24 I. & N. Dec. 436, Interim Decision 3596, 2008 WL 192487 (BIA)
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
MATTER OF LIDUINA DE FATIMA GARCIA-MADRUGA, RESPONDENT
Decided January 17, 2008
(1) A “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2000), ordinarily requires the taking of, or exercise of control over, property without consent and with the 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 V-Z-S-, 22 I&N Dec. 1338 (BIA 2000), clarified.
(2) The respondent's welfare fraud offense in violation of section 40-6-15 of the General Laws of Rhode Island is not a “theft offense” under section 101(a)(43)(G) of the Act.
FOR RESPONDENT:
John H. Ruginski, Jr., Esquire, Providence, Rhode Island
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
PAULEY, Board Member:
In a decision dated August 21, 2007, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), as an alien convicted of an aggravated felony “theft offense” for which the term of imprisonment was at least 1 year under section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2000). The Immigration Judge also incorporated a separate decision denying the respondent's motion to terminate the proceedings. The respondent has appealed from the Immigration Judge's decision. The Department of Homeland Security (“DHS”) has not filed a brief in this matter. [FN1] The respondent's appeal will be sustained, and the proceedings will be terminated.
I. FACTUAL AND PROCEDURAL HISTORY
The record reflects that the respondent was convicted on March 31, 2006, of welfare fraud in violation of section 40-6-15 of the General Laws of Rhode Island, for which she was sentenced to a 5-year term of imprisonment. That statute provides as follows:
Any person who by any fraudulent device obtains, or attempts to obtain, or aids or abets any person to obtain public assistance, pursuant to this chapter, to which he or she is not entitled, or who willfully fails to report income or resources as provided in this chapter, shall be guilty of larceny and, upon conviction thereof, shall be punished by imprisonment of not more than five (5) years or by a fine of not more than one thousand dollars ($1,000) or both, if the value of the public assistance to which he or she is not entitled shall exceed five hundred dollars ($500), or by imprisonment by less than one year or by a fine of not more than five hundred dollars ($500) or by both, if the value of the public assistance to which he or she is not entitled shall not exceed five hundred dollars ($500).
The conviction record reflects that the respondent was found guilty under that portion of the above statute that criminalizes fraudulently obtaining, or attempting to obtain, public assistance to which she was not entitled. Citing Matter of V-Z-S-, 22 I&N Dec. 1338, 1346 (BIA 2000), the Immigration Judge concluded that the respondent's offense of welfare fraud qualified as an aggravated felony under section 101(a)(43)(G) of the Act.
II. ISSUE
On appeal, the respondent contends that the Immigration Judge erred in finding that her Rhode Island welfare fraud offense fits within the definition of a “theft offense” as contemplated by section 101(a)(43)(G) of the Act. She asserts that the offense defined by the portion of the statute under which she was convicted-obtaining, or attempting to obtain, or aiding or abetting any person to obtain, public assistance to which she is not entitled, by fraudulent device-is not a “theft offense.” She argues that it represents instead a separate and distinct aggravated felony, i.e., “an offense that involves fraud or deceit” under section 101(a)(43)(M)(i) of the Act. [FN2]
III. ANALYSIS
In Matter of V-Z-S-, supra, we addressed the question of what constitutes a “theft offense” for purposes of section 101(a)(43)(G) of the Act and concluded, after an exhaustive analysis of relevant authorities, that “a taking of property constitutes a ‘theft’ 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.” Id. at 1346. Our focus in that case was not, however, on the meaning of a “taking” and whether theft could overlap with fraud, but on whether the deprivation must be permanent. [FN3] Specifically, we examined, among other things, Federal laws, State statutes, decisions of several Federal courts of appeals, and section 223.2(1) of the Model Penal Code, defining “theft.” However, we did not consider whether a conviction under the adjoining section of the Model Penal Code, entitled “Theft by Deception,” would represent a “theft offense.” See Model Penal Code § 223.3.
Our decision in Matter of V-Z-S-, supra, has been well received by the Federal courts. Moreover, in the wake of Matter of V-Z-S-, every Federal court of appeals to have addressed the meaning of “theft offense” under section 101(a)(43)(G) has determined that it necessarily includes the requirement that the property have been obtained from its owner “without consent.” See Burke v. Mukasey, No. 06-60710, 2007 WL 4295386, at *2 (5th Cir. Dec. 10, 2007) (per curiam) (involving a conviction for criminal possession of stolen property); Abimbola v. Ashcroft, 378 F.3d 173, 176 (2d Cir. 2004) (involving a conviction for larceny); Nugent v. Ashcroft, 367 F.3d 162, 173-74 (3d Cir. 2004) (involving a conviction for theft by deception for having passed a bad check); United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc) (involving a conviction for petty theft of cigarettes and beer); United States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir. 2001) (involving a conviction for attempting to knowingly receive or transfer a stolen motor vehicle); Hernandez-Mancilla v. INS, 246 F.3d 1002, 1008-09 (7th Cir. 2001) (involving a conviction for possession of a stolen motor vehicle). The Supreme Court has also observed with apparent approval that “[t]he Ninth Circuit, like other Circuits and the BIA, accepted as a generic definition of theft, 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, 127 S. Ct. 815, 820 (2007) (quoting Penuliar v. Gonzales, 435 F.3d 961, 969 (9th Cir. 2006)). Other than *439 Nugent v. Ashcroft, supra, however, none of these cases addressed whether fraud crimes may also be encompassed in the definition of theft.
In contrast, the Fourth Circuit examined the interplay between a “theft offense” and “an offense that involves fraud” in Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005). [FN4] The alien in that case was convicted of the fraudulent use of a credit card for having misrepresented that she was the holder of a credit card, without the card holder's consent, to obtain property in excess of $200. Like the respondent, the alien argued that she was not convicted of a “theft offense” under section 101(a)(43)(G) of the Act but, rather, a “fraud” offense covered by section 101(a)(43)(M)(i). The court noted our unpublished order in that case, in which we agreed with the alien that her offense “‘by its terms, involves fraud,”’ but nonetheless found that the theft and fraud provisions of sections 101(a)(43)(G) and (M)(i) were not mutually exclusive and that “‘a crime which involves fraud may also involve theft.”’ Id. at 279 (quoting the Board's decision). After determining that the plain text of section 101(a)(43) shows that Congress specifically distinguished fraud from theft, and that it meant for the two offenses to be treated differently, the court examined the Black's Law Dictionary definition of each from several editions, concluding as follows:
When a theft offense has occurred, property has been obtained from its owner “without consent”; in a fraud scheme, the owner has voluntarily “surrendered” his property, because of an “intentional perversion of truth,” or otherwise “act[ed] upon” a false representation to his injury. The key and controlling distinction between these two crimes is therefore the “consent” element-theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained.
*440 Id. at 282. Thus, the court held that the alien's crime would not qualify as an aggravated felony “theft offense” under section 101(a)(43)(G) of the Act under the “modified” categorical approach, as the indictment underlying the alien's conviction for credit card fraud did not charge that she had actually obtained any property from the cardholder or taken goods without the consent of the merchant.
In sum, the Federal courts of appeals' analysis of theft offenses under section 101(a)(43)(G) of the Act requires that the stolen property be obtained from its owner “without consent,” and the courts have read Matter of V-Z-S-, supra, to include this element as well. We believe the courts' interpretation of Matter of V-Z-S- is correct, since the natural reading of the definition we adopted there, i.e., that there must be a “ taking” of property (as opposed, e.g., to an acquiring of property), is that the property must be obtained “without consent.”
We therefore find that we are in substantial agreement with Soliman v. Gonzales, supra, that the offenses described in sections 101(a)(43)(G) and (M)(i) of the Act ordinarily involve distinct crimes. Whereas the taking of property without consent is required for a section 101(a)(43)(G) “theft offense,” a section 101(a)(43)(M)(i) “offense that involves fraud or deceit” ordinarily involves the taking or acquisition of property with consent that has been fraudulently obtained [FN5] Accordingly, we now refine the definition in Matter of V-Z-S-, supra, to clarify that a theft offense within the meaning of section 101(a)(43)(G) consists of the taking of, or exercise of control over, property [FN6] 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.
IV. CONCLUSION
We conclude that the respondent's offense of welfare fraud under section 40-6-15 of the General Laws of Rhode Island does not constitute the taking of, or exercise of control over, property without consent and with the criminal intent to deprive the owner of the rights and benefits of ownership. The respondent has therefore not been convicted of an aggravated felony “theft offense” as defined in section 101(a)(43)(G) of the Act. Accordingly, the respondent's appeal will be sustained, and the proceedings will be terminated.
ORDER: The appeal is sustained, and the removal proceedings are terminated.
FN1. The DHS did, however, submit a brief on the issue before the Immigration Judge.
FN2. An aggravated felony under section 101(a)(43)(M)(i) of the Act is defined as an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.
FN3. We note that the statute involved in Matter of V-Z-S-, supra, specifically required a taking “‘without the consent of the owner.”’ Id. at 1347 (quoting section 10851 of the California Vehicle Code).
FN4. In Nugent v. Ashcroft, supra, the Third Circuit likewise considered the relationship between a section 101(a)(43)(G) “theft offense” and a section 101(a)(43)(M)(i) “offense involving fraud or deceit.” The court found that Pennsylvania's theft by deception statute fell under section 101 (a)(43)(G) as a “theft offense,” but also was in the nature of an offense based on fraud or deceit under section 101(a)(43)(M)(i). Id. at 176-79. The court further held that, for such a “hybrid” offense consisting of both a theft and a fraud crime, the elements of both needed to be satisfied before an alien would be removable. See also Valansi v. Ashcroft, 278 F.3d 203, 213 n.8 (3d Cir. 2002) (“The fact that the BIA classified embezzlement as … a theft offense under § 1101(a)(43)(G) does not mean that it could not also classify it as an offense involving fraud or deceit under § 1101(a)(43)(M)(i)”). However, to date, the Third Circuit has not identified another “hybrid” offense occasioning application of Nugent v. Ashcroft, supra. See, e.g., Bobb v. Att'y Gen. of U.S., 458 F.3d 213 (3d Cir. 2006) (distinguishing Nugent v. Ashcroft).
FN5. However, the definition in Soliman v. Gonzales, supra, of a fraud offense is not before us, and we need not decide whether it is sufficiently inclusive. That is, we do not discount the possibility that the theft and fraud aggravated felony compartments are not watertight such that certain crimes, like the theft by deception offense at issue in Nugent v. Ashcroft, supra, may constitute both a theft offense and one “involv[ing] fraud.” See Valansi v. Ashcroft, supra (holding that the elements of an offense that “involves fraud” need not be coextensive with a crime of fraud); see also Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006) (same). That does not mean, however, that we subscribe to the Nugent court's holding that in such an instance the elements of both aggravated felony branches must be demonstrated. Nor need we determine in this case the precise meaning of “consent,” for example, whether it applies to consent induced by coercion. See 18 U.S.C. § 1951(b)(2) (2000).
FN6. The language “exercise of control” does not come from Matter of V-Z-S-, but we incorporate it inasmuch as the Supreme Court in Duenas-Alvarez v. Gonzalez, supra, employed that phrase in summarizing the theft definition adopted by the courts of appeals and the Board. Presumably, the “exercise of control” formulation is designed to better capture the concept of an indirect “taking” or a situation where the owner originally relinquished the property on a consensual, nonfraudulently induced basis (e.g., where it was lent to the offender for a limited time or purpose, but the offender later determined to keep it for himself).
24 I. & N. Dec. 436, Interim Decision 3596, 2008 WL 192487 (BIA)
Monday, November 23, 2009
Sunday, November 22, 2009
Immigration Attorney Fraud - Georgia attorney pleads guilty to filing fraudulent immigration documents
November 18, 2009
Georgia attorney pleads guilty to filing fraudulent immigration documents
Lawyer helped clients obtain legal immigration status through fraud
ATLANTA - A 63-year-old of Duluth, Ga., pleaded guilty today in federal district court to one count of filing a false document with the U.S. Department of Labor (DOL) in a fraudulent effort to assist a client in obtaining legal immigration status in the United States following a U.S. Immigration and Customs Enforcement's (ICE) Document and Benefit Fraud Task Force investigation.
According to the charges and other information presented in court, Sai Hyun Lee, a licensed attorney in Georgia, charged an alien seeking lawful status in the United States $25,000 to substitute the client on an approved labor certificate that had been issued to an employer but for a different foreign worker.
Lee then assisted her client in using the labor certificate to apply for lawful resident status in the United States based upon employment, with knowledge that the client did not work for the employer and did not intend to work for the employer to which the labor certificate was issued, as is required by federal law.
Based upon the application which fraudulently represented that Lee's client was working in compliance with the approved labor certificate, the client obtained legal status as a lawful resident alien. Lee's client never worked for the employer and the employer was not aware that Lee used the labor certificate to assist her client in obtaining legal status.
Further investigation revealed that Lee assisted at least 16 other aliens in the same way. In some instances, aliens who hired Lee to help them obtain legal status did not know they were supposed to be working for a particular employer when they became legal resident aliens. In many instances, the employers did not know that Lee used labor certificates issued to them to assist her clients in obtaining lawful status through fraud.
"Immigration fraud poses a severe threat to national security and public safety because it creates a vulnerability that may enable terrorists, criminals, and illegal aliens to gain entry to and remain in the United States," said Kenneth Smith, special agent in charge of ICE's Office of Investigations in Atlanta. "ICE will continue using its Document and Benefit Fraud Task Forces to target unscrupulous attorneys who knowingly circumvent our immigration laws and procedures for financial reasons."
Daniel R. Petrole, acting inspector general, Department of Labor, stated: "Today's guilty plea is the result of a successful collaboration between the Office of the U. S. Attorney, ICE and the Department of Labor, Office of Inspector General. This investigation uncovered an immigration lawyer who sought to personally profit by defrauding the foreign labor certification process. My office is committed to working with the Document and Benefit Fraud Task Force to bring to justice individuals who perpetrate these crimes."
U. S. employers who can demonstrate a particular need for a foreign worker may apply to the Department of Labor for a labor certification for the foreign worker. Once the employer obtains a labor certification, the employer may apply for an immigrant visa and adjustment of status for the foreign worker. After the approval of the visa application and change of status, the foreign worker is afforded the benefit of lawful permanent residence in the United States and is expected to begin working for the employer who petitioned to bring him to the United States.
Lee faces a maximum sentence of up to 10 years in prison and a fine of up to $250,000. She also agreed to forfeit to the United States $100,000 which represents the fees that she charged the 17 aliens to assist them in submitting fraudulent applications for legal status.
Sentencing is scheduled for Feb. 18, 2010, before U. S. District Judge Thomas W. Thrash, Jr.
Assistant U. S. Attorneys William L. McKinnon, Jr., Susan Coppedge and Mary Kruger are prosecuting the case.
Georgia attorney pleads guilty to filing fraudulent immigration documents
Lawyer helped clients obtain legal immigration status through fraud
ATLANTA - A 63-year-old of Duluth, Ga., pleaded guilty today in federal district court to one count of filing a false document with the U.S. Department of Labor (DOL) in a fraudulent effort to assist a client in obtaining legal immigration status in the United States following a U.S. Immigration and Customs Enforcement's (ICE) Document and Benefit Fraud Task Force investigation.
According to the charges and other information presented in court, Sai Hyun Lee, a licensed attorney in Georgia, charged an alien seeking lawful status in the United States $25,000 to substitute the client on an approved labor certificate that had been issued to an employer but for a different foreign worker.
Lee then assisted her client in using the labor certificate to apply for lawful resident status in the United States based upon employment, with knowledge that the client did not work for the employer and did not intend to work for the employer to which the labor certificate was issued, as is required by federal law.
Based upon the application which fraudulently represented that Lee's client was working in compliance with the approved labor certificate, the client obtained legal status as a lawful resident alien. Lee's client never worked for the employer and the employer was not aware that Lee used the labor certificate to assist her client in obtaining legal status.
Further investigation revealed that Lee assisted at least 16 other aliens in the same way. In some instances, aliens who hired Lee to help them obtain legal status did not know they were supposed to be working for a particular employer when they became legal resident aliens. In many instances, the employers did not know that Lee used labor certificates issued to them to assist her clients in obtaining lawful status through fraud.
"Immigration fraud poses a severe threat to national security and public safety because it creates a vulnerability that may enable terrorists, criminals, and illegal aliens to gain entry to and remain in the United States," said Kenneth Smith, special agent in charge of ICE's Office of Investigations in Atlanta. "ICE will continue using its Document and Benefit Fraud Task Forces to target unscrupulous attorneys who knowingly circumvent our immigration laws and procedures for financial reasons."
Daniel R. Petrole, acting inspector general, Department of Labor, stated: "Today's guilty plea is the result of a successful collaboration between the Office of the U. S. Attorney, ICE and the Department of Labor, Office of Inspector General. This investigation uncovered an immigration lawyer who sought to personally profit by defrauding the foreign labor certification process. My office is committed to working with the Document and Benefit Fraud Task Force to bring to justice individuals who perpetrate these crimes."
U. S. employers who can demonstrate a particular need for a foreign worker may apply to the Department of Labor for a labor certification for the foreign worker. Once the employer obtains a labor certification, the employer may apply for an immigrant visa and adjustment of status for the foreign worker. After the approval of the visa application and change of status, the foreign worker is afforded the benefit of lawful permanent residence in the United States and is expected to begin working for the employer who petitioned to bring him to the United States.
Lee faces a maximum sentence of up to 10 years in prison and a fine of up to $250,000. She also agreed to forfeit to the United States $100,000 which represents the fees that she charged the 17 aliens to assist them in submitting fraudulent applications for legal status.
Sentencing is scheduled for Feb. 18, 2010, before U. S. District Judge Thomas W. Thrash, Jr.
Assistant U. S. Attorneys William L. McKinnon, Jr., Susan Coppedge and Mary Kruger are prosecuting the case.
Friday, November 20, 2009
Lawrence H. Summers on Women in Science & Engineering Workforce
"There are three broad hypotheses about the sources of the very substantial disparities that this conference's papers document and have been documented before with respect to the presence of women in high-end scientific professions. One is what I would call the-I'll explain each of these in a few moments and comment on how important I think they are-the first is what I call the high-powered job hypothesis. The second is what I would call different availability of aptitude at the high end, and the third is what I would call different socialization and patterns of discrimination in a search. And in my own view, their importance probably ranks in exactly the order that I just described."
Lawrence H. Summers
Cambridge, Mass.
January 14, 2005
To read more continue reading http://www.president.harvard.edu/speeches/summers_2005/nber.php
Lawrence H. Summers
Cambridge, Mass.
January 14, 2005
To read more continue reading http://www.president.harvard.edu/speeches/summers_2005/nber.php
Thursday, November 19, 2009
Immigrants use civil lawsuits to protest raids by federal agents
This excerpt is from the article "Putting Heat On ICE" published by Connecticut Law Tribune Monday, November 16, 2009
Copyright 2009, ALM Properties, Inc.
In May 2006, the federal Immigration and Customs Enforcement agency launched “Operation Return To Sender.” The goal: track down, arrest and deport undocumented immigrants, particularly felons, gang members and other dangerous types.
Since then, ICE agents have conducted scores of raids on homes and workplaces. Advocacy groups and lawyers say some agents have been overly zealous, and the advocates have regularly gone to court to try to void arrests and block deportations. But in what seems to be a small, but significant trend, some have also gone on the offensive, filing civil lawsuits against ICE and its agents.
The most recent example is in Connecticut, where a Yale School of Law legal clinic has filed suit on behalf of 10 undocumented immigrants whose homes were raided in June 2007. Immigration attorneys differ on whether the claim has much chance of success. But most agree that litigation is an interesting strategy that could buy time in America for the clients and give ICE officials reason to reconsider tactics.
Attorney Alex Meyerovich, of Bridgeport’s M.C. Law Group, called the lawsuit part of a “cat and mouse game” between federal agents and advocates for immigrants. Similar claims have been filed following sweeps on immigrant homes in New Jersey, New York, Georgia and Northern California in recent years.
“What Yale is trying to do is to intimidate ICE,” said Meyerovich. “To show there is a potential liability if they step over an invisible border. It doesn’t matter if [the lawsuit] succeeds or fails. It’s an important power struggle.”
Meyerovich has few kind words for ICE agents, calling some of them “vigilantes.” But he also would not endorse the civil rights lawsuit. “If illegal immigrants succeed in this lawsuit, the message might come out, if you come into the country illegally and get arrested, your rights were violated. I think it’s the wrong message.”
to read more article please visit
http://www.ctlawtribune.com/printarticle.aspx?ID=35524
Copyright 2009, ALM Properties, Inc.
In May 2006, the federal Immigration and Customs Enforcement agency launched “Operation Return To Sender.” The goal: track down, arrest and deport undocumented immigrants, particularly felons, gang members and other dangerous types.
Since then, ICE agents have conducted scores of raids on homes and workplaces. Advocacy groups and lawyers say some agents have been overly zealous, and the advocates have regularly gone to court to try to void arrests and block deportations. But in what seems to be a small, but significant trend, some have also gone on the offensive, filing civil lawsuits against ICE and its agents.
The most recent example is in Connecticut, where a Yale School of Law legal clinic has filed suit on behalf of 10 undocumented immigrants whose homes were raided in June 2007. Immigration attorneys differ on whether the claim has much chance of success. But most agree that litigation is an interesting strategy that could buy time in America for the clients and give ICE officials reason to reconsider tactics.
Attorney Alex Meyerovich, of Bridgeport’s M.C. Law Group, called the lawsuit part of a “cat and mouse game” between federal agents and advocates for immigrants. Similar claims have been filed following sweeps on immigrant homes in New Jersey, New York, Georgia and Northern California in recent years.
“What Yale is trying to do is to intimidate ICE,” said Meyerovich. “To show there is a potential liability if they step over an invisible border. It doesn’t matter if [the lawsuit] succeeds or fails. It’s an important power struggle.”
Meyerovich has few kind words for ICE agents, calling some of them “vigilantes.” But he also would not endorse the civil rights lawsuit. “If illegal immigrants succeed in this lawsuit, the message might come out, if you come into the country illegally and get arrested, your rights were violated. I think it’s the wrong message.”
to read more article please visit
http://www.ctlawtribune.com/printarticle.aspx?ID=35524
Wednesday, November 18, 2009
Transport Illegal Aliens - Three Louisiana individuals sentenced for transporting illegal aliens
October 30, 2009
Three Louisiana individuals sentenced for transporting illegal aliens
Defendants Part of Large Scale Operation to Transport Illegal Aliens
LAKE CHARLES, La. - Members of a large scale illegal alien transportation operation based in Sulphur, La., were sentenced in federal court yesterday following an investigation by U.S. Immigration and Customs Enforcement (ICE) agents.
U. S. District Judge Patricia Minaldi sentenced Carolyn Joyce Metcalf, 62, to 30 months in prison, followed by three years supervised release; Terri Lynn Fields, 41, to 27 months in prison, followed by three years supervised release; and Jean Morgan Vincent, 59, to three years probation, for conspiracy to transport illegal aliens.
