U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 lee.sb11rg Pike, S11ite 2000 Falls Ch11rch, Virginia 22041

Rivas, Martin J., Esq. Attorney At Law 801 Madrid Street, Suite 205 Coral Gables, FL 33134-0000

OHS/ICE Office of Chief Counsel 333 South Miami Ave., Suite 200 Miami, FL 33130

MIA

Immigrant & Refugee Appellate Center | www.irac.net

Name: ALEMAN, TAMARA JACKELINE

A 073110365

Date of this notice: 6/18/2013

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

DorutL cWlA.)
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger

lucasd
Userteam: Docket

Cite as: Tamara Jackeline Aleman, A073 110 365 (BIA June 18, 2013)

U.S. Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 lcesburg Pike, Suite 2000 Falls C/111rc/1, Virginia 22041

ALEMAN, TAMARA JACKELINE L78861/A073110365 501 SO. CALHOUN STREET TALLAHASSEE, FL 32399

OHS/ICE Office of Chief Counsel - MIA 333 South Miami Ave., Suite 200 Miami, FL 33130

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Name: ALEMAN, TAMARA JACKELINE

A 073-110-365

Date of this notice: 6/18/2013

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. 1292.5(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,

DonnL ct1/Vt.J
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger

lucasd Userteam: Docket

Cite as: Tamara Jackeline Aleman, A073 110 365 (BIA June 18, 2013)

U.S. Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 22041

ALEMAN, TAMARA JACKELINE L78861/A073-110-365 C/O LOWELL C.I. 11120 NW GAINSVILLE ROAD OCALA, FL 34482

OHS/ICE Office of Chief Counsel - MIA 333 South Miami Ave., Suite 200 Miami, FL 33130

Immigrant & Refugee Appellate Center | www.irac.net

Name: ALEMAN, TAMARA JACKELINE

A 073-110-365

Date of this notice: 6/18/2013

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,

DcrutL ca.AA)
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger

lucasd Userteam: Docket

Cite as: Tamara Jackeline Aleman, A073 110 365 (BIA June 18, 2013)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

File:

A073 I I0 365 - Miami, FL

Date:

JUN 18 2013

In re: TAMARA JACKELINE ALEMAN a.k.a. Tamara Aleman IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Martin J. Rivas, Esquire

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Christina Martyak Assistant Chief Counsel

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 (not sustained) 237(a)(2)(A)(iii), I&N Act [8 U.S.C. I227(a)(2)(A)(iii)] Convicted of aggravated felony (as defined in section I0 I(a)(43)(T)) (sustained) Sec. 237(a)(2)(A)(iii), I&N Act (8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony (as defined in section 101(a)(43)(M)) (sustained) APPLICATION: Termination

Sec.

The respondent, a native and citizen of Nicaragua, appeals the January 3 1, 20 13, decision of the Immigration Judge finding her removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), and ineligible for any form of relief. The appeal will be dismissed. On July 29, 2009, the respondent was convicted of four counts of "exploitation of an elderly person or disabled adult" in violation of Florida Statutes Annotated sections 825. 103(I) and 825. 103(2)(c), and sentenced to 5 years of imprisonment (l.J. at I-2; Exh. 2). Also on that date, the respondent was convicted of "failure of defendant on bail to appear" in violation of section 843. 15(1) of Florida Statutes Annotated and sentenced to 5 years of imprisonment to run concurrently with the previous sentence (I.J. at 2; Exh. 2). The respondent argues that the Immigration Judge erred in holding that the

Department of Homeland Security ("DHS") proved by clear and convincing evidence that her conviction for exploitation of an elderly or disabled adult constitutes an aggravated felony under section 10 1(a)(43)(M) of the Act, 8 U.S.C. 1 I0 1(a)(43)(M). See 8 C.F.R. I240.8(a). The respondent does not dispute that the statute of conviction categorically involves fraud or deceit.

