Penal Code 182(a)(1). 1 The two
specific counts of conviction for the offenses of procuring or offering false or forged instrument
and forgery under Cal. Penal Code l 15(a) and 470(d) did not otherwise specify any monetary
loss to any victim or victims (Exh. 2).
The respondent was not charged with removability based on this conviction.
2
Cite as: Rene Wilfredo Acevedo Solis, A092 920 374 (BIA May 11, 2016)
did not clearly and convincingly establish that the respondent was convicted based on conduct
that involved fraud or deceit (I.J. at 3-5). See Descamps v. U.S., 133 S.Ct. 2276 (2013); see also
Young v. Holder, 697 F.3d 976, 987 (9th Cir. 2012) (holding that under the modified categorical
approach, "a defendant who pleads guilty to 'A and B' should not be held to have necessarily
admitted either allegation, unless other documents, such as the defendant's statements at the plea
colloquy, establish a narrower basis for the conviction."). Utilizing the "circumstance-specific"
approach, the Immigration Judge also found that even assuming that the respondent was
convicted for conduct involving fraud or deceit, the evidence in the record did not establish by
clear and convincing evidence that this offense under Cal. Penal Code 115(a) caused a loss to
the victim or victims that exceeded $10,000 (I.J. at 5-6). See Fuentes v. Lynch, 788 F.3d 1177,
1180-81 (9th Cir. 2015) (citing Nijhawan v. Holder, 551 U.S. 29 (2009), which approved a
"circumstance-specific," fact-based approach for determining the amount of loss under section
101(a)(43)(M)(i) of the Act). Similarly, the Immigration Judge found that while the
respondent's conviction for the offense of forgery under Cal. Penal Code 470(d) involves fraud
or deceit, the OHS did not satisfy its burden of establishing that the offense caused a loss that
exceeded $10,000 (I.J. at 7-8). The DHS contends on appeal that the respondent was convicted
of an aggravated felony and that the Immigration Judge erred in dismissing the charge of
removability against the respondent.
.,
The DRS also argues on appeal that to determine the amount of loss, the Board should follow
the guidance provided by the United States Court of Appeals for the Third Circuit in
Doe v. Attorney General of U.S., 659 F.3d 266 (3d Cir. 2011), which held that "[w]here
allegations and guilty plea pertain to an entire scheme, rather than a single, discrete act within
that scheme, the loss attributable to the entire scheme is the proper loss amount for purposes of
section 10l(a)(43)(M)(i)" (DHS's Br. at 16). This comparison, however, is inapposite, as the
alien in Doe pied guilty to the crime of aiding and abetting wire fraud, there was evidence
submitted showing a "stipulation" that the loss amount attributable to Doe "through his
participation in the aforementioned scheme and artifice to defraud was more than $120,000," and
his plea agreement included an admission that he aided and abetted the entire wire fraud scheme.
Doe v. Attorney Gen. of U.S., supra, at 266, 276.
In contrast, the record in the instant case does not contain a copy of the plea agreement, nor
do we have any other evidence showing that the respondent stipulated to any loss amount
attributable to his crimes of procuring or offering false or forged instrument under Cal. Penal
Code 115(a) and forgery under Cal. Penal Code 470(d). Moreover, counts 6 and 7 pertaining
to the charged offenses under Cal. Penal Code 1lS(a) and 470(d) did not allege a "scheme to
defraud," such that may have arguably permitted the calculation of the loss amount based on the
total loss resulting from an overall scheme (Exh. 2). See Doe v. Attorney Gen. of U.S., supra, at
275-76.2
To the extent that the DHS also suggests that the instant case is similar to Nijhawan, noting
that Nijhawan was convicted of multiple statutes and the amount of loss was measured by the
amount of restitution, we also find such a comparison unavailing (DHS's Br. at 15-16).
Nijhawan was convicted of conspiring to commit mail fraud, wire fraud, bank fraud, and money
laundering, all of which were found to be "crimes involving fraud or deceit," he stipulated at
sentencing that this conviction involved losses exceeding $10,000, and the court required
restitution also exceeding $10,000. Nijhawan v. Holder, supra, at 32, 42-43. Based on the
Nijhawan's stipulation and the court's restitution order, the Supreme Court found clear and
convincing evidence that the respondent's conviction resulted in a monetary loss of more than
$10,000. Id at 42. In the instant case, the respondent was convicted under three statutes, one of
which has not been alleged to involve fraud or deceit, and there is no evidence submitted
showing that the respondent stipulated to the amount of loss resulting from his offense(s) that did
involve fraud or deceit.
2
3
Cite as: Rene Wilfredo Acevedo Solis, A092 920 374 (BIA May 11, 2016)
Based on the Immigration Judge's finding that the available evidence did not show the
necessary link between the respondent's convictions under Cal. Penal Code 115(a) and 470(d)
and the restitution ordered, the DHS conversely argues on appeal that the evidence did not
necessarily show that the restitution order was not linked to these offenses and his offense for
conspiracy to commit grand theft (DHS's Br. at 15). However, such an argument simply
illustrates that the record evidence is inconclusive as to the amount of loss caused by the
respondent's offenses under Cal. Penal Code 115(a) and 470(d), a premise which does not
satisfy the DHS's burden of proving the respondent's removability by "clear, unequivocal, and
convincing evidence." Woodby v. INS, 385 U.S. 276, 286 (1966).
,/
-,THE BOARD
4
Cite as: Rene Wilfredo Acevedo Solis, A092 920 374 (BIA May 11, 2016)
File: AOS2-920-374
In the Matter of
)
)
)
)
IN REMOVAL PROCEED!NGS
CHARGE:
APPLICATION:
Motion to Terminate.
lawful permanent resident, W16, at Los Angeles, California, .on or about Novmber 8,
1989 i under Section 245.(a) of the Act; you were. on Feb.rury . 015, convicted in th
false or forged instrument in violation of California Penal Code Section 115(a); you were
sentenced to a term of imprisonment of two years prison; you were on February 9,
2015, convicted in the Superior Court of California, County of Los Angeles, for the
offense of forgery in violation of California Penal Code Section . 470(); you were
sentenced to a term of imprisonment of eight months prison.
Respondent admitted to the eight factual allegations. The Court then reset this
case from December 8, 2015, to today's date, December 15, 2015, to address
removability under the charge of 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
as amended, in that at any time after admission you have ,been convicted of an
aggravated felony as.defined in Section 101 (a)(43)(M) of the Act, a law rel9ting to an
offense that involves fraud or deceit in which the loss to the victim or victims exceeds
. 0,000 9r is described in the Internal Rvenue Code of 1986 Section 7201 relating to
$1
tax evasion in which the revenue lost to the Government exceeds.$10,000 ..
In support of removability, the Governmen.t submitted the documents at Exhibit 2.
These are the conviction documents for case number B.A.417945-03. The documents at
Exhibit 2 consist of a Court issued felony Abstract of Judgment consisting of two pages.
Behind the Abstract of Judgment are three pages, which.are simply a typed or. printed
PcllQe. The first line indicates Abstract of Jydgment. It also indicates case number
BA4.179:45-03. Below that it indicates defendant, Rene \JVJlfredo Solis... Below that it
indicates other orders continued. Below that it indicates ma.ke restitution to vi.ctims,
restituti.on is to be paid .joint and .several as set forth in the cmments. of tis minute
order. Below that is a list of individuals'_ names and amo'.Jlts. The second page behind
.
A092-920-374
Superior Court of California, County of Los Angeles, for the offense of procure or offer
the .first typed page is simply a list of .other individuals with amounts. There is no
reference. to a case number, to defendant's name or to what this document is; The third
amended information for the same case number. This amended info'rmation consists of
several pages which pertain to at least three defendants and lists 1 07 counts. Nothing
else has been submitted as far as conviction documents. Exhibit 2 has been admitted
into the record.
On today's date the Court inquired from the Government if the Government
wished more time to submit any additional conviction documents. Although the
Government initially stated yes, when it was brought to the Government's attention that
the case had been reset from a week ago to today specifically for contested merits, the
Government then indicated that no, that !t wished to procee.d on the documents
submitted.
.
unq uivcal and convincing evidence that respondent is rmovabie .as charged. In thi
case the Departmnt has chargd the respondent with removability pursuant to INA
Section 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony as defind in
1 01 (a)(43)(M), an offense that involves fraud or deceit where the loss to the victims
exceeds $1 0,000. The Department specifically contends that respondent's convictions
un_der . California PenI Codes 1 1 S(a) and 470(d) are aggravated. felonies '. The Court
finds, however, that the douments at Exhibit 2 do not indlcte that either of these
conyictions amounts to an aggravated felony unper 1 01 (a. ).(43)(M).
Respontjent's conviction under California Pe.nal _C oe 1 1 5(a) on Febuary 9,
20:1 5, respondent was convicted under California Penal Code 1 1 5(a), which provides
that every per9 qnwho knowingly procures or offers. any fJe or forgd instrymen.t to be
A092-920-374
December 1 5, 201 5
page is the same as the second page . After these three typed out pages is the
: . .
'
filed, registered or reported in any public office within this state, which document, if
gen uine, 'might be filed, registered or recorded under any 1 3v11 of this state or of the
qqncJ.usive!y establish that he was convicted of offering rat1er than procuring . a forged
document. The only conviction document submitted. in respondent's mtter consists of
A092-90-374
United States, is guilty of a felony. The respondent's conviction under California Penal
the criminal complaint against rsp9ndent for case number BA41.79,45 and the.
co.rresponding felony abstract judgment with restitution rponsibilities atached. The
totl . amount of loss to victim using the circumstance specific approach. Tijani
v.. Holder,
(2009) . Under this analysis, the Court is not limite_d by the. categorical approach to
pecemer 1 5, 2015
Abstract of Judgment does not provide any indication of whether respondent pied guilty
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by the. Department must meet a clear and convincing standard .and mount of
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loss must be tied to the specific counts covered by the conviction. Tijani v. Holder,
(2009) at 42.
