Rajesh Chitherbhai Makwana, A088 578 134 (BIA Jan. 5, 2015)

.U.S.
Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals

Q[fice of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church. Virgmia 20530
OHS/ICE Office of Chief Counsel - CLE

1240 E. 9th St., Room 585
Cleveland, OH 44199
Newark, NJ 07102
Name: MAKWANA, RAJESH CHITHERB ...
A 088-578-134
Date of this notice: 1/5/2015
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DGnltL ca.AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holmes, David B.
Usertea m: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Rajesh Chitherbhai Makwana, A088 578 134 (BIA Jan. 5, 2015)
Immigrant & Refugee Appellate Center | www.irac.net
Moseley, Thomas Edward

Law Offices of Thomas E. Moseley
One Gateway Center
Suite 2600
U.S. Department of Justice
Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 20530
File:
A088 578 134
Date:
Bedford, OH
JAN
5 2015
In re: RAJESH CHITHERBHAI MAKWANA a.k.a. Rajesh Makwana
IN REMOVAL PROCEEDINGS
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:
Thomas E. Moseley, Esquire
Kris K. Stoker
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been withdrawn.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. Since there is nothing now pending before the Board,
the record is returned to the Immigration Court without further action.
b-----
FOR THE BOARD
Cite as: Rajesh Chitherbhai Makwana, A088 578 134 (BIA Jan. 5, 2015)
APPEAL
UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
.
801 WEST !fUPERIOR AVENUE, SUITE 13 -100
CLEVELAND, OHIO 44113
Rajesh Chitherbhai MAKWANA,
Respondent.
File Number: A088-578-134
Date:
In Removal Proceedings
Docket: Cleveland Detained (BDH)

**
RE:
JUN Z 4 2014
DETAINED **
Rem ovability
ON BEHALF OF THE RESPONDENT:

Thomas E. Moseley, Esq.
Law Offices of Thomas E. Moseley
One Gateway Center
Suite 2600
Newark, New Jersey07102
ON BEHALF OF THE DHS:

Victoria Christian, Deputy Chief Counsel
Office of the Chief Counsel
Immigration & Customs Enforcement
1240 East Ninth Street, Suite 519
Cleveland, Ohio 44199
MEMORANDUM AND ORDER
The Respondent is a native and citizen of India. Exh. 1. He was admitted to the United States
with an H-lB nonimmigrant visa on April 5, 2006. Id. He departed the United States on
September 30, 2009, and was subsequently paroled into the United States on November 12,
2009, for adjustment of status to lawful permanent residency. Id. On March 7, 2011, the
Respondent's status was adjusted to that of a lawful permanent resident. Id. On December 27,
2013, the Department of Homeland Security ("DHS") issued a Notice to Appear ("NTA"),
charging the Respondent with removability under section 237(a)(2)(A)(iii) of the Immigration
and Nationality Act ("INA" or "the Act") (aggravated felony as defined under INA
10l(a)(43)(U)/(M)), INA 237(a)(2)(A)(iii) (aggravated felony as defined under INA
10l(a)(43)(U)/(R)), INA 237(a)(2)(A)(i) (crime involving moral turpitude committed within
five years of admission), and INA 237(a)(l)(A) (inadmissible at adjustment under INA
212(a)(2)(A)(i)(I)).
Order A088-578-134
Page 1 of16
)
)
)
)
)
)
)
In The Matter Of:
.\
.,
.
)
At a master calendar hearing conducted on June 5, 2014, the Respondent pleaded to the factual
allegations on the NTA and denied being removable as charged.
DISCUSSION
The DHS bears the burden of proving, by clear and convincing evidence, that the Respondent is
removable as charged. INA 240(c)(3)(A). The Court has considered all evidence submitted by
the parties, whether it is expressly referred to in this decision or not.
I. Factual Allegations
At a master calendar hearing conducted on June 5, 2014, the Respondent admitted factual
allegations one, two, three, four, five, six, and eight in the NT A. These allegations have thus
been proven by clear and convincing evidence. 8 C.F.R 1240.lO(c). The Respondent admitted
factual allegations seven and nine in part. The Court must determine whether the DHS has
proven these factual allegations.
A.
Factual Allegation Seven
In factual allegation seven, the DHS alleges that on June 3, 2013, the Respondent was convicted
of conspiracy to pay and receive health care kickbacks in violation of 18 U.S. C. 37 1 and 42
U.S.C. 1320a-7b(b) and that the loss to the victim of the offense exceeded $10,000. Exh. 1.
The Respondent denied the factual allegation only as it relates to the amount of loss. To
determine the amount of loss for purposes INA 101(a)(43)(M), the Court employs a
circumstance-specific approach and can look to the specific circumstances surrounding the
commission of the offense on a specific occasion, including "sentencing-related material," such
as restitution orders and sentencing stipulations. Nijhawan v. Holder, 557 U.S. 29, 40-42 (2009).
The DHS has submitted the judgment in the Respondent's criminal case which includes a listing
of the monetary penalties. See Exh. 3. According to this document, the Respondent was ordered
to pay $71,000 in restitution. The amount of loss "must be tied to the specific counts covered by
the conviction." Nijhawan, 557 U.S. at 42. "In the absence of a written plea agreement
specifying losses, the Supreme Court has suggested that a restitution order and sentencing
stipulation are adequately tied to the offense of conviction and sufficient to establish losses if
there is no conflicting evidence." Pilla v. Holder, 458 F. App'x 518, 521-22 (6th Cir. 2012)
(citing Nijhawan, 551 U.S. at 42).
Order A088-578-134
Page 2of16
,_
..utZ2LL
For the reasons set forth below, the Court finds that the Respondent is NOT REMOVABLE
under INA 237(a)(2)(A)(iii) (aggravated felony as defined under INA 10l(a)(43)(U)/(M)),
INA 237(a)(2)(A)(iii) (aggravated felony as defined under INA 101(a)(43)(U)/(R)), INA
237(a)(2)(A)(i) (crime involving moral turpitude committed within five years of admission), and
INA 237(a)(l)(A) (inadmissible at adjustment under INA 212(a)(2)(A)(i)(I)).
Accordingly, the Court will SUSTAIN factual allegation seven.

B.
Factual Allegation Nine
In factual allegation nine, the DHS alleges that the Respondent's offense was committed from
2008 until January 24, 2012. Exh. 1. The Respondent has denied this allegation in part. The
Respondent argues that the only finding made by the district court regarding the date of his
offense is that it ended in 2012. Resp't Br. Removability 9-10. He further argues that the Court
cannot look further into his record of conviction because the categorical approach applies and
would not allow the Court to look beyond that which the district court found. Id at 10.
Moreover, because the date of the commission of an offense is not an element, no finding as to
the date of the offense was necessary. Id Furthermore, the Respondent argues, even if the Court
looks to the indictment, it should focus only on the Respondent's crime, which was committed in
October 2011. Id. at 10-11 (citing Matter ofAlyazji, 25 I&N Dec. 397, 406 (BIA 2011)).
The Board of Immigration Appeals ("BIA" or "the Board") addressed this issue in Matter of
Babaisakov, 24 I&N Dec. 306 (BIA 2007). While holding that determining the amount of loss
for the purpose of INA 10l(a)(43)(M)(i) requires a circumstance-specific rather than a
categorical approach, the Board stated that "although the precise date an offense was committed
may be relevant in a criminal prosecution ... it is not an element of the crime or an aspect of
convicted conduct that must necessarily be established in removal proceedings by reference to
the conviction record." Babaisakov, 24 I&N Dec. at 318. To determine whether such
"nonelement" facts exist, "the inquiry must go beyond the elements." Id. In Babaisakov, the
Board held that for the amount of loss and other such nonelement facts, "an Immigration Judge
may consider any evidence, otherwise admissible in removal proceedings." Id. at 321.
Here, the record contains the Judgment, Plea Agreement, and the Superseding Indictment. Exh.
3. The Judgment indicates that the Respondent pleaded guilty to count one of the Superseding
Indictment. Id That count alleges that the conspiracy began "by 2008." Id. According to the
"overt acts" listed in the count, the first overt act occurred on or about October 27, 2008, but did
not include the Respondent. Id The only overt act involving the Respondent occurred on or
about October 22, 2011. Id. The question becomes which of these offenses would establish the
date of commission. Not surprisingly, very little case law exists regarding this issue. However,
Order AOSS-578-134
Page 3of16
The Respondent pleaded to only one count. Therefore, the restitution amount is necessarily tied
to the count for which he was convicted. Additionally, the restitution order indicates that
$50,000 of the restitution amount was for the total loss to Blue Cross and Blue Shield, $2, 100
was the total amount of loss to the Michigan Attorney General's Office, and $18,900 was the
amount of loss to the Wisconsin Physicians Service Part B. Exh. 3. The evidence sufficiently
demonstrates that the total amount of loss exceeds $10,000.
The Court is persuaded that the date of the first overt act would be the date of the commission of
the Respondent's crime because the conspiracy was completed on that date. The Court also finds
it significant that the Respondent pleaded guilty to the fact that the offense began "by 2008."
Therefore, the DHS has met its burden of demonstrating that the Respondent's crime of
conviction began "by 2008."
Accordingly, the Court will SUSTAIN factual allegation nine.
II. Aggravated Felony Grounds
A.
Statement of the Law
The OHS has charged the Respondent with removability under INA 237(a)(2)(A)(iii) alleging
that his conviction is for an aggravated felony as a conspiracy to commit an offense involving
fraud and commercial bribery. Exh. 1; see INA 101(a)(43)(U), (M), (R). In evaluating
whether a conviction qualifies as an aggravated felony under INA 101(a)(43), the Court must
first determine whether the provision at issue refers to a "generic crime[]" or is a "circumstance
specific provision." Moncrieffe v. Holder, 133 S. Ct. 1678, 1691 (2013) (citing Nijhawan v.
Holder, 557 U. S. 29, 37 (2009)). Where the basis for removal includes a limitation or
circumstance that must have been involved in the commission of the crime, the Court must apply
a circumstance-specific approach, as described in Nijhawan, which requires the Court to look to
the conduct involved in the commission of the crime. Nijhawan, 557 U.S. at 40. Where,
however, ''the INA incorporates other criminal statutes wholesale .. . it 'must refer to generic
crimes,' to which the categorical approach applies." Moncrieffe, 133 S. Ct. at 1691 (quoting
Nijhawan, 557 U. S. at 37); Descamps v. United States, 133 S. Ct. 2276 (2013).
Under the categorical approach, the Court looks to the elements in the respondent's statute of
conviction and compares those elements to the generic offense. Descamps, 133 S. Ct. at 2278.
The categorical approach "focuses on the statutory definition of the offense, rather than the
manner in which an offender may have violated the statute in a particular circumstance." United
States v. Denson, 728 F.3d 603, 607-08 (6th Cir. 2013) (citing Sykes v. United States, 131 S. Ct.
Order A088-578-134
Page 4 of16
in a line of cases from the early 1940s, the Board held that "[t]he crime of conspiracy is complete
upon the performance of an overt act committed by one of the conspirators for the purpose of
effecting the object of the conspiracy and it continues so long as any overt acts are committed."
Matter ofT-, 2 l&N Dec. 95, 96 (BIA 1944). The language of the removability statute relating to
this factual allegation suggests that the relevant date for consideration is the date upon which the
crime of conviction was committed. See INA 237(a)(2)(A)(i)(I). Here, the crime the
Respondent pied to was a conspiracy "beginning by 2008" with the first overt act being
committed on October 27, 2008. Exh. 3. By joining the conspiracy, the Respondent accepted
responsibility for the acts of his co-conspirators, including those he was not involved in.
,)
B.
INA 101(a)( 43)(U)/(M)
The DHS asserts that the Respondent's conviction for conspiracy to pay and receive health care
kickbacks under 18 U. S.C. 371 and 42 U.S. C. 1320a-7b(b) is a conviction for an aggravated
felony as defined in INA 10l(a)(43)(U) and (M). Exh. 1. INA 101(a)(43)(U) defines an
aggravated felony as "an attempt or conspiracy to commit an offense described in this
paragraph." INA 10l(a)(43)(M) defines an aggravated felony as "an offense that-(i) involves
fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in
section 7201 of the Internal Revenue Code 1986 (relating to tax evasion) in which the revenue
loss to the Government exceeds $10,000." In its brief on removability, the DHS states that it has
charged the Respondent under the subsection relating to crimes involving "fraud or deceit in
which loss to the victim or victims exceeds $10,000." DHS Br. Removability 4. Therefore, the
Court will proceed under the assumption that the DHS asserts the applicability of subsection (i)
of INA 101(a)(43)(M).
The Respondent was convicted under 18 U. S.C. 371 and 42 U. S. C. 1320a-7b(b). 18 U. S.C.
371 provides:
If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or any
agency thereof in any manner or for any purpose, and one or more
of such persons do any act to effect the object of the conspiracy,
each shall be fined under this title or imprisoned not more than five
years, or both.
This statute is divisible as it sets forth several elements in the disjunctive, at least one of which
would involve defrauding the United States and so would involve fraud or deceit. As established
by the Respondent's admissions in Court, he. was convicted of conspiring to commit "any
Order A088-578-134
Page 5of16
2267 (2011)). If the statute is not a categorical match to the generic offense, then the inquiry
ends unless the statute is divisible and the Court can move to the modified categorical approach.
Descamps, 133 S. Ct. at 2278. A statute is divisible where elements are set forth in the
alternative, and where at least one grouping of elements corresponds to the generic offense while
another does not. Id. Under the "modified categorical approach," "the Court can 'go beyond the
mere fact of conviction[,]' and may 'consult a limited class of documents' to determine which
alternative in a divisible statute gave rise to a conviction, and to compare that conviction to the
[generic] offense." United States v. Mitchell, 743 F.3d 1054, 1063 (6th Cir. 2014) (citations
omitted); see also Shepard v. United States, 544 U. S. 13, 16 (2005) (stating that sentencing
courts may examine the "charging document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the defendant assented" under the
modified categorical approach).
'
'
offense against the United States": to pay and receive health care kickbacks under 42 U.S. C.
1320a-7b(b). The Respondent's Superseding Indictment corroborates this as the count to which
the Respondent pleaded alleges that he conspired "to commit certain offenses against the United
States, that is, to violate [42 U.S. C. 1320a-7b(b)]." Exh. 3. That statute provides:
(1) Whoever knowingly and willfully solicits or receives any

