U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Q[fice of the Clerk
5 /07 Leesburg Pike, Suile 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - LVG

3373 Pepper Lane
Las Vegas, NV 89120

Name: GOMEZ MITCHELL, EMA

A 099-199-518
Date of this notice: 1/20/2016

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

Dowu.. C

l1/v't.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Cole, Patricia A.
Pauley, Roger
Wendtland, Linda S.

Userteam: Docket

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Cite as: Ema Gomez-Mitchell, A099 199 518 (BIA Jan. 20, 2015)

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West, Robert
Law Office of Robert west
P.O. Box 50390
Henderson, NV 89016

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A099 199 518 - Las Vegas, NV

Date:

In re: EMA GOMEZ-MITCHELL

APPEAL
ON BEHALF OF RESPONDENT: Robert West, Esquire
CHARGE:
Notice: Sec.

237(a)(l)(G)(ii), I&N Act [8 U.S.C. 1227(a)(l)(G)(ii)] Marriage fraud - failed or refused to fulfill marital agreement

Lodged: Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony

APPLICATION: Termination
The respondent appeals the Immigration Judge's decision, dated September 23, 2014,
ordering the respondent's removal from the United States. The appeal will be sustained.
The Department of Homeland Security (DRS) initially charged the respondent, a native and
citizen of Mexico and a lawful permanent resident of the United States, with marriage fraud
under section 237(a)(l)(G)(ii) of the Immigration and Nationality Act, 8 U.S.C.
1227(a)(l)(G)(ii). The Immigration Judge held that DRS did not prove that charge by clear
and convincing evidence, and DHS has not appealed that holding. The Immigration Judge
sustained, however, an additional lodged charge against the respondent, alleging that she was
convicted of an aggravated felony. See section 237(a)(2)(A)(iii) of the Act.
The respondent argues that she was never convicted of an aggravated felony. The conviction
at issue was entered against Vegas Valley Personal Care (Vegas Valley), a limited liability
company (LLC) incorporated under Nevada law, of which the respondent is president (Exh. 3;
I.J. at 3). The respondent, in her capacity as president, signed a guilty plea agreement pleading
to a charge that Vegas Valley submitted false Medicaid claims, a felony in violation of Nevada
Revised Statutes 422.540(l )(a) (Exh. 3; I.J. at 3). Based upon the guilty plea, the district court
entered a judgment of guilty against Vegas Valley and further ordered the company to pay
restitution in the amount of $350,000 (Exh. 3; I.J. at 3).

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IN REMOVAL PROCEEDINGS

The respondent maintains that Vegas Valley's conviction is not a "conviction" of her within
the meaning of section 10l(a)(48)(A) of the Act, 8 U.S.C. 110l(a)(48)(A), which defines
"conviction" in relevant part as "a formal judgment of guilt of the alien entered by a court . . ."
(emphasis added) (Respondent's Brief at 1-2). In determining that the respondent had been
convicted of an aggravated felony, the Immigration Judge applied the doctrine of piercing the
corporate veil (I.J. at 3). He noted that Vegas Valley was established as an LLC in accordance
==

Cite as: Ema Gomez-Mitchell, A099 199 518 (BIA Jan. 20, 2015)
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A099 199 518

with Nevada law, and Nevada law allowed for the concept of piercing the corporate veil (I.J. at
3).1

It is axiomatic "that one accused of a crime is entitled to have [her] guilt or innocence
determined solely on the basis of the evidence introduced at trial, and not on grounds of official
suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial."
Taylor v. Kentucky, 436 U.S. 478, 485 (1978) (citation omitted). The respondent was not found
guilty in her personal capacity upon proof beyond a reasonable doubt. See In re Winship,
397 U.S. 358, 364 (1970); Matter of Eslamizar, 23 l&N Dec. 684, 688 (BIA 2004). Nor
did she enter a plea admitting her personal guilt. See Brady v. United States, 397 U.S. 742,
748 (1970) ("But the plea is more than an admission of past conduct; it is the defendant's
consent that judgment of conviction may be entered without a trial-a waiver of [her] right to
trial before a jury or a judge.")
In light of the forgoing, we do not accept the conclusion that Vegas Valley's conviction
establishes that the uncharged respondent was also convicted. Although she had significant ties
to Vegas Valley, she was not convicted along with it. As the evidence does not sufficiently
establish that the respondent was subject to "a formal judgment of guilt of the alien," we
conclude that she was not convicted of an aggravated felony. Accordingly, the following orders
will be entered.
1

By way of background, the Immigration Judge noted that the respondent was offered a choice
between personally pleading guilty and paying a smaller fine, or having the corporation plead
and be subjected to a larger fine. The Immigration Judge found, under the circumstances, that it
would be "a miscarriage of justice to permit the respondent to avoid the consequences of an
aggravated felony conviction simply because the conviction was styled against the corporate
entity, while all along she was the sole owner of the business responsible for millions of dollars
of Medicaid fraud." (I.J. at 3-4).
2

Some states also recognize the doctrine of reverse veil piercing where an alter ego individual's
assets can be reached to satisfy a judgment against a corporation. See, e.g., Commissioner of
Environmental Protection v. State Five Industrial Park, Inc., 37 A.3d 724 (Sup. Ct. Conn. 2012).

2
Cite as: Ema Gomez-Mitchell, A099 199 518 (BIA Jan. 20, 2015)
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We are not persuaded that D HS has met its burden to establish by clear and convincing
evidence that Vegas Valley's conviction was "a formal judgment of guilt of the alien.'' Section
10l(a)(48)(A) of the Act; see also section 240(c)(3)(A) of the Act, 8 U.S.C. 1229a(c)(3)(A)
(DHS must prove deportability by clear and convincing evidence). In our view, the respondent
is not convicted within the meaning of the Act. While Nevada law permits the doctrine of
piercing the corporate veil, that doctrine-which has its roots in the civil law of corporations
cannot be used in removal proceedings to attribute a corporation's conviction to a shareholder
and corporate officer who was never charged or convicted of a crime individually. The piercing
the corporate veil doctrine is designed to enable a civil plaintiff, where the interests of justice so
require, to satisfy a judgment against a corporation by reaching the assets of an individual who is
the alter ego of the corporation. See, e.g., LFC Marketing Group, Inc. v. Loomis, 8 P.3d 841
(Sup. Ct. Nev. 2000).2

.. .
A099199 518

ORDER: The respondent's appeal is sustained.

FURTHER ORDER: The removal proceedings are terminated.

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F0 THE BOARD 'i

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LAS VEGAS, NEVADA

IN THE MATIER OF
Ema Gomez Mitchell, Respondent

)
)
)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGE:

Section 237(a)(l)(G)(ii) of the Immigration and Nationality Act ("INA" or

"the Act")-Marriage Fraud

LODGED:

Section 237(a)(2)(A)(iii) of the Act -Convicted of aggravated felony

under section 101(a)(43)(M)(i}

APPLICATION:

Termination ofproceedings

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE OHS:

Robert West, Attorney at Law

P.O. Box 50390
Henderson, NV 89106

Christian Parke
Assistant ChiefCounsel

WRITTEN DECISION OF THE IMMIGRATION JUDGE

The respondent is a 48-year-old female who is a native and citizen of Mexico. She was
admitted to the United States as a lawful permanent resident on March 2, 2006, based upon her
marriage to a United States citizen. The Department of Homeland Security (OHS) issued a
charging document, the Notice to Appear (NTA) dated May 21, 2012, charging the respondent
with deportability as an alien who acquired lawful permanent resident status by means of marriage
fraud. 1 A copy ofthe NTA is included in the Record of Proceedings as Exhibit 1.
At a hearing on November 22, 2013, the respondent denied the marriage fraud charge, and
the Immigration Court accordingly set a filing deadline ofApril 9, 2014, to file evidence in support
of the charge of deportability in the NTA. The OHS did not submit the proposed evidence in
support ofthe marriage fraud charge ofdeportability until May 7, 2014. See Exhibits 2 & 3. No
motion for consideration oflate-filed evidence was presented by OHS. Moreover, the case law is
1

The record reflects that the respondent acquired pennanent resident status based upon
marriage to a United States citizen named Charles Wayne Mitchell. Prior to that marriage, she
was married to a Mexican national named Moises Efren Guerrero Rojas. The removal
proceedings against Moises Efren Guerrero Rojas were terminated on May 9, 2014.

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FILE: A099 199 518

However, on May 7, 2014, the DHS filed a Form 1-261 with the Court, with additional
allegations and a new charge of deportability againnt the respondent. See Exhibit 1A. Under the
regulations, OHS may lodge a charge ofdeportability against the respondent "at any time" after
removal proceedings are initiated. 8 C.F.R. 1003.30. Notwithstanding the dismissal of the
marriage fraud charge on the ground that the evidence in support of the charge was untimely, the
Immigration Court concludes that the aggravated felony charge against the respondent was timely
presented by the DHS. On August 6, 2014, the respondent through counsel denied factual
allegations 5 and 6 in the Form I-261, and she denied the lodged charge of deportability. The
respondent has designated Mexico as the country for removal, should removal become necessary.
The record reflects that on October 3, 2007, in the District Court for Clark County, Nevada,
the respondent signed a guilty plea agreement, as the President of Vegas Valley Personal Care, a
limited liability company ("LLC"), agreeing to the charge that Vegas Valley Personal Care did
commit the criminal offense of submitting false Medicaid claims, a Category O Felony, in
violation of Nevada Revised Statutes ("N.R.S.") 422.540(1 )(a). Based upon the guilty plea
agreement, the District Court proceeded with a judgment of conviction against the defendant,
"Vegas Valley Personal Care, LLC," and further ordered that the defendant pay restitution in the
amount of $350,000. With regard to the restitution, the judgment of conviction provides: "Said
amount is due to Defendant's actions and materially inaccurate representations, made to Nevada
Medicaid, while acting in a contractual relationship with that entity, resulting in the acceptance of
Defendant's claims and resulting in this conviction." Exhibit 3.
CHARGE OF DEPORTABILITY IN THE FORM 1-261
The OHS has charged the respondent with deportability under the aggravated felony
provision at section 10l(a)(43)(M)(i) of the Act. The DHS bears the burden ofestablishing the
respondent's deportability by means of clear and convincing evidence. See section 240(c)(3) of
the Act. Section 101(a)(43)(M)(i) defines an aggravated felony as an offense that "involves fraud
,,
or deceit in which the loss to the victim or victims exceeds $10,000.
The issue of whether a conviction constitutes an "aggravated felony" within the meaning of
section 101(a)(43)(M)(i) of the Act is controlled by the Supreme Court's decision in Nijhawan v.
Holder, 129 S.Ct. 2294 (2009). In that case, the Supreme Court described the analysis under
section 10l(a)(43)(M) of the Act as being "circumstance specific," rather than necessitating a
categorical or modified categorical analysis, because the $10,000 "loss to the victim" is not a
statutory element of the criminal offense. See also Matter ofBabaisakov, 24 l&N Dec. 306 (BIA
2

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clear that no weight can be given to a hearsay statement alleging marriage fraud where DHS has
not established that the declarant is unavailable as a witness. See Cinapian v. Holder, 567 F .3d
1067, 1074 (9th Cir. 2009); Cunanan v. INS, 856 F.2d 1373 (91h Cir. 1988). DHS made no
showing in this regard, that it would present Mr. Charles Mitchell as a witness, or that he would be
unavailable as a witness in removal proceedings, as of April 2014. The Immigration Court
accordingly found that the charge of deportability in the NTA was not established by clear and
convincing evidence. See section 240(c)(3) ofthe Act.

2007)(requiring that "loss to the victim" be tied to the criminal misconduct for which the alien was
actually convicted); Ferreira v. Ashcroft, 390 F.3d 1091 (91h Cir. 2004).

The respondent's counsel pointed out, correctly, that the Act's definition of"conviction" at
section 101 (a)(48)(A) ofthe concerns an "alien" who is subject to a "formal judgment ofguilt,"
not a corporation, or an LLC. Accordingly, in the respondent's case, the charge ofdeportability
can only be sustained ifthe legal consequence ofthe conviction is that the respondent is held
personally responsible for the offense or offenses committed by Vegas Valley Personal Care, LLC.
Under Nevada law, an LLC is established in accordance with N.R.S. Chapter 86. See
Weddell v. H20, Inc., 271 P.3d 743 (Nev. 2012). The concept of"piercing the corporate veil" is
well-established under Nevada law. See Carson Meadows Inc. v. Pease, 533 P.2d 458, 460 (Nev.
1975)(''The altar ego doctrine may be applied when the corporation is influenced and governed by
the person or persons assetted to be its altar ego; there is such unity ofinterest and ownership that
one is inseparable from the other; and adherence to the fiction of separate entity would sanction a
fraud or promote injustice").
In the instant case, the respondent denied the factual allegation that she pled guilty, as the
President ofGreater Vegas Personal Care, LLC, to the charge of Submitting False Medicaid
Claims. However, the evidence presented by DHS establishes that the respondent was the sole
owner ofVegas Valley Personal Care, LLC, that the Company netted more than $3,000,000 in
funds from Medicaid fraud, and that the respondent did sign the memorandum ofguilty plea
agreement on October 3, 2007, as the "President" ofthe Company. See Exhibits 2 and 3.
Moreover, the DHS investigation concerning the circumstances surrounding the
Company's guilty plea provides: ''The investigator . . . stated that the [respondent] was given a
plea deal of paying a fine of$500,000.00 and personally pleading guilty or paying $700,000.00
and having the businesses as entities plead guilty without having to personally plead guilty. . .
[T]he [respondent] opted to pay more money rather than personally pleading guilty." At first
blush, this evidence seems to indicate that the respondent took measures to avoid any personal
responsibility for the Company's crime. However, when the Court considers the details ofthe
memorandum ofguilty plea agreement, it is clear that personal responsibility for the commission
ofthe crime was contemplated. For example, the consequences of the guilty plea to which the
respondent agreed included the possibility of incarceration "for a period of not more than 4 years,"
and the further possibility of being ''removed" or "deported" from the United States. Of course,
incarceration and removal are legal impossibilities ifthe defendant were only an LLC, because the
corporate entity could not physically be subjected to incarceration or removal. Moreover, these
consequences, stipulated to by the respondent in the guilty plea agreement, reveal the
3

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In the instant case, the record of conviction at Exhibit 3 plainly provides that the offense
related to false Medicaid claims, in violation ofN.R.S. 422.540(1)(a). This statute includes as
an element an ''intent to defraud," and thus the Immigration Court finds that the offense did
involve "fraud or deceit" within the meaning ofsection 1 01 (a)(43)(M)(i) of the Act. Moreover,
because the defendant was ordered to pay restitution in the amount of $350,000.00, the "loss to the
victim" in excess of$10,000 requirement has also been established.

0
prosecution's intent that there would be personal consequences for the respondent as President of
the LLC.

Accordingly, where the evidence indicates that the respondent was the president and sole
owner ofan LLC that committed millions ofdollars' worth of Medicaid fraud, and she as
Company President was ordered to pay in excess of $10,000 as restitution, the Immigration Court
concludes that all "aggravated felony" elements under section 1 0l(a)(43)(M)(i) of the Act have
been established by clear and convincing evidence. See Ferreira v. Ashcroft, supr at 1098 (''the
immigration judge correctly looked to the restitution order in the plea agreement to detennine that
the loss to the State ofCalifornia exceeded $1 0,000.00"); see also Matter ofBabaisakov, supra, at
319 ("We conclude that restitution orders can be sufficient evidence ofloss to the victim in certain
cases, but they must be assessed with an eye to what losses are covered and to the burden ofproof
employed").
Finally, the respondent's aggravated felony conviction disqualifies her from receiving
cancellation ofremoval for lawful permanent residents under section 240A(a)(3) ofthe Act. She
is also disqualified from receiving post-conclusion voluntary departure. See section
240B(b)(l)(C) ofthe Act. Accordingly, the Court will enter the following order:
ORDER
IT IS HEREBY ORDERED that the respondent shall be removed from the United States to
Mexico pursuant to the charge contained in the Form I-261.
WRITTEN WARNING TO THE RESPONDENT: Severe criminal penalties may result
if you return to the United State unlawfully following removal for an aggravated felony offense.
See section 276(b)(2) ofthe Act.

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The Court concludes that the indicia ofpersonal responsibility, and consequences
contemplated in the guilty plea agreement signed by the respondent, are sufficient to establish
clearly and convincingly that the record of conviction relating to the LLC relates equally to the
respondent in her personal capacity. It would be, in the judgment of the Immigration Court, a
miscarriage ofjustice to permit the respondent to avoid the consequences ofan aggravated felony
conviction simply because the conviction was styled against the corporate entity, while all along
she was the sole owner ofthe business responsible for millions ofdollars ofMedicaid fraud.

. - '

'

'

APi'EAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal is
. due at the Board of Immigration Appeals on or before 30 calendar days from the date of service of
this decision.

Jeffrey L. Romig
Immigration Judge

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