In the instant case the only evidence provided by which the Court could infer the
loss to victims are the three pages behind the Court issued document titled Abstract of
Judgment at Exhibit 2. The three pages behind the Court issued document entitled
Felony Abstract of Judgment appears to be simply a typed or printed list prepared on
non-Cou rt issued documents. The Court is aware that the first page of these three
pag_es is titled Abstract of Judgment and it references the same case number and the
respondent's name, but again, the Court notes that these u,ree pages are simply typed
or printed information. The Court is aware that there is a l!st of names and it indicates a
list of victims . and restitution amounts. Additionally, the Court is aware that it references
"as. set forth in the comments of this minute.. order," but the minute order has not been
fi!d by the Department of Homeland Security. Additionally, the Court notes that the
second and third pages of these typed or printed pages behind the official felony
Abstract of Judgment mal<es no reference to a case number, title of document or the
respondent's name, The Court cannot rely. on thee. three . pages wh ict:l are behif1d the
official Court issued flony Abstact of Judgment. to deterr.nine loss to victim.
Additionally, although the total restitution which is indicated on these three pages
far surpasses the $10,000 threshold required under 101(a)(43)(M), 1here is no evidence
showing the purported loss to Count 7 of the indictment .corresponing to his coniction
for _California Penal Code 115(a).
A092-920-374
determination regarding the total loss amount. However, evidence of loss to victim
f9'.
The Abstract of Judgment for respondent's case indicates that respondent also
pied guilty t9 Count 6 of the complaint for California Penal Code 470(d), forgery, and
comm it grand theft. The Abstract of Judgment merely indicates the restitution owed is
for the case as a whole and not for any of the specific counts that respondent was
convicted of. There is no way to determine whether the losses tied to his conviction
to be true as it
under
California Penal Code
11 S(a). The opposite .actua..lly. sems
..
..
. .
'
appears that restitution owed was likely for the conspiracy charge contained in Count 1
of the complaint. Count 1 for conspiracy includes some of the same victim's names as
the Abstract of Judgment restitution document, indicating that he owes restitution based
on his conduct as a conspirator to grand theft, rather than his procurement or offering a
forged document.
The Court finds that the Department has failed to meet its burden of proving that
the repondent's conviction under California Penal Code 1. 1:5(a) wa$ for a crime
resulting i at least at $10,000 loss to the victim.
The. Department also contends that respondet's . conviction under Cali fornia
Penal Cqde 470(d). renders him removable for having been convicted of an aggravated
felony as defined in INA Section 101(a)(43)(M), an offense that involves frad or deceit
and lss to the victim exceeds $10,000. California Penal Code 470(d) provides, in part,
every person who, with the intent to defraud, falsely makes, alters, forges or.
co.unterfeits, t:Jtters, publishes, passes or attempts or offer to pass s true and genuine
any of the following iems, knowing the same to be false, altered, forged . or
counteeited , is guilty of forgery. California Penal Code Section 470(d) is categorically
a crime invol,ving fraud a it expressly requires an intent to . defraud, meeting ihe first
element of INA Sectio 101(a)(43)(M).
A092-90-37
also to Count 1 of the complaint under California Penal Code 182(a)(1 ), conspiracy to
However, respondent's conviction .under this statut doe$ not meet the second
elemnt qf the definition as it is unclear whether his crime resulted in a loss to the victim
the . ;analy$is for California Penal Code 1 1 5(a) . The evidence submitted does not show
that the restitution respondent owes to Count 6 of his criminal complaint, that
corresponding to his conviction under California Penal Code 470(d). The Abstract of
Ju gm_ent ties the restitution to his case as a whole and not to th. specific counts in_ the
complaint. Accordingly, this conviction does not meet the definition of an aggravated
felony under 1 01 (a)(43)(M).
For these reasons, the Court finds that the respondent is not removable as
charged under INA Section 237(a)(2)(A)(iii) referencing 1 C 1 (a)(43)(M).
ORDERS
IT IS HEREBY O RDERED that these proceedings be terminated as the Cour1
finds that respondent is not removable as charged on the Notice to Appear at Exhibit 1 .
These proceedings are terminated .
A092-920-374
ARLEI\J E E. DORFMAN
Immigration Judge
Decembei 1 5, 201 5
or victims exceeding $ 1 0,000. The same reasoning explained is that explained under
':
,1 o. 41
p-
.l
/ Isl/
Immi grat i on Judge ARLENE E . DORFMAN
A092-920-374
December 1 5, 201 5