, U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Palls Church. Virginia 22041

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Wargo, Holli B DHS/ ICE Office of Chief Counsel - BOS
Collins & Martin, P .C. P.O. Box 8728
55 Town Line Road, 3rd Floor Boston, MA 02114
Wethersfield, CT 06109

Name: LOPES, ELISABETE MONTEIRO A 041-958-867

Date of this notice: 2/15/2017

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

Sincerely,

DOYUtL c t1.JVL)

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Mullane, Hugh G.
Pauley, Roger
Malphrus, Garry D.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Elisabete Monteiro Lopes, A041 958 867 (BIA Feb. 15, 2017)
r

u.s. Depr,rtment of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A04l 958 867 - Boston, MA Date: FEB 1 5 2017

In re: ELISABETE MONTEIRO LOPES a.k.a. Elizabeth Lopes

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Holli B. Wargo, Esquire

CHARGE:

Notice: 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 turpitude

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

Convicted of aggravated felony under section
101(a)(43)(G), l&N Act [8 U.S.C. 1101(a)(43)(G)] -
Theft offense or burglary offense

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)(U), l&N Act [8 U.S.C. 110l(a)(43)(U)] -
Attempt or conspiracy

APPLICATION: Termination

The respondent appeals from an Immigration Judge's August 31, 2015, decision ordering her
removed from the United States. The appeal will be dismissed in part and sustained in part, and
the record will be remanded.

The respondent is a native and citizen of Cape Verde and a lawful permanent resident of the
United States. The respondent has four convictions that are pertinent here: (1) in 2000, for
larceny in the third degree in violation of section 53a-124 of the Connecticut General Statutes,
for which she was sentenced to a term of imprisonment of 1 year (Exh. 3); (2) in 2011, for
accessory to larceny in the fourth degree in violation of sections 53a-8 and 53a-125 of the
Connecticut General Statutes, for which she was sentenced to a term of imprisonment of 1 year
(Exh. 4); (3) also in 2011, for accessory to forgery in the third degree in violation of sections
53a-8 and 53a-140 of the Connecticut General Statutes, for which she was sentenced to a term of
imprisonment of 6 months (Exh. 4); and (4) in 2015, for larceny in the third degree in violation
of section 53a-124 of the Connecticut General Statutes, for which she was sentenced to a term of
imprisonment of 3 years (Exh. 5).

Based on the foregoing convictions, the DHS charged the respondent with removability as an
alien convicted of multiple crimes involving moral turpitude ("CIMT") and aggravated felonies
Cite as: Elisabete Monteiro Lopes, A041 958 867 (BIA Feb. 15, 2017)
A041 958,867

(Exhs. l, 6). See sections 237(a)(2)(A)(ii) and 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. 1227(a)(2)(A)(ii), 1227(a)(2)(A)(iii). The Immigration Judge
sustained both charges and ordered the respondent removed (I.J. at 6-7). This timely appeal
followed, in which the respondent requests dismissal of the removal charges and termination of
the proceedings.

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Although the respondent requests termination of the proceedings, her appellate brief does not
meaningfully challenge the Immigration Judge's conclusion that she has been convicted of
multiple CIMTs under section 237(a)(2)(A)(ii) of the Act. The respondent's sole appellate
argument with respect to the multiple CIMT charge is that the DHS violated her constitutional
right to equal protection of the laws by initiating her proceedings within the jurisdiction of the
United States Court of Appeals for the First Circuit. According to the respondent, female
detained aliens from Connecticut are placed into removal proceedings in the First Circuit, while
male detained aliens from Connecticut are placed into proceedings in the Second Circuit. In the
respondent's view, this policy violated her equal protection rights because it resulted in the
application of less favorable substantive law to her case on the basis of her sex-specifically, the
respondent asserts that her theft offenses would not be considered CIMTs under Second Circuit
precedent.

