U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, V1rgm1a 2204/

Immigrant & Refugee Appellate Center, LLC | www.irac.net

TAVERAS PAGUAGA, JAVIER ANTONIO OHS/ ICE Office of Chief Counsel - KRO
Garcia, Miranda & Gonzalez-Rua, P.A. 18201 SW 12th St.
9485 SW 72 St., Suite A270 Miami, FL 33194
Miami, FL 33173

Name: JOSEPH, GUERLINE A 074-926-647

Date of this notice: 3/10 /2020

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Morris, Daniel
Liebowitz, Ellen C
Gemoets, Marcos

t1Jm.. dy 1
Userteam: Docket

For more unpublished decisions, visit

www.irac.net/unpublished/index

Cite as: Guerline Joseph, A074 926 647 (BIA March 10, 2020)
,
U�S. Dep�rtment of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A074-926-647 -Miami, FL Date: MAR t O 2020

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In re: Guerline JOSEPH a.k.a. Joseph Guerline a.k.a. Guerline L. Joseph a.k.a. Guerline Leo

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Javier A. Taveras Paguaga, Esquire

ON BEHALF OF OHS: Olga L. Villa

Assistant Chief Counsel

APPLICATION: Tennination

The respondent, a native and citizen of Haiti, appeals from the Immigration Judge's
September 18, 2019, decision. 1 In that decision, the Immigration Judge detennined that the
respondent was removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
8 U.S.C. § l227(a)(2)(A)(iii). The Department of Homeland Security ("OHS") opposes the appeal.
The appeal will be sustained and proceedings terminated.

We review findings of fact determined by an Immigration Judge, including credibility findings,

under a "clearly erroneous" standard. 8 C.F.R. § l003.l(d)(3)(i) (2017). We review questions of
law, discretion, and judgment, and all other issues in appeals from decisions oflmmigration Judges
de novo. 8 C.F.R. § l003.l(d)(3)(ii).

On appeal, the respondent argues that the Immigration Judge erred in detennining that she is
removable under section 237(a)(2)(A)(iii) of the Act (IJ at I). Specifically, the respondent argues
that the Immigration Judge erred in detennining that her 2018 conviction for the offense of
Exploitation of an Elderly Person ($10,000 or more, but less than $50,000) in violation of Fla. Stat.
§ 825.103(1), (3)(b )2 ("§ 825.103(1 )") constitutes an aggravated felony as defined by section
10l(a)(43)(G) of the Act, 8 U.S.C. § l10l(a)(43)(G)3 (Exh. 2; Respondent's Br. at 10�15).

1 This case was previously before the Board on September 17, 2019, when we dismissed the
respondent's interlocutory appeal because it did not raise a jurisdictional question regarding the
administration of the immigration laws, nor did it present an issue regarding recurring problems in
the handling of cases by Immigration Judges. See Matter of Guevara, 20 l&N Dec. 239
(BIA 1990); Matter ofDobere, 20 l&N Dec. 188 (BIA 1990).
2
§ 825.l03(3)(b) pertains to that portion of the statute that distinguishes the punishment under
the statute according to the amount of property, funds, or assets involved.
3
The OHS initially charged the respondent with being removable under section 237(a)(2)(A)(iii)
of the Act as an alien convicted of an aggravated felony under section l 0l(a)(43)(M) of the Act,
but the government later withdrew this charge (Exhs. 1, 3).
Cite as: Guerline Joseph, A074 926 647 (BIA March 10, 2020)
A074-926.-647

We disagree with the Immigration Judge's determination that the respondent is removable
under section 237(a)(2)(A)(iii) of the Act, as an alien who has been convicted of an aggravated
felony as defined under section 101(a)(43)(G) of the Act, but for reasons different from what the
respondent argues (IJ at l; Tr. at 24; Respondent's Br. at 10-15). To determine whether

Immigrant & Refugee Appellate Center, LLC | www.irac.net

§ 825. 103(1) constitutes a generic theft offense aggravated felony, we employ the "categorical
approach;" this approach applies the generic theft offense standard to the '"minimum conduct
criminalized by the state statute." Moncrieffe v. Holder, 569 U.S. 184, J91 (2013). The "minimum
conduct criminalized" refers to the statutory offense elements that must be unanimously found
beyond a reasonable doubt or admitted by the accused. See Mathis v. United States,
136 S. Ct. 2243, 2249 (2016). We then determine whether the "minimum conduct criminalized"
under the state statute is encompassed by the generic federal offense. Moncrieffe v. Holder,
569 U.S. at 191. A statute will be deemed overbroad if "there is a 'realistic probability' of its
application to conduct that falls beyond the scope of the generic federal offense."
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 184 (2007).

The generic definition of theft is the "taking of, or exercise of control over, property without
consent whenever there is criminal intent to deprive the owner of rights and benefits of
ownership, even if such deprivation is less than total or permanent." Vassell v. US. Alty Gen.,
839 F.3d 1352, 1356 (11th Cir. 2016) (citing to Matter of Garcia-Madruga, 24 I&N Dec. 436,
440-41 (BIA 2008)); see also Gonzales v. Duenas-Alvarez, 549 at 184 (citation omitted); Matter
of V-Z-S-, 22 I&N Dec. 1338, 1346 (BIA 2000). In an effort to distinguish "theft offenses" under
section l0l(a)(43)(G) of the Act from offenses that "involve fraud or deceit" under section
101(a)(43)(M)(i), the 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. at 440-41 (holding that welfare fraud under Rhode Island law is
not a "theft offense"). Giving deference to the Board's interpretation of the generic definition of
theft, the United States Court of Appeals for the Eleventh Circuit has emphasized that thefts
"without consent" as an element distinguishes theft from fraud offenses, where consent is gained
through some kind of falsehood. Vassell v. U.S. Atty Gen., 839 F.3d at 1356-59 (citing Garcia­
Madruga, 24 l&N at 439).