Metcalf, Fields and Vincent were indicted last year, along with three others, for conspiracy to transport illegal aliens, and pleaded guilty in May 2009. Metcalf, Fields and Vincent admitted they conspired with their co-defendants to transport illegal aliens from the Texas and Mexico border area to other locations within Texas, that they knew the aliens came into the United States illegally, and the transportation of these illegal aliens was with the intent to further their unlawful presence in the United States. Metcalf, Fields and Vincent were involved in a conspiracy with their co-defendants that resulted in the organization transporting hundreds of illegal aliens on a regular basis since 2005.
Two co-defendants have previously pled guilty. Joan Comeaux, 56, pleaded guilty in October 2008, and is scheduled to be sentenced on Dec. 10, 2009. Comeaux, the ring leader of this organization, admitted that she instructed her co-defendants in this case on the procedure to transport illegal aliens and along with her sister, Carolyn Metcalf, transported illegal aliens.
Timothy Gene Jones, 40, pleaded guilty in May 2009, and was sentenced on Sept. 3, 2009, to one year imprisonment, followed by three years supervised release. Jones admitted that he was recruited as a driver and made trips to Texas to pick up and transport the illegal aliens. The recruiting process took place in the Western District of Louisiana.
"This case is a perfect example of the outstanding cooperation between ICE and our sister law enforcement agencies. Because of positive interagency cooperation, human trafficking and smuggling criminal organizations are discovering how difficult it is for them to hide their illegal activities from authorities," said Michael A. Holt, special agent in charge of ICE's Office of Investigations in New Orleans. "We are dedicated to identifying and dismantling these types of illicit operations wherever and whenever we find them."
"Any person who assists an alien to illegally enter the United States is in violation of the law and should be punished," said U. S. Attorney Donald Washington. "We will continue to aggressively pursue those who assist aliens to illegally enter and remain in the United States."
This case was investigated by U.S. Immigration and Customs Enforcement (ICE), the FBI, U.S. Customs and Border Protection (CBP) Border Patrol, Louisiana State Police, Sulphur Police Department and Calcasieu Parish Sheriff's Office, and is being prosecuted by Assistant U. S. Attorney James T. McManus.
Three Louisiana individuals sentenced for transporting illegal aliens
Defendants Part of Large Scale Operation to Transport Illegal Aliens
LAKE CHARLES, La. - Members of a large scale illegal alien transportation operation based in Sulphur, La., were sentenced in federal court yesterday following an investigation by U.S. Immigration and Customs Enforcement (ICE) agents.
U. S. District Judge Patricia Minaldi sentenced Carolyn Joyce Metcalf, 62, to 30 months in prison, followed by three years supervised release; Terri Lynn Fields, 41, to 27 months in prison, followed by three years supervised release; and Jean Morgan Vincent, 59, to three years probation, for conspiracy to transport illegal aliens.
Metcalf, Fields and Vincent were indicted last year, along with three others, for conspiracy to transport illegal aliens, and pleaded guilty in May 2009. Metcalf, Fields and Vincent admitted they conspired with their co-defendants to transport illegal aliens from the Texas and Mexico border area to other locations within Texas, that they knew the aliens came into the United States illegally, and the transportation of these illegal aliens was with the intent to further their unlawful presence in the United States. Metcalf, Fields and Vincent were involved in a conspiracy with their co-defendants that resulted in the organization transporting hundreds of illegal aliens on a regular basis since 2005.
Two co-defendants have previously pled guilty. Joan Comeaux, 56, pleaded guilty in October 2008, and is scheduled to be sentenced on Dec. 10, 2009. Comeaux, the ring leader of this organization, admitted that she instructed her co-defendants in this case on the procedure to transport illegal aliens and along with her sister, Carolyn Metcalf, transported illegal aliens.
Timothy Gene Jones, 40, pleaded guilty in May 2009, and was sentenced on Sept. 3, 2009, to one year imprisonment, followed by three years supervised release. Jones admitted that he was recruited as a driver and made trips to Texas to pick up and transport the illegal aliens. The recruiting process took place in the Western District of Louisiana.
"This case is a perfect example of the outstanding cooperation between ICE and our sister law enforcement agencies. Because of positive interagency cooperation, human trafficking and smuggling criminal organizations are discovering how difficult it is for them to hide their illegal activities from authorities," said Michael A. Holt, special agent in charge of ICE's Office of Investigations in New Orleans. "We are dedicated to identifying and dismantling these types of illicit operations wherever and whenever we find them."
"Any person who assists an alien to illegally enter the United States is in violation of the law and should be punished," said U. S. Attorney Donald Washington. "We will continue to aggressively pursue those who assist aliens to illegally enter and remain in the United States."
This case was investigated by U.S. Immigration and Customs Enforcement (ICE), the FBI, U.S. Customs and Border Protection (CBP) Border Patrol, Louisiana State Police, Sulphur Police Department and Calcasieu Parish Sheriff's Office, and is being prosecuted by Assistant U. S. Attorney James T. McManus.
Monday, November 16, 2009
Update: USCIS Extends Grace Period for Accepting Previous Version of the Notice of Entry of Appearance as Attorney or Representative Form
Update: USCIS Extends Grace Period for Accepting Previous Version of the Notice of Entry of Appearance as Attorney or Representative Form
Older Version of Form G-28 Accepted Until Further Notice
WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) announced today that the previous version of the Notice of Entry of Appearance as Attorney or Representative (Form G-28) will be accepted until further notice.
On Oct. 1, 2009, USCIS announced the publication of a new Form G-28 and provided a 30-day grace period, until Oct. 30, for accepting previous versions at the USCIS Lockbox facilities or USCIS Service Centers. USCIS encourages attorneys and accredited representatives to use the new Form G-28, however, USCIS will not reject filings of the previous Form G-28 version until further notice. This will allow law students who represent immigrants to use the previous form until changes can be made to the form to accommodate their unique situation.
To obtain the new Form G-28, and instructions for completing the form, please visit the Forms section of the USCIS website.
Older Version of Form G-28 Accepted Until Further Notice
WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) announced today that the previous version of the Notice of Entry of Appearance as Attorney or Representative (Form G-28) will be accepted until further notice.
On Oct. 1, 2009, USCIS announced the publication of a new Form G-28 and provided a 30-day grace period, until Oct. 30, for accepting previous versions at the USCIS Lockbox facilities or USCIS Service Centers. USCIS encourages attorneys and accredited representatives to use the new Form G-28, however, USCIS will not reject filings of the previous Form G-28 version until further notice. This will allow law students who represent immigrants to use the previous form until changes can be made to the form to accommodate their unique situation.
To obtain the new Form G-28, and instructions for completing the form, please visit the Forms section of the USCIS website.
Sunday, November 15, 2009
Alien Smuggling, Visa Fraud are the Federal Charges Against 8 Individuals, Law Firm, and Property Company in Salt Lake City, UT
Eight Individuals, Law Firm, Property Company Face Federal Charges Alleging Alien Smuggling, Visa Fraud
Salt Lake City, UT
July 28, 2009
Indictment Alleges Firm Helped Foreign Nationals, Utah Employers Obtain Visas For Workers Through Fraud
A federal indictment unsealed this morning in Salt Lake City charges a law firm, a property management company, and eight individuals with conspiracy to commit alien smuggling and visa fraud, encouraging and inducing illegal aliens to come to, enter, or remain in the United States, and visa fraud.
Included in the defendants is a Salt Lake City law firm, an individual who worked as a United States border patrol agent with the Immigration and Naturalization Service prior to joining the law firm, and an individual who worked for the United States government as a visa assistant at the U.S. Consulate in Ciudad Juarez, Mexico, before going to work for the law firm.
Charged in the indictment are the Alcala Law Firm, which practices immigration law and is located at 1380 West Indiana Avenue in Salt Lake City; Westside Property Management, a Salt Lake County company; James Hector Alcala, age 41, of Salt Lake City; Carlos Manuel Vorher, age 43, of Salt Lake City; Carlos Enrique Gomez-Alvarez, age 41, formerly of Salt Lake City now living in Houston; Daniel Trigo Villavicencio, age 30, of Orem; Gustavo Ballesteros-Munoz, age 45, of West Jordan; Andres Lorenzo Acosta Parra, age 31, of Salt Lake City; Florentino Jose Ayala Villarreal, age 39, of Mexico; and Olga Adriana Garza Muniz, age 47, of Mexico.
The investigation of the case, which started about 18 months ago, has been conducted by the U.S. Department of State’s Diplomatic Security Service; ICE, the U.S. Department of Labor; the Department of Homeland Security Citizenship and Inspection Services; and the U.S. Attorney’s Office.
“The charges in this indictment allege that attorneys and others who worked at the law firm, who have a position of trust in our community, circumvented the law to obtain visas for employers and the foreign national workers they were employing in Utah,” U.S. Attorney Brett L. Tolman said today. “The laws that govern the issuance of visas are there to make the practice fair for everyone. When fraud is used in an attempt to get a visa, other workers, including foreign nationals and U.S. workers and employers, who have played by the rules, get hurt.”
“The U.S. Department of State’s Diplomatic Security Service is resolutely committed to investigate any and all allegations of passport and visa fraud, and to bring those who commit these crimes to justice,” said Ed Moreno, Assistant Director for Domestic Operations for the Diplomatic Security Service, whose office conducted the joint investigation of the case.
“ICE’s message is simple - America's legal immigration system is not for sale and we will move aggressively against those who compromise the integrity of that system simply to enrich themselves,” said Paul Maldonado, deputy special agent in charge of the ICE Office of Investigations that oversees the agency’s investigative activities in Utah. “Not only did the defendants in this case allegedly use fraudulent information to obtain employment visas for hundreds of people who weren’t authorized to work, regrettably we believe this scheme also led to untold numbers of U.S. citizens and legal workers being refused jobs or discouraged from applying at all.”
Daniel R. Petrole, Acting Inspector General, U. S. Department of Labor, stated, “Today’s indictments serve as a stern warning to those who would fraudulently abuse the foreign labor certification program for their personal gain. Facilitating the entry of workers into this nation under false pretenses corrupts a program designed to ensure the lawful admission of foreign labor under very specific conditions. Our agency remains committed with its law enforcement partners to investigate fraud committed against these Department of Labor programs."
"It is through our due diligence and the great partnerships with law enforcement agencies that we are able to detect and curtail fraud within our immigration system," said Robert Mather, U.S. Citizenship and Immigration Services, Denver District Director.
The 17-count indictment alleges that the object of the conspiracy was to profit financially by assisting Utah employers in obtaining H-2B visas for their foreign-national workers by fraudulently representing to the DOL, USCIS, and DOS that the foreign nationals were eligible for the visas when, in fact, they were not. Investigators believe more than 5,000 visas were issued based on more than 700 petitions filed. Although some of the visas may have not have been obtained fraudulently, investigators believe the majority of them were.
The H-2B visa program allows United States companies to hire foreign nationals to fill employee vacancies that the company, for one reason or another, cannot fill with U.S. citizens. The visa program is not intended for permanent work. It is designed to help U.S. businesses that have temporary, seasonal, peak load or intermittent needs. Several federal agencies are involved in what is a fairly complicated application process. The number of H-2B visas that are issued each year is capped at 66,000, according to the indictment.
For a foreign-national worker to be eligible for the visa, employers must demonstrate that there are not enough United States citizens who are able, willing, qualified, and available to fill the employment vacancies. If the foreign-national worker is in the United States at the time the petition is filed, the employer must include the date the foreign-national worker originally arrived in the United States and must demonstrate that the worker is in the United States legally. If the employer does not document that the worker is in the United States, the worker is presumed to be outside the United States. Those who are not present in the United States at the time the petition is filed are required to have resided and been physically outside of the United States for six months immediately prior to receiving the H-2B visa.
The indictment alleges the defendants charged in this case would meet with the employers and the foreign national workers to discuss methods the law firm could utilize to help the workers obtain lawful status using the H-2B visa program. During these discussions, employers would inform the defendants that their employees were not in the country legally. Notwithstanding this fact, the defendants would instruct the employers and foreign-national workers about how to use the H-2B visa program, including encouraging the employers to petition for more H-2B visas than the employer actually needed so conspirators would be able to unlawfully “swap” foreign-national workers from one employer to the next based on who ultimately obtained visas. Although the employers often had already filled the positions, the defendants prepared and submitted newspaper advertisements making it appear like the employers were looking to hire new workers. Additionally, according to the indictment, the advertisements often would advertise the pay at a much lower rate than the foreign-national workers were actually receiving.
The indictment also alleges that as a part of the conspiracy, the defendants prepared forms and submitted them indicating that employers were looking for “new” employees who were not in the United States when, in truth, the employers were hoping to obtain visas for their current workforce. Once visas were approved, conspirators would, at times, “pool” the visas it obtained on behalf of all of its clients.
According to the indictment, defendants held meetings in the United States to provide instructions to foreign-national workers. As a part of these meetings, conspirators told the foreign national workers that they had to return to Mexico and not tell the consular officer during the interview that they had just come from the United States.
Employee clients of the Alcala Law Firm, according to the indictment included two landscaping companies and a steel company in Utah County and a construction company, landscaping company, a painting company, a roofing and general construction company, a roofing company, and a property maintenance company, all based in Salt Lake County.
The indictment alleges several overt acts were committed by defendants in furtherance of the conspiracy. For example, in October 2006, a company met with Alcala at the law firm and told the law firm his employees were illegally in the country and he wanted to make them legal. Alcala explained the H-2B visa program and said the foreign-national workers had to return to Mexico to obtain the visa but could then come back and continue to work for the company. The firm advised that if the company needed more workers than those requested in the petition they could be moved from another company. Employees were instructed to travel to Monterrey, Mexico, to meet with the “Mexican Division of the Alcala Law Firm,” prior to the interview at the consulate. One of the employees purchased a plane ticket to Mexico but was instructed not to fly to Mexico because it would create a record of his presence in the United States. The indictment also alleges Ayala used “white-out” to change a document showing one of the workers had previously been caught crossing the border and told them they had to lie and tell the interviewers that they had never been in the United States. In April 2007, three of the employees obtained H-2B visas, however, these visas were given on behalf of a different company.
Westside Property Management, also named in the indictment, was a Salt Lake County company that owned, leased, developed and managed property. Janet Alcala, James Alcala’s wife, was listed as the managing member of this business. The company is charged with visa fraud in a count alleging the company petitioned for visas and falsely indicated in its petition that the workers would be employed at Westside Property Management when they knew that the foreign-national employees were going to work for a different Utah company.
The potential penalty for conspiracy to commit alien smuggling and visa fraud is up to five years in prison. Encouraging and inducing illegal aliens to come to, enter or remain in the United States and visa fraud carry maximum potential penalties of up to 10 years in prison per count. The potential maximum fine for each count of the indictment is $250,000.
Defendants charged in indictments are presumed innocent unless or until proven guilty in court.
Contact:
Brian Leventhal
Diplomatic Security Public Affairs
202-997-5747
Salt Lake City, UT
July 28, 2009
Indictment Alleges Firm Helped Foreign Nationals, Utah Employers Obtain Visas For Workers Through Fraud
A federal indictment unsealed this morning in Salt Lake City charges a law firm, a property management company, and eight individuals with conspiracy to commit alien smuggling and visa fraud, encouraging and inducing illegal aliens to come to, enter, or remain in the United States, and visa fraud.
Included in the defendants is a Salt Lake City law firm, an individual who worked as a United States border patrol agent with the Immigration and Naturalization Service prior to joining the law firm, and an individual who worked for the United States government as a visa assistant at the U.S. Consulate in Ciudad Juarez, Mexico, before going to work for the law firm.
Charged in the indictment are the Alcala Law Firm, which practices immigration law and is located at 1380 West Indiana Avenue in Salt Lake City; Westside Property Management, a Salt Lake County company; James Hector Alcala, age 41, of Salt Lake City; Carlos Manuel Vorher, age 43, of Salt Lake City; Carlos Enrique Gomez-Alvarez, age 41, formerly of Salt Lake City now living in Houston; Daniel Trigo Villavicencio, age 30, of Orem; Gustavo Ballesteros-Munoz, age 45, of West Jordan; Andres Lorenzo Acosta Parra, age 31, of Salt Lake City; Florentino Jose Ayala Villarreal, age 39, of Mexico; and Olga Adriana Garza Muniz, age 47, of Mexico.
The investigation of the case, which started about 18 months ago, has been conducted by the U.S. Department of State’s Diplomatic Security Service; ICE, the U.S. Department of Labor; the Department of Homeland Security Citizenship and Inspection Services; and the U.S. Attorney’s Office.
“The charges in this indictment allege that attorneys and others who worked at the law firm, who have a position of trust in our community, circumvented the law to obtain visas for employers and the foreign national workers they were employing in Utah,” U.S. Attorney Brett L. Tolman said today. “The laws that govern the issuance of visas are there to make the practice fair for everyone. When fraud is used in an attempt to get a visa, other workers, including foreign nationals and U.S. workers and employers, who have played by the rules, get hurt.”
“The U.S. Department of State’s Diplomatic Security Service is resolutely committed to investigate any and all allegations of passport and visa fraud, and to bring those who commit these crimes to justice,” said Ed Moreno, Assistant Director for Domestic Operations for the Diplomatic Security Service, whose office conducted the joint investigation of the case.
“ICE’s message is simple - America's legal immigration system is not for sale and we will move aggressively against those who compromise the integrity of that system simply to enrich themselves,” said Paul Maldonado, deputy special agent in charge of the ICE Office of Investigations that oversees the agency’s investigative activities in Utah. “Not only did the defendants in this case allegedly use fraudulent information to obtain employment visas for hundreds of people who weren’t authorized to work, regrettably we believe this scheme also led to untold numbers of U.S. citizens and legal workers being refused jobs or discouraged from applying at all.”
Daniel R. Petrole, Acting Inspector General, U. S. Department of Labor, stated, “Today’s indictments serve as a stern warning to those who would fraudulently abuse the foreign labor certification program for their personal gain. Facilitating the entry of workers into this nation under false pretenses corrupts a program designed to ensure the lawful admission of foreign labor under very specific conditions. Our agency remains committed with its law enforcement partners to investigate fraud committed against these Department of Labor programs."
"It is through our due diligence and the great partnerships with law enforcement agencies that we are able to detect and curtail fraud within our immigration system," said Robert Mather, U.S. Citizenship and Immigration Services, Denver District Director.
The 17-count indictment alleges that the object of the conspiracy was to profit financially by assisting Utah employers in obtaining H-2B visas for their foreign-national workers by fraudulently representing to the DOL, USCIS, and DOS that the foreign nationals were eligible for the visas when, in fact, they were not. Investigators believe more than 5,000 visas were issued based on more than 700 petitions filed. Although some of the visas may have not have been obtained fraudulently, investigators believe the majority of them were.
The H-2B visa program allows United States companies to hire foreign nationals to fill employee vacancies that the company, for one reason or another, cannot fill with U.S. citizens. The visa program is not intended for permanent work. It is designed to help U.S. businesses that have temporary, seasonal, peak load or intermittent needs. Several federal agencies are involved in what is a fairly complicated application process. The number of H-2B visas that are issued each year is capped at 66,000, according to the indictment.
For a foreign-national worker to be eligible for the visa, employers must demonstrate that there are not enough United States citizens who are able, willing, qualified, and available to fill the employment vacancies. If the foreign-national worker is in the United States at the time the petition is filed, the employer must include the date the foreign-national worker originally arrived in the United States and must demonstrate that the worker is in the United States legally. If the employer does not document that the worker is in the United States, the worker is presumed to be outside the United States. Those who are not present in the United States at the time the petition is filed are required to have resided and been physically outside of the United States for six months immediately prior to receiving the H-2B visa.
The indictment alleges the defendants charged in this case would meet with the employers and the foreign national workers to discuss methods the law firm could utilize to help the workers obtain lawful status using the H-2B visa program. During these discussions, employers would inform the defendants that their employees were not in the country legally. Notwithstanding this fact, the defendants would instruct the employers and foreign-national workers about how to use the H-2B visa program, including encouraging the employers to petition for more H-2B visas than the employer actually needed so conspirators would be able to unlawfully “swap” foreign-national workers from one employer to the next based on who ultimately obtained visas. Although the employers often had already filled the positions, the defendants prepared and submitted newspaper advertisements making it appear like the employers were looking to hire new workers. Additionally, according to the indictment, the advertisements often would advertise the pay at a much lower rate than the foreign-national workers were actually receiving.
The indictment also alleges that as a part of the conspiracy, the defendants prepared forms and submitted them indicating that employers were looking for “new” employees who were not in the United States when, in truth, the employers were hoping to obtain visas for their current workforce. Once visas were approved, conspirators would, at times, “pool” the visas it obtained on behalf of all of its clients.
According to the indictment, defendants held meetings in the United States to provide instructions to foreign-national workers. As a part of these meetings, conspirators told the foreign national workers that they had to return to Mexico and not tell the consular officer during the interview that they had just come from the United States.
Employee clients of the Alcala Law Firm, according to the indictment included two landscaping companies and a steel company in Utah County and a construction company, landscaping company, a painting company, a roofing and general construction company, a roofing company, and a property maintenance company, all based in Salt Lake County.
The indictment alleges several overt acts were committed by defendants in furtherance of the conspiracy. For example, in October 2006, a company met with Alcala at the law firm and told the law firm his employees were illegally in the country and he wanted to make them legal. Alcala explained the H-2B visa program and said the foreign-national workers had to return to Mexico to obtain the visa but could then come back and continue to work for the company. The firm advised that if the company needed more workers than those requested in the petition they could be moved from another company. Employees were instructed to travel to Monterrey, Mexico, to meet with the “Mexican Division of the Alcala Law Firm,” prior to the interview at the consulate. One of the employees purchased a plane ticket to Mexico but was instructed not to fly to Mexico because it would create a record of his presence in the United States. The indictment also alleges Ayala used “white-out” to change a document showing one of the workers had previously been caught crossing the border and told them they had to lie and tell the interviewers that they had never been in the United States. In April 2007, three of the employees obtained H-2B visas, however, these visas were given on behalf of a different company.
Westside Property Management, also named in the indictment, was a Salt Lake County company that owned, leased, developed and managed property. Janet Alcala, James Alcala’s wife, was listed as the managing member of this business. The company is charged with visa fraud in a count alleging the company petitioned for visas and falsely indicated in its petition that the workers would be employed at Westside Property Management when they knew that the foreign-national employees were going to work for a different Utah company.
The potential penalty for conspiracy to commit alien smuggling and visa fraud is up to five years in prison. Encouraging and inducing illegal aliens to come to, enter or remain in the United States and visa fraud carry maximum potential penalties of up to 10 years in prison per count. The potential maximum fine for each count of the indictment is $250,000.
Defendants charged in indictments are presumed innocent unless or until proven guilty in court.
Contact:
Brian Leventhal
Diplomatic Security Public Affairs
202-997-5747
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