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U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals


Office of the Clerk

5/07 Leesburg Pike, Suite 2000


Falls Church. Virginia 22041

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Wong, Margaret W DHS/ICE Office of Chief Counsel - CLE
Margaret W. Wong 1240 E. 9th St., Room 585
3150 Chester Avenue Cleveland, OH 44199
Cleveland, OH 44114

Name: HUSTI, VASILE GEORGE A 057-497-914

Date of this notice: 2/7/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Guendelsberger, John
Mullane, Hugh G.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: Vasile George Husti, A057 497 914 (BIA Feb. 7, 2017)
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 22041

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HUSTI, VASILE GEORGE DHS/ICE Office of Chief Counsel - CLE
A057-497-914 1240 E. 9th St., Room 585
c/o ICE CUSTODY Cleveland, OH 44199
12450 MERRITT ROAD
CHARDON, OH 44024

Name: HUSTI, VASILE GEORGE A 057-497-914

Date of this notice: 2/7/2017

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,

DOWU- C t1/v'L)

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Guendelsberger. John
Mullane. Hugh G.
Pauley, Roger

Userteam:

Cite as: Vasile George Husti, A057 497 914 (BIA Feb. 7, 2017)
U.S. Department of Justice Decision of the Board oflmmigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A057 497 914- Bedford, OH Date:


FEB - 7 2017
In re: VASILE GEORGE HUSTI

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Margaret W. Wong, Esquire

ON BEHALF OF DHS: Michael A. Tripi


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 10l(a)(43)(G)

Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. 1227(a)(2)(A)(i)] -


Convicted of crime involving moral turpitude

APPLICATION: Removability

This case was last before us on February 20, 2015, at which time we denied the respondent's
motion to reconsider our December 15, 2014, decision in which we had denied the respondent's
appeal from the Immigration Judge's August 13, 2014, decision ordering him removed. 1 This
case is now before us on remand pursuant to a May 14, 2015, order from the United States Court
of Appeals for the Sixth Circuit. The Sixth Circuit granted a remand request for us to reconsider
our December 15, 2014, decision.

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 record will be remanded for
further proceedings.

The respondent was charged with being 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. I I01(a)(43)(G), i.e., a theft

1
The Immigration Judge's August 13, 2014, decision rested upon a July 17, 2014, decision
finding the respondent removable on both charges.

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A057 497 914

offense (including the receipt of stolen property 2) or burglary offense for which the term of
imprisonment was at least I year. The respondent was also charged with being removable under
section 237(a)(2)(A)(i) of the Act as an alien convicted of a crime involving moral turpitude
(CIMT) which was committed within 5 years of admission and for which a sentence of 1 year or
longer may be imposed.3 The respondent was convicted in 2013 of violating 18 U.S.C. 641,
which reads:

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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,
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; but if the
value of such property in the aggregate, combining amounts from all the counts for which
the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be
fined under this title or imprisoned not more than one year, or both.
The word "value" means face, par, or market value, or cost price, either wholesale or
retail, whichever is greater.

In our February 20, 2015, decision we concluded that we had not erred in determining in our
December 15, 2014, decision that the respondent's conviction under 18 U.S.C. 641 was for a
categorical theft offense. A "theft offense" within the definition of section I0l(a)(43)(G) of the
Act ordinarily requires the taking of, or exercise of control over, property without consent and
with the criminal intent to deprive the owner of the rights and benefits of ownership, even if such
deprivation is less than total or permanent. Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA
2008). A conviction for the receipt of stolen property with knowledge that the property is stolen
also qualifies as a theft offense. See Matter of Cardiel-Guerrero, 25 I&N Dec. 12 (BIA 2009).
We concluded in our prior decisions that every offense under 18 U.S.C. 641 falls within the
generic definition of theft.

Counsel for the respondent argues that 18 U.S.C. 641 is not a categorical theft offense.
When evaluating a criminal statute under the categorical approach, we apply the realistic
probability test. This requires us to focus on the minimum conduct that has a realistic probability
of being prosecuted under the statute of conviction, rather than on the facts underlying the
respondent's particular violation of that statute. Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85

2
The Department of Homeland Security (DHS) does not argue that the respondent's crime
qualifies as receipt of stolen property under section IOI(a)(43)(G) of the Act.
3
Because we concluded that the respondent was removable under section 237(a)(2)(A)(iii) of
the Act, we found it unnecessary in our prior decisions to consider the respondent's appeal of the
Immigration Judge's determination that he was also removable under section 237(a)(2)(A)(i) of
the Act.

2
Cite as: Vasile George Husti, A057 497 914 (BIA Feb. 7, 2017)
A057 497 914

(2013); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). The Supreme Court has
explained:

[T]o find that a state statute creates a crime outside the generic definition of a listed crime
in a federal statute requires more than the application of legal imagination to a state
statute's language. It requires a realistic probability, not a theoretical possibility, that the

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State would apply its statute to conduct that falls outside the generic definition of a crime.
To show that realistic probability, an offender, of course, may show that the statute was
so applied in his own case. But he must at least point to his own case or other cases in
which the state courts in fact did apply the statute in the special (nongeneric) manner for
which he argues.

Gonzales v. Duenas-Alvarez, supra, at 193. Counsel argues that the statute can be violated by
consensual takings (such as embezzlement4), and that such takings would not fall within the
generic definition of theft. We agree, in that the generic crime of theft requires the taking of, or
exercise of control over, property without consent. See Matter of Garcia-Madruga, supra.
Although counsel has pointed to no cases where 18 U.S.C. 641 has been applied to consensual
takings, the statute expressly refers to embezzlement, and our research has revealed cases where
18 U.S.C. 641 has been applied to embezzlement. See, e.g., United States v. McGahee,
257 F.3d 520 (6th Cir. 2001); United States v. Foulks, 905 F.2d 928 (6th Cir. 1990). We
therefore find that the statute includes offenses that fall outside the generic definition of theft.
We conclude that the respondent's conviction under 18 U.S.C. 641 is not for a categorical theft
aggravated felony within the meaning of section 101(a)(43)(G) of the Act.

We next must determine whether 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 whether at least one, but not all, of these offenses qualifies as an aggravated felony within
the meaning of section 101(a)(43)(G) of the Act. If so, we must attempt to identify the
respondent's actual crime of conviction for the purpose of determining whether it falls within
section 10l(a)(43)(G) of the Act. See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016);
Descamps v. United States, 133 S. Ct. 2276, 2281 (2013); Matter of Chairez, 26 I&N Dec. 819,
821-22 (BIA 2016). 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 conclude that 18 U.S.C. 641 is divisible. The statute defines several possible offenses,
which are listed in the disjunctive: embezzling, stealing, purloining, or knowingly converting
government property, as well as knowingly receiving, concealing, or retaining the same with
intent to convert it. The Sixth Circuit has recognized that theft of government property is a
discrete offense under 18 U.S.C. 641, requiring proof "that the defendant (1) knowingly (2)
4
"To 'embezzle' means willfully or deliberately to take or to convert the money or property of
another after the money or property lawfully came into the possession of the person who
eventually took it. [This can occur by reason of some office, employment, or position of trust
which the alleged embezzler held]." IA Fed. Jury Prac. & Instr. 16:01 (6th ed.).

3
Cite as: Vasile George Husti, A057 497 914 (BIA Feb. 7, 2017)
A057 497 914

stole or converted to the use of another (3) something of value of the United States." United
States v. Hall, 549 F.3d 1033, 1038 (6th Cir. 2008); see also United States v. Forman, 180 F.3d
766, 769 (6th Cir. 1999). The Sixth Circuit has also held that an indictment that specifically
charged that a defendant had "converted to her own use" government property stated an offense
under 18 U.S.C. 641. See United States v. Hoobler, 585 F.2d 176, 178, 182 (6th Cir. 1978). In
an unpublished case, the Sixth Circuit has recognized the distinct offense of conversion under

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18 U.S.C. 641, with its three elements. See United States v. Delaine, 517 Fed. Appx. 466, 468
(6th Cir. 2013) (citing United States v. McRee, 7 F.3d 976, 980 (11th Cir. 1993)). In another
unpublished case, the Sixth Circuit has recognized the particular elements to be proven in a
prosecution for fraudulent appropriation of government property under 18 U.S.C. 641. See
United States v. Dalalli, 651 Fed. Appx. 389, 399 (6th Cir.), cert. denied, 137 S. Ct. 235 (2016).
The Sixth Circuit has also appeared to recognize a discrete offense of embezzlement under
18 U.S.C. 641. See United States v. Foulks, supra, at 929. Finally, the Sixth Circuit has
recognized the specific offense of knowing receipt of stolen United States property under
18 U.S.C. 641. See Pitts v. United States, 763 F.2d 197, 198 (6th Cir. 1985). 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 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 Judgment issued in connection with the respondent's criminal
case (Exh. 2) states that the respondent pleaded guilty to count 13 of the indictment, and Count
13 of that document states that the respondent "did steal, purloin, and knowingly convert" money
of the United States, in violation of 18 U.S.C. 641 (Exh. 2).

Therefore, the proper inquiry is whether the respondent's conviction for stealing, purloining,
and knowing conversion under 18 U.S.C. 641 is necessarily for a theft offense within the
meaning of section 10l(a)(43)(G) of the Act. We find that it is not.
Although the respondent was charged in count 13 of the indictment with stealing, purloining,
and conversion, it is acceptable practice for a charging document to state allegations in the
conjunctive, although the statute lists multiple offenses in the disjunctive, and a conviction may
rest upon proof of any of the offenses alleged. See United States v. Pirosko, 787 F.3d 358, 368
(6th Cir.), cert. denied, 136 S. Ct. 518 (2015) (holding that "[i]t is settled law that an offense may
be charged conjunctively in an indictment where a statute denounces the offense disjunctively.
Upon the trial the government may prove and the trial judge may instruct in the disjunctive form
used in the statute" (quotation marks and citation omitted)). Because it is unclear to which
charged offense(s) the respondent pleaded guilty, we consider whether any of the offenses listed
in count 13 of the indictment - stealing, purloining, and conversion - falls outside the definition
of theft under section 10l(a)(43)(G) of the Act.

Conversion under 18 U .S.C. 641 does not necessarily qualify as theft under section
I01(a)(43)(G) of the Act. The Supreme Court, in discussing 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
4
Cite as: Vasile George Husti, A057 497 914 (BIA Feb. 7, 2017)
A057 497 914

he was under a duty to keep it separate and intact." Id. These forms of knowing conversion are
akin to embezzlement and thus fall outside the definition of theft.
Because some types of conversion fall outside the definition of theft, we conclude that the
record does not establish by clear and convincing evidence, as required by section 240(c)(3)(A)
of the Act, 8 U.S.C. 1229a(c)(3)(A), that the respondent is removable as charged under section

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237(a)(2)(A)(iii) of the Act as an alien convicted of a theft aggravated felony, as defined at
section 10l(a)(43)(G) of the Act.

We therefore must consider whether the respondent is removable as charged under section
237(a)(2)(A)(i) of the Act as an alien convicted of a CIMT which was committed within 5 years
of admission and for which a sentence of 1 year or longer may be imposed. 5

We recently held that the categorical and modified categorical approaches provide the proper
framework for determining whether a conviction is for a CIMT. Matter of Silva-Trevino,
26 I&N Dec. 826 (BIA 2016). In that decision we stated:

When determining whether a conviction for a State or Federal offense is for a crime
involving moral turpitude, Immigration Judges and the Board will examine the State or
Federal statute defining the crime of conviction to see if it fits within the generic
definition of a crime involving moral turpitude. See Moncrieffe v. Holder, 133 S. Ct.
1678, 1684 (2013) (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-87 (2007),
Shepard v. United States, 544 U.S. 13, 24 (2005), and Taylor v. United States, 495 U.S.
575, 599-600 (1990)). In evaluating the criminal statute under the categorical approach,
unless circuit court law dictates otherwise, 6 we apply the realistic probability test. This
requires us to focus on the minimum conduct that has a realistic probability of being
prosecuted under the statute of conviction, rather than on the facts underlying the
respondent's particular violation of that statute. Moncrieffe, 133 S. Ct. at 1684-85;
Duenas-Alvarez, 549 U.S. at 193 (explaining that to show a realistic probability, an
offender "must at least point to his own case or other cases in which the state courts in
fact did apply the statute in the special (nongeneric) manner for which he argues").

Id. at 831. The Sixth Circuit has stated that "a criminal offense involves 'moral turpitude' if the
relevant statute defines the offense in such a manner that it necessarily entails conduct on the part
of the offender that is inherently base, vile, or depraved, and contrary to accepted rules of
morality and the duties owed between persons or to society in general." Serrato-Soto v. Holder,
570 F.3d 686, 689 (6th Cir. 2009) (quoting Matter of Kochlani, 24 I&N Dec. 128, 129 (BIA
2007)).

5
The respondent does not challenge the Immigration Judge's findings that he was sentenced to
at least 1 year's imprisonment for his conviction and that his offense was committed within
5 years of his admission to the United States.
6
Case law of the Sixth Circuit does not dictate otherwise. See United States v. Lara,
590 F. App'x 574, 584 (6th Cir. 2014).

5
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We have previously held that a conviction for theft is considered to involve moral turpitude
only when a permanent taking is intended. See, e. g. , Matter of Grazley, 14 l&N Dec. 330, 333
(BIA 1973). However, we recently held that a theft offense is a CIMT if it involves a taking or
exercise of control over another's property without consent and with an intent to deprive the
owner of his property either permanently or under circumstances where the owner's rroperty
rights are substantially eroded. Matter ofDiaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016).

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Finally,

[i]n cases where the statute of conviction includes some crimes that involve moral
turpitude and some that do not, adjudicators must determine if the statute is divisible and
thus susceptible to a modified categorical analysis. Under such an analysis, resort to the
record of conviction is permitted to identify the statutory provision that the respondent
was convicted of violating.

Matter of Silva-Trevino, supra, at 833 (citing Descamps v. United States, supra, at 228 1 , 2283,
and Matter of Chairez; supra, at 819-20).

In the instant case, the respondent was convicted of stealing, purloining, and knowingly
converting money of the United States, in violation of 18 U.S.C. 641 (Exh. 2). In evaluating
whether the respondent has been convicted of a CIMT under the framework outlined above, the
first question is whether the respondent's conviction is categorically for a CIMT. However,
because our decision in Matter ofDiaz-Lizarraga was issued after the parties had submitted their
briefs, they have not had the opportunity to address the question whether the respondent's
conviction would be for a categorical CIMT, i.e., whether the minimum conduct that has a
realistic probability of being prosecuted under the statute of conviction would involve a taking or
exercise of control over another's property without consent and with an intent to deprive the
owner of his property either ermanently or under circumstances where the owner's property
rights are substantially eroded.
7
The Sixth Circuit has also deemed the intent to deprive permanently to be a requirement for a
theft CIMT. However, as we noted in Matter of Diaz-Lizarraga, supra, at 850 n.3, with regard
to the precedents of the United States Court of Appeals for the Ninth Circuit that were applicable
in that case, the Sixth Circuit has not rendered an independent analysis of the moral turpitude
issue, deferring instead to our precedent decisions. See Baka/ v. A shcroft, 56 F. App'x 650, 654
(6th Cir. 2003).
8
The Supreme Court's Morissette decision, in discussing 18 U.S.C. 641, advised:

Probably every stealing is a conversion, but certainly not every knowing conversion is a
stealing. To steal means to take away from one in lawful possession without right with
the intention to keep wrongfully. Conversion, however, may be consummated without
any intent to keep and without any wrongful taking, where the initial possession by the
converter was entirely lawful. Conversion may include misuse or abuse of property. It
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. It is not difficult to
(continued . . . )
6
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AOS7 497 914

We therefore find it appropriate to remand the record to allow the parties a first opportunity
to address this question and any others that may arise in the application of the above framework
for determining whether the respondent is removable as an alien who has been convicted of a
CIMT.

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Accordingly, the following orders will be entered.

ORDER: The appeal is sustained with regard to the respondent's removability under section
237(a)(2)(A)(iii) of the Act.

FURTHER ORDER: The record is remanded for further proceedings.

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(...continued)
think of intentional and knowing abuses and unauthorized uses of government property
that might be knowing conversions but which _could not be reached as embezzlement,
stealing or purloining.

Morissette v. United States, supra, at 271-72.

7
Cite as: Vasile George Husti, A057 497 914 (BIA Feb. 7, 2017)