U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Vtrgmia 22041

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Winograd, Benjamin R., Esq. OHS/ICE Office of Chief Counsel - ORL
Immigrant & Refugee Appellate Center, LLC 3535 Lawton Road, Suite 100
3602 Forest Drive Orlando, FL 32803
Alexandria, VA 22302

Name: F , H M A -345

Date of this notice: 3/29/2017

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

Sincerely,

J
/"\.

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Creppy, Michael J.
Malphrus, Garry D.
Mullane, Hugh G.

Userteam: Docket

For more unpublished BIA decisions, visit

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The respondent argues that her attorney provided ineffective assistance of counsel when he
conceded that her crimes were aggravated felonies. She argues that the statutes of her conviction
do not categorically define either theft crimes or crimes of violence under sections 10l (a)(43)(F)
and (G) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(F) and (G). She has
also complied with the requirements for a claim of ineffective assistance (Resp. Br., Tabs A-E).
See Matter of Lozada, supra, at 639 (to claim ineffective assistance of counsel, a respondent is

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required to: 1) provide an affidavit detailing the agreement he had with counsel; 2) inform
counsel of the allegations and provide an opportunity to respond; and 3) file a complaint with
appropriate disciplinary authorities).

Although the respondent has complied with the requirements of Matter ofLozada, supra, she
must also demonstrate prejudice from the actions of her counsel. In other words, she must show
the attorney's deficient performance affected the outcome of the case. Here, due to the
concession below, the Immigration Judge did not address either the divisibility of these criminal
statutes or whether or not they were aggravated felonies. If the burglary or larceny statutes are
divisible or if they are not divisible and categorically not crimes of violence or theft crimes, then
the crimes might not be aggravated felonies. On appeal, the respondent has presented evidence
of her eligibility for the relief of cancellation of removal, asylum, and witholding of removal,
relief that is not available to those convicted of aggravated felonies. The respondent may have
been prejudiced by her former attorney conceding removability as an aggravated felon, if the
crimes are not properly classified as such.

The United States Court of Appeals for the Eleventh Circuit has held that a statute is
considered divisible when it"lists a number of alternative elements that effectively create several
different crimes." Donawa v. US. Att'y Gen., 735 F.3d 1275, 1281 (11th Cir. 2013); see Spaho
v. US Att'y Gen., 837 F.3d 1172, 1177 (11th Cir. 2016). On the other hand, it is indivisible
when it contains elements that are not set forth in the alternative. Descamps v. United States,
133 S.Ct. 2276, 2281 (2013). The statute remains indivisible but may enumerate different
methods of"committing a single element." Mathis v. United States, 136 S.Ct. 2243, 2249 (2016).

The respondent argues that neither the Virginia larceny nor the burglary statutes are
divisible and that the Virginia definition of larceny is not consistent with the generic definition
of a theft crime. The accepted generic definition of theft is the "'taking of property or an
exercise of control over property without consent with the criminal intent to deprive the owner of
rights and benefits of ownership, even if such deprivation is less than total or permanent."'
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007) (quoting Penuliar v. Gonzales, 435 F.3d
961, 969 (9th Cir. 2006)). Concerning the definition of larceny under Virginia law, as argued by
the respondent, Virginia law allows for a conviction for grand larceny, even where the
perpetrator has taken the property of the other with that person's consent (Resp. Br. at 6-12,
citing Skeeter v. Com., 232 S.E.2d 756, 758 (1977) and Bourgeois v. Com., 227 S.E.2d 714, 717
(1976), among others). Such a crime is not considered theft under the generic definition. Vassell
v. US. Att'y Gen., 839 F.3d 1352, 1356 (11th Cir. 2016); Matter of Garcia-Madruga, 24 I&N
Dec. 436 (BIA 2008).

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As the larceny statute at issue here is broader than the generic definition, we must determine
whether the statute is divisible. Virginia's grand larceny statute provides:

Any person who (i) commits larceny from the person of another of money or
other thing of value of $5 or more, (ii) commits simple larceny not from the
person of another of goods and chattels of the value of $200 or more, or (iii)

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commits simple larceny not from the person of another of any firearm, regardless
of the firearm's value, shall be guilty of grand larceny, punishable by
imprisonment in a state correctional facility for not less than one nor more than
twenty years or, in the discretion of the jury or court trying the case without a
jury, be confined in jail for a period not exceeding twelve months or fined not
more than $2,500, either or both.

Va. Code Ann. 18.2-95 (2006).

Although this statute delineates three distinct means by which the statute might be violated, it
provides the same punishment for each section. Further, nothing indicates that a jury must
unanimously decide whether, for example, the amount stolen was from a person valued over
$5 or not from a person but over $200. Concerning divisibility on the consent issue discussed
above, although this case is within the jurisdiction of the United States Court of Appeals for the
Eleventh Circuit, the respondent cites a Fourth Circuit case finding the statute is not divisible
(Resp. Br. at 11, citing Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014)). See Vassell v. US.
Att 'y Gen., supra, at 1357 (citing Omargharib v Holder, supra, with approval). Both the
enumerated section, and the fact that the crime can be committed with or without consent,
present alternative means for completing the crime, rather than "alternative elements that
effectively create several different crimes." Donawa v. US. Att 'y Gen., supra, at 1281; see
Spaho v. US. Att 'y Gen., supra, at 1177.

As the statute is not divisible, and it is overbroad when compared to a generic theft offense, it
is not an aggravated felony, theft, under section 10l (a)(43)(G). It is further not a crime of
violence aggravated felony under section 10 l (a)(43)(F) of the Act. See Montsdoca v. State,
93 So. 157, 159 (1922) ("There can be no robbery without violence, and there can be no larceny
with it."); see United States v. Fritts, 841 F.3d 937, 943 (IIth Cir. 2016), quoting Montsdoca
v. State, supra. Accordingly, the larceny conviction did not provide a basis for conceding
removability as an aggravated felon.

The respondent was also convicted of burglary in violation of Va. Code An. 18.2-91,
which prohibits "any of the acts mentioned in 18.2-90 with intent to commit larceny, or any
felony other than murder, rape, robbery or arson . ..." The acts mentioned in section 18.2-90
include:

If any person in the nighttime enters without breaking or in the daytime breaks
and enters or enters and conceals himself in a dwelling house or an adjoining,
occupied outhouse or in the nighttime enters without breaking or at any time
breaks and enters or enters and conceals himself in any building permanently
affixed to realty, or any ship, vessel or river craft or any railroad car, or any
automobile, truck or trailer, if such automobile, truck or trailer is used as a

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dwelling or place of human habitation, with intent to commit murder, rape,

robbery or arson in violation of 18.2-77, 18.2-79 or 18.2-80, he shall be
deemed guilty of statutory burglary, which offense shall be a Class 3 felony.
However, if such person was armed with a deadly weapon at the time of such
entry, he shall be guilty of a Class 2 felony.

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Va. Code Ann. 18.2-90 (2006).

The respondent argues that Va. Code An. 18.2-91 is not divisible, and, as it encompasses
acts outside the generic definition of burglary, it is not categorically an aggravated felony. The
Department of Homeland Security argues that it is divisible. We first agree with the respondent
that the statute is not divisible.

In determining whether a statute is divisible, in that it lays out alternative elements of the
crime, rather than alternative means, the Supreme Court stated the decisions of state courts that
have considered the statute should be consulted. Mathis v. United States, supra, at 2256; Matter
o/Chairez, 26 l&N Dec. 819 (BIA 2016). Recently, a federal district court reviewed the state
court decisions and concluded that the statute lists alternative means of committing the crime
rather than separate elements. United States v. Gambill, 2016 WL 5865057 (W.D. Va. Oct. 7,
2016); see also United States v. Pearcy, 2016 WL 6603260, at 2 (W.D. Va. Nov. 8, 2016); but
see United States v. Gambill, 492 F. App'x 427, 429 (4th Cir. 2012) (applying the modified
categorical approach in case prior to Descamps v. Holder, supra). In reaching this conclusion,
the district court relied on a Supreme Court of Virginia decision which addresses the various
means of committing the crime as interchangeable. United States v. Gambill, supra, citing
Graybeal v. Com., 228 Va. 736, 739, 324 S.E.2d 698, 700 (1985). The district court observed:

The jury in (Graybeal v. Com., supra) seemingly was not required to find beyond
a reasonable doubt that the structures at issue were "storehouses" or "warehouses"
as opposed to "trailers" or "other houses"-any of the options listed would have
sufficed to convict the defendant of the single crime set forth in the statute.
Therefore, Graybeal implies that the various locations listed in the statute are
alternative means, not alternative elements.

United States v. Gambill, supra, at 4.

We agree with the respondent that the statute lays out alternative means of committing the
crime and is not divisible. The Department of Homeland Security ("OHS") argues that the
statute is divisible, as the state is required to prove each allegation "as charged" (DHS Brief at 3-
5). The DHS cites several cases overturning convictions where the defendant was charged with
specific acts under the statute, but the evidence did not establish the commission of those specific
acts (id.). A failure to prove the facts charged in an indictment does not indicate that the
allegations are elements rather than means of committing the crime. It simply indicates that the
prosecution failed to meet their burden of proof regarding those allegations. For example, in a
case cited by the DHS, the indictment charged that the defendant "did break and enter in the
daytime, or enter without breaking in the nighttime, the dwelling of [the victim]. Johns v. Com.,
675 S.E.2d 211, 213 (2009). The DHS points out that the prosecution in this case was required
to prove the building entered was a dwelling (DHS Br. at 3). This, however, does not account

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for the fact that neither the charging document, nor the court, differentiated between the means
of conunitting the crime either breaking and entering in the daytime or entering at night without
breaking. Johns v. Com., supra. Although a second case cited by the OHS does make a
distinction between entering in the daytime and entering without breaking in the nighttime, the
court overturns the conviction because the facts found, that the defendant entered in the daytime,
do not match the indictment, alleging that he entered in the nighttime. Scott v. Com., 636 S.E.2d

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893, 896 (2006). The court notes that the indictment could have been amended to include the
"breaking" component needed for a daytime entry, but it was not. Id. The court is indicating
that the indictment could have been written alleging either or both components, but that the facts
must support the allegation.

The respondent cites several situations, including his own, where the allegation includes
various means of completing the crime, but the facts need only meet one of the criteria (Resp. Br.
at 14). Here, the respondent was charged with both entering in the daytime and breaking and
entering at night (Exh. 2, at 7, 12, 17). The respondent has also submitted several indictments
alleging non-specific locations, such as the entry of "property" or specifying the location by
name, rather than by one of the categories outlined in the statute (Resp. Br. at 15). The
prosecution must prove what is alleged in the indictment beyond a reasonable doubt, but as the
means are interchangeable, the prosecution need not allege them with specificity. Virginia Code
Ann. 18.2-91 is not divisible.

We further agree that not all of the acts under this statute fit within the definitions for
aggravated felony found at either section 101(a)(43)(F) of the Act (crime of violence) or section
101(a)(43)(G) of the Act (theft offense). Concerning crimes of violence under section
10l(a)(43)(F) of the Act, the term "crime of violence" is defined in 18 U.S.C. 16(b) as a felony
that, by its nature, involves a substantial risk that physical force against the person or property of
another may be used in the course of conunitting the offense. See generally Leocal v. Ashcroft,
543 U.S. 1 (2004).

Generic burglary has been found to be a crime of violence and is defined as the "unlawful or
unprivileged entry into, or remaining in, a building or other structure with the intent to conunit a
crime." Taylor v. United States, 495 U.S. 575, 598 (1990). However, the burglary statute here,
as a whole, does not correspond to the generic definition of burglary. As noted by the
respondent, a person can be convicted under this statute for entering a ship or railroad car rather
than a building or structure, for example (Resp. Br. at 13). See Va. Code. Ann. 18.2-90; see
also United States v. Foster, 662 F.3d 291, 293 (4th Cir. 2011) (Fourth Circuit holding Va.
statute is broader than generic burglary, but that it is divisible, pre-Descamps v. Holder, supra).

Further, the breadth of the statute renders it too broad to be categorically a crime of violence
as one involving the substantial risk of physical force. For example, in addition to the entry not
having to be made into a building or structure, the statute also covers both entries with
and without consent. On appeal, the respondent cites a Virginia Court of Appeals decision
finding a conviction may be had under Va. Code Ann. 18.2-90 for legally entering a store
with the intent to conunit a crime therein (Resp. Br. at 27, citing Clark v. Commonwealth, 472
S.E.2d 663 (Va. Ct. App. 1996)). Entries with consent are, obviously, less likely to result in
physical violence. Also, as mentioned above, the entry need not be made into a building

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or structure and this has also been found to lessen the risk of force. See Shepard v. United
States, 544 U.S. 13, 16 (2005).

The statute is not divisible and, as the language of the statute is overbroad, the ordinary case
may involve prohibited acts that do not amount to a crime of violence. The conviction,
therefore, is not for an aggravated felony crime of violence under section 10l(a)(43)(F) of the

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Act.

Further, burglary in violation of Va. Code An . 18.2-91 is not categorically an aggravated

felony theft crime under section 10l(a)(43)(G), as a violation may be found where the breaking
and entry involved an "intent to commit larceny, or any felony . .. ." Va. Code An . 18.2-91.
It, therefore, may be violated without an intent to commit any theft related crime.

Based on the foregoing, we conclude that burglary under Va. Code Ann. 18.2-91 and
larceny under Va. Code An 18.2-95, are not divisible statutes and are not categorically
.

aggravated felonies under either section 10l(a)(43)(F) or (G) of the Act. Further, the respondent
has presented prima facie evidence that she is eligible for various forms of relief if she had not
been convicted of an aggravated felony (Resp. Br. on Appeal). We therefore find that the
respondent was prejudiced by the ineffective assistance of previous counsel. We will remand the
record for further consideration of the grounds for respondent's removability and her eligibility
for relief, and for the entry of a new decision.

Furthermore, we will grant the respondent's request for a change of venue to the Immigration
Court in Arlington, Virginia, as the respondent has demonstrated good cause for the change and
the OHS has not expressed any opposition. See Matter of Rahman, 20 I&N Dec. 480, 482
(BIA 1992) (request for change of venue may be granted for good cause only upon motion by
one of the parties and only after the other party has been given notice and an opportunity to
respond); see also Matter of Rivera, 19 I&N Dec. 688 (BIA 1988) (good cause is determined by
balancing the factors we have found relevant to the venue issue); Matter of Velasquez, 19 I&N
Dec. 377 (BIA 1986) (relevant factors include administrative convenience, expeditious treatment
of the case, location of witnesses, and cost of transporting witnesses or evidence to a new
location).

ORDER: The motion to remand is granted, and the record is remanded for further
proceedings.

FURTHER ORDER: The respondent's requested change of venue from the Immigration
Court in Orlando, Florida, to the Immigration Court in Arlington, Virginia, is granted.

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