remuneration (including any kickback, bribe, or rebate) directly or
indirectly, overtly or covertly, in cash or in kind(A) in return for referring an individual to a person for the
furnishing or arranging for the furnishing of any item or
service for which payment may be made in whole or in part
under a Federal health care program, or
(B) in return for purchasing, leasing, ordering, or arranging
for or recommending purchasing, leasing, or ordering any
good, facility, service, or item for which payment may be
made in whole or in part under a Federal health care
program,
shall be guilty of a felony and upon conviction thereof, shall be
fined not more than $25,000 or imprisoned for not more than five
years, or both.
(2) Whoever knowingly and willfully offers or pays any
remuneration (including any kickback, bribe, or rebate) directly or
indirectly, overtly or covertly, in cash or in kind to any person to
induce such person(A) to refer an individual to a person for the furnishing or
arranging for the furnishing of any item or service for
which payment may be made in whole or in part under a
Federal health care program, or
(B) to purchase, lease, order, or arrange for or recommend
purchasing, leasing, or ordering any good, facility, service,
or item for which payment may be made in whole or in part
under a Federal health care program,
shall be guilty of a felony and upon conviction thereof, shall be
fined not more than $25,000 or imprisoned for not more than five
years, or both.
42 U.S. C. 1320a-7b(b). Neither subsection of this provision has as an element "fraud or
deceit." Therefore, the Respondent's conviction is not for an aggravated felony as defined in
INA 101(a)(43)(U) and (M).
Page 6 of16
Order A088-578-134
44JL
&.__
3'lll....'W'
..nm
!\
Accordingly, the Respondent is NOT REMOVABLE under INA