This argument is not properly before us because it was not raised below. Matter ofJimenez,
21 l&N Dec. 567, 570 n.2 (BIA 1996) (explaining that the Board does not consider arguments
made for the first time on appeal); see also Matter of Fedorenko, 19 I&N Dec. 57,
74 (BIA 1984) (explainin that "[t] he Board is an appellate body whose function is to review,
not to create, a record."). In August 2015, the DHS moved to change the venue of the
respondent's removal proceedings from Connecticut to Massachusetts on the ground that the
respondent was being detained in Massachusetts (DHS Motion to Change Venue (filed August 3,
2015)). The respondent raised no objection to that motion and made no argument to the
Immigration Judge to the effect that Second Circuit law rather than First Circuit law should be
applied to her case. See Matter of R-S-H-, 23 l&N Dec. 629, 638 (BIA 2003) (holding that a
represented party waives his opportunity to pursue an issue on appeal \Y failing to object below).
Under the circumstances, the issue was not preserved for our review. The respondent has not
1
We note, moreover, that removal proceedings are governed by a unitary system of federal law,
and ''no litigant has a right to have the interpretation of one federal court rather than that of
another determine his case." See Ballesteros v. Ashcroft, 452 F.3d 1153, 1157 (10th Cir. 2006)
(quoting Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993)), adhered to in part on reh'g sub
nom. Ballesteros v. Gonzales, 482 F.3d 1205 (10th Cir. 2007).
2
In any event, we do not agree that the respondent's crimes would not be considered CIMTs in
the Second Circuit. Matter of Obeya, 26 l&N Dec. 856, 858-59 (BIA 2016) (distinguishing
Wala v. Mukasey, 511 F.3d 1 02 (2d Cir. 2007), and holding that in removal proceedings in the
Second Circuit a theft crime is a CIMT if it "embodies a mainstream, contemporary
understanding of theft, which requires an intent to deprive the owner of his property either
permanently or under circumstances where the owner's property rights are substantially eroded.")
(quoting Matter ofDiaz-Lizarraga, 26 I&N Dec. 847,854 (BIA 2016)).

Cite as: Elisabete Monteiro Lopes, A041 958 867 (BIA Feb. 15, 2017)
A041 95g.. 867

otherwise disputed that her various crimes involve moral turpitude, and thus we will dismiss the
appeal in part and affirm the Immigration Judge's decision sustaining the section 237(a)(2)(A)(ii)
charge.

Although the respondent is removable under section 237(a)(2)(A)(ii) of the Act, her CIMT
convictions do not necessarily preclude her from qualifying for cancellation of removal under

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section 240A(a) of the Act, 8 U.S.C. 1229b(a), and therefore we proceed to address her
appellate arguments pertaining to the validity of the aggravated felony charge. An alien
convicted of an aggravated felony is not only removable under section 237(a)(2)(A)(iii) of the
Act, but also ineligible for cancellation of removal. See section 240A(a)(3) of the Act.

The Immigration Judge found that the respondent has two Connecticut convictions for
third-degree larceny under section 53a-124 of the Connecticut General Statutes (hereafter
"section 53a-124"), one in 2000 and another in 2015 (I.J. at 4-5; Exhs. 3, 5), and that both
convitions were for aggravated felony ''theft offenses" under section 101(a)(43)(G) of the Act
(I.J. at 5-6). The respondent argues on appeal, however, that her Connecticut convictions were
not for ''theft offenses" because some forms of larceny under Connecticut law involve takings
with consent that was fraudulently obtained (Resp. Brief at 4-5), while others permit conviction
based on the mere "withholding" or "retention" of stolen property, as opposed to its "receipt" or
''possession" (Resp. Brief at 5-6). We agree.

In an effort to distinguish ''theft offenses" under section I01(a)(43)(G) of the Act from
offenses that "involve fraud or deceit" under section 101(a)(43)(M)(i), this Board has interpreted
the term "theft offense" to exclude offenses in which a person or institution is tricked into
voluntarily surrendering property to another. See Matter of Garcia-Madruga, 24 l&N Dec. 436,
440-41 (BIA 2008) (holding that welfare fraud under Rhode Island law is not a ''theft offense").
In light of Garcia-Madruga, we agree that section 53a-124 is categorically overbroad vis-a-vis
section I0l{a)(43)(G) of the Act. Specifically, as the respondent correctly points out, section
53a-124 incorporates the definition of "larceny'' set forth in section 53a-119 of the Connecticut
General Statutes (hereafter "section 53a-119"). By its terms, section 53a-119 defines larceny
expansively, to include such acts as "obtaining property by false pretenses," "obtaining property
by false promise," "defrauding a public community," "obtaining property through fraudulent use
of an automated teller machine," and "air bag fraud." Such acts are not "theft offenses" under
Garcia-Madruga because they do not require the nonconsensual taking of property; rather, they
involve takings of property with consent that was fraudulently obtained.

