U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 2204 I

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Hawkins, Brent A. OHS/ICE Office of Chief Counsel - DAL
Brent A Hawkins Law Office, PLLC 125 E. John Carpenter Fwy, Ste. 500
4815 S. Harvard Ave., Irving, TX 75062-2324
Ste. 395
Tulsa, OK 74135

Name: LOPEZ-HERNANDEZ, ISAI A 046-620-341

Date of this notice: 9/1/2017

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

Sincerely,
/1
//
/I I ft J 1

I {.-i
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v'

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure
Panel Members:
O'Connor, Blair

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Isai Lopez-Hernandez, A046 620 341 (BIA Sept. 1, 2017)
U.S. J;)epartment of Justice Decision of the Board of Immigration Appeals
ExecutiveOffice for Immigration Review

Falls Chch, Virnia 22041

File: A046 620 341 - Dallas, TX Date:

SEP - 1 2017
In re: Isai LOPEZ-HERNANDEZ

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Brent A. Hawkins, Esquire

ON BEHALF OF DHS: Elizabeth Einhorn

Assistant Chief Counsel

The Department of Homeland Security ("OHS") has moved to withdraw its appeal from the
Immigration Judge's decision dated December 6, 2016. Accordingly, the following orders will be
entered.

ORDER: The DHS has advised this Board that it is does not wish to pursue the appeal on the
merits and wishes to withdraw its appeal.

FURTHER ORDER: The DHS's motion is granted, and the Immigration Judge's order
terminating the proceedings with prejudice is reinstated.

---
FOR THE BOARD

Cite as: Isai Lopez-Hernandez, A046 620 341 (BIA Sept. 1, 2017)
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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS,TEXAS

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File: A046-620-341 December 6, 2016

In the Matter of

)
ISAI LOPEZ-HERNANDEZ ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (Act)

as amended,in that at any time after admission you have 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 the term of
imprisonment of at least one year was imposed.

APPLICATIONS: Motion for termination.

ON BEHALF OF RESPONDENT: BRENT A. HAWKINS

4815 South Harvard Avenue,Suite 395
Tulsa, OK 74135

ON BEHALF OF OHS: CHRISTIAN STRINGER

Assistant Chief Counsel
Dallas,Texas

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Mexico. He was admitted to
United States at El Paso, Texas on or about July 31,1998 as a lawful permanent
resident. On August 8,2016 he was convicted in the District Court,Tulsa County,
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Oklahoma for the offense of larceny from a person in violation of Section 21 Oklahoma

Statute Section 1731. He was sentenced to a term of imprisonment of five years.

Consequently, the Department of Homeland Security (hereinafter referred to as the

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Government) charge responded with two charges of removal. The first charge was

under Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (Act) as amended

in that any time after admission he has been convicted of an aggravated felony as

defined in Section 101(a)(43)(F) of the Act, a crime of violence (as defined in Section 16

of Title 18 United States Code, but not including a purely political offense) where the

term of imprisonment ordered is at least one year, and Section 237(a)(2)(A)(iii) of the

Act, as amended, in that at any time after admission he 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 the term

of imprisonment is at least one year imposed. See Exhibit 1.

On October 11, 2016 the respondent acknowledged receipt of the notice

to appear. Exhibit 1.

At a hearing on November 22, 2014 the Assistant Chief Counsel Heidi

Graham withdrew the charge of removal pursuant to Section 237(a)(2)(A)(iii) of the Act

as it relates to an aggravated felony under 101(a)(43)(F), a crime of violence.

The respondent via counsel admitted that he is not a citizen or national of

the United States, that he is a native and citizen of Mexico, that he was admitted to the

United States at El Paso, Texas on or about July 31, 1998 as a lawful permanent

resident. The responded via counsel also admitted that on August 8, 2016 he was

convicted of the offense of larceny from a person under Title 21 Oklahoma Statute

Section 1731, and for that offense he was sentenced to a term of imprisonment of five

years. However, respondent via counsel denied the charge of removal pursuant to

A046-620-341 2 December 6, 2016

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Section 237(a)(2)(A)(iii) of the Act,in that the respondent has been convicted of an
aggravated felony under 101(a)(43)(G).
The Government has the burden of proof to establish the charge of

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removal by clear and convincing evidence. See Section 240(c)(3)(A) of the Act.
To support the charge of removal the Government submitted to the Court
a copy of the respondenf s conviction record for larceny from a person. Exhibit 3.

The respondent via counsel on or about November 7, 2016 filed a brief in

support of his request for termination. See respondent's brief.

On November 22, 2016 the Assistant Chief Counsel Heidi Graham

requested the matter be continued on the issue of the respondent's removal.

At today's hearing the Government did not present any viable legal

argument with respect to the charge of removal. The Government indicated that it
would rely on the conviction document itself, despite the fact that the issue in this case
is whether or not the offense which the respondent was convicted under, 21 Oklahoma

Statute 1731, relates to a theft offense under 101(a)(43)(G). This requires an analysis

of the statute in question. Although the respondent's counsel did provide the Court this
analysis, the office of chief counsel failed to do so.
Findings of facts and conclusions of law
Respondent was convicted under Title 21 Oklahoma Statute Section
1731, larceny of merchandise for sale. However, the judgment says larceny from a
person is referenced under 1731. Larceny from a person looks like it comes from the
definition of grand larceny under Title 21 Oklahoma Statute 1704.2, which criminalizes
property taken from the person of another. Larceny is defined as a taking of property
accomplished by fraud or stealth and with intent to deprive another thereof. Title 21
Oklahoma Statute Section 1701.

A046-620-341 3 December 6, 2016

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Jurisdiction
An Immigration Judge sitting via televideo or videoconference must
identify on the record the specific hearing location where he or she is conducting the

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hearing. See OPPM Section 04-06.
In this particular case this issue may become moot in light of respondent's
being released from Government custody and now is present here in Dallas, Texas. So

the Court finds that jurisdiction of this case, whether it's the Tenth or Fifth Circuit, would

not be applicable on the merits of this decision. And this is also added with the fact that

the Government has withdrawn the charge of removal as it relates to a crime of violence
under either 16(a) or 16(b).

The issue before this Court is whether or not the respondent's offense

relates to a theft offense under 101(a)(43)(G).

A theft offense within the meaning of Section 101(a)(43)(G) consists of the

taking of or exercise of control over property without consent whenever there is criminal

intent to deprive the owner of the rights and benefits of ownership, even if such
deprivation is less than total or permanent. Matter of Garcia, 24 l&N Dec.-436 (BIA

2008). The Board of Immigration Appeals (the Board) very recently clarified in the crime

involving moral turpitude (CIMT) context that theft is still met if the intent is to deprive
the owner of his property either permanently or under circumstances where the owner's
property rights are substantially eroded. Matter of Diaz, 26 l&N Dec. 847, 853 (BIA

2016).
Oklahoma's larceny statute is categorically overbroad compared to the
generic theft offense. Oklahoma does not require proof of the element without consent.
Rather, theft can be accomplished by fraud (with consent) or stealth (which includes
without leave or consent of the owner). Hagan v. State, 76 Okla. Cr. 127, 134 P.2d

A046-620-341 4 December 6, 2016

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1022, 1044 (1943). The respondent submitted to Oklahoma cases where a defendant

was convicted of larceny which involved consent by the victim. Gibson v. State, 89

Okla. Cr. 188, 195, 206 P.2d 238, 241 (1949). See also Banks v. State, 1978 Okla. Cr.

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45, 578 P.2d 370, 371. Although older cases, these do present a realistic probability

that the statute is applied in the non-generic theft way.

The next question for the Court is whether or not the statute is divisible on

the element of fraud or stealth as arguable (defined as without right or without consent)

would fit the generic definition of theft, but fraud would not. The same cases

respondent cited seem to suggest that fraud and stealth are distinct elements,

particularly as they discuss larceny by fraud. However, the Oklahoma Uniform Jury

Instructions list elements five as fraud or stealth. See Oklahoma Court of Criminal

Appeals case listed these same instructions with the alternative language. See

Grissom v. State. 201 1 Okla. Cr. Title 3, Section 49, 253 P.3d 969, 987. lnteresting l

before the Uniform Jury Instructions the Oklahoma Criminal Court of Appeals stated the

central elements of larceny as (a) that there must be a taking and carrying away from

me possession of another, (b) that the thing taken away must be the property of

another, (c) that the ticking was against the will of the owner, and (d) the taking was with

a felonious intent. See Lanaskes v. State, 1973 Okla. Cr. 404, 516 P.2d 279, 28 1-82.

See also Hagan v. State, 76 Okla. Cr. 127, 134 P.2d 1042, 1044 (1943).

The Oklahoma Court noted there it is a well-settled general rule that the

requirement of a felonious taking against the will of the owner is sufficient to meet, and

that larceny is committed where a person intending to steal another's personal property
obtains possession of it, although by or with the consent of the owner by means of fraud

or through a fraudulent trick or device conversion is pursuant to such intent. These

older decisions address larceny with the same language of fraud or stealth, but making

A046-620-341 5 December 6, 2016

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no real distinction between them. One older case even upheld a conviction that charge

the defendant with knowingly, willfully, unlawfully, feloniously, wrongfully, fraudulently,

and stealth-like take, steal, and carry away the personal property of another. Roach v.

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State, 23 Okla. Cr. 280, 214 P. 563, 564 (1923). This is despite a distinction between

fraud occurring with consent and stealth occurring without consent.

In sum, at a minimum there is sufficient ambiguity whether or not the

statute is divisible on the fraud stealth. State law does not fully answer the question.

The statute proscribes the same punishment for larceny generally and the current

conviction documents do not help particularly, as respondent was charged with robbery.

As Mathias notes, that is Mathias v. United States, 156092, 2016 W.L.

3434400 at 11 (US S. Ct. June 23, 2016), when an unclear record, a sentencing Judge

would not be able to satisfy the Court's demand for certainty to determine whether a

defendant was convicted of a generic offense. Thus, the Government likely cannot

prove by clear and convincing evidence that respondent was convicted of a theft

offense under Section 101(a)(43).

Based upon the foregoing conclusion by the Court, the Court finds that the

Government has failed to meet its burden of proof that the respondent is subject to

being removed by clear and convincing evidence on the charge of removal under

101(a)(43)(G), a theft offense.

The Court would also note that it is its belief that the Government also

believes it could not meet its burden of proof because the Government did release

respondent from detention. If the Government truly believed that the charge of removal
could be sustained and that it was legally viable, then the respondent would be subject

to mandatory detention under Section 236(c) of the Act, and the Government would be

required to keep the respondent in custody. However, by releasing respondent it also

A046-620-341 6 December 6, 2016

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appears that the Government also believes that it cannot sustain the charge of removal.

This is further supported by the Government's failure to present any written or coherent

legal argument on the charge of removal as it relates to respondent on the offense

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which he was convicted under, under 21 Oklahoma Statute 1731.

For the above stated reasons the following orders shall be entered.

ORDERS

IT IS HEREBY ORDERED that proceedings against respondent be

terminated with prejudice.

DIETRICH H. SIMS
Immigration Judge

A046-620-341 7 December 6, 2016