With respect to the respondent's state offense, § 825. 103(1) provides:

(1) "Exploitation of an elderly person or disabled adult" means:

(a) Knowingly obtaining or using, or endeavoring to obtain or use, an elderly person's or

disabled adult's funds, assets, or property with the intent to temporarily or permanently
deprive the elderly person or disabled adult of the use, benefit, or possession of the funds,
assets, or property, or to benefit someone other than the elderly person or disabled adult,
by a person who:

1. Stands in a position of trust and confidence with the elderly person or disabled adult; or

2. Has a business relationship with the elderly person or disabled adult;

2
Cite as: Guerline Joseph, A074 926 647 (BIA March 10, 2020)
A07 4-926:-64 7

(b) Obtaining or using, endeavoring to obtain or use, or conspiring with another to obtain
or use an elderly person's or disabled adult's funds, assets, or property with the intent to
temporarily or permanently deprive the elderly person or disabled adult of the use, benefit,
or possession of the funds, assets, or property, or to benefit someone other than the elderly

Immigrant & Refugee Appellate Center, LLC | www.irac.net

person or disabled adult, by a person who knows or reasonably should know that the elderly
person or disabled adult lacks the capacity to consent;

(c) Breach of a fiduciary duty to an elderly person or disabled adult by the person's
guardian, trustee who is an individual, or agent under a power of attorney which results in
an unauthorized appropriation, sale, or transfer of property. An unauthorized appropriation
under this paragraph occurs when the elderly person or disabled adult does not receive the
reasonably equivalent financial value in goods or services, or when the fiduciary violates
any of these duties:

I. For agents appointed under chapter 709:

a. Committing fraud in obtaining their appointments;

b. Abusing their powers;

c. Wasting, embezzling, or intentionally mismanaging the assets of the principal or

beneficiary; or

d. Acting contrary to the principal' s sole benefit or best interest; or

2. For guardians and trustees who are individuals and who are appointed under chapter 736
or chapter 744:

a. Committing fraud in obtaining their appointments;

b. Abusing their powers; or

c. Wasting, embezzling, or intentionally mismanaging the assets of the ward or beneficiary

of the trust;

(d) Misappropriating, misusing, or transferring without authorization money belonging to

an elderly person or disabled adult from an account in which the elderly person or disabled
adult placed the funds, owned the funds, and was the sole contributor or payee of the funds
before the misappropriation, misuse, or unauthorized transfer. This paragraph only applies
to the following types of accounts:

1. Personal accounts;

2. Joint accounts created with the intent that only the elderly person or disabled adult enjoys
all rights, interests, and claims to moneys deposited into such account; or

3
Cite as: Guerline Joseph, A074 926 647 (BIA March 10, 2020)
A074-926-647

3. Convenience accounts created in accordance with s. 655.80; or

(e) Intentionally or negligently failing to effectively use an elderly person's or disabled

adult's income and assets for the necessities required for that person's support and

Immigrant & Refugee Appellate Center, LLC | www.irac.net

maintenance, by a caregiver or a person who stands in a position of trust and confidence
with the elderly person or disabled adult.

When comparing § 825.l 03(1) to the generic definition of theft, § 825.103(1) is overbroad
because it does not include as an element a lack of consent. Likewise, the jury instructions do not
mention consent (Exh. 3). Further, one can be convicted under § 825.103(1) when the victim
"voluntarily 'surrendered' his property, because of an •intentional perversion of truth,' or
otherwise 'act[ed] upon' a false representation to his injury." Garcia-Madruga, 24 l&N at 439;
see Thomason v. State. 790 So.2d 1189 (2001) (discussing a conviction under § 825.103(1)
whereby a defendant had obtained an amount of money less than $20,000 from a couple, in
exchange for his agreement to perform home repairs, with no intent of performing the services
with the intent of permanently depriving them of the money). Thus, there is a realistic probability
that the minimum conduct for a conviction under § 825.103(1) is broader than what the generic
definition of a theft offense calls for. as a person can be convicted under § 825.103(1) in cases
where the victim consented to the taking of their property under false pretenses. See
Vassell v. US. Att 'y Gen., 839 F.3d at 1356-59; Matter ofGarcia-Madruga, 24 I&N Dec. at 440-
41. Therefore, we conclude that § 825.103(1) is categorically overbroad in relation to the generic
standard for a theft offense aggravated felony. See Descamps v. United States, 510 U.S. 254, 275-
77 (2013) (discussing the concept of an '"overbroad" statute).

Moreover, § 825.103(1) is not divisible. See Mathis v. United States, 136 S. Ct. at 2248
(clarifying 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 offense,
as opposed to a mere "brute fact" or factual "means" by which an element may be proven).
§ 825.103(1) delineates various distinct means by which it could be violated, none of which
involve taking of property without consent.

Based on the foregoing, the respondent is not removable under section 237(a)(2)(A)(iii) of the
Act for having been convicted of an aggravated felony theft offense under section 101(a)(43)(G)
of the Act. Consequently, proceedings will be terminated.

ORDER: The respondent's appeal is sustained and removal proceedings terminated.

FURTHER ORDER: The Immigration Judge's September 18, 2019, decision is vacated.

4
Cite as: Guerline Joseph, A074 926 647 (BIA March 10, 2020)