The Immigration Judge acknowledged that section 53a-l19 defines larceny more broadly
than the aggravated felony ''theft offense" concept (I.J. at 5), and thus he applied the "modified
categorical" approach, which he deemed permissible based on his preliminary finding that
section 53a-l19 is a "divisible" statute (I.J. at 5-6). Upon de novo review, however, we conclude
that the Immigration Judge's divisibility finding is at odds with the Supreme Court's intervening
decision in Mathis v. United States, 136 S. Ct. 2243 (2016), which applies in removal
proceedings nationwide. See Matter of Chairez, 26 I&N Dec. 819 (BIA 2016).

Mathis clarifies that a statute phrased in the alternative is "divisible," so as to authorize a

modified categorical inquiry, only if each statutory alternative defines a discrete "element" of the

3
Cite as: Elisabete Monteiro Lopes, A041 958 867 (BIA Feb. 15, 2017)
A041 958,867

offense, as opposed to a mere ''brute fact" or factual ''means" by which an element may be
proven. See Mathis v. U.S., supra, at 2248. To help reviewing courts distinguish between
"elements" and ''means," moreover, the Mathis Court explained that "if a statutory list is drafted
to offer 'illustrative examples,' then it includes only a crime's means of commission," not
alternative "elements." See Mathis v. U.S., supra, at 2256 (citing United States v. Howard,
742 F.3d 1334, 1348 (11th Cir. 2014); United States v. Cabrera-Umanzor, 728 F.3d 347, 353

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(4th Cir.2013)).

Section 53a-119 defines larceny in the alternative by listing more than a dozen discrete types
of conduct, but the list is plainly "drafted to offer 'illustrative examples,"' not to define
alternative elements. Specifically, section 53a-l 19's list is preceded by an introductory clause
stating, "[l]arceny includes, but is not limited to ... ," thereby making clear that the list is
non-exhaustive and that its enumerated acts are merely examples of some of the myriad ways
larceny can be committed in Connecticut.

As section 53a-119's definition of larceny is overbroad vis-a-vis section I0l (a)(43)(G) of the
Act and indivisible under Mathis, it follows that the Immigration Judge was not permitted to
employ the modified categorical approach to sustain the aggravated felony charge (or to invoke
the aggravated felony bar to cancellation of removal). Consequently, we will sustain the
respondent's appellate challenge to the Immigration Judge's aggravated felony determinations.

In conclusion, the respondent is removable under section 237(a)(2)(A)(ii) of the Act, but she
is neither removable nor ineligible for relief as an alien convicted of an aggravated felony.
Accordingly, the appeal will be dismissed in part and sustained in part, and the record will be
remanded for further proceedings.

ORDER: The appeal is dismissed in part and sustained in part.

FURTHER ORDER: The record is remanded for further proceedings consistent with the
foregoing opinion and for entry of a new decision.

Cite as: Elisabete Monteiro Lopes, A041 958 867 (BIA Feb. 15, 2017)


UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BOSTON, MASSACHUSETTS
IN THE MATTER OF:

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LOPES, Elisabete Monteiro, ) In Removal Proceedings
a.k.a. Elizabeth Lopes ) DETAINED
A 041-958-867 )
)
Respondent )
CHARGES: Immigration and Nationality Act (INA or Act) 237(a)(2)(A)(iii): Alien
who, at any time after admission, has been convicted of an aggravated
felony as defined in section 101(a)(43)(G) of the Act, a law relating to a
theft offense (including receipt of stolen property) or burglary offense for
which a term of imprisonment of at least one year is imposed;
INA 237(a)(2)(A)(iii): Alien who, at any time after admission, has been
convicted of an aggravated felony as defined in section I01(a)(43)(U) of
the Act, a law relating to an attempt or conspiracy to commit an offense
described in section 10l(a)(43) of the Act; and
INA 237(a)(2)(A)(ii): Alien who, at any time after admission, has been
convicted of two crimes involving moral turpitude (CIMT) not arising out
of a single scheme of criminal misconduct
APPLICATIONS: Termination of Proceedings
ON BEHALF OF RESPONDENT ON BEHALF OF DHS
Holli B. Wargo, Esq. Assistant Chief Counsel
Collins & Martin, P.C. Office of the Chief Counsel
55 Town Line Road, 3rd Floor 15 New Sudbury Street, Room 425
Wethersfield, CT 06109 Boston, Massachusetts 02203
DECISION OF THE IMMIGRATION JUDGE
I. Procedural History
The Respondent, Elisabete Montiero Lopes, is a thirty-nine year old native and citizen of
Cape Verde. Exh. 1. On June 17, 2015, the Department of Homeland Security (OHS)
personally served her with a Notice to Appear (NTA). Id. The NTA alleges that the
Respondent: (I) is not a citizen or national of the United States; (2) is a native and citizen of
Cape Verde; (3) was admitted to the United States on or about February 21, 1989, as a Lawful
Permanent Resident (LPR); (4) was, on September 28, 2000, convicted in the State of
Connecticut Superior Court in Norwich, Connecticut for the offense of "Larceny Third Degree,"
in violation of section 53a-124 of the Connecticut General Statutes, and was sentenced to a one

I
 ....,..,,;

year term of imprisonment; (5) was, on January 21, 2011, convicted in the State of Connecticut
Superior Court in Norwich, Connecticut for the offense of "Accessory to Larceny Fourth
Degree," in violation of sections 53a-8 and 53a-125 of the Connecticut General Statutes, and was
sentenced to a one year term of imprisonment; (6) was, on January 21, 2011, convicted in the
State of Connecticut Superior Court in Norwich, Connecticut for the offense, "Accessory to

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Forgery Third Degree," in violation of sections 53a-8 and 53a-140 of the Connecticut General
Statutes, and was sentenced to a six month term of imprisonment; and (7) did not commit these
crimes as part of a single scheme of criminal misconduct. Id.
On the basis of the aforementioned allegations, the NT A charges the Respondent as
removable from the United States under section 237(a)(2)(A)(iii) of the Act, as an alien
convicted of an aggravated felony theft or burglary offense for which a term of imprisonment of
at least one year is imposed, and as an alien convicted of a conspiracy or attempt to commit an
offense defined by the Act as an aggravated felony. Id. It also charges the Respondent as
removable from the United States under section 237(a)(2)(A)(ii) of the Act, as an alien convicted
of two CIMTs not arising out of a single scheme of criminal misconduct. Id. The NTA ordered
the Respondent to appear before the Hartford Immigration Court (Harford Court) to show why
she should not be removed from the United States. Id.
On July 23, 2015, the Respondent appeed at the Hartford Court and, through counsel,
submitted a Written Pleading. See Exh. 2. The Respondent conceded the allegations numbered
(1) through (3), above, and denied the allegations numbered (4) through (7), above. Id. She also
denied all charges of removability. Id She declined to designate a country for removal, should
removal be ordered, and indicated her intent to apply for relief from removal in the forms of
termination of proceedings, cancellation of removal for certain permanent residents, and
voluntary departure in the alternative. Id.
On July 24, 2015, DHS served the Respondent by regular mail with an amendment to her
NTA. Exh. 6. The amendment added an additional allegation, namely that the Respondent: (8)
was, on April 20, 2015, convicted in the State of Connecticut Superior Court at Norwich,
Connecticut for the offense "Larceny Third Degree," in violation of section 53a-l 24 of the
Connecticut General Statutes, and was sentenced to a three year term of imprisonment. Id
On August 4, 2015, the Hartford Court granted DHS's August 3, 2015, Motion to Change
Venue to the Boston Immigration Court (Court). DRS Mot. to Change Venue, p. 1 (Aug. 3,
2015); Order of the Immigration Judge (Aug. 4, 2015).
On August 17, 2015, the Respondent filed a Motion to Terminate her removal
proceedings. Exh. 7. The Motion acknowledges the four larceny convictions alleged in the
Respondent's amended NTA, argues that these convictions do not qualify as aggravated felonies
or CIMTs, and contends that the Respondent is therefore not removable from the United States.
See id. at 2.

The Court will now issue a decision on the Respondent's removability and Motion to
Terminate.