(aggravated felony as defined in INA 101(a)(43)(U)/(M)).
C.
237(a)(2)(A)(iii)
INA 101(a)(43)(U)/(R)
"There is [] no Federal definition of commercial bribery because there is no general Federal

offense of commercial bribery." Id. at 353. The only precedent discussing this ground of
removability is the Board of Immigration Appeals' ("BIA" or "the Board") decision in Matter of
Gruenangerl. There, the Board considered whether bribery of a public official in violation of 18
U.S.C. 20l(b)(l)(A) was for a crime relating to commercial bribery. After looking to various
definitions of the term as well as the Model Penal Code and two state criminal statutes, the Board
determined that by using the term "commercial bribery" rather than "bribery" or "bribery for
commercial advantage," Congress intended to target a narrow set of bribery offenses-those that
Id. at 356.
In considering
involve private organizations rather than public officials.
Gruenangerl's crime, the Board stated that
[w]hile many acts of bribery may be ultimately motivated by a
desire for pecuniary enrichment, as was apparently the case here,
the essence of the offense is the corrupt intent to influence official
action. Commercial bribery, however, focuses on influencing
action in the private sector involving the breach of the duty of
fidelity.
Id
at 355.
The Respondent's statute of conviction requires remuneration, not necessarily a bribe or a

kickback. Furthermore, while subsection (2) of the statute includes language requiring
inducement of action, the statute does not indicate that the paying or the acceptance of
remuneration must involve a breach of the duty of fidelity. Additionally, it is unclear from
looking at the statute whether the remuneration involved would necessarily be a bribe or
kickback as it appears that even a referral fee would suffice. Because the statute criminalizes
some conduct that would constitute commercial bribery and other conduct that would not, the
statute is overbroad. It is not, however, divisible and so the Court cannot move to the modified
categorical approach.
Page 7of16
Order A088-578-134
..
;__
.#Wt
The DHS also asserts that the Respondent's crime is for an "an attempt or conspiracy to commit"
"an offense relating to commercial bribery . . . for which the term of imprisonment is at least one
year." INA 101(a)(43)(U), (R). INA 10l(a)(43)(R) is a "generic provision to which the
categorical approach applies." Matter ofGruenangerl, 25 l&N Dec. 351, 357 (BIA 2010).
Because the Respondent's statute of conviction is not divisible, the Court's analysis ends at the
categorical approach. Therefore, the DHS has not demonstrated that the Respondent's
conviction under 18 U.S. C. 371 and 42 U.S. C. 1320a-7b(b) is for a crime of commercial
bribery and thus an aggravated felony as defined in INA 10l(a)(43)(U) and (R).
Accordingly, the Respondent is NOT REMOVABLE under INA 237(a)(2)(A)(iii)
(aggravated felony as defined under INA 10l(a)(43)(U)/(R)).
III. Crime Involving Moral Turpitude
The DHS has also charged the Respondent with removability under INA 237(a)(2)(A)(i). That
subsection states: "Any alien who (I) is convicted of a crime involving moral turpitude
committed within five years . . . after the date of admission, and (II) is convicted of a crime for
which a sentence of one year or longer may be imposed" is removable. INA 237(a)(2)(A)(i).
The Respondent argues that his crime did not involve moral turpitude and that it was not
committed within five years of his admission. The Court has found that the Respondent's crime
was committed "beginning by 2008" and so was committed within five years of his admission on
April 5, 2006. Additionally, the Respondent admitted factual allegation eight which states that
he received a sentence of twelve months and one day imprisonment and, therefore, his crime is
punishable by a sentence of one year or greater. Thus, the only remaining question is whether
the Respondent's crime involved moral turpitude.
Order AOSS-578-134
Page 8of16
The Respondent was convicted of a crime involving "any remuneration (including any kickback,
bribe, or rebate)." 42 U.S.C. 1320a-7b(b). The DHS suggests that this parenthetical renders
the Respondent's statute of conviction divisible and urges the Court to employ the modified
categorical approach and look to the Respondent's record of conviction, including the
Superseding Indictment. DHS Br. Removability 4. In the context of aggravated felonies, the
Board has found that the parentheticals in INA 10l(a)(43) can be either descriptive or limiting.
Matter of Oppedisano, 26 I&N Dec. 202, 204 (BIA 2013). For example, it has found that
"relating to" parentheticals do not imply exclusivity, but rather have expansive meaning. Id.
(citing Gruenangerl, 25 I&N Dec. 351 (BIA 2010)). Here, the parenthetical uses the term
"including" which "shall not be deemed to exclude other things otherwise within the meaning of
the term defined." 42 U.S.C. 1301. Although this parenthetical does not appear in the Act, it
appears to be more akin to a descriptive rather than a limiting or definitional parenthetical. It
does not provide an exclusive list of forms of remuneration that would support a conviction
under the statute and thus constitute separate elements set forth in the disjunctive. Rather, it
provides examples and so does not render the statute divisible.
A.
Statement of the Law
When determining whether a crime involves moral turpitude under the INA, the Court generally
follows the method of analysis outlined in Silva-Trevino. Under this analysis, the Court first
engages in a categorical inquiry. Kellermann v. Holder, 592 F.3d 700 (6th Cir. 2010). Under
this "categorical approach, " the Court must first look to "the inherent nature of the crime[s] as
defined by statute and interpreted by the courts and as limited and described by the record of
conviction . . . " Id at 704 (quoting Matter of Short, 20 I&N Dec. 136, 137 (BIA 1989)). If
moral turpitude does not necessarily inhere to every violation of the statute because the statute
"criminalizes both conduct that does and does not qualify as a [crime involving moral turpitude],
then the court should apply a more modified approach.'' Kellermann, 592 F.3d at 704; Silva
Trevino, 24 I&N Dec. at 690; see also United States v. Montanez, 442 F.3d 485, 489 (6th Cir.
2006). When the Court employs this modified approach, it "conducts a limited examination of
documents in the record [of conviction] to determine whether the particular offense for which the
alien was convicted constitutes a [crime involving moral turpitude]. " Kellermann, 592 F.3d at
704 (citing Short, 20 l&N Dec. at 137-38). Finally, "if the record of conviction does not resolve
the inquiry, " the Court must "consider any additional evidence the adjudicator determines is
necessary or appropriate to resolve accurately the moral turpitude question. " Silva-Trevino, 24
l&N Dec.at 704.
.
B.
Analysis and Findings
The Respondent was convicted of conspiracy to pay and receive health care kickbacks in
violation of 18 U. S.C. 371 and 42 U. S.C. 1320a-7b(b). "A conspiracy to commit an offense
involves moral turpitude when the underlying substantive offense is a crime involving moral
turpitude. " Matter of Bader, 17 I&N Dec. 525, 529 (BIA 1980). Thus, the inquiry is whether a
conviction for the Respondent's underlying crime---42 U.S.C. 1320a-7b(b)-is for a crime
involving moral turpitude.
42 U. S. C. 1320a-7b(b), contains many disjunctive provisions, some groupings of which would
constitute crimes involving moral turpitude and others that would not. Specifically, knowingly
and wilfully paying a bribe or a kickback would likely constitute a crime involving moral
turpitude as the BIA has held that "the offense of bribery is a base and vile act which involves
moral turpitude. " Matter of H-, 6 l&N Dec. 358, 361 (BIA 1954); see also Matter of
Order A088-578-134
Page 9of16
"[T]o qualify as a crime involving moral turpitude for purposes of the Act, a crime must involve
both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness,
willfulness, or recklessness." Matter of Silva-Trevino, 24 l&N Dec. 687, 689 n.l (A. G. 2008).
"[M]oral turpitude refers generally to conduct that is inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed between persons or to society in
general. " Matter ofArmando Ruiz-Lopez, 25 I&N Dec. 551, 553 (BIA 2011).
Gruenangerl, 25 I&N Dec. 351, 358 n.8 (BIA 2010) (citing United States ex rel. Sollazzo v.
Esperdy, 285 F.2d 341, 342 (2d Cir. 1961) ("There can be no question but that any crime of
bribery involves moral turpitude .. . . ")). As stated above when considering whether the
Respondent's conviction was for commercial bribery, the statute of conviction is overbroad as to
the type of remuneration. Again, however, it is not divisible as to the nature of the remuneration
according to Descamps.
In Descamps, the Supreme Court clarified how to implement the categorical and modified
categorical approaches when determining whether a conviction is for a predicate offense under
the Armed Career Criminal Act ("ACCA"). Descamps, 133 S. Ct. 2276. In doing so, the Court
reiterated that throughout its decisions on the categorical and modified categorical approaches, it
had only ever allowed the use of the modified categorical approach when a statute was divisible.
Descamps, 133 S. Ct. at 2283-85; see Taylor v. United States, 495 U. S. 575 (1990), Shepard, 544
U. S. 13, Nijhawan, 557 U. S. 29, and Johnson v. United States, 559 U.S. 133 (2010). A statute is
"divisible" when it "lists multiple, alternative elements, and so effectively creates 'several
different . . . crimes. "' Descamps, 133 S. Ct.at 2285 (quoting Nijhawan, 557 U. S. at 41). Where
a statute sets forth "a single, indivisible set of elements sweeping more broadly than the
corresponding generic offense," it is not divisible and so the Court cannot employ the modified
categorical approach. Descamps, 133 S. Ct. at 2283. Descamps did not set forth a new
definition but rather clarified the analysis set forth in its prior decisions. Id at 2285 (stating that
the only way the Supreme Court has ever allowed the modified categorical approach to be
employed is as a tool to assist courts in determining under which elements an individual was
convicted when the statute of conviction is divisible). Therefore, contexts where the categorical
and modified categorical approaches as set forth in Taylor, Shephard, Nijhawan, and Johnson
have been employed are necessarily affected by Descamps' clarification of divisibility.
That analysis has long been employed by the Supreme Court in the immigration context for
determining whether a crime is an aggravated felony. See Nijhawan, 557 U.S. 29; Moncrieffe,
133 S. Ct. 1678; Kawashima v. Holder, 132 S. Ct. 1166 (2012). The Board has attempted to
state that the categorical approach need not be applied "with the same rigor in the immigration
context as in the criminal arena." Matter of Lanferman, 25 I&N Dec. 721, 728 (BIA 2012)
(holding that a statute is divisible if some but not all violations give rise to removability
regardless of whether elements are set forth in the disjunctive). However, in immigration cases,
Order A088-578 -134
Page 10of16
This brings us to the main issue before the Court in this case-whether the definition of
divisibility provided in Descamps applies in the moral turpitude context in the Sixth Circuit. If it
applies, then only where a statute sets forth elements in the disjunctive, some of which
correspond to the generic offense and some of which would not-may the Court proceed to the
modified categorical approach. If it does not apply, then the Court should follow the less
stringent analysis set forth in Matter ofSilva-Trevino, which would allow the Court to look to the
record of conviction because the statute is overbroad.
It is unclear whether the divisibility requirement extends to the moral turpitude analysis. In
Matter ofSilva-Trevino, the Attorney General set forth a method of analysis separate and distinct
from that employed in determining whether a conviction is for an ACCA predicate offense or for
an aggravated felony. While the Attorney General used the terms "categorical" and "modified
categorical" in describing the first two steps in that analysis, he also characterized the inquiry as
initially categorically focusing on elements but then moving to the facts involved in .the
conviction with the use of a more modified approach. Silva-Trevino, 24 l&N Dec. at 708
("where, as here, the categorical inquiry does not resolve the moral turpitude question, an
adjudicator should engage in a modified categorical inquiry, considering whether the facts of the
alien's prior conviction in fact involved moral turpitude"). The Attorney General also stated that
the method of analysis employed must differ from the Taylor/Shepard framework "because
moral turpitude is a non-element aggravating factor that 'stands apart from the elements of the
[underlying criminal] offense.'" Silva-Trevino, 24 I&N Dec. at 704. Silva-Trevino's strong
emphasis on the facts involved in the commission of a crime stands in direct contrast to
Descamps' elemental focus. Additionally, Silva-Trevino specifically rejected the framework that
Descamps sought to clarify. Silva-Trevino, 24 I&N Dec. at 700, 701, 702, 704. Therefore, the
Court could find that the framework for determining whether a conviction is for a crime
