Conteh v. Gonzales

United States Court of Appeals
For the First Circuit

No. 05-1282

JOHN CONTEH,

Petitioner,

v.

ALBERTO GONZALES, Attorney General,

Respondent.

PETITION FOR REVIEW OF A FINAL ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Selya, Circuit Judge,
Hug,** Senior Circuit Judge,
and Howard, Circuit Judge.

Maunica Sthanki, with whom Theodore N. Cox was on brief, for
petitioner.
Margot Nadel, Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice, with whom
Peter D. Keisler, Assistant Attorney General, and Greg D. Mack,
Senior Litigation Counsel, Office of Immigration Litigation, were
on brief, for respondent.

August 22, 2006

*
Of the Ninth Circuit, sitting by designation.
 SELYA, Circuit Judge. This case requires us to answer,

for the first time, the question of how to determine whether an

alien has been convicted of an aggravated felony for purposes of

the Immigration & Nationality Act (INA). Following what it termed

a "modified categorical approach," the Board of Immigration Appeals

(BIA) concluded, based on an array of materials, that the

petitioner's conviction for conspiracy to commit bank fraud was a

conviction for an aggravated felony. See 8 U.S.C. § 1101(a)(43).

Accordingly it ordered removal. See id. § 1227(a)(2)(A)(iii).

Although the BIA may have strayed too far afield in examining

materials relevant to this determination, we agree, based

exclusively on properly consulted materials, that the petitioner's

conspiracy conviction qualifies as a conviction for an aggravated

felony. The petitioner was, therefore, removable.

This conclusion does not end our odyssey, as the

petitioner's armamentarium includes two other claims of error.

Both of these claims are unavailing. First, we lack jurisdiction

to entertain his fact-based challenge to the BIA's denial of his

cross-application for withholding of removal. Second, the BIA's

denial of the petitioner's motion to reopen or remand — a motion

aimed at allowing him to pursue a waiver of inadmissibility and a

concomitant adjustment of status — is unimpugnable. When all is

said and done, we deny the petition for review in part and dismiss

it in part for want of jurisdiction.

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I. BACKGROUND

The petitioner, John Conteh, is a native of Sierra Leone.

He arrived in the United States as a non-immigrant visitor on

January 5, 1995, and seasonably sought asylum. On July 9, 1997,

the Immigration and Naturalization Service (INS) approved his

application.1

Approximately one year later, a federal grand jury in the

Southern District of New York indicted the petitioner on four

counts stemming from his alleged involvement in a bank-fraud

scheme. Count 1 of the indictment alleged that the petitioner

"willfully . . . and knowingly . . . conspired . . . to commit

crimes against the United States" in violation of a generic

conspiracy statute, 18 U.S.C. § 371 (which provides in pertinent

part that "[i]f two or more persons conspire . . . to commit any

offense against the United States . . . and one or more of such

persons do any act to effect the object of the conspiracy, each

shall be [punished as provided]"). Specifically, this count

charged the petitioner with participating in "a scheme and artifice

to defraud a financial institution . . . by means of false and

fraudulent pretenses." See id. § 1344. It further charged that

1
The Homeland Security Act of 2002, Pub. L. No. 107-296, §
471, 116 Stat. 2135, 2205 (2002) (codified as amended at 6 U.S.C.
§ 291(a)), abolished the INS and transferred its functions to the
Department of Homeland Security. See Lattab v. Ashcroft, 384 F.3d
8, 13 n.2 (1st Cir. 2004). For simplicity's sake, we refer
throughout to the INS.

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the petitioner "did make, utter, and possess a counterfeited

security of an organization . . . with intent to deceive another

person." See id. § 513(a). Finally, it recounted a series of

overt acts in furtherance of the charged conspiracy, including the

deposit of a counterfeit check in the amount of $25,200 into an

account at Dime Savings Bank; the subsequent withdrawal of $22,600

and $1,000 from that account; the deposit of a second counterfeit

check, this one in the amount of $29,239.06, into an account at

Chase Bank; and the subsequent withdrawal of a total of $9,000 from

that account.

Counts 2 and 3 charged the petitioner with violating 18

U.S.C. §§ 1344 and 513(a), respectively, in connection with the

transactions involving the Chase account. Count 4 (which is of no

relevance here) alleged that the petitioner knowingly made false

statements to a federal agent during an investigation into the

fraud. See id. § 1001(a).

A jury found the petitioner guilty on counts 1 and 4 but

not guilty on counts 2 and 3. The presentence investigation report

(PSI Report) concluded, inter alia, that the petitioner's

participation in the conspiracy "caused an attempted loss of

$54,439.06." At the disposition hearing, the district court

refined this calculation; it found the petitioner responsible for

actual losses of $9,000 sustained by Chase and $25,200 sustained by

First Vermont Bank and Trust (the drawee of the counterfeit check

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deposited into the Dime Savings account). The court imposed an

incarcerative term of a year and a day and ordered the petitioner

to make restitution in the amount of $34,200 (the court's

calculation of the victims' actual loss). Judgment issued on July

24, 2000. The Second Circuit thereafter affirmed the conviction

and sentence. United States v. Conteh, 2 F. App'x 202 (2d Cir.

2001).

In due course, the INS initiated proceedings against the

petitioner, alleging that he had been convicted of an aggravated

felony and, therefore, was subject to removal. See 8 U.S.C. §

1101(a)(43)(M)(i) (classifying as an aggravated felony any offense

that involves fraud or deceit in which the loss to the victim(s)

exceeds $10,000); id. § 1101(a)(43)(U) (classifying as an

aggravated felony any attempt or conspiracy to commit any

substantive offense enumerated in 8 U.S.C. § 1101(a)(43)); see also

id. § 1227(a)(2)(A)(iii) (providing that an alien convicted of an

aggravated felony is removable). The petitioner admitted the INS's

factual allegations,2 but denied that grounds for his removal

existed. He also cross-applied for withholding of removal, see id.

§ 1231(b)(3)(A), and protection under the Convention Against

Torture (CAT), see 8 C.F.R. §§ 208.16-208.18.

2
These admissions included acquiescence in the allegation that
the conspiracy caused more than $10,000 in victim loss. However,
the immigration judge later allowed the petitioner to retract this
admission. The BIA did not treat the withdrawn admission as
binding, nor do we.

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 The initial round of immigration hearings came to naught;

those hearings culminated in a remand for an entirely new

proceeding before a different immigration judge (IJ) and,

therefore, are not material to the issues before us. Consequently,

we eschew a blow-by-blow account, save to note that along the way

the petitioner waived his CAT claim.

On remand, the petitioner claimed that the conspiracy

offense did not amount to an aggravated felony because the record

of conviction failed to establish the requisite amount of victim

loss. He premised this argument on the notion that only those

losses admitted by him or found by the jury in the criminal

proceeding could be applied toward the $10,000 loss threshold. The

IJ disagreed and held that the petitioner had committed an

aggravated felony. Moving to the next issue, the IJ found that the

petitioner had failed to demonstrate a clear probability of future

persecution in his native land and, thus, had not established an

entitlement to withholding of removal. See id. § 208.16(b)(2).

Accordingly, the IJ ordered the petitioner removed to Sierra Leone.

The petitioner appealed. In his brief to the BIA, he

suggested for the first time that his wife, who was then in the

process of becoming an American citizen, had filed a visa petition

on his behalf and that, therefore, he might be eligible for a

waiver of inadmissibility and a discretionary adjustment of status.

See 8 U.S.C. §§ 1182(h)(1)(B), 1255(a). The petitioner did not

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submit an application for either the waiver or the adjustment, see

8 C.F.R. § 1003.2(c)(1); did not allege that his wife would be

subject to extreme hardship if the removal order was executed

against him, see 8 U.S.C. § 1182(h)(1)(B); and failed to proffer

evidence that an immigrant visa was immediately available to him,

see id. § 1255(a).

The BIA affirmed the removal order. Applying what it

cryptically termed a "modified categorical approach," it held that

the indictment, judgment, and PSI Report, in combination with the

petitioner's testimony at the removal hearing, conclusively

established that the conspiracy offense constituted an aggravated

felony. The BIA also affirmed the IJ's denial of withholding of

removal, citing evidence of changed country conditions as well as

a dearth of evidence of likely future persecution based on the

petitioner's political opinions. Finally, the BIA treated the

petitioner's solicitation of a waiver of inadmissibility and an

adjustment of status as a motion to reopen and denied it because of

his failure to make a prima facie showing of eligibility for either

form of relief. This timely petition for review followed.

II. ANALYSIS

In this venue, the petitioner argues that the BIA erred

in (i) holding that his conspiracy conviction qualifies as a

conviction for an aggravated felony; (ii) determining that he did

not satisfy the criteria for withholding of removal; and (iii)

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refusing to reopen his case for further perscrutation of his waiver

of inadmissibility and adjustment of status claims. We discuss his

contentions in that order.

A. The Aggravated Felony Determination.

The petitioner's principal plaint is that the BIA erred

in characterizing his conspiracy offense as an aggravated felony.

The BIA's determination that a given violation of a state or

federal criminal statute constitutes an aggravated felony presents

a pure question of law and, accordingly, engenders de novo review.

See Aguiar v. Gonzáles, 438 F.3d 86, 88 (1st Cir. 2006); see also

Urena-Ramirez v. Ashcroft, 341 F.3d 51, 53-54 (1st Cir. 2003).

1. The Statutory Framework and the Categorical Approach.

The INA provides that "[a]ny alien who is convicted of an

aggravated felony at any time after admission is deportable." 8

U.S.C. § 1227(a)(2)(A)(iii). The Act gives substance to the term

"aggravated felony" by setting out a list of enumerated offenses

that come within its scope. See id. § 1101(a)(43). This

compendium includes "an[y] offense that involves fraud or deceit in

which the loss to the victim or victims exceeds $10,000," id. §

1101(a)(43)(M)(i), as well as "an attempt or conspiracy to commit"

such an offense, id. § 1101(a)(43)(U). The government bears the

burden of proving removability by clear and convincing evidence,

see id. § 1229a(c)(3)(A), and, by extension, must carry the devoir

of persuasion as to an alien's conviction for an aggravated felony.

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 The INA does not prescribe a detailed methodology for

determining whether a predicate offense fits within these

definitions (and, thus, qualifies as an aggravated felony). Where

uncertainty exists, however, virtually every court of appeals faced

with the question has sought some form of guidance from the

categorical approach devised by the Supreme Court for use in the

criminal sentencing context. See Emile v. INS, 244 F.3d 183, 187

& n.3 (1st Cir. 2001) (collecting cases). The BIA has followed

suit, citing the leading Supreme Court precedent, Taylor v. United

States, 495 U.S. 575 (1990), in a number of aggravated felony

decisions.3 See, e.g., Matter of Alcantar, 20 I&N Dec. 801, 812

(BIA 1994). The BIA applied what it deemed a "modified categorical

approach" in the instant case.

Taylor involved the construction of a section of the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). 495 U.S. at

3
In most circumstances, courts accord deference to the BIA's
reasonable interpretation of a silent or ambiguous provision of the
INA. See INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49 (1987);
Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837,
842-43 (1984); Urena-Ramirez, 341 F.3d at 54 n.3. Normally, this
might well include deference to the BIA's authoritative definition
of the parameters of offenses enumerated in the aggravated felony
statute, 8 U.S.C. § 1101(a)(43). See Emile, 244 F.3d at 185. By
the same token, the BIA's choice of methodology might be regarded
as an interpretation of the INA and, thus, entitled to a degree of
judicial deference. See Drakes v. Zimski, 240 F.3d 246, 250-51 (3d
Cir. 2001) (leaving this issue unresolved). But in aggravated
felony cases, the BIA has taken a passive stance, electing to apply
the law of the circuit in which the case arises. See In re Yanez-
Garcia, 23 I&N Dec. 390, 396-98 (BIA 2002). Given this stance, we
engage in de novo review.

-9-
599-602. That section prescribes a mandatory minimum sentence with

respect to any conviction for possession of a firearm by a

defendant having a minimum of three prior convictions for "violent

felon[ies] or serious drug offense[s]." 18 U.S.C. § 924(e)(1). In

a manner reminiscent of the INA's treatment of aggravated felonies,

the ACCA defines "violent felony," in part, by reference to a list

of exemplary offenses. See id. § 924(e)(2)(B)(ii).

For determining whether a prior conviction subsumes a

violent felony (and, thus, a predicate offense for ACCA purposes),

the Supreme Court devised a categorical approach. See Taylor, 495

U.S. at 600. This categorical approach consists of two steps. See

id. at 602. Where a violation of the statute underlying the prior

conviction necessarily involves every element of an offense listed

in section 924(e)(2)(B)(ii), the mere fact of conviction

establishes that the putative predicate crime was a violent felony.

Id. Where, however, the underlying statute spans, but is broader

than, the listed offense (i.e., where it encompasses some conduct

that would constitute a violent felony and some conduct that would

not), the putative predicate offense qualifies as a violent felony

only "where a jury was actually required to find all the elements"

of the listed offense. Id. In that circumstance, a sentencing

court charged with determining what the jury actually was required

to find cannot retry the original case but, rather, must restrict

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its inquiry to the record of conviction, including the charging

document and jury instructions. See id.

The Court later extended the categorical approach to

cases in which the prior conviction results from a guilty plea

rather than from a jury verdict. See Shepard v. United States, 544

U.S. 13, 19-20 (2005). In rejecting the government's contention

that a sentencing court could rest its characterization of the

putative predicate offense on facts contained in a police report,

the Justices reiterated that the appropriate inquiry is "confined

to records of the convicting court." Id. at 23. That inquiry thus

includes "the statutory definition, charging document, written plea

agreement, transcript of plea colloquy, and any explicit factual

finding by the trial judge to which the defendant assented." Id.

at 16. In other words, a sentencing court may conclude that a

guilty plea subsumed a violent felony only when the record of

conviction makes manifest that the defendant's plea necessarily

constituted an admission to every element of a listed offense. See

id. at 26.

We previously have introduced the Taylor-Shepard

categorical approach into an immigration-related context. Under

the federal sentencing guidelines, a prior conviction for an

offense designated as an aggravated felony in 8 U.S.C. §

1101(a)(43) may trigger an upward enhancement in the total offense

level referable to certain immigration-related offenses, including

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illegal reentry after deportation. See USSG §2L1.2(b)(1)(C). We

have held that the Taylor-Shepard categorical approach governs the

determination of whether an alien's prior offense qualifies as an

aggravated felony for this purpose. See United States v. Londono-

Quintero, 289 F.3d 147, 151-52 (1st Cir. 2002).

The BIA, and various courts of appeals, also have

imported versions of the categorical approach into removal

jurisprudence. See Emile, 244 F.3d at 187 & nn.3-4 (collecting

cases). There is, however, no universally accepted definition of

what constitutes a "modified categorical approach" for immigration-

law purposes (in this case, for example, the BIA said that it

utilized a "modified categorical approach" but did not attempt to

define the term). The Ninth Circuit uses that locution to refer to

the second step of the Taylor analysis and the locution

"categorical approach" to refer to the first step. See Li v.

Ashcroft, 389 F.3d 892, 895-96 (9th Cir. 2004). Other courts, and

the BIA, have referred to the two-step Taylor rubric by the unitary

term "categorical approach." See, e.g., Singh v. Ashcroft, 383

F.3d 144, 152-53 (3d Cir. 2004); Dickson v. Ashcroft, 346 F.3d 44,

48-49 (2d Cir. 2003); In re Vargas-Sarmiento, 23 I&N Dec. 651, 652-

54 (BIA 2004); In re Sweetser, 22 I&N Dec. 709, 715 (BIA 1999);

Matter of Alcantar, 20 I&N Dec. at 812-13. A modified categorical

approach would, under these authorities, be some variant of the

Taylor two-step.

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 This is not merely an exercise in semantics. The Ninth

Circuit's praxis means that it in effect uses an unmodified

categorical approach in immigration cases. See, e.g., Li, 389 F.3d

at 895-97 & n.7 (holding that a conviction resulting from a guilty

verdict subsumes an aggravated felony for immigration purposes only

when the record of conviction establishes that the jury was

required to find all the elements of an offense enumerated in 8

U.S.C. § 1101(a)(43)); Chang v. INS, 307 F.3d 1185, 1190-91 (9th

Cir. 2002) (holding that, when a conviction results from a guilty

plea, the putative predicate crime constitutes an aggravated felony

only if the record of conviction establishes that the defendant

necessarily pleaded guilty to each and every element of an offense

enumerated in 8 U.S.C. § 1101(a)(43)). In that court's view, this

praxis comports with the statutory requirement that the alien have

been convicted of an aggravated felony. See Chang, 307 F.3d at

1190-91 (construing 8 U.S.C. § 1227(a)(2)(A)(iii)). In a non-

guilty-plea case implicating the INA's fraud provision, this line

of reasoning requires the government to show that the jury

necessarily found that the putative predicate offense (i) involved

fraud or deceit and (ii) resulted in a loss of more than $10,000.

See Li, 389 F.3d at 896-97.

The petitioner invites us to follow the Ninth Circuit's

lead and extend the categorical approach, without modification, to

our review of removal orders grounded upon aggravated felony

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convictions. Because the jury in the conspiracy case did not

necessarily find either that the conspiracy involved fraud or

deceit or that the crime resulted in a loss exceeding $10,000, his

thesis runs, the BIA's characterization of that crime as an

aggravated felony is insupportable.

With respect, we think that the Ninth Circuit has drained

much of the specialized meaning from the term "modified categorical

approach." Because the relevant authorities strongly suggest that

some variant of the categorical approach should govern the

determination of whether an offense qualifies as an aggravated

felony for immigration purposes, see, e.g., Aguiar, 438 F.3d at 88-

89, we decline the invitation to transplant the categorical

approach root and branch — without any modification whatever — into

the civil removal context. In our view, the term "modified

categorical approach" must denominate an adaptation of the Taylor

methodology specially tailored to fit the immigration context.

Our reasons are manifold. First, the rationale of

Shepard and Taylor is informed by constitutional concerns. See

Shepard, 544 U.S. at 24; Taylor, 495 U.S. at 601. Those concerns,

which emanate from the Sixth Amendment, are crucial in the criminal

context but entirely irrelevant in the removal context (which is

civil in nature). See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038

(1984) (stating that "various protections that apply in the context

of a criminal trial do not apply in a deportation proceeding" due

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to the civil nature of deportation); United States v. L.O. Ward,

448 U.S. 242, 248 (1980) (holding that Sixth Amendment protections

are available only in criminal proceedings). Consequently, the

Taylor-Shepard rationale cannot be applied woodenly to removal

cases.

Second, although the BIA has cited Taylor in some

aggravated felony cases, see, e.g., Matter of Alcantar, 20 I&N Dec.

at 812, it traditionally has favored a less restrictive form of the

categorical approach in cases other than those controlled by Ninth

Circuit precedent, see, e.g., Vargas-Sarmiento, 23 I&N Dec. at 654-

55; In re Pichardo-Sufren, 21 I&N Dec. 330, 333-36 (BIA 1996). And

in at least one of our prior cases, we have indicated that the BIA

should employ some modification of the categorical approach. See

Montero-Ubri v. INS, 229 F.3d 319, 321 (1st Cir. 2000) (upholding,

in a crime of moral turpitude case, the BIA's partial reliance on

conduct described in a charged but continued count from the

criminal proceeding).

Last — but far from least — using an unmodified

categorical approach impermissibly elevates the government's burden

in civil removal proceedings. The INA requires clear and

convincing evidence of removability, see 8 U.S.C. § 1229a(c)(3)(A),

but the unmodified categorical approach in effect requires proof

beyond a reasonable doubt.

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 Given these differentiating factors, we, like the Third

Circuit, see Singh, 383 F.3d at 159-63, see no warrant for applying

an exact replica of the Taylor-Shepard categorical approach in the

immigration context. Instead, we hold that, in removal

proceedings, a modified categorical approach should prevail.

Under that approach, the government is not required to

show that the jury in the prior criminal case necessarily found

(or, where a guilty plea has taken place, that the defendant

necessarily admitted) every element of an offense enumerated in 8

U.S.C. § 1101(a)(43). Rather, the government bears the burden of

proving, by clear and convincing evidence derived solely from the

record of the prior proceeding, that (i) the alien was convicted of

a crime and (ii) that crime involved every element of one of the

enumerated offenses. Cf. Pichardo-Sufren, 21 I&N Dec. at 333

(holding that a conviction supports a finding of removability only

where the record of conviction "contains clear, unequivocal, and

convincing proof" that the predicate crime involved every element

of the removable offense).

It follows from this holding that when a statutory

violation necessarily involves all the elements of an enumerated

offense, proof of the fact of conviction suffices to discharge the

government's burden. Cf. Taylor, 495 U.S. at 602 (adopting this

approach with respect to the determination of whether a prior

conviction qualifies as a predicate offense under the ACCA). When,

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however, the statute on which the prior conviction rests sweeps

more broadly, the government, in accordance with the animating

principle of Taylor, must demonstrate, by reference only to facts

that can be mined from the record of conviction, that the putative

predicate offense constitutes a crime designated as an aggravated

felony in the INA. See Pichardo-Sufren, 21 I&N Dec. at 335-36.

We emphasize that the difference between this approach

and that of the Ninth Circuit is only a matter of degree. We agree

with the Ninth Circuit that the distinction between conviction for

and commission of an aggravated felony is an important one; because

the BIA may not adjudicate guilt or mete out criminal punishment,

it must base removal orders on convictions, not on conduct alone.

See Lopez-Mendoza, 468 U.S. at 1038. We also agree with the Ninth

Circuit that, consistent with the core holding of Taylor, a

predicate conviction qualifies as an aggravated felony conviction

only if it subsumed each and every element of an offense enumerated

in section 1101(a)(43). We part company, however, in rejecting the

implicit proposition that the INA's use of the word "convicted" in

8 U.S.C. § 1227(a)(2)(A)(iii) elevates the government's burden in

aggravated felony cases from clear and convincing evidence to proof

beyond a reasonable doubt (that is, proof that facts were

necessarily found by a criminal jury or admitted by the alien qua

criminal defendant).

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 The approach we endorse today faithfully implements a

legislative choice. Congress ordained the use of the clear and

convincing evidence standard in removal proceedings, see 8 U.S.C.

§ 1229a(c)(3)(A), and nothing in either the statutory language or

the legislative history suggests that Congress intended to create

a more rigorous standard for aggravated felony cases. Courts are

not at liberty to second-guess such congressional choices. See

United States v. Pho, 433 F.3d 53, 62 (1st Cir. 2006) (stating that

"in the absence of constitutional infirmity, federal courts are

bound by Congress's policy judgments").

Practical considerations push in the same direction.

Congress clearly intended to facilitate an efficient removal

process, especially in aggravated felony cases, and not to impede

unduly the Executive Branch's exercise of the civil removal power.

See, e.g., 8 U.S.C. § 1228 (establishing expedited removal

procedures in aggravated felony cases); see generally Lopez-

Mendoza, 468 U.S. at 1039 (stating that the purpose of deportation

proceedings is "to provide a streamlined determination of

eligibility to remain in this country").

That ends this aspect of the matter. In light of the

considerations limned above, we conclude that the Ninth Circuit's

grudging construction of section 1227(a)(2)(A)(iii) contravenes

Congress's clear intent. We also conclude that the Ninth Circuit's

approach gives insufficient weight to the BIA's stated preference

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for using a modified categorical approach by giving lip service

(and no more) to the word "modified" in the locution "modified

categorical approach." Consequently, we reject that construction

and approach, and read the statute to authorize a truly modified

categorical approach of the type described above.

A removal order that is grounded upon a conviction under

a generic conspiracy statute — such as the one here — presents a

further wrinkle. In that situation, the government is not required

to demonstrate that the conspiracy itself involved every element of

a substantive offense enumerated in 8 U.S.C. § 1101(a)(43). See

Kamagate v. Ashcroft, 385 F.3d 144, 152-53 (2d Cir. 2004). Rather,

the government must demonstrate, by clear and convincing evidence

mined from the record of conviction, that "the substantive crime

that was the conspiratorial objective . . . qualifies as an

aggravated felony." Id. at 153.

In this instance, the petitioner concedes that he was

convicted for conspiracy in violation of 18 U.S.C. § 371 (a generic

conspiracy statute). The government claims that this constitutes

an aggravated felony under 8 U.S.C. § 1101(a)(43)(U) because the

object of the conspiracy qualifies as an aggravated felony under 8

U.S.C. § 1101(a)(43)(M)(i). The decisive question, then, is

whether the record of conviction establishes that the

conspiratorial objective encompassed an offense involving both

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fraud or deceit and a loss to the victim or victims in excess of

$10,000. See id.

There is, however, an antecedent question. Before

answering the inquiry limned above, we must first determine what

evidence may appropriately be considered part of the record of

conviction (and, thus, may be used by the BIA in fulfilling its

factfinding function). We turn next to this antecedent inquiry.

2. The Record of Conviction. Consistent with its

concern for ensuring certainty and reliability, the Shepard Court

refused to allow a sentencing judge evaluating the particulars of

a putative predicate offense to consult materials other than

"conclusive records made or used in adjudicating guilt." 544 U.S.

at 21. The INA, however, offers a slightly different coign of

vantage. It explicitly states that, in proceedings before the BIA,

any of a litany of "documents or records shall constitute proof of

a criminal conviction." 8 U.S.C. § 1229a(c)(3)(B). These include:

(i) An official record of judgment and
conviction.
(ii) An official record of plea,
verdict, and sentence.
. . . .
(v) An abstract of a record of
conviction prepared by the court in which the
conviction was entered . . . that indicates
the charge or section of law violated, the
disposition of the case, the existence and
date of conviction, and the sentence.
(vi) Any document or record prepared
by, or under the direction of, the court in
which the conviction was entered that
indicates the existence of a conviction.

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Id.4 An implementing regulation contains a catch-all provision

stating that "[a]ny other evidence that reasonably indicates the

existence of a criminal conviction may be admissible as evidence

thereof." 8 C.F.R. § 1003.41(d).

The petitioner asserts that the BIA erred in relying in

part on his testimony in the removal hearing to ascertain the

proper classification of the conspiracy offense. The government

counters that the regulation's catch-all provision extends to the

petitioner's testimony and that, therefore, the BIA committed no

error in considering it as evidence of the facts underlying the

putative predicate crime. In an attempt to bolster this argument,

the government points out that, in removal cases premised on prior

criminal convictions, the BIA permits reliance on "[any] documents

admissible under federal regulations." Pichardo-Sufren, 21 I&N

Dec. at 334.

The government's argument is untenable. It seems obvious

to us that the record of conviction cannot encompass after-the-fact

statements made in a separate and subsequent proceeding. At any

rate, the regulation's catch-all provision authorizes the admission

of evidence for the sole purpose of proving "the existence of a

4
The Second Circuit has construed this provision as a
definition of the term "record of conviction." Dickson, 346 F.3d
at 53. Given that the statute speaks more broadly of records that
constitute "proof of a criminal conviction" and uses the phrase
"record of conviction" to describe a subset of those records, we
decline to adopt that construction.

-21-
criminal conviction," 8 C.F.R. § 1003.41(d) (emphasis supplied); it

does not authorize the admission of evidence for the purpose of

proving the facts underlying the offense of conviction. Hence, the

BIA's use of the petitioner's testimony as evidence that the

conspiracy qualified as an aggravated felony constituted error.5

See Dickson, 346 F.3d at 53 (holding that the BIA erred in

construing extra-judicial statements as evidence of the facts

underlying a putative predicate offense).

If more were needed — and we doubt that it is — the

holding in Pichardo-Sufren clearly contradicts the BIA's asserted

right to rely upon the petitioner's testimony. That case involved

a removal proceeding based on an alien's conviction under a state

statute criminalizing the possession of several types of weapons,

including firearms. 21 I&N Dec. at 331. The central issue was

whether this predicate offense constituted a firearms offense and,

thus, rendered the alien removable under 8 U.S.C. § 1227(a)(2)(C).

The record of conviction contained only a "Certificate of

Disposition" from the state court, which indicated that the alien

had been convicted of possession of an unspecified weapon. Id. at

5
We deal only with the BIA's consultation of the petitioner's
testimony at the removal hearing. We do not question the BIA's
right to rely upon an alien's stipulation that a predicate offense
constitutes an aggravated felony or upon the alien's concession of
removability premised on a conviction for an aggravated felony.
See Pichardo-Sufren, 21 I&N Dec. at 333 (emphasizing this
distinction). The case at hand does not present either of the
latter two situations.

-22-
344. Relying on the alien's testimony at the removal hearing, the

IJ characterized the crime as a firearms offense. Id. The BIA

reversed, holding that the INA "limits [the] scope of inquiry to

the record of conviction." Id. at 335. Since the alien's

testimony at the removal hearing was not part of the record of

conviction, it was not an appropriate basis for the IJ's decision.

Id. at 335-36.

The petitioner also assails the BIA's consultation of the

PSI Report as a means of determining the underlying facts. The

government asserts that the PSI Report is part of the record of

conviction by virtue of the fact that it is a "record prepared . .

. under the direction of . . . the court in which the conviction

was entered that indicates the existence of a conviction." 8

U.S.C. § 1229a(c)(3)(B)(vi).6

We reject the government's argument: the BIA's

consultation of the PSI Report as proof of the specific facts

underlying the petitioner's prior conviction was improper. See

Dickson, 346 F.3d at 53 (concluding that the BIA may not consider

the narrative statement in a PSI Report as evidence of the facts

underlying a putative predicate offense); Hernandez-Martinez v.

Ashcroft, 343 F.3d 1075, 1076 (9th Cir. 2003) (holding that a PSI

6
The government also asserts that the PSI Report is part of
the record of conviction by virtue of 8 C.F.R. § 1003.41(d).
Because the PSI Report was used by the BIA to do more than confirm
the existence of the conviction, that argument is bootless.

-23-
Report is insufficient to prove that an alien's conviction embodied

every element of an enumerated offense (citing United States v.

Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002) (en banc))).

Other than for its possible use to prove the existence of a

conviction, see 8 U.S.C. § 1229a(c)(3)(B)(vi), such a report simply

is not a part of the formal record of conviction. Cf. Shepard, 544

U.S. at 20-23 (precluding the use of a police report to prove the

underlying facts of the putative predicate offense).

This brings us to the two remaining documents on which

the BIA relied in the instant case — the indictment and the final

judgment (including the restitution order) referable to the

conspiracy conviction. The BIA's reliance on those documents

cannot be faulted: both documents comprise "conclusive [judicial]

records made or used in adjudicating guilt," id. at 21. Even the

Ninth Circuit, which adheres to a narrow version of the categorical

approach in the aggravated felony context, permits the BIA to

reference the indictment and judgment from the antecedent criminal

case. See Hernandez-Martinez, 343 F.3d at 1076. These documents

are part of the record of conviction and, accordingly, we hold that

the BIA's consultation of them in aggravated felony cases is

proper.7

7
The petitioner takes issue with the BIA's consideration of
the indictment on different grounds, arguing that because the
indictment did not charge him with violating 18 U.S.C. § 371, his
conviction must have been based on a superceding indictment not
contained in the record of the removal proceeding. This argument

-24-
 With this procedural platform in place, we now proceed to

consider whether the materials properly before the BIA — the

statutes, the indictment, and the final judgment — compelled the

two-pronged finding that the conspiratorial objective involved both

fraud or deceit and a loss to victim(s) of more than $10,000. If

so, the BIA's erroneous reliance on other materials had no effect

on the outcome of the proceeding and was, therefore, harmless. See

Harutyunyan v. Gonzales, 421 F.3d 64, 70 (1st Cir. 2005) (defining

a harmless error, for immigration purposes, as one "that would

[not] have made a dispositive difference in the outcome of the

proceeding").

3. Fraud or Deceit. The initial step in this inquiry is

to determine whether the offenses charged as the conspiratorial

objective — namely, violations of 18 U.S.C. §§ 1344 and 513(a) —

qualify as offenses that involve fraud or deceit within the purview

of 8 U.S.C. § 1101(a)(43)(M)(i). We agree with the Third Circuit

that the plain language of the latter section encompasses every

offense "that includes fraud or deceit as a necessary component or

element" and does not require that the predicate offense "be

coextensive with the crime of fraud." Valansi v. Ashcroft, 278

is frivolous. Count 1 of the indictment contained in the record of
the removal proceeding specifically references 18 U.S.C. § 371 and
charges that the petitioner "willfully . . . and knowingly . . .
combined, conspired, [and] confederated" to commit bank fraud. To
cinch matters, the docket in the criminal case contains no entry
for a superceding indictment.

-25-
F.3d 203, 210 (3d Cir. 2002). An offense with a scienter element

of either intent to defraud or intent to deceive categorically

qualifies as an offense involving fraud or deceit. See Ferreira v.

Ashcroft, 390 F.3d 1091, 1096-97 (9th Cir. 2004) (holding that a

state-law offense with an intent to defraud or deceive element

categorically qualified as an offense involving fraud or deceit);

Valansi, 278 F.3d at 210 (indicating that a crime of embezzlement

with intent to defraud would "no doubt" qualify as an offense

involving fraud or deceit); Sui v. INS, 250 F.3d 105, 118 n.12 (2d

Cir. 2001) (holding that an alien's guilty plea to an offense

requiring intent to deceive established the element of fraud or

deceit).

Both crimes charged as comprising the conspiratorial

objective are offenses involving fraud or deceit. Section 1344 is

a bank fraud statute; it criminalizes the knowing execution or

attempted execution of a scheme or artifice either "to defraud a

financial institution" or "to obtain any of [its] funds . . . or

other property . . . by means of false or fraudulent pretenses,

representations, or promises." 18 U.S.C. § 1344 (emphasis

supplied). The intent element under this statute translates into

"an intent to deceive the bank in order to obtain from it money or

other property." United States v. Kenrick, 221 F.3d 19, 29 (1st

Cir. 2000) (en banc). In a similar vein, section 513(a) provides

that "[w]hoever makes, utters, or possesses a counterfeited . . .

-26-
[or] forged security of a State or . . . an organization, with

intent to deceive another person, organization, or government"

commits an offense. 18 U.S.C. § 513(a). No more is exigible to

establish that a violation of either of these statutes is an

offense involving fraud or deceit.

In an effort to blunt the compelling force of this plain

statutory language, the petitioner asseverates that his acquittal

on counts 2 and 3 — which charged violations of 18 U.S.C. §§ 1344

and 513(a) in relation to the transactions involving the Chase

account — entails a jury finding that his participation in the

conspiracy was not accompanied by any intent to defraud or deceive.

On at least three levels, that reasoning is anfractuous.

First, the bare fact that the jury acquitted the

petitioner on those two counts is not tantamount to a finding that

the petitioner lacked an intent to defraud or deceive: after all,

as to the Chase transactions, the jury might well have found the

prosecution's evidence deficient as to some element other than

scienter. Second, counts 2 and 3 alleged specific acts of fraud

with regard to transactions involving the Chase account. They had

nothing to do with the transactions involving the Dime Savings

account and, therefore, the acquittals could not in any way have

been exculpatory as to the latter transactions. Third, the

petitioner mischaracterizes the nature of our inquiry in cases,

such as this one, in which a conspiracy is alleged to be an

-27-
aggravated felony. What matters is whether the government has

satisfied its burden of showing that the offense charged as the

conspiratorial objective involved all the elements of an enumerated

substantive offense. We already have determined that violations of

18 U.S.C. §§ 1344 and 513(a) — the conspiratorial objectives

charged in count 1 — qualify as crimes involving fraud or deceit.8

For these reasons, nothing that the jury might have

concluded with respect to counts 2 and 3 can serve to undermine the

determination that the conspiracy is an aggravated felony under 8

U.S.C. § 1101(a)(43)(U).

4. Loss Exceeding $10,000. The final phase of our

aggravated felony inquiry requires us to determine whether the

offenses charged as the conspiratorial objective involved a loss to

victim(s) of more than $10,000. The petitioner correctly points

out that because neither section 1344 nor section 513(a) contains

a loss element, his conviction does not automatically satisfy the

loss requirement of 8 U.S.C. § 1101(a)(43)(M)(i). The question,

8
At the expense of carting coal to Newcastle, we add that the
record of the petitioner's conviction buttresses the conclusion
that the offenses charged as the conspiratorial objective involved
fraud or deceit. Tracking the statutory language, the operative
count (count 1) charged the petitioner with participating in a
conspiracy "to defraud a financial institution and to obtain . . .
moneys, funds, credits, and other property . . . by means of false
and fraudulent pretenses." Count 1 further charged that the
petitioner acted "with intent to deceive" and described his active
participation in six fraudulent transactions. The jury found the
petitioner guilty on this count, and the final judgment referable
to the petitioner's conviction describes the offense as
"[c]onspiracy to commit bank fraud."

-28-
then, is whether, at the second step of the modified categorical

approach, the record of conviction supports the conclusion that the

conspiratorial objective involved a loss of more than $10,000.

In this case, the record of conviction demands such a

conclusion. The count of conviction described the petitioner's

participation in six fraudulent transactions stemming from two

counterfeit checks drawn in the aggregate amount of $54,439.06. As

part of the final judgment, the district court adjudged the

petitioner responsible for $34,200 in victim loss and ordered

restitution in that amount. In view of our conclusion that the

restitution order comprises part of the record of conviction, see

supra Part II(A)(2), we can say with confidence that the offenses

charged as the conspiratorial objective were offenses in which the

loss exceeded $10,000.

In an endeavor to parry this thrust, the petitioner

advances a pair of spavined arguments. First, he suggests that the

major portion of the restitution amount (the $25,200 loss suffered

by First Vermont Bank) should not be counted toward the loss

threshold because that amount was neither separately charged in the

indictment nor found by the jury beyond a reasonable doubt. The

premise of this argument — that the categorical approach should be

transplanted root and branch from the criminal context into the

civil removal context — is incorrect. See supra Part II(A)(1). In

all events, the loss suffered by First Vermont Bank was charged in

-29-
count 1 of the indictment; although no direct reference was made to

that institution, it was the drawee of the counterfeit check

described in the conspiracy count as having been deposited in the

Dime Savings account. To cinch matters, the count charged the

transactions involving that check as overt acts undertaken in

furtherance of the conspiracy.

The petitioner's second argument is equally unpersuasive.

He takes issue with the BIA's reliance on the restitution order,

contending that the amount of restitution and the amount of victim

loss are not necessarily synonymous. In support of this

proposition, he cites Munroe v. Ashcroft, 353 F.3d 225, 227 (3d

Cir. 2003), which, he says, holds that the BIA may not rely on a

restitution order as evidence of the amount of loss.

This is a gross mischaracterization of the decision in

Munroe. That case had its genesis in a removal proceeding

following an alien's guilty plea to state bank fraud charges. Id.

at 226. The state court initially ordered Munroe to pay $11,522 in

restitution. Id. After the BIA ordered Munroe removed, however,

he successfully petitioned the state court to reduce the

restitution obligation to $9,999. Id. Munroe then filed an

application for a writ of habeas corpus in a federal district

court, positing that the record of conviction no longer supported

the determination that his prior offense involved a loss of more

than $10,000. Id. at 227.

-30-
 The Third Circuit rejected that ploy. In language

underscoring the unique facts of the case, the court wrote:

The amount of restitution ordered as a result
of a conviction may be helpful to a court's
inquiry into the amount of loss to the victim
. . . . But when the amount of restitution
ordered is not based on a finding as to the
amount of the loss but is instead intended
solely to affect the defendant's immigration
status, the amount of restitution is not
controlling.

Id. Seen in this light, Munroe stands for the entirely

unremarkable proposition that when a restitution award has been

artificially manipulated for the sole purpose of influencing an

alien's immigration status, that award is not controlling with

respect to the amount of loss. See Ferreira, 390 F.3d at 1099

(distinguishing Munroe on this basis).9

Our dissenting brother attacks our reliance on the

restitution order on a somewhat different ground. He argues that

9
The Ninth Circuit's decision in Chang, 307 F.3d 1185, which
dealt with the obverse of the situation in Munroe, is likewise
distinguishable. In that case, as in Munroe, the court was
confronted with the rare circumstance in which the restitution
order directly contradicted the evidence as to the amount of loss.
See Ferreira, 390 F.3d at 1099 (distinguishing Chang on this
basis).
In Chang, the alien pleaded guilty to a single count of bank
fraud involving a check drawn in the amount of $605.30, and the
plea agreement stipulated that this was the total amount of victim
loss. 307 F.3d at 1187. The sentencing court entered a
restitution order of $32,628.67. Id. at 1188. On review of a
subsequent removal order, the Ninth Circuit held that the BIA erred
in concluding, based on the restitution order, that Chang's
predicate offense involved a loss in excess of $10,000. Id. at
1190. Given these idiosyncratic facts, Chang has no bearing on the
resolution of this appeal.

-31-
the restitution order was "based entirely" upon the PSI Report's

calculation of the amount of victim loss. Post at 46 (Hug, J.,

dissenting). Building on this porous foundation, he then asserts

that because the PSI Report is not part of the record of

conviction, the restitution order is an "unreliable" basis for

concluding that the amount of victim loss exceeded $10,000. Id. at

47.

This attack is easily repulsed. In the first place, its

premise — that the restitution order was "based entirely" on the

PSI Report's calculation of victim loss — is incorrect. The PSI

Report concluded that the conspiracy caused "an attempted loss" of

$54,439.06. The judge found an actual loss in a substantially

smaller sum. More importantly, the district court made an explicit

finding of the amount of loss as part of its final judgment. Given

that the record of conviction includes the final judgment, we fail

to see why we should treat this finding as "unreliable" with

respect to the particulars of the petitioner's predicate offense.10

To recapitulate, the facts properly gleaned from the

record of conviction — which consists of the statutes, the

indictment, and the final judgment — compelled the conclusion that

10
It is of no consequence that this finding may, in part, have
reflected information contained in the PSI Report. After all,
findings incorporated in the final judgment routinely are
predicated on evidence outside the formal record of conviction. It
is, therefore, unsurprising that the dissent has failed to cite a
single case suggesting that the BIA may not rely on such findings
in the course of an aggravated felony inquiry.

-32-
the offenses charged as the conspiratorial objective qualify as

crimes involving fraud or deceit in which the loss to the victim(s)

exceeded $10,000. Accordingly, the conspiracy conviction qualifies

as a conviction for an aggravated felony under 8 U.S.C. §

1101(a)(43)(U) and renders the petitioner removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii).

B. Withholding of Removal.

We turn now to the petitioner's assertion that the BIA

erred in denying his claim for withholding of removal. The

petitioner's challenge is fact-based, and the government's first

line of defense is a suggestion that we lack jurisdiction over this

component of the petition. That suggestion is well-founded.

The REAL ID Act of 2005, Pub. L. No. 109-13, §

106(a)(1)(A)(iii), 119 Stat. 231, 310 (codified at 8 U.S.C. §

1252(a)(2)(D)), reconfigured the boundaries of federal-court

jurisdiction over BIA removal orders. See Mehili v. Gonzales, 433

F.3d 86, 92 (1st Cir. 2005). Prior to 2005, the INA precluded

judicial review of any aspect of a final order of removal premised

on an aggravated felony conviction. See Aguiar, 438 F.3d at 87-88.

Although the INA continues to provide that "no court shall have

jurisdiction to review any final order of removal against an alien

who is removable by reason of [an aggravated felony conviction],"

8 U.S.C. § 1252(a)(2)(C), the REAL ID Act softens this provision by

allowing "review of constitutional claims or questions of law

-33-
raised upon a petition for review filed with an appropriate court

of appeals," id. § 1252(a)(2)(D).

Under this neoteric formulation, federal courts of

appeals have jurisdiction to review colorable claims of

constitutional or legal error in the BIA's determination that an

alien's putative predicate offense qualifies as an aggravated

felony. See Aguiar, 438 F.3d at 88. Thus, our jurisdiction to

hear and determine the petitioner's principal assignment of error,

see supra Part II(A), is unassailable. Beyond that point, however,

judicial review of the factual findings underlying a removal order

based on an aggravated felony conviction remains foreclosed. See

Silva v. Gonzales, 455 F.3d 26, 29 (1st Cir. 2006). This

proscription extends to review of the BIA's factual findings as to

credibility, evidentiary weight, and satisfaction of a correctly

framed burden of proof. See Mehili, 433 F.3d at 93-94.

Those principles are determinative here. The petitioner

does not raise a colorable claim of constitutional or legal error

with respect to the BIA's disposition of his withholding of removal

claim. His argument, though vigorously advanced, boils down to the

commonplace assertion that the IJ (and, thus, the BIA) misconstrued

the evidence and, in the bargain, relied too heavily on a vague and

general report of changed country conditions in Sierra Leone. This

is a classic claim of factual error. See Elysee v. Gonzales, 437

F.3d 221, 223-24 (1st Cir. 2006); Mehili, 433 F.3d at 93-94.

-34-
Accordingly, we lack jurisdiction to review this portion of the

instant petition.

C. Other Discretionary Relief.

The petitioner's final assignment of error is addressed

to the BIA's holding that he failed to make a prima facie showing

of eligibility for either a waiver of inadmissibility or an

adjustment of status. We would lack jurisdiction over a challenge

to the BIA's discretion-driven denial of this kind of relief. See

8 U.S.C. § 1252(a)(2)(B)(i); see also Singh v. Gonzales, 413 F.3d

156, 160 n.4 (1st Cir. 2005). Here, however, the petitioner's

claim, as phrased, hinges on a pure question of law. Consequently,

we have jurisdiction to hear and entertain it. See 8 U.S.C. §

1252(a)(2)(D); see also Singh v. Gonzales, 413 F.3d at 160 n.4.

The relevant facts are as follows. The petitioner first

asserted his eligibility for a waiver of inadmissibility and an

adjustment of status during his second appeal to the BIA. In a

brief filed in conjunction with that appeal, he wrote that his

"wife is in the process of becoming a US citizen" and noted that

she had "filed an I-130 petition" for his benefit. He speculated

that, as a result, he "may be" eligible for an adjustment of status

under 8 U.S.C. § 1255(a).

The petitioner argues that this meager submission

constituted a prima facie showing of eligibility for a waiver of

-35-
inadmissibility and a concomitant adjustment of status. The BIA

thought not. So do we.

The threshold question is how to characterize the

petitioner's proffer. The parties refer to it variously as a

motion to reopen and a motion to remand, but nothing turns on this

difference in nomenclature. After all, the regulations provide

that a motion to reopen filed during the pendency of an appeal to

the BIA "may be deemed a motion to remand for further proceedings"

and "may be consolidated with, and considered by the [BIA] in

connection with, the appeal." 8 C.F.R. § 1003.2(c)(4).

Accordingly, we treat the proffer, for ease in reference, as a

motion to reopen.

A waiver of inadmissibility is a matter of discretion.

See 8 U.S.C. § 1182(h). Such relief may be awarded on a showing

that "the alien's denial of admission would result in extreme

hardship to [a] United States citizen or lawfully resident spouse,

parent, son, or daughter of such alien." Id. § 1182(h)(1)(B).

Adjustment of status is also a matter of discretion. See id. §

1255(a). Upon application, an alien may be "lawfully admitted for

permanent residence," as long as "the alien is eligible to receive

an immigrant visa and is admissible to the United States for

permanent residence . . . and . . . an immigrant visa is

immediately available to him at the time his application is filed."

Id.

-36-
 There is a further stipulation — and it has decretory

significance here. The regulations provide that "[a] motion to

reopen proceedings for the purpose of submitting an application for

relief must be accompanied by the appropriate application for

relief and all supporting documentation." 8 C.F.R. § 1003.2(c)(1).

The petitioner's perfunctory submission to the BIA falls far short

of satisfying this requirement.

The tale is quickly told. The petitioner did not submit

an application for relief or any supporting documentation (other

than a copy of the visa petition filed by his wife on his behalf).

Moreover, he made no allegation that he was eligible to receive a

visa, that he was admissible to the United States for permanent

residence, that a visa was immediately available to him, or that

his removal would result in extreme hardship to his wife. In light

of these omissions, the BIA did not err in ruling that the

petitioner failed to make a prima facie showing of eligibility for

either a waiver of inadmissibility or an adjustment of status. See

generally 8 U.S.C. §§ 1182(h)(1)(B), 1255(a).

Even if the petitioner had properly asserted these claims

before the BIA — which he did not — he could not demonstrate

eligibility for the requested relief. An adjustment of status may

be granted only where an immigrant visa is immediately available to

the alien "at the time his application [for adjustment] is filed."

8 U.S.C. § 1255(a). The BIA found — and the petitioner's counsel

-37-
conceded at oral argument — that no visa was available to the

petitioner at the time of his submission to the BIA. Thus, the

petitioner was statutorily ineligible for that form of relief. See

id.

Notwithstanding these gaping holes in his submission, the

petitioner insists that the BIA's decision in Matter of Velarde-

Pacheco, 23 I&N Dec. 253 (BIA 2002), dictates a contrary result.

We do not agree.

The INA grants special rights and priorities to an alien

who marries a United States citizen or lawful permanent resident.

See, e.g., 8 U.S.C. §§ 1151(b)(2)(A)(i), 1153(a)(2), 1182(h)(1)(B).

However, if the marriage takes place during the pendency of

"administrative or judicial proceedings . . . regarding the alien's

right to be admitted or remain in the United States," id. §

1255(e)(2), the alien may receive an immediate adjustment of status

based on the spousal relationship only if he demonstrates, by clear

and convincing evidence, that the marriage was bona fide, see id.

§ 1255(e)(3). The BIA considers the approval of the spouse's visa

petition on the alien's behalf "primary evidence of eligibility for

the bona fide marriage exemption." 8 C.F.R. § 1245.1(c)(9)(v).

Prior to Velarde-Pacheco, the BIA had ruled that, in

intervening marriage cases, a motion to reopen grounded upon the

citizen-spouse's visa petition could be granted only if the

petition already had been approved. See Matter of Arthur, 20 I&N

-38-
Dec. 475, 477 (BIA 1992). To mitigate the sometimes harsh effect

of this rule, the BIA reversed course in Velarde-Pacheco and held

that, in such cases, a properly filed motion to reopen based upon

the citizen-spouse's pending but unadjudicated visa petition may be

granted as a matter of discretion. 23 I&N Dec. at 256. The BIA

added, however, that this form of relief is not automatic; the

decision to grant or deny it remains discretionary, and such relief

continues to be unavailable to an alien whose motion to reopen is

barred on "any . . . procedural grounds." Id. Those grounds

include the failure to make a prima facie showing of eligibility

for relief, see id. at 256-57, and, concomitantly, statutory

ineligibility for an adjustment of status, see Bhiski v. Ashcroft,

373 F.3d 363, 370-72 & n.6 (3d Cir. 2004).

As discussed above, the petitioner failed properly to

assert a claim for relief. He also was statutorily ineligible for

an adjustment of status. Consequently, this case — as the BIA

concluded — falls outside Velarde-Pacheco's precedential orbit.11

11
There is another looming problem. The Velarde-Pacheco rule
was intended to provide an alien who has married a citizen during
the pendency of immigration proceedings with an opportunity to
establish the bona fides of that marriage. See Patel v. Ashcroft,
375 F.3d 693, 697 n.3 (8th Cir. 2004). The petitioner has not
explained how — if at all — Velarde-Pacheco bears on cases, such as
this one, which involve an antecedent marriage and an intervening
naturalization.

-39-
III. CONCLUSION

We summarize succinctly. Because the offenses charged as

the objective of the conspiracy for which the petitioner was

convicted were offenses involving fraud or deceit in which the loss

to victims exceeded $10,000, the petitioner's conspiracy conviction

qualifies as a conviction for an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(U). The fact that the removal order is predicated on

a conviction for an aggravated felony precludes us from exercising

jurisdiction over the petitioner's claim of factual error in

connection with the denial of his cross-application for withholding

of removal. Finally, because the petitioner failed to make a prima

facie showing of eligibility for either a waiver of inadmissibility

or an adjustment of status, the BIA did not err in denying his

barebones motion to reopen the removal proceedings.

We need go no further. For the reasons elucidated above,

we deny the petition for review in part and dismiss it in part for

want of jurisdiction.

So Ordered.

— Dissenting Opinion Follows —

-40-
 HUG, Senior Circuit Judge (Dissenting). I respectfully

dissent.

Conteh, who is lawfully in the United States, having been

granted asylum, was ordered to be removed from the United States on

the ground that he had been convicted of an aggravated felony. I

dissent for the reason that there was insufficient evidence to

prove that Conteh had been convicted of an aggravated felony.

The INS12 may remove any alien convicted of an “aggravated

felony.” 8 U.S.C. § 1227(a)(2)(A)(iii) (emphasis added). The INA

defines an “aggravated felony” to include “an offense that . . .

involves fraud or deceit in which the loss to the victims exceeds

$10,000.” 8 U.S.C. § 1101(a)(43)(M)(I). In addition, “any attempt

or conspiracy to commit an offense described [in section

1101(a)(43)]” also is an aggravated felony. 8 U.S.C. §

1101(a)(43)(U).

Conteh was convicted of violating 18 U.S.C. § 371, which

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.

12
To be consistent with the majority opinion I will use INS
rather than the current title of the organization, DHS.

-41-
 The judgment in the instant case clearly shows that

Conteh was convicted of Count One of the indictment, which alleged

conspiracy to: (1) defraud a financial institution in violation of

18 U.S.C. § 1344; and (2) make and possess counterfeit securities

in order to deceive another person, organization, and government,

in violation of 18 U.S.C. § 513(a). Since the statutes that Conteh

conspired to violate do not require the fraud to be in excess of

$10,000, the fact that Conteh conspired to violate these fraud-

related statutes is not sufficient by itself to make Conteh’s

conviction a conviction for an aggravated felony.

The United States Supreme Court has developed an approach

for determining whether convictions of various predicate offenses

meet the requirements for enhancements of federal sentences, in

Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United

States, 544 U.S. 13 (2005). I agree with the majority that this

approach has been applied in the immigration context generally

throughout the United States. In Taylor, the Supreme Court stated

that the categorical approach

generally requires the trial court to look
only to the fact of conviction and the
statutory definition of the prior offense.
This categorical approach, however, may permit
the sentencing court to go beyond the mere
fact of conviction in a narrow range of cases
where a jury was actually required to find all
the elements [of the predicate offense].

Id. at 602. The majority views the latter inquiry as part of the

categorical approach. It denominates it as the “second step” of

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the categorical approach. As noted by the majority, the Ninth

Circuit views this as a “modification of the categorical approach.”

Li v. Ashcroft, 389 F.3d 892, 895-96 (9th Cir. 2004).

It seems that the Supreme Court in Shepard clears up this

difference in stating: “We recognized an exception to this

‘categorical approach’ only for a narrow range of cases where a

jury . . . was actually required to find all the elements of the

generic offense.” 544 U.S. 13, 17 (2005) (internal quotation

omitted) (emphasis added). The Ninth Circuit has simply termed

this exception as the “modified categorical approach.” It would

seem that under the Shepard opinion, what the majority describes as

the second step of the categorical approach is not a part of the

categorical approach itself, but an exception to it.

Regardless of whether this exception is termed a second

step of the categorical approach or a modification of the

categorical approach, the essential question is whether the BIA may

consider factors other than those prescribed by Taylor to determine

whether the predicate crime is one in which the loss to the victim

or victims exceeds $10,000.

Shepard also provides guidance on this question. It

reversed a First Circuit Court decision and applied the Taylor

approach to a predicate crime that was a conviction as a result of

a guilty plea. The First Circuit had held that it was appropriate

to consider police reports and complaint applications in

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determining whether the guilty plea necessarily supported a

conviction of the required predicate crime. The Supreme Court

reversed, holding that, “[w]e recognized an exception to this

categorical approach only for a narrow range of cases where a jury

. . . was actually required to find all of the elements of the

generic offense.” Shepard, 544 U.S. at 17 (internal quotations

omitted). In the case before us, the majority, in applying what it

denominates as the second step of the categorical approach,

correctly concludes, in accordance with Taylor and Shepard, that

the BIA’s reliance on the petitioner’s testimony before the IJ and

the Presentence Investigation Report was error.

The majority relies on two other documents to uphold the

BIA’s decision: (1) the indictment and (2) the restitution order

that was entered by the state court. Reliance on the indictment is

appropriate when that reliance is in accordance with Taylor and

Shepard. However, in this case the indictment does not assure that

the jury was actually required to find all the elements of the

generic offense. There is nothing in the indictment itself that

requires a loss to the victim or victims in excess of $10,000. The

majority relies upon the alleged overt acts to supply this

deficiency. The indictment, however, states with regard to the

overt acts the following:

Overt Acts

4. In furtherance of the conspiracy and to
the effect the illegal objects thereof,

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 the following overt acts, among others,
were committed in the Southern District
of New York and elsewhere:

a. On or about December 5, 1996, a counterfeit
check in the amount of $25,200 was deposited
into an account (the “Dime Account”) at a
branch of Dime Savings Bank in Brooklyn, New
York.

b. In or about December 1996, in Brooklyn, New
York, JOHN CONTEH, the defendant, withdrew
$22,600 from the Dime Account.

c. In or about January 1997, in Brooklyn, New
York, JOHN CONTEH, the defendant, withdrew
$1,000 from the Dime Account.

d. On or about March 17, 1997, a counterfeit
check in the amount of $29,239.06 was
deposited in an account (the “Chase
Account”) at a Manhattan branch of Chase
Bank.

e. On or about March 21, 1997, in Manhattan,
IBRAHIMA KOITA, a/k/a “Ebou,” and JOHN
CONTEH, the defendants, caused $500.00 to be
withdrawn from the Chase Account.

f. On or about March 25, 1997, in Manhattan,
IBRAHIMA KOITA, a/k/a “Ebou,” and JOHN
CONTEH, the defendants, caused $8,500.00 to
be withdrawn from the Chase Account.

(Title 18, United States Code, Section 371.)

I have several observations. The mere deposit of a counterfeit

check in the amount of $25,200 to the Dime Account of the Dime

Savings Bank in Brooklyn does not charge any amount of the loss.

Nor does the withdrawal of $22,600 from the Dime Account indicate

what, if any, loss was suffered by anyone. Most importantly, item

“c” of the overt acts specified a withdrawal of only $1,000 from

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the Dime Account. Under conspiracy law, the jury need only find

that there was one overt act in order to convict. See United

States v. Frankhauser, 80 F.3d 641, 653 (1st Cir. 1996). The jury

could have found that there was only a withdrawal of $1,000 from

the Dime Account. Similarly, in items “d”, “e” and “f” the deposit

of $29,239.06 to the Chase Bank does not indicate any loss and, in

fact, under items “e” and “f” it is pointed out that only $9,000

was withdrawn from that account. The restitution order provided

that the total amount of loss was $9,000 to the Chase Manhattan

Bank and $25,200 to the First Vermont Bank and Trust. These are

the exact amounts provided for in the Presentence Investigation

Report. It would be odd indeed to base the required $10,000 loss

on a showing of $9,000 and $25,200 in the restitution order that

was based entirely upon the Presentence Investigation Report when

it was determined by the majority that the Presentence

Investigation Report could not be relied upon as a determination of

the amount of loss to any victim.13

13
The Presentence Investigation Report gave the following as
its recommendation for a restitution order based entirely on
unsupported information from bank officials:

Victim Impact

According to George Matranga, Security Department
representative of the Dime Bank, the bank suffered no
financial loss as a result of the offense and is not seeking
restitution at this time.

Boris Malsev, a Chase Manhattan Bank representative informed
that they suffered a financial loss in the amount of $9,000.

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 Another peculiarity is that the restitution order for

$25,200 is to be paid for the loss to First Vermont Bank and Trust.

Nothing in the indictment indicates any loss to First Vermont Bank

and Trust. The overt acts identify only deposits to and

withdrawals from the Dime Savings Bank in Brooklyn, New York.

Thus, I conclude that the indictment cannot be relied upon to

establish that the conviction of the predicate crime involves a

loss to the victim or victims exceeding $10,000.

I also conclude that the restitution order cannot be

relied upon to show that the loss to the victim or victims exceeds

$10,000. First, it is not an element of the crime that the jury

was required to find. It is a sentencing order that is not

dependent upon a verdict of the jury, but rather is only a

sentencing decision by the judge as to an appropriate sentence.

This distinction is most clearly illustrated by the United States

Supreme Court’s decision in United States v. Watt, 519 U.S. 148

(1997), where the Court held that the defendant’s sentence could

be based on evidence in a charge of which the defendant had been

Restitution can be forwarded to Chase Manhattan Bank, Post
Office Box 20007, Jericho, NY 11753, Attn: Edie Collins,
reference number: 741-97.

George Patch, representative of First Vermont Bank & Trust
informed that they suffered a financial loss in the amount of
$25,200. Restitution can be forwarded to First Vermont Bank
& Trust, c/o George Patch, Banknorth Group Security, P. O. Box
2469, West Brattleboro, VT, 05303, reference number 97P019.

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acquitted. Second, it is an unreliable determination of a

conviction because it is entirely based upon the Presentence

Investigation Report, which the majority appropriately concludes

should not have been considered by the BIA.

In conclusion, I would hold that the Taylor and Shepard

approach is the appropriate one for the BIA to follow in making its

determination of whether the predicate offense is an aggravated

felony. As the majority states at the beginning of its analysis,

“The BIA’s determination that a given violation of a state or

federal statute constitutes an aggravated felony presents a pure

question of law.” Thus, the “clear and convincing evidence”

standard is inapplicable here. Under the categorical approach and

the exception to the categorical approach, (whether denominated a

second step or a modified categorical approach) it was error for

the BIA to conclude that the predicate offense was an aggravated

felony. I would hold that this is the limit of the BIA’s

consideration. However, even if we were to extend the possible BIA

inquiry as the majority does, I conclude that neither the

indictment nor the restitution order provide a basis for concluding

that Conteh was convicted of the necessary elements of the

predicate offense, and I would grant Conteh’s petition.

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