NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-2282
___________
OWEN DOVOVAN JOHNSON,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A099-186-854)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 20, 2015
Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges
(Filed: December 14, 2015)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Owen Donovan Johnson, a native and citizen of Jamaica, petitions for review of
the Board of Immigration Appeals’ final order of removal. For the following reasons, we
will deny the petition for review.
Johnson was admitted to the United States in 1990 as a nonimmigrant visitor for
pleasure and, in 2006, adjusted his status to lawful permanent resident (LPR). In 2012, a
jury in the United States District Court for the Southern District of New York found
Johnson guilty of both counts of a two-count indictment, charging him with conspiracy to
commit bank fraud and wire fraud, 18 U.S.C. § 1349, and bank fraud, 18 U.S.C. § 1344.
Based on that conviction, the Government charged Johnson as removable under
Immigration and Nationality Act (INA) § 237(a)(2)(A)(iii) [8 U.S.C.
§ 1227(a)(2)(A)(iii)] because he had committed an aggravated felony as defined in INA
§ 101(a)(43)(M) [8 U.S.C. § 1101(a)(43)(M)] (classifying as an aggravated felony any
offense that involves fraud or deceit in which the loss to the victim exceeds $10,000) and
INA § 101(a)(43)(U) [8 U.S.C. § 1101(a)(43)(U)] (providing that “an attempt or
conspiracy to commit” another aggravated felony constitutes an aggravated felony).
An Immigration Judge (IJ) concluded that Johnson was removable as charged.
Johnson appealed, arguing that the Government could not demonstrate by clear and
convincing evidence that § 101(a)(43)(M)’s $10,000 loss threshold had been met. The
BIA disagreed, noting that the presentence investigation report (PSR) indicated that
Johnson’s involvement in a mortgage fraud scheme resulted in a loss amount over $3
million. The Board also rejected Johnson’s claim that a remand was warranted so that he
2
could apply for a waiver of inadmissibility under INA § 212(h) [8 U.S.C. § 1182(h)].
Johnson filed a timely petition for review.
We generally lack jurisdiction to review a final order of removal against an alien,
like Johnson, who is removable for having committed an aggravated felony. See INA
§ 242(a)(2)(C) [8 U.S.C. § 1252(a)(2)(C)]. We retain jurisdiction, however, to review
constitutional claims, “pure questions of law,” and “issues of application of law to fact,
where the facts are undisputed and not the subject of challenge.” Kamara v. Att’y Gen.,
420 F.3d 202, 211 (3d Cir. 2005); see also INA § 242(a)(2)(D) [8 U.S.C.
§ 1252(a)(2)(D)]. Johnson raises questions of law, namely, whether his conviction is an
aggravated felony and whether he is statutorily eligible for a § 212(h) waiver. See Jeune
v. Att’y Gen., 476 F.3d 199, 201 (3d Cir. 2007); Poveda v. Att’y Gen., 692 F.3d 1168,
1172 (11th Cir. 2012). Therefore, we decline the Government’s invitation to dismiss the
petition for review for lack of jurisdiction.
Johnson concedes that his conviction involved fraud, but he argues that the
Government failed to demonstrate that his offense caused a loss of greater than $10,000
to a victim or victims. We disagree. Pursuant to Nijhawