U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Qffice of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - MIA

333 South Miami Ave., Suite 200
Miami, FL 33130

Name: CORTINA, LUZVENIA

A 046-870-073

Date of this notice: 9/4/2015

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

bOWUL CaAAJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Luzvenia Cortina, A046 870 073 (BIA Sept. 4, 2015)

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Cifuentes, Edward
Edward
2101 nw 33 street
aS00-600
pompano beach, FL 33069

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executie Office for Immigration Review

Falls Church, Virginia 22041

Date:

File: A046 870 073 - Miami, FL

SEP - 4 2015

In re: LUZVENIA CORTINA

APPEAL
ON BEHALF OF RESPONDENT:

Edward Cifuentes, Esquire

ON BEHALF OF DHS:

Philippe d'Adesky
Assistant Chief Counsel

ORDER:
This Board has been advised that the Department of Homeland Security's ("DHS") appeal
has been withdrawn.

See 8 C.F.R. 1003.4.

Although the Immigration Judge separately

certified her decision terminating removal proceedings in this case for the Board to review, the
DHS concedes in its withdrawal of appeal that it would be unable to sustain the charge based on
the respondent's record of conviction. We therefore decline to accept for review the issue
certified to the Board in this case. 8 C.F .R. 1003. 7. Since there is nothing now pending before
the Board, the record is returned to the Immigration Court without further action.

Cite as: Luzvenia Cortina, A046 870 073 (BIA Sept. 4, 2015)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MIAMI, FLORIDA

In the Matter of

LUZVENIA CORTINA
RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act - that

any alien after admission who has been convicted of an aggravated
felony as defined in Section 101 (a)(43)(M) of the Act, a law relating
to offense that (i) involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000, or (ii) is described in the Internal
Revenue Code of 1986, Section 72-01 (relating to tax evasion) in
which the revenue loss to the Government exceeds $10,000.

CHARGES:

APPLICATIONS:
ON BEHALF OF RESPONDENT: SAMMY THEMISTOKLIS ALIFERIS, Esquire
ON BEHALF OF OHS: PHILIPPE D'ADESKY, Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Peru who was convicted on
February 5, 2008 in Broward County, Florida for exploitation of an elderly person in
excess of $100,000 in violation of Florida statutes. The Department of Homeland
Security served her with a Notice to Appear, dated March 11, 2014. See Exhibit 1. The

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May 12, 2015

File: A046-870-073

respondent appeared in Court, admitted the four factual allegations and denied
removability as charged. The Court set this case fora hearing, allowed the parties to

response. See also the criminal records at Exhibit 2.

In removal proceedings, the Service has the burden of proof to establish
by clear and convincing evidence in the case of an alien who has been admitted to the
United States that the alien is deportable. See INA Section 240(c)(3). In the ensuing
case, the respondent is a lawful permanent resident and we are in Section 237
proceedings and, therefore, the burden is on the Government.
The Department of Homeland Security (OHS) contends the respondent
statutorily is removable under INA Section 237(a)(2)(A)(iii) in that she has been
convicted of an aggravated felony as defined in Section 101(a)(43)(M) of the Act, a law
relating to an offense that involves fraud or deceit in which the loss to the victim or
victims exceeds $10,000.
To determine whether a conviction is an aggravated felony under Section
101(a)(43)(M) of the-INA, the Court must apply the two-track approach set forth in
Nijhawan v. Holder, 557 U.S. 29, 40 (2009). When determining whether a conviction is
an offense that involves "fraud or deceit", the Court first employs the traditional
"categorical approach". See Shepard v. United States, 544 U.S. 13, 17 (2005). Under
the categorical approach, the Courts look to whether the state statute defined the crime
or condition categorically fits within generic federal definition of .a corresponding
aggravated felony, rather than the facts particular to the case. Moncrieffe v. Holder, 133
S. Ct. 1678, 1684 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186
(2007) (citing Taylor v. United States, 495 U.S. 575, 599-600 (1990))). Accordingly,
common law state offense is a categorical match with a generic federal offense only if a
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May 12, 2015

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brief the case. See Exhibit 3, the Department's brief, Exhibit 4, the respondent's

conviction of the state offense necessarily involves facts equating to the general federal
definition. Id. (quoting Shepard, 544 U.S. 24). The Court "must presume that the

determine whether those facts are encompassed by the general federal definition. Id.
(quoting Johnson v. United States, 559 U.S. 133, 137 (2010)).
If the statute is divisible in that it encompasses some crimes that meet the
federal definition and others that do not, the Court employs the modified categorical
approach. See generally Taylor v. United States, 495 U.S. 575 (1990), Jaggernauth v.
U.S. Attorney General, 432 F.3d 1346 (11th Cir. 2005). A divisible statute is one that
sets forth one or more elements of the offense in the alternative Descamps v. United
States, 133 S. Ct. 2276, 2281 (2013). See also Nijhawan, 557 U.S. at 41.
The respondent in the ensuing case was convicted on February 5, 2008 of
defrauding an elderly person where the funds, assets, or property involved in the
exploitation $100,000 or more in violation of Florida statute 825.103 1 and 2(a). The
conduct here that occurred, occurred from January 1, 2006 through April 30, 2006. See
Exhibit 2, page 3. And, therefore, we have to look at the 2005 and 2006 Florida criminal
statute. The Florida criminal statutes are here at Exhibit 5 on the first page. That is the
2006 statute. It is the same as the 2005 statute. The second page here is the 2014
Florida statute. It is irrelevant to the analysis because the conduct occurred earlier and
we have to look to the statute at the time the conduct occurred. Exploitation of an
elderly person or disabled adult means a) knowingly, or by deception or intimidation,
obtaining or using, or endeavoring to obtain or use, an elderly person's or disabled
person's funds, assets, or property with the intent to temporarily or permanently deprive
the elderly person or disabled person of the use, benefit or possession of the funds,
assets, or property or to benefit someone other than the elderly person or the disabled

A046-870-073

May 12, 2015

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conviction rested upon nothing more than the least of the acts criminalized, and then

adult, by a person who: 1) stands in a position of trust and confidence with the elderly
person or disabled adult; 2) or has a business relation with the elderly person or

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
benefit someone other than the elderly person or disabled person, or by a person who
knows or reasonably should know that the elderly person is a disabled adult who lacks
the capacity to consent. The Department contends that the statute in question is a
divisible statute, and we have to look and see what the person was charged by looking
at the information at hand. In looking at the statute at hand, the Court first employs a
categorical approach and here finds that the statute is divisible to the extent that it has
alternative elements and we need to look at the judgment and the information to find out
what exactly the respondent was convicted of. It appears that she was convicted of
825.103(1)(a), if you read the information in which she was charged. However, if you
look at the jury instructions which were provided at Exhibit 3, the State only needs to
prove four elements under Florida statute 825.103 A1, which is 1) that the victim was an
elderly person or a disabled adult, either or, 2) that the defendant knowingly used
deception or intimidation to [obtain or use] [endeavor to obtain. to use] the victim's
[funds] [assets] [property]. The charge here is aggravated felony is that it involves
either fraud or deceit. The statute involves deceit in the word deception. However, the
element that needs to be proven here is either deception or intimidation; the less
culpable of both is intimidation and that is not fraud or deception. The Government
wants us to look at the information to what the respondent was charged with, which
alleges that she used deception, but l do not believe we have to get to that point in
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May 12, 2015

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disabled adult, or b) obtaining or using, or endeavoring to obtain or use, or conspiring

analyzing this statute because the less culpable of what she pied to under this would be
to use deception or intimidation and that is one element in itself and that part is not

reasons, the Court finds the Department has failed to meet its burden of proof in
establishing that the respondent was convicted of an aggravated felony as defined in
237(a)(2)(A)(iii) under Section 101(a)(43)(M) of the INA Act.
As to the issue of whether it involved more than $10,000, clearly by the
statute that she pied to, it shows exploitation of an elderly person of more than
$100,000; that is 825.103(2)(1). It certainly is more than $10,000. However, since the
less culpable of the offenses is intimidation and intimidation is defined in the jury
instructions that we have, that does not involve fraud and deceit. Intimidation, under
Florida statute 825.101(8), intimidation means a communication by word or act to [an
elderly person] [a disabled adult] and that the [elderly person] [disabled adult] will be
deprived of food, nutrition, clothing, shelter, supervision, medicine, medical services,
money, or financial support or will suffer physical violence. In Bernau v. State of
Florida, 891 Southern 2nd 1229 (FLAP .2DCA 2005), the Second District Court of
Appeals of Florida said that the element in this case in the same statute is whether the
money was obtained by deception or intimidatlon. As stated earlier, intimidation does
not involve any fraud or de.ceit and for these reasons the Court finds the Department of
Homeland Security has failed to meet its burden of proof in establishing that the
respondent is removable as charged. This statute is not categorically one that involves
fraud or deceit. See Moore v. Ashcroft, 251 F.3d 919, 924 (11th Cir. 2001), where an
alien's offense was categorically an offense involving fraud or deceit under
101(a)(43)(M)(i) of the INA where intent to injure or defraud was not an explicit element
of the offense.
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divisible under statute according to what the State would have to prove. For this

For these reasons, the Court is terminating proceedings. However, the

Court will be certifying this case to the Board of Immigration Appeals to have the Board

law.
ORDERS
IT IS HEREBY ORDERED that proceedings ar terminated;
IT IS HEREBY ORDERED that respondent is not subject to removal under
Section 237(a)(2)(A)(iii) of the INA Act;
IT IS HEREBY FURTHER ORDERED that these proceedings are certified
to the Board of Immigration Appeals.

Please see the next page for electronic

signature

A046-870-073

LOURDES MARTINEZ-ESQUIVEL
Immigration Judge

May 12, 2015

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of Immigration Appeals see whether this is a correct analysis based on the recent case

.,

/Isl/
Immigration Judge LOURDES MARTINEZ-ESQUIVEL

A046-870-073

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martinlo on July 28, 2015 at 7:13 PM GMT

May 12, 2015