Osarias Monday Omoregbee v. U.S. Atty. Gen.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13755 ELEVENTH CIRCUIT
APRIL 21, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK

Agency No. A29-891-115

OSARIAS MONDAY OMOREGBEE,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(April 21, 2009)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:
 Osarias Monday Omoregbee, a native and citizen of Nigeria with lawful

permanent residency in the United States, appeals the order of the Board of

Immigration Appeals (“BIA”) finding Omoregbee removable as an alien who had

been convicted of two crimes of moral turpitude, pursuant to INA

§ 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), and affirming the order of the

Immigration Judge (“IJ”) finding Omoregbee ineligible for cancellation of removal

as an alien who had been convicted of an aggravated felony, pursuant to INA §§

240A(a) and 101(a)(43)(M), 8 U.S.C. §§ 1229b(a) and 1101(a)(43)(M). For the

reasons set forth below, we deny the petition.

I. Background

In a notice to appear (“NTA”), the Department of Homeland Security

(“DHS”) stated that, inter alia, Omoregbee had been convicted on September 1,

2004, in U.S. District Court for the Eastern District of North Carolina, of credit

card fraud that caused $10,508.79 in loss, in violation of 18 U.S.C. § 1029(a)(3).

The DHS charged that, inter alia, based on this and other convictions, Omoregbee

was removable as an alien who had been convicted of (1) two crimes of moral

turpitude, pursuant to INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii); and

(2) an aggravated felony as defined in INA § 101(a)(43)(M), 8 U.S.C.

§ 1101(a)(43)(M), or an offense of fraud or deceit that caused a loss of more than

$10,000, pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
2
 The government submitted a judgment of conviction from the U.S. District

Court for the Eastern District of North Carolina, which indicated that Omoregbee

pled guilty to charges of access device fraud, production of false identification, and

use of a false social security number and was sentenced to concurrent terms of 24

months’ imprisonment and ordered to pay restitution to Sears National Bank,

Target Corporation, JC Penney, and First USA Bank in the total amount of

$10,508.79.

An IJ order Omoregbee removed to Nigeria, but did not prepare a written

decision. Omoregbee pro se appealed to the BIA, arguing that he had not been

convicted of an aggravated felony because his federal offenses did not cause a loss

of more than $10,000 and that he was entitled to cancellation of removal. The BIA

remanded the case to the IJ to prepare a written decision. On remand, the IJ did so.

Omoregbee pro se appealed to the BIA, raising the same grounds as before.

Omoregbee also submitted a formal application for cancellation of removal. The

BIA again remanded the case to the IJ, reasoning that the government should

submit further evidence on whether Omoregbee’s federal offenses caused more

than $10,000 in loss. On remand, the government argued that further evidence was

unnecessary. The IJ sustained his earlier finding and denied Omoregbee’s

application for cancellation of removal, reasoning that he was ineligible as an

aggravated felon. Omoregbee, through counsel, appealed to the BIA, raising the
3
same grounds as before. In the course of his appeals to the BIA, Omoregbee

submitted the (1) federal indictment, which did not indicate a specific loss amount;

and (2) portions of the presentence investigation report (“PSI”) prepared for his

federal convictions, which indicated that Omoregbee caused Sears $7,558.07 in

loss, Target $480.33 in loss, JC Penney $843.72 in loss, Exxon $286.39 in loss,

and Chadwick’s of Boston $1,038.80 in loss and that Omoregbee did not object to

the loss amount.1

The BIA affirmed the IJ’s finding that Omoregbee was removable and

ineligible for cancellation of removal. The BIA acknowledged that Omoregbee

had not disputed that he was removable as an alien convicted of two crimes of

moral turpitude and found that, therefore, it need not address whether he also was

removable as an alien convicted of an aggravated felony based on his federal

offenses causing more than $10,000 in loss. The BIA also found that Omoregbee

had not satisfied his burden of proving that he was eligible for cancellation of

removal. Omoregbee, through counsel, appealed to this Court, raising the same

grounds as before. In support of his argument that he merits cancellation of

removal, Omoregbee cites Obasohan v. Gonzales, 479 F.3d 785 (11th Cir. 2007),

and Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130 (9th Cir. 2007).

1
These figures total $10,207.31.
4
 II. Standard of Review

When the BIA affirms the IJ’s decision, but issues a separate opinion, we

review the BIA’s opinion “except to the extent that [the BIA] expressly adopts the

IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Thus,

when the BIA affirms the IJ’s decision on alternative grounds not addressed by the

IJ, we review the BIA’s decision only. Id. In conducting this review, we review

legal determinations de novo and factual determinations under the “substantial

evidence test.” See D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir.

2004); Al Najjar, 257 F.3d at 1283-84. Under this test, which is “highly

deferential,” “ we must affirm the BIA’s decision if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Al

Najjar, 257 F.3d at 1283-84 (quotation omitted). In applying this highly

deferential standard, we view the record in the light most favorable to the BIA’s

decision and are bound by that decision unless a reasonable adjudicator would be

compelled to conclude to the contrary. Adefemi v. Ashcroft, 386 F.3d 1022,

1026-27 (11th Cir. 2004) (en banc). Accordingly, “even if the evidence could

support multiple conclusions, we must affirm the [BIA’s] decision unless there is

no reasonable basis for that decision.” Id. We will not address issues that have not

been raised before the IJ or BIA, as these issues have not been exhausted properly.

Al Najjar, 257 F.3d at 1283 n. 12; INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). We
5
also will not consider issues not discussed on appeal before this Court, as these

issues have been abandoned. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228

n.2 (11th Cir. 2005).

III. Law and Analysis

A. Removal

Pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), the

Attorney General shall remove an alien who is convicted of, inter alia, an

aggravated felony. The INA defines aggravated felonies as being offenses that,

inter alia, “involve[] fraud or deceit in which the loss to the victim or victims

exceeds $10,000.” INA § 101(a)(43)(M); 8 U.S.C. § 1101(a)(43)(m). The

government bears the burden of demonstrating that the alien in question was

convicted of an offense that satisfied this definition. Obasohan, 479 F.3d at 791.

The Supreme Court has held that “[t]he grounds upon which an

administrative order must be judged are those upon which the record discloses that

its action was based.” S.E.C. v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459,

87 L.Ed. 626 (1943). The Supreme Court reasoned that,

[i]f an order is valid only as a determination of policy or judgment
which the agency alone is authorized to make and which it has not
made, a judicial judgment cannot be made to do service for an
administrative judgment. For purposes of affirming no less than
reversing its orders, an appellate court cannot intrude upon the domain
which Congress has exclusively entrusted to an administrative agency.

6
Id. at 88, 63 S.Ct. at 459.

We have not previously applied the above principle of agency review in a

situation such as this, when the BIA did not consider a matter because it based its

holding on an independent ground. However, given this principle, it would be

inappropriate for us to address whether the government established that

Omoregbee’s federal offenses caused more than $10,000 in loss, such that he was

an aggravated felon for removal purposes. See id. Because the BIA affirmed the

IJ’s decision on alternative grounds, we may consider only the BIA’s decision.

See Al Najjar, 257 F.3d at 1284. In that decision, the BIA did not address whether

the government had established that Omoregbee was an aggravated felon. Were

we to now consider the matter, we would be doing so in the first instance and,

therefore, would be “intrud[ing] upon the domain which Congress has exclusively

entrusted to [the BIA].” See Chenery Corp., 318 U.S. at 88, 63 S.Ct. at 459. Thus,

we will not address the matter. It is not necessary to remand to the BIA to consider

the matter in the first instance, as we can affirm the BIA’s order of removal on its

finding that Omoregbee was an alien who had been convicted of two crimes

involving moral turpitude. We need not address the merits of that ground for

removal, because Omoregbee both failed to exhaust and abandoned any challenge

to this ground for removal, as he failed to raise the matter before the IJ or BIA or

on appeal to this Court. See Al Najjar, 257 F.3d at 1283 n. 12; Sepulveda, 401
7
F.3d at 1228 n.2; INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). Accordingly, we deny

the petition with regard to the BIA’s order of removal.

B. Cancellation of Removal

Pursuant to INA § 240A(a), 8 U.S.C. §§ 1229b(a), “[t]he Attorney General

may cancel removal in the case of an alien who is inadmissible or deportable from

the United States if the alien . . . has not been convicted of any aggravated felony.”

An alien who requests this discretionary form of relief bears the burden of

establishing his eligibility. 8 C.F.R. § 1240.8(d). Indeed, “[i]f the evidence

indicates that one or more of the grounds for mandatory denial of the application

for relief may apply, the alien shall have the burden of proving by a preponderance

of the evidence that such grounds do not apply.” Id.

In determining whether an alien is an aggravated felon, we apply a modified

categorical approach. See Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1353

(11th Cir. 2005) (citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143,

109 L.Ed.2d 607 (1990) (considering whether the government had met its burden

of proving that an alien was an aggravated felon for removal purposes). Under this

approach, the IJ must first look to the language of the statute and determine

whether the statutory language covers some offenses that would be aggravated

felonies and others that would not. Id. at 1353-55. If the statute is “divisible” in

8
this manner, then the IJ must look to the record of conviction, which “includes the

charging document, plea, verdict or judgment, and sentence.” Id. at 1355.

In Obasohan, we applied this modified categorical approach in determining

whether the government had satisfied its burden of proving that an alien, convicted

of conspiracy to commit credit card fraud and ordered to pay restitution of $37,000

to 3 financial institutions, was an aggravated felon, based on his federal offenses

causing more than $10,000 in loss, for removal purposes. 479 F.3d at 785-86. We

held that the government had not and remanded the case to the BIA. Id. at 791.

We first concluded that the statute in question was divisible. Id. at 788. We then

concluded that the record of conviction did not support the IJ’s finding. Id. at 791.

To this end, we noted that the IJ had cited the alien’s guilty plea, plea colloquy,

PSI, and judgment of conviction and restitution order in finding that the alien’s

offenses had caused losses of more than $10,000. Id. at 787. We found that

neither the indictment nor the plea agreement and colloquy supported the IJ’s

finding, reasoning as follows.

[T]he elements of the conspiracy with which [the alien] was charged
did not require that any loss amount be proved. Neither the
indictment nor the plea agreement specified any loss amount. Indeed,
[the alien] was not charged with any loss, and did not admit to any
loss by pleading guilty as charged.

Id. at 789. We also found that the restitution order did not support the IJ’s finding,

reasoning as follows. At the plea hearing, the government admitted that no loss
9
was attributable to the fraudulent credit card on which the indictment was based.

Id. at 786. The government indicated, though, that it was pursuing evidence

suggesting that the alien was responsible for thousands of dollars of loss tied to the

use of another credit card. Id. In the PSI, the probation officer indicated that

further investigation had revealed that the alien had fraudulently used other credit

cards and caused $37,000 in loss. Id. Thus, the restitution order was based on

additional conduct that was not charged, proved, or admitted. Id. at 789, 791. We

held that, therefore, the IJ could not base its finding that the alien was removable

solely on the restitution order. Id. at 791.

In Sandoval-Lua, the Ninth Circuit applied this modified categorical

approach in determining whether an alien had satisfied his burden of proving that

he was not an aggravated felon for cancellation-of-removal purposes. 499 F.3d at

1129. The Ninth Circuit considered whether an alien convicted of a controlled

substance offense, defined under state law as transporting, importing, selling,

furnishing, administering, or giving away, or offering to transport, import, sell,

furnish, administer, or give away, a controlled substance, was an aggravated felon

as defined in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), or an alien

convicted of drug trafficking. Id. at 1127-28. The Ninth Circuit first concluded

that the statute of conviction was divisible, as it included conduct that was an

aggravated felony and conduct that was not, namely, soliciting. Id. at 1128. The
10
Ninth Circuit then concluded that the record of conviction, or the indictment and

judgment, were inconclusive as to the nature of the alien’s offense of conviction, as

the indictment merely included the statutory language and the judgment merely

cited the statue. Id. at 1129. The Ninth Circuit held, however, that, “[b]y

submitting an inconclusive record of conviction, [the alien] ha[d] affirmatively

proven under the modified categorical analysis that he was not necessarily

convicted of any aggravated felony.” Id. at 1130. The Ninth Circuit reasoned as

follows. Under the modified categorical approach, the IJ must determine whether

the record of conviction established that the alien “necessarily” was found to have

committed all of the elements of the “generic” aggravated felony, here, trafficking

drugs. Id. at 1130-31. Because the documents in the record of conviction were the

only evidence that could be considered, they had to establish either that the alien

necessarily was convicted of these elements or necessarily was not convicted of

these elements. Id. at 1131. Thus, because the record of conviction in question left

open the possibility that the alien was found to have committed some act other than

the elements of a generic aggravated felony, namely, soliciting rather than

trafficking a controlled substance, then it did not establish that the alien necessarily

was convicted of the requisite element of trafficking and the only remaining

option was that the alien necessarily was not convicted of the requisite element of

trafficking, such that he was not an aggravated felony. Id. at 1132.
11
 Omoregbee has not satisfied his burden of demonstrating that he was not an

aggravated felon. See 8 C.F.R. § 1240.8(d). Because Omoregbee’s offense of

conviction applies to offenses that might not involve a loss of more than $10,000,

the statute is divisible. See Jaggernauth, 432 F.3d at 1353-55; 18 U.S.C.

§ 1029(a)(3) (instructing that a person is guilty of credit card fraud if he

“knowingly and with intent to defraud possesses fifteen or more devices which are

counterfeit or unauthorized access devices”). Thus, the question is whether

Omoregbee has shown that the record of conviction demonstrates that his offense

caused a loss of less than $10,000. See Jaggernauth, F.3d at 1355. Omoregbee’s

only effort at showing as much are citing Obasohan for the proposition that the

restitution order was an insufficient basis for finding that his federal offenses

caused more than $10,000 in losses and Sandoval-Lua for the proposition that

presenting an inconclusive record was tantamount to satisfying his burden of proof.

First, Sandoval-Lua is inapplicable. In that case, the statute of conviction

did not “match” the applicable definition of an aggravated felony, as it listed acts

that were not covered by the definition, such that the issue was whether the record

of conviction demonstrated whether the alien had committed the act that was

covered by the definition or one of those acts that was not. See Sandoval-Lua, 499

F.3d at 1127-28. The statute of conviction and definition of an aggravated felony

were, in part, mutually exclusive. See id. In this case, the applicable definition of
12
an aggravated felony does not so much define the elements of an aggravated felony

as add an extra element to any statutory offense of fraud or deceit, namely, that it

caused a loss of more than $10,000. See INA § 101(a)(43)(M), 8 U.S.C.

§ 1101(a)(43)(M). Thus, while Omoregbee’s statute of conviction, criminalizing

credit card fraud, applies to offenses that might not involve a loss of more than

$10,000, it does not apply to offenses that necessarily do not involve more than

$10,000. Stated differently, the statute of conviction and definition of an

aggravated felony are not at all mutually exclusive. Therefore, the Ninth Circuit

was considering a matter not at issue here and its approach and reasoning are

inapplicable.

Also, Obasohan is distinguishable. In that case, we held that a restitution

order alone was insufficient to demonstrate that the alien in question was an

aggravated felon. See Obasohan, 479 F.3d at 785-86. The restitution order in

question, however, was based on an act other than the offense of conviction, such

that it did not demonstrate that the alien had been convicted of an offense causing a

loss of more than $10,000. See id. at 789, 791. Indeed, the government admitted

that the offense of conviction did not involve any loss. See id. at 786. In the

instant case, Omoregbee has not alleged that the restitution order was based on

some other act besides the credit card fraud for which he was convicted or

otherwise presented evidence to this effect. Therefore, the holding in Obasohan,
13
which depended on the facts of that case, in distinguishable from the facts of the

instant case. Because Omoregbee only has cited cases that are inapplicable or

distinguishable, he has not satisfied his burden. See 8 C.F.R. § 1240.8(d).

Accordingly, we deny the petition with regard to the BIA’s denial of cancellation

of removability.

DENY PETITION.

14