Cite as: Tamara Jackeline Aleman, A073 110 365 (BIA June 18, 2013)

A073 110 365

See Florida Statutes Annotated 825. 103(l)(a) (requiring an elderly person or disabled adult's
property to be obtained "knowingly, by deception or intimidation"). The United States Supreme Court has held that the $10,000 loss threshold of section 10l(a)(43)(M)(i) of the Act does not need to be an element of the underlying conviction; rather, "it refers to the particular circumstances in which an offender committed a (more broadly defined) fraud or deceit crime on a particular occasion," a case-specific approach. Nijhawan
v.

Holder, 557 U.S. 29, 32 (2009).

The respondent claims that the record does not show that she committed one offense causing a loss of at least $ 10,000, to any particular victim. The restitution order shows that the respondent was held liable for over $14,000 (Tr. at 15; Exh. 2). Under Nijhawan, we find this sufficient to satisfy the loss requirement of section 101(a)(43)(M)(i) of the Act, even though it may have included losses inflicted upon multiple victims with the aid of a co-conspirator (Respondent's Brief at 9- 10). In this regard, section 101(a)(43)(M)(i) requires one to be convicted of an offense involving fraud or deceit in which the loss to "the victim or victims" exceeded $10,000. Therefore, we affirm the holding that the DHS has satisfied its burden of proving removability under section 237(a)(2)(A)(iii) of the Act with respect to the respondent's conviction for exploitation of an elderly person or disabled adult (l.J. at 2). In addition, the respondent contends that the Immigration Judge erroneously concluded that the DHS has shown that her conviction for failure to appear is an aggravated felony under section 101(a)(43)(T) of the Act as "an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed." See 8 C.F.R. 1240.8(a). This requires an application of the categorical approach, which looks to the elements of the penal statute rather than the particulars of the respondent's conduct. See, e.g., United States v. Martinez-Gonzalez, 663 F.3d 1305, 1309- 10 (11th Cir. 20 11). The respondent claims that section 843.15(1) of Florida Statutes Annotated does not contain an element requiring failure to appear in court pursuant to a court order. We disagree. The statute of conviction provides "(w]hoever, having been released pursuant to chapter 903 [covering bail], willfully fails to appear before any court or judicial officer as required shall incur a forfeiture of any security which was given or pledged for her or his release." Florida Statutes Annotated 843.15(1). As Florida law authorizes judicial courts to grant bail, section 843. 15( 1) of Florida Statutes Annotated categorically requires failure to appear pursuant to a court order. See Florida Statutes Annotated 903.02( 1) and 903.03(1). We thus also affirm the holding that the respondent is removable under section 237(a)(2)(A)(iii) of the Act with respect to her conviction involving failure to appear (1.J. at 2). The respondent has not applied for relief from removal. We observe that due to her

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aggravated felony convictions, she is not eligible for cancellation of removal (l.J. at 2).

See

section 240A(a)(3) of the Act, 8 U.S.C. 1229b(a)(3). The respondent is also ineligible for asylum and withholding of removal pursuant to the particularly serious crime bar (l.J. at 2-3). See sections 208(b)(2)(A)(ii) and 208(b)(2)(B)(i) of the Act, 8 U.S.C. l158(b)(2)(A)(ii) and l 158(b)(2)(B)(i); sections 24l(b)(3)(B)(ii) and 24l(b)(3)(B)(iv) of the Act, 8 U.S.C. 1231(b)(3)(B)(ii) and 123l(b)(3)(B)(iv). Finally, the respondent has not claimed a fear of torture upon return to Nicaragua (l.J. at 3; Tr. at 13). See 8 C.F.R. 1208.17(a).

Cite as: Tamara Jackeline Aleman, A073 110 365 (BIA June 18, 2013)

A073 110 365

Accordingly, the following order is entered.

ORDER: The appeal is dismissed.

kf

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Tamara Jackeline Aleman, A073 110 365 (BIA June 18, 2013)