involving moral turpitude is unaffected by the Supreme Court's decision in Descamps.
Citing an unpublished case, the Respondent argues that the Board has applied Descamps'
divisibility analysis to the moral turpitude context and thus the Court should apply it in this case
as well. Resp't Br. Removability 12-13 (citing Dieuvu Forvilus, A071 552 965 (BIA Jan. 28,
2014)). In Forvilus, the Board considered whether a theft conviction under Florida law was for a
crime involving moral turpitude. Dieuvu Forvilus, A071 552 965 (BIA Jan. 28, 2014). Forvilus
challenged the Immigration Judge' s finding that his theft conviction involved moral turpitude,
arguing that the divisibility analysis from Descamps should apply. Id. The Board agreed and
found that the statute at issue was not divisible but rather was overbroad and so found Forvilus
not removable. Id. In a footnote, the Board stated that the Eleventh Circuit, the circuit in which
Forvilus arose, "has held that the requirements of the categorical and modified categorical
approaches may not be relaxed in [moral turpitude] cases." Id. (citing Fajardo v. U.S. Att'y
Gen., 659 F.3d 1303 (11th Cir. 2011)). The Eleventh Circuit, unlike the Sixth Circuit, has
Order AOSS-578-134
Page 11of16
the Supreme Court has continued to apply the approach used in determining whether a crime is
an ACCA predicate offense as set forth in Taylor and Shepard. See Moncrieffe, l 33 S. Ct. 1678.
The Court is thus certain that the clarification provided in Descamps applies when considering
whether a crime is an aggravated felony despite the Board's holding in Lanferman. See
Campbell v. Holder, 698 F.3d 29, 33-34 (1st Cir. 2012) ("Although the BIA has said that the
Taylor-Shepard approach 'need not be applied with the same rigor in the immigration context as
in the criminal arena,' . . . the Supreme Court's decision in Nijhawan ..requires the Taylor
Shepard analysis in INA cases-save where the matching INA offense is phrased so as to require
a fact-specific determination rather than identification of a generic crime.").
specifically rejected the method of analysis set forth in Matter of Silva-Trevino. Fajardo, 659
F.3d at 1311. Because the Sixth Circuit has not similarly rejected Silva-Trevino, the Court finds
the Forvilus decision unhelpful.
It also appears as though the Sixth Circuit has read in a divisibility requirement to the moral
turpitude analysis despite its absence, and apparent rejection, in Silva-Trevino. See Silva
Trevino, 24 l&N Dec. at 694 (only mentioning divisibility when discussing the patchwork of
standards and methods of analysis that existed prior to the Attorney General's decision). In
Kellerman, the Sixth Circuit quoted Board precedent pre-dating Silva-Trevino, stating "if the
statute contains some offenses which involve moral turpitude and others which do not, it is to be
treated as a 'divisible' statute, and we look to the record of conviction, meaning the indictment,
plea, verdict, and sentence, to determine the offense of which the respondent was convicted."
Kellerman, 592 F.3d at 703 (quoting Matter of Ajami, 22 I&N Dec. 949, 950 (BIA 1999)). In
Yeremin, however, the Sixth Circuit made no mention of a divisibility requirement. See Yeremin,
738 F.3d at 715 ("If we find that the scope of the statute includes some conduct that involves
moral turpitude and other conduct that does not, we apply the modified-categorical approach.").
The Sixth Circuit has issued two decisions discussing crimes involving moral turpitude since
Descamps, neither of which discusses the applicability of its clarification of divisibility. First, in
Hanna v. Holder, 740 F.3d 379 (6th Cir. 2014), the Sixth Circuit stated that in a prior decision it
found Hanna's statute of conviction "divisible." See id. at 390 (citing Singh v. Holder, 321 F.
Order A088-578-134
Page 12of16
Nevertheless, the Court is convinced that the divisibility analysis from Taylor and Shepard as
most recently described in Descamps applies to the moral turpitude issue in the Sixth Circuit. A
review of Sixth Circuit case law reveals that the Sixth Circuit has interpreted Silva-Trevino to
incorporate the categorical and modified categorical approaches as defined in Taylor and
Shepard even though Silva-Trevino cited neither case when describing its framework for
analyzing whether a crime involves moral turpitude. In discussing the moral turpitude analysis,
the Sixth Circuit appears to interpret Silva-Trevino as merely adding a third step to the Taylor
Shepard analysis that allows the Immigration Judge to examine other evidence if the modified
categorical approach is inconclusive. See Yeremin v. Holder, 738 F.3d 708, 715 (6th Cir. 2013)
(citing to Taylor and Shepard when describing the categorical and modified categorical
approaches and finding that a challenge to Silva-Trevino was inapt because its third step was not
applied by the Board below); Kellerman, 592 F.3d at 703-04 (citing Silva-Trevino when
discussing the modified categorical approach while also stating that divisibility is a requirement
for proceeding to the modified categorical approach). While the Sixth Circuit appears to look to
Taylor and Shepard for defining the categorical and modified categorical approaches for moral
turpitude purposes, it has not specifically found the Attorney General's decision in Silva-Trevino
as not deserving deference. Therefore, it is difficult to determine whether the Sixth Circuit has
read Taylor and Shepard into Silva-Trevino's formulation of the first two steps in the moral
turpitude analysis and so Descamps would apply going forward or whether the Sixth Circuit
would instead follow the method of analysis in Silva-Trevino.
.
App'x 473, 480 (6th Cir. 2009)). In Singh v. Holder, - F. App'x
, 2014 WL 2609555 *3
(6th Cir. June 1 1, 20 14), the Sixth Circuit recently denied an attempt to withdraw an attorney's
admission of removability for a conviction for a crime involving moral turpitude, finding that
because the categorical approach has a long history in immigration law, Descamps and
Moncrieffe do not constitute changes in the law.
--
----
As above when considering whether the Respondent was convicted of a crime relating to
commercial bribery, the Court finds that the Respondent's statute of conviction is not divisible as
it relates to the moral turpitude inquiry. While remuneration may include bribes or kickbacks,
and the Respondent may have actually been convicted of crimes involving those forms of
remuneration, the parenthetical listing those types of remuneration does not render the statute
divisible. Because there is not a grouping of elements that would categorically correspond to a
crime involving moral turpitude, the Respondent's statute is overbroad. It is not, however,
1
The Court does not come to this conclusion easily and has wrestled with this issue for some
time. Additionally, the Court notes that it previously indicated on the record that based on its
initial review of the record and case law it would find the Respondent's conviction to be for a
crime involving moral turpitude. Upon further review and for the reasons stated previously, the
Court has decided that Descamps applies to the moral turpitude analysis in the Sixth Circuit and
thus the DHS has not established that the Respondent's conviction is for a crime involving moral
turpitude.
Order A088-578-134
Page 13 of 16
It is unclear from the Sixth Circuit's published and unpublished decisions whether divisibility is
necessary to move from the categorical to the modified approach described in Silva-Trevino. It
is also unclear whether its recent decisions discussing moral turpitude assume the applicability of
Descamps. It is clear, however, that the Sixth Circuit uses the categorical and modified
categorical approaches as defined in Taylor and Shepard as the first two steps of the analysis for
determining whether a crime involves moral turpitude. Any clarification of the approaches
defined in those decisions would necessarily be applicable to any context in which those two
decisions are followed-such as in the Sixth Circuit when analyzing moral turpitude. See
Yeremin, 738 F.3d at 715; see also Ruiz-Lopez v. Holder, 682 F.3d 513, 518 (6th Cir. 2012)
(defining the steps in the moral turpitude analysis without reference to Silva-Trevino);
Kellerman, 592 F.3d at 714 (citing to Taylor and United States v. Montanez, 442 F.3d 485 (6th
Cir. 2006), a criminal case defining the categorical and modified categorical approaches by
reference to Shepard); Serrato-Soto v. Holder, 570 F.3d 686, 689 (6th Cir. 2009) (describing the
categorical and modified categorical approaches with references to precedent relating to
aggravated felonies without reference to Silva-Trevino). Unlike the Board and the Attorney
General, the Sixth Circuit has not employed a separate and less stringent analysis in the moral
turpitude context. This Court must follow the Sixth Circuit's analysis and apply the categorical
and modified categorical approaches in the moral turpitude context as they are applied in the
aggravated felony context. Therefore, Descamps applies. 1
divisible. The Court's analysis thus cannot proceed to the modified categorical approach.
Because the moral turpitude inquiry is inconclusive, the Court finds that the DHS has failed to
demonstrate that the Respondent's crime involved moral turpitude and so has failed to
demonstrate his removability on this ground.
IV. Inadm issibility at Adjustment
Finally, the OHS has charged the Respondent as removable under INA 237(a)(l)(A) for being
inadmissible at the time of his adjustment of status under INA 212(a)(2)(A)(i)(I). Exh.1. That
statute provides that "any alien convicted of or who admits having committed, or who admits
committing acts which constitute the essential elements of . . . a crime involving moral turpitude
(other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . is
inadmissible." INA 212(a)(2)(A)(i)(I). The DHS argues that the Respondent is removable on
this ground because his crime involved moral turpitude and because the offense began "by
2008." DHS Br. Removability 3. The Court has already found that the DH S failed to show that
the Respondent's crime involved moral turpitude. Therefore, the Respondent is not removable
on this ground. Even if the Respondent's crime did involve moral turpitude, it would not support
removability on this ground.
Although the Court previously found that the date of commission of the Respondent's crime was
"by 2008 " for purposes of INA 237(a)(2)(A)(i) because he joined a conspiracy that started at
that time, that logic does not extend to this ground of removability. INA 237(a)(I)(A) renders
removable "[a]ny alien who at the time of entry or adjustment of status was within one or more
of the classes of aliens inadmissible by the law existing at such time." Looking to the plain
language of this ground of removability, it is clear that the inadmissibility must have existed at
the time of entry or adjustment to render an alien removable. Grounds of removability arising
later that through a legal fiction are considered to have begun before the date of entry or
adjustment cannot suffice.
Here, the DH S has not demonstrated that the Respondent was already a member of the
conspiracy at the time of his adjustment of status on March 7, 2011. The first overt act involving
the Respondent listed in count one of the Superseding Indictment did not occur until October 22,
2011. Exh. 3. If the Respondent did not join the conspiracy until after his adjustment of status
was granted, then he could not have been inadmissible for having committed a crime involving
moral turpitude on the date his status was granted. It would be impossible to foresee that several
months in the future the Respondent would join a conspiracy and would thus become responsible
for the acts of his co-conspirators that occurred prior to his date of adjustment.
Page 14 of16
Order A088-578-134
zj
KM
'W.
.&.4 . . v:<i
Accordingly, the Respondent is NOT REMOVABLE under INA 237(a)(2)(A)(i) (crime