2
 C
II. Standards of Law

A. Removability
At the conclusion of removal proceedings, the Immigration Judge shall decide whether an

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alien is removable from the United States. INA 240(c)(l )(A) (2015). The determination of the
Immigration Judge shall be based only on the evidence produced during proceedings. See id. In
the case of an alien who has been admitted to the United States and is charged with removability,
DHS bears the burden of establishing that the alien is removable as charged by clear and
convincing evidence. Id. at 240(c)(3)(A); see 8 C.F.R. 1240.S(a) (2015).
Pursuant to section 237(a)(2)(A)(iii) of the Act, an alien is removable if, at any time after
her admission into the United States, she has been convicted of an aggravated felony. See INA
237(a)(2)(A)(iii). Section 10l(a)(43)(G) of the Act defines an aggravated felony as "a theft
offense .. . or burglary offense for which the term of imprisonment is at least one year." See id.
I01(a)(43)(G). 1 The Board of Immigration Appeals (BIA or Board) has determined that "a
taking of property constitutes a[n aggravated felony] 'theft' whenever there is criminal intent to
deprive the owner of the rights and benefits of ownership, even if such depravation is less than
total or permanent." Matter of V-Z-S-, 22 l&N Dec. 1338, 1345-46 (BIA 2000); see also Lecky
v. Holder, 723 F.3d 1, 5 (1st Cir.20 13) (accepting Matter of V-Z-S-'s definition of an aggravated
felony theft offense). The Board has also determined that "the taking of property without
consent is required for a[ n aggravated felony] 'theft offense."' Matter of Garcia-Madruga, 24
I&N Dec. 436, 440 (BIA 2008) (emphasis in original).
Pursuant to section 237(a)(2)(A)(ii) of the Act, an alien is removable if, at any time after
her entry into the United States, she is convicted of two or more CIMTs not arising out of a
single scheme of criminal misconduct. INA 237(a)(2)(A)(ii). The Board ordinarily considers a
conviction for theft to involve moral turpitude only when a permanent taking is intended. Matter
ofGrazley, 14 I&N Dec. 330, 333 (BIA 1973).
To determine whether a state conviction qualifies as an offense defined in the Act, Courts
employ a categorical approach. This approach involves comparing the elements of the state
statute of conviction to the elements of the offense defined in the Act, as interpreted by the
Board. See Descamps v. United States, 133 S.Ct. 2276, 2281 (2013).2 The state conviction
qualifies as an offense defined in the Act if its elements are the same as, or narrower than, the
elements of the offense defined in the Act. See id. The state statute does not qualify as an
offense defined in the Act if it "criminalizes a broader swath of conduct" than the offense
defined in the Act. See id. at 228 1 -82. When analyzing a conviction under the categorical
approach, a court should presume that the conviction rests upon the least of the acts criminalized
by the .state statute, and then determine whether even those acts are equivalent to or encompassed
by the offense defined in the Act. See Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013).

1
The Act specifies that "any reference to a term of imprisonment or a sentence with respect to an offense is deemed
to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the
imposition or execution of that imprisonment or sentence in whole or in part." INA 1 0 l (a)(48)(B).
2
In Descamps, 1 33 S .Ct. at 229 1 , the Supreme Court "reserve[d] the question whether, in determining a crime's
elements, a . . . court should take account not only of the relevant statute's text, but ofjudicial rulings interpreting
it," then referenced relevant state case law.

3
 When a state statute of conviction is divisible - i. e. , when it sets out one or more of the
elements of the offense in the alternative - a court may use a modified categorical approach to
determine which statutory alternative of the state law formed the basis of a respondent's criminal
conviction. See Descamps, 1 33 S.Ct. at 2281; Moncrieffe, 133 S.Ct. at 1684; see also United
States v. Carter, 752 F.3d 8, 17-18 (1st Cir. 2014) (establishing the First Circuit's approach to

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divisibility by declaring a statute prohibiting "intentionally, knowingly, or recklessly causing
bodily injury or offensive physical contact to another person" divisible into "six permutations").
When utilizing the modified categorical approach, the Court may examine documents related to
the criminal conviction, such as the "charging document and jury instructions, or in the case of a
guilty plea, the plea agreement, plea colloquy, or some comparable judicial record of the factual
basis for the plea.'' Moncrieffe, 133 S.Ct. at 1684. The purpose of the modified categorical
approach is not to determine what a defendant and state judge must have understood as the
factual basis of the prior plea, but only to assess whether the plea was to the version of the crime
in the state statute equivalent to or encompassed by an offense defined in the Act. See
Descamps, 133 S.Ct at 2284. "The modified approach thus acts not as an exception, but instead
as a tool. It retains the categorical approach's central feature: a focus on the elements, rather than
the facts, of a crime." Id at 2285. 3
B. Termination of Proceedings

Immigration Judges have the regulatory authority to terminate removal proceedings. 8

C.F.R. 1 240.12(c). Termination of proceedings generally occurs when an Immigration Judge
determines on the merits that an alien is not removable as charged in the NTA. Matter of
Avetisyan, 25 I&N Dec. 688, 695 n. 6 (BIA 2012). An Immigration Judge's termination of
proceedings constitutes a final order concluding the proceedings. Id. at 695. Following
termination, and in the absence of a successful appeal or motion, DHS may institute new
proceedings against the alien only through the filing of a new charging document. Id
III. Findings of Fact and Conclusions of Law

A. Removability

The Respondent's aggravated felony and CIMT charges of removability are premised
upon her Connecticut convictions for larceny offenses. Specifically, the Respondent was
convicted for larceny in the third degree, in violation of section 53a-124 of the Connecticut

3
On November 7, 2008, Attorney General Michael Mukasey issued an opinion establishing "an administrative
framework for detennining whether an alien has been convicted of a [CIMTV' Matter of Silva-Trevino, 24 l&N
Dec. 687, 689 (A.G. 2008). This framework involved first conducting the categorical, and if necessary, modified
categorical inquiries, and then, if necessary "consider[ing] evidence beyond the formal record of conviction." Id. at
689-90. On April 1 0, 20 1 5 , Attorney General Eric Holder issued an opinion concluding that "it is appropriate to
vacate the November 7, 2008, opinion [in] its entirety," and ordering the Board to develop a new framework for
conducting the CIMT analysis. Matter of Silva-Trevino, 26 I&N Dec. 550, 553-54 (A.G. 20 1 5). As support for the
vacatur, Attorney General Holder referenced two Supreme Court decisions issued after the November 7, 2008,
opinion - Carachuri-Rosendo v. Holder and Moncrieffe v. Holder - which "cast doubt on the third step of the
framework set out by Attorney General Mukasey's opinion . . . ". Id. at 553 . Accordingly, following the April 1 0,
20 1 5, opinion, and pending further guidance from the Board, the Court will utilize Moncrieffe's categorical and
modified categorical approaches to determine whether an alien has been convicted of a CIMT.

4
General Statutes, on September 28, 2000. Exh. 3. For this offense, committed on March 2,
2000, she received a sentence of one year's imprisonment. Id. The Respondent was again
convicted of larceny in the third degree, in violation of section 53a-l 24 of the Connecticut
General Statutes, on April 20, 201 5 . Exh. 5. For this offense, committed on October 14, 201 4,
she received a sentence of three years' imprisonment. Id.

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Under Connecticut law, a person convicted under the Respondent's statute of conviction
of larceny in the third degree has necessarily committed a "larceny, as defined in section 53a-
l19." Conn. Gen. Stat. 53a-124. Section 53a-119 provides, in pertinent part,
A person commits larceny when, with intent to deprive another of property or to
appropriate the same to himself or a third person, he wrongfully takes, obtains or
withholds such property from an owner.

Conn. Gen. Stat. 53a-1 1 9. Connecticut case law establishes that:

The elements of larceny include: ( 1 ) the wrongful taking or carrying away of the
personal property of another; (2) the existence of a felonious intent in the taker
to deprive the owner of [the property] permanently; and (3) the lack of consent
of the owner. Consequently, a conviction for larceny [cannot] stand . . . [when
the] property is taken with the knowing consent of the owner . . .

