U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
q[fice of the Clerk
5 /07 Leesburg Pike. Suite 2000
Falls Church. Virginia 2204 I

DHS/ICE Office of Chief Counsel - NYD

201 Varick, Rm. 1130
New York, NY 10014

Name: LECLER DE JESUS, JUAN AGRI...

A 055-001-959
Date of this notice: 11/13/2015

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

Dorvu.., Ca.;vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Juan Agripin Lecler de Jesus, A055 001 959 (BIA Nov. 13, 2015)
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Guttlein, Jorge
Jorge Guttlein & Associates
291 Broadway, Suite 1500
New York, NY 10007

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
O.ffice of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virgmia 2 2041

DHS/ICE Office of Chief Counsel - NYD

201 Varick, Rm. 1130
New York, NY 10014

Name: LECLER DE JESUS, JUAN AGRI...

A 055-001-959
Date of this notice: 11/13/2015

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

Dun.rtL C

tVv'L)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Cole, Patricia A.

Userteam:

Cite as: Juan Agripin Lecler de Jesus, A055 001 959 (BIA Nov. 13, 2015)

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LECLER DE JESUS, JUAN AGRIPIN

A055-001-959
HUDSON COUNTY JAIL
30-35 HACKENSACK AVENUE
KEARNY, NJ 07032

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A055 001 959 - New York, NY

Date:

In re: WAN AGRIPIN LECLER DE JESUS a.k.a. Juan Lecler DeJesus

NOV 1 3 2015

APPEAL
ON BEHALF OF RESPONDENT: Jorge Guttlein, Esquire
ON BEHALF OF DHS: Kamephis Perez
Assistant Chief Counsel
CHARGE:
Notice: Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony under section 10l(a)(43)(M) of the Act

Sec.

237(a)(2)(A)(iii), l&N Act [8 U)S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony under section 101(a)(43)(U) of the Act

APPLICATION: Termination

The Department of Homeland Security ("DHS") timely appeals the Immigration Judge's
August 4, 2015, decision, granting the respondent's motion to terminate removal proceedings.
The appeal will be dismissed.
The Board reviews an Immigration Judge's findings of fact, including credibility
determinations and the likelihood of future events, under a "clearly erroneous" standard. 8 C.F.R.
1003.l(d)(3)(i); Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). We review all other issues,
including questions of law, judgment, or discretion, under a de novo standard. 8 C.F.R.
1003.l(d)(3)(ii).
The record reflects that on January 21, 2014, the respondent was convicted in the United
States District Court, Southern District of New York, for the offenses of conspiracy to commit
mail fraud and wire fraud, conspiracy to receive stolen mail, and conspiracy to commit fraud in
connection with identification documents, in violation of 18 U.S.C. 371, 1349 and 1028
(I.J. at 1; Exh. 2). The DHS served a Notice to Appear on the respondent on May 14, 2015,
charging him with removability under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), as an alien who, after admission, was convicted of
an aggravated felony under section 101(a)(43)(M) of the Act, 8 U.S.C. 110 l (a)(43)(M), to wit:
an offense that involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000. He was also charged as having been convicted of an aggravated felony under section
101(a)(43)(U) of the Act, 8 U.S.C. 1101(a)(43)(U), as an alien who was convicted of an
attempt or conspiracy to commit an offense described in section 101(a)(43) of the Act.
Cite as: Juan Agripin Lecler de Jesus, A055 001 959 (BIA Nov. 13, 2015)

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IN REMOVAL PROCEEDINGS

A055 001 959

There is no dispute that the respondent's offenses involve fraud or deceit (I.J. at 2). Rather,
the sole issue in dispute before the Immigration Judge, and before us on appeal, is whether the
loss to the victim or victims exceeds $10,000. The Immigration Judge found that the record did
not reflect such a loss, and the DHS has appealed.

Accordingly, the following order will be entered.

ORDER: The DHS's appeal is dismissed.

