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BIA Holds A Conviction Under California Penal Code §211 For Robbery By Force Or Fear Qualifies As An Aggravated Felony Theft Offense Per INA§101(a)(43)(G), As The Taking Of Property Without Consent Requirement Includes An Extortionate Taking Where “Consent” Is Coerced By Force, Fear Or Threats.

November 5, 2016 Philip Levin

On September 15, 2016, The Board of Immigration Appeals (BIA or Board) adjudicated a Department of Homeland Security (DHS) appeal of an Immigration Judge’s (IJ’s) decision that a conviction under California Penal Code §211 is not an aggravated felony theft offense under the categorical approach because the statute proscribes generic extortion as well as other generic theft offenses. Relying on 9th Circuit precedent, the IJ held that §211 (obtaining property from another with consent induced by force, fear or threats) punishes offenses not included in the generic definition of theft because a violation requires a victim’s consent whereas generic theft requires that the taking be accomplished without consent.

In its initial analysis the BIA used the categorical approach to determine whether the respondent’s conviction falls within the generic definition of a theft offense, i.e., a taking of property without consent. Finding that in extortion cases, “consent” is forced, the Board held that such consent does not “exempt [  ] an offense from aggravated felony treatment under § 101(a)(43)(G)” because theft refers more broadly to “offenses that involve a taking against the voluntary assent of the victim”. The BIA thus found that there is no difference between a taking accomplished against one’s will and one where “consent” to the taking is coerced through force, fear or threats.

As such, the Board stated that the “with consent” element of generic extortion is not inconsistent with the “against the will” element of §211, noting that “a victim’s consent to an extortionate taking does not connote a voluntary conferral of property” and can be distinguished from consent obtained via fraud or deceit. The BIA  therefore held that a taking of property falls within the generic definition of theft in §101(a)(43)(G) when consent is elicited by force, etc. The respondent’s crime was thus found to be a categorical aggravated felony theft offense for which he is removable. The appeal was sustained, The IJ’s  decision vacated, proceedings reinstated and the record remanded to the IJ. Matter of Ibarra, 26 I & N Dec. 809 (BIA 2016).  

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TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

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Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
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If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
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