State v. Calonico, 770 A.2d 454, 466 (Conn. 2001) (internal quotations and citations omitted).
1. Aggravated Felony Theft Offense
The Court finds, by clear and convincing evidence, that the Respondent is removable
pursuant to section 237(a)(2)(A)(iii) of the Act, as an alien convicted of an aggravated felony
theft offense for which .the tenn of imprisonment is at least one year. See INA 101(a)(43)(0);
237(a)(2)(A)(iii). It is undisputed that the Respondent was sentenced to imprisonment for at
least one year following her September 2000 and April 201 5 larceny convictions. See Exhs. 3, 5.
Furthermore, larceny ( and, by reference, larceny in the third degree) under Connecticut law
necessar ily involves taking, obtaining, or withholding property from an owner with an intent to
deprive and without the owner's consent. See Calonico, 770 A.2d at 466. The Respondent's
larceny convictions therefore categorically qualify as aggravated felony theft convictions under
the Act. See Matter of V-Z-S-, 22 l&N Dec. at 1345-46; Lecky, 723 F.3d at 5 ( 1 st Cir. 2013);
Matter of Garcia-Madruga, 24 I&N Dec. at 440; see also Descamps, 133 S.Ct. at 2281.
Accordingly, these convictions render the Respondent removable under section 237(a)(2)(A)(iii)
of the Act. INA 237(a)(2)(A)(iii).
Alternatively, notwithstanding Connecticut case law to the contrary, section 53a-l 1 9
seems to qualify as larcenies certain crimes potentially involving consensually obtaining
property from an owner, such as by false pretenses or fraud. See Conn. Gen. Stat. 53a-1 l 9(2)
(obtaining property by false pretenses), (6) (defrauding of public community). In this respect,
the Respondent's statute of conviction is divisible - alternatively criminalizing wrongfully taking
(i. e. , taking without consent) property from an owner, as well as consensually obtaining property
from an owner - warranting the application of the modified categorical approach. See
Descamps, 133 S.Ct. at 228 1 ; Moncrieffe, 1 33 S.Ct. at 1684; Carter, 752 F.3d at 17-1 8. The
Respondent's September 28, 201 0, plea colloquy reveals that in March 2000, the Respondent,
believing that her father owed her money for damaging her furniture and following his refusal to

5
pay her such, "took two of [his] personal checks," made them out to herself in the aggregate
amount of $5,900, used one check to open a bank account in her name, deposited both checks in
the account, and then, days later, withdrew $3, 1 00 from the account. Ex.h. 8, pp. 1 -3;4 see
Moncrieffe, 1 33 S.Ct. at 1684. The Respondent's April 20, 20 1 5, plea colloquy.reveals that on
October 14, 201 4 while the Respondent was an employee at a hotel, she had "taken money from

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a purse belonging to an individual who was registered that evening to stay at [the hotel]." Exh.
9, p. 1 ; 5 see Moncrieffe, 133 S.Ct. at 1 684. The Respondent's plea colloquies establish that the
Respondent's September 2000 and April 201 5 larceny convictions were pursuant to the section
of the divisible Connecticut statute prohibiting a wrongful (i.e. , nonconsensual) taking, as
opposed to a section of the statute prohibiting some form of consensually obtaining property
from another. The application of the modified categorical approach therefore reveals that the
Respondent's convictions, each of which resulted in a sentence of at least one year, qualify as
aggravated felony theft convictions. See Exhs. 3, 5; Matter o.f'Garcia-Madruga, 24 I&N Dec. at
440; INA 1 01 (a)(43)(G). Accordingly, the Respondent's convictions render her removable
under section 237(a)(2)(A)(iii) of the Act. INA 237(a)(2)(A)(iii). 6
2. Two Crimes Involving Moral Turpitude
The Court finds, by clear and convincing evidence, that the Respondent is removable
under section 237(a)(2)(A)(ii) of the Act, as an alien convicted of two CIMTs not arising out of a
single scheme of criminal misconduct. Id. at 237(a)(2)(A)(ii). It is not disputed that the
Respondent's September 2000 and April 2015 convictions for larceny in the third degree did not
arise out of a single scheme of criminal misconduct. See Exhs. 3, 5. Furthermore, larceny (and,
by reference, larceny in the third degree) under Connecticut law necessarily involves "an intent .
. . to deprive the owner of [the property] permanently." See Calonico, 770 A.2d at 466. The
Respondent's convictions therefore categorically qualify as CIMT theft convictions under the
Act. See Matter ofGrazley, 1 4 I&N Dec. at 333; see also Descamps, 1 33 S.Ct. at 2281.
Accordingly, the Respondent has been convicted of two CIMT offenses not arising out of a
single scheme of criminal misconduct, rendering her removable under section 237(a)(2)(A)(ii) of

4
The Respondent included her September 2000 plea colloquy in a Bond Exhibit she submitted to the Court on
August 1 7, 20 15. The Court has entered a copy of the September 2000 plea colloquy into the Removal Record as
Exhibit 8. In this decision, the page numbers cited within Exhibit 8 refer to the numbers on the top right corners of
the pages.
5 The Respondent included her April 20 1 5 p]ea colloquy in a Bond Exhibit she submitted to the Court on August 1 7,
20 1 5 . The Court has entered a copy t>fthe April 20 1 5 plea colloquy into the Removal Record as Exhibit 9. In this
decision, the page number cited within Exhibit 9 refers to the number on the top right comer of the page.
6
In support of her argument that her conviction does not qualify as an aggravated felony theft conviction under the
Act, the Respondent cites Bazuaye v. Mukasey, 273 Fed.Appx. 77 (2d Cir. 2008), an unpublished Second Circuit
decision, and United States v. Klim, No. 1 : l 3-CR- 1 64-jgm-0 1 , 20 1 4 WL 4403 1 53 (D. Vt. Aug. 1 8, 20 1 4), an
unpublished District of Vermont decision. Neither case is binding on this Court. Furthermore, neither case
mandates a finding that the Respondent's conviction is not an aggravated felony theft conviction. In Bazuaye1 273
Fed.Appx. at 78, the Second Circuit determined that a conviction for third degree larceny under a N ew York statute
was not categorically an aggravated felony theft conviction, but indicated that the New York statute might be
divisible, criminalizing both aggravated felony and non-aggravated felony theft offenses. In Klim, 20 14 WL
4403 1 53 at *5, the District Court found the New York and Connecticut larceny statutes are similar and,
consequently, determined that a respondent received ineffective assistance of counsel in immigration court because
her attorney failed to reference Bazuaye and Matter of Garcia-Madruga when discussing "whether the Connecticut
third-degree larceny statute categorically fits the BIA's definition of theft offense." The District Court did not
address Connecticut case law on larceny, nor the Connecticut statute' s divisibility.

6
 C C
the Act. See INA 237(a)(2)(A)(ii). 7

B. Termination of Proceedings

Because the Court has determined that the Respondent is removable pursuant to section

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237(a)(2)(A)(iii) of the Act, as an alien convicted of an aggravated felony theft offense for which
the term of imprisonment is at least one year, and section 237(a)(2)(A)(ii) of the Act, as an alien
convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal
misconduct, the Court will decline to terminate the Respondent's proceedings. See Matter of
Avetisyan, 25 l&N Dec. at 695 n. 6.

The Court will proceed to consider whether the Respondent is eligible for and merits any
form of relief from removal. Regarding relief, the Court notes that because the Respondent is
removable on aggravated felony grounds, she is ineligible for cancellation of removal for certain
permanent residents and voluntary departure. INA 237(a)(2)(A)(iii); 240A(a)(3); 240B(a)(l),
(b)( l )(C).

ORDERS

IT IS HEREBY ORDERED THAT the Respondent's CHARGES OF

REMOVABILITY under sections 237(a)(2)(A)(iii) and 237(a)(2)(A)(ii) of the Act are
SUSTAINED.

IT IS FURTHER ORDERED THAT the Respondent's MOTION TO TERMINATE

is DENIED.

STEVEN F. DAY
United Sta!es Immigration Ju
--

7
The Respondent cites Wala v. Mukasey, 5 1 1 F.3d 1 02 (2d Cir. 2008), for the proposition that, "The Respondent's
larceny convictions do not render her removable because the minimum conduct necessary to sustain a larceny
conviction under Connecticut's statute includes temporary takings. Exh. 7, p. 2. In Wala, 5 1 1 F.3d at 1 09, the
Second Circuit determined that the Connecticut statute defining larceny, section 53a- l 1 9 of the Connecticut General
Statutes, does not distinguish between permanent and temporary takings. This Court is not bound by Wala.
Furthermore, this Court finds that Connecticut case law clearly establishes that a conviction for larceny under
section 53a- 1 1 9 of the Connecticut General Statutes requires that a defendant act with an "intent . . . to deprive [an]
owner of [the property] permanently." See Calonico, 770 A .2d at 466.