2
Cite as: Juan Agripin Lecler de Jesus, A055 001 959 (BIA Nov. 13, 2015)
iJ@:::;;;;;:::::;:xw:;t

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For purposes of determining whether the offense involves a "loss that exceeds $10,000," a
court must engage in a "circumstance-specific," rather than categorical, approach. Nijhawan v.
Holder, 557 U.S. 29 (2009). Under this approach, a court may examine documents from the
respondent's record of conviction as well as any pre-sentence report to determine whether the
conviction resulted in a loss ofmore than $10,000. Id. at 41-43. The Immigration Judge found
that the amount of loss to the victims was $9,000, based on the amount of restitution the
respondent was ordered to pay, as well as a review of the plea minutes (l.J. at 2-3; Exh. 2). On
appeal, the OHS argues that the Immigration Judge should have viewed the amount of forfeiture
ordered, to wit: $379,343, as the amount ofloss to the victims. The amount ofloss to the victims
is a factual question, which we review for clear error. 8 C.F.R. 1003.l(d)(3)(i). Upon review
of the Immigration Judge's findings offact on this issue, we conclude that there is no clear error.
See United States v. National Assn. of Real Estate Boards, 339 U.S. 485, 495 (1950) (a factual
finding is not "clearly erroneous" merely because there are two permissible views of the
evidence). Upon de novo review of the issue of whether the facts as found by the Immigration
Judge suffice to support a conclusion that the DHS met the relevant burden of proof, we
conclude that the OHS did not meet its burden ofproving, by clear and convincing evidence, that
the respondent is removable under either ground of removability. Section 240(c)(3)(A) of the
Act, 8 U.S.C. 1229a(c)(3)(A); 8 C.F.R. 1240.8(a). As such, we find that the Immigration
Judge properly terminaied removal proceedings in this matter.

Q
.

File No.: AOSS-001'-959

In the Matter of:
LECLER DE JESUS, Juan Agripin,

IN REMOVAL PROCEEDINGS

The Respondent.
CHARGES:

Immigration and Nationality Act ("INA") 237(a)(2)(A)(iii)

(Aggravated felony- Fraud offense)
INA 237(a)(2)(A)(iii) (Aggravated felony- attempt or conspiracy)

APPLICATION:

Motion to Terminate Proceedings

ON BEHALF OF THE RESPONDENT

Karen Celeste De La Cruz, Esq.
Jorge Guttlein & Associates, P. C.
291 Broadway, Suite 1500
New York, NY 10007

ON BEHALF OF DHS
Kamephis Perez, Esq.
Assistant Chief Counsel
201 Varick Street
New York, NY 10014

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I.

PROCEDURAL HISTORY

Juan Agripin Lecler de Jesus ("the Respondent") is a native and citizen of the Dominican
Republic. (Ex. 1). He entered the United States ("U.S.") on January 3, 2002, at San Juan, Puerto
Rico, as a lawful permanent resident ("LPR"). Id. On January 21, 2014, he was convicted of
conspiracy to commit mail and wire fraud, conspiracy to receive stolen mail, and conspiracy to
commit fraud in connection with identification documents, in violation of 18 U.S.C. 371,
1349, 1028. (Exs. 1; 2, Tab B); see also Respondent's Motion ("Resp. Mt."). He was
consequently ordered to forfeit $379, 343 to the U.S. government. Id.
On May 14, 2015, the Respondent was served by the Department of Homeland Security
("DHS") with a Notice to Appear ("NTA"), charging him with removability pursuant to INA
237(a)(2)(A)(iii), as an alien who, after admission, was convicted of an aggravated felony as
defined in INA 10l (a)(43)(M), a fraud offense resulting in loss to the victim in excess of
$10,000, and as defined in INA l01(a)(43)(U), an attempt or conspiracy to commit an

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
201 VARICK STREET
NEW YORK, NEW YORK

a
.

.,

aggravated felony. (Ex. 1). Through counsel, he admitted factual allegations one through three
contained in the NTA, but denied allegations four and five and denied removability as charged. 1
On July 17, 2015, the Respondent filed a motion to terminate proceedings. See Resp. Mt. For
the following reasons, his motion will be granted.
LEGAL STANDARDS & ANALYSIS
A. Motion to Terminate
DHS bears the burden of establishing by clear and convincing evidence that an alien who
has been admitted to the U.S. is removable as charged. INA 240(c)(3)(A); 8 C.F.R.
1240.S(a). An alien convicted of an aggravated felony any time after admission is removable.
INA 237(a)(2)(A)(iii). The term "aggravated felony" includes a conspiracy or attempt to
commit an aggravated felony. INA 10l(a)(43)(U); 8 C.F.R. 1001.l(t). It also includes an
offense that "involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000." INA 101(a)(43)(M)(i). Although the term "fraud" is not defined in the INA, the
BIA has directed that the term should be used in its "commonly accepted legal sense," meaning
"false representations of a material fact made with knowledge of [their] falsity and with intent to
deceive the other party," that are "believed and acted upon by the party deceived to his
disadvantage." Matter of G-G-, 7 I&N Dec. 161 (BIA 1956); see also Ming Lam Sui v. INS, 250
F.3d 105 (2d Cir. 2001).
The phrase a "loss [that] exceeds $10,000" is subject to the "circumstance-specific
approach" because it is not an element of the offense. See Nijhawan v. Holder, 557 U.S. 29
(2009). Under this approach, the Court may examine documents from the respondent's record of
conviction as well as the Pre-Sentence Report to determine whether the conviction resu]ted in a
loss of $10,000 or more. Id.; see also Lanferman v. BIA, 576 F.3d 84, 89 n.3 (2d Cir. 2009). In
all cases, "the loss must be tied to the specific counts covered by the conviction." Nijhawan, 557
U.S. at 42 (internal quotation marks omitted). The "amount cannot be based on acquitted or
dismissed counts or general conduct."
The Respondent concedes that his offenses involved fraud or deceit, but denies that they
resulted in a loss to the victim exceeding $10,000. See Resp. Mt. As part of his criminal
sentence, he was ordered to forfeit his interest in the $379,343 proceeds of the conspiracy. See
Resp. Mt., Tab A at 6 ("The defendant shall forfeit the defendant's interest in the following
property to the United States: $379,343.") (emphasis added). The sentencing minutes indicate
that the prosecution did not contend that he derived any actual remuneration from his
participation in the conspiracy, so his interest is presumably none. See Resp. Mt., Tab D at 23
(prosecutor stating, "[W]e don't believe that [the Respondent] actually personally received any
money from the scheme.").
Furthermore, the Respondent argues that the amount of forfeiture ordered, unlike
restitution, is not tied to the amount of loss to the victim; rather, it is tied to the amount the
1

In the Respondent's motion to terminate proceedings, however, he concedes the facts provided in factual
allegations four and five. See Resp. Mt.

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II.

Counsel for DHS argues that language appearing in the sentencing minutes suggests that
the amount of forfeiture, i.e. $379,343, represents that actual loss to the victim. See, e.g., Resp.
Mt., Tab D at 16 (prosecutor stating that, "the $379,000 figure is actual loss" and "[t]he
combined total of actual loss is the $379,000"). The Court, however, believes that it should
restrict its analysis to the amount of loss indicated in the plea minutes because "[a]llowing the
loss calculated for sentencing purposes to supersede the amount designated in the plea agreement
' would divorce the $10,000 loss requirement from the conviction requirement."' See Alaka v.
Att'y Gen., 456 F.3d 88, 1 08 (3d Cir. 2006) (quoting Chang v. INS, 307 F.3d 1185, 1190 (9th
Cir. 2002)). The plea minutes in this case indicate that the Respondent agreed to forfeit
$379,343, which "the government contends is the proce e ds or [sic] derived from the crime."
Resp. Mt., Tab F at 54 (emphasis added). The criminal court separately stated that it would be
required to "order restitution if restitution is appropriate to any victims of the crime." Id. Based
on the foregoing, the Court finds that the Respondent's $9,000 restitution order is the most
appropriate figure representing the loss to the victim resulting from his offense. Consequently, it
finds that he is not removable as charged and will grant his motion to terminate proceedings.
Accordingly, after a careful review of the record, the following Order is entered:
ORDER
IT IS HEREBY ORDERED that the Respondent's motion to terminate proceedings be
GRANTED.

Date

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defendant gained as a result ofhis illegal activities. Property subject to forfeiture, as provided by
statute, includes "[a]ny property, real or personal, which constitutes or is derived from proceeds
traceable to a violation" of specified federal law. 18 U.S.C. 981(a)(1)(C). "Proceeds" are
defined as "property of any kind obtained directly or indirectly, as the result of the commission
of the offense giving rise to forfeiture." 18 U.S.C. 98 l (a)(2). By contrast, restitution is
calculated based on the amount ofloss suffered by the victim and is intended to render the victim
whole. See Hughley v. United States, 495 U.S. 411, 41 6 (1990) ("[T]he ordinary meaning of
' restitution' is restoring someone to a position he occupied before a particular event."). The
Respondent observes that he was only ordered to pay restitution of $9,000. See Resp. Mt., Tabs
A at 5, C at 10. The Court finds that this argument has merit.

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