involving moral turpitude within five years of admission).
The Court is persuaded by Rocha and Casillas-Topete that the focus of INA 237(a)(l)(A) is the
situation at the time of admission, not a circumstance arising thereafter. Therefore, the Court
holds that for the Respondent to be removable under INA 237(a)(l)(A) for having committed a
crime involving moral turpitude prior to his adjustment of status, the DHS must prove that at the
time of the Respondent's adjustment he was a member of the conspiracy. Because the DHS has
not provided any evidence of the Respondent's involvement in the conspiracy prior to March 7,
2011, the DHS has not met its burden of proving removability on this ground.
Because the DHS has not proved that the Respondent's conviction is for a crime involving moral
turpitude committed prior to his adjustment of status, the Respondent is NOT REMOVABLE
under INA 237(a)(l)(A) (inadmissible at adjustment of status under INA 212(a)(2)(A)(i)(I)).
Order A088-578-134
Page 15of16
This situation is analogous to that in Matter of Rocha, 20 l&N Dec. 944 (BIA 1995). There, the
Board considered whether a respondent who was in possession of thirty-two pounds of marijuana
when he crossed the border without the immigration officer detecting it was removable under
former INA 241(a)(l)(A) for being removable at the time of his entry under a former version
of INA 212(a)(2)( C). Id That provision rendered inadmissible "any alien who the consular or
immigration officer knows or has reason to believe is or has been an illicit trafficker in any such
controlled substance." Rocha, 20 l&N Dec. at 945. The Board looked to the plain language of
INA 241(a)(l)(A) and 212(a)(2)(C) and held that "the particular examining officer who
inspected the respondent must in fact have known or suspected that the respondent was a
trafficker at the time of his application for admission in order for the foregoing provisions to
apply to the respondent's situation." Id. at 946 (emphasis added). The Board further "observed
that it logically followed from the language employed in sections 241(a)(l)(A) and 212(a)(2)(C)
that 'the examining officer's knowledge or suspicion that an alien is a trafficker must be
contemporaneous with the alien's application for admission."' Matter of Casillas-Topete, 25
I&N Dec. 317, 319 (BIA 2010) (quoting Rocha, 21 l&N Dec. at 946).
ORDERS
Accordingly, it is hereby ordered that:

Factual allegations seven and nine are SUSTAINED.
2.
The Respondent is NOT REMOVABLE under INA 237(a)(2)(A)(iii)

(aggravated felony as described in INA 101(a)(43)(U)/(M)).
3.
The Respondent is NOT REMOVABLE under INA 237(a)(2)(A)(iii)

(aggravated felony as described in INA 10l(a)(43)(U)/(R)).
4.
The Respondent is NOT REMOVABLE under INA 237(a)(2)(A)(i) (crime

invol ving moral turpitude within five years of admission).
5.
The Respondent is NOT REMOVABLE under INA 237(a)(l)(A)

(inadmissible at adjustment of status under INA 212(a)(2)(A)(i)(I)).
So Ordered.
Date:
JUM 2 2014
Immigration Judge
Order A088-578 -134
1.
Page 16 of16
h1n: ....
tzo
&JZJ$%4i$.
l!'i:!22i:
.&
;$.0.?%
Uh&
t..

Rajesh Chitherbhai Makwana, A088 578 134 (BIA Jan. 5, 2015)

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Rajesh Chitherbhai Makwana, A088 578 134 (BIA Jan. 5, 2015)

Transféré par

Droits d'auteur :

Formats disponibles

.U.S.

Board ofImmigration Appeals

OHS/ICE Office of Chief Counsel - CLE

Name: MAKWANA, RAJESH CHITHERB ...

Date of this notice: 1/5/2015

For more unpublished BIA decisions, visit www.irac.net/unpublished

Immigrant & Refugee Appellate Center | www.irac.net

Moseley, Thomas Edward

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

A088 578 134

In re: RAJESH CHITHERBHAI MAKWANA a.k.a. Rajesh Makwana

Thomas E. Moseley, Esquire

FOR THE BOARD

Immigrant & Refugee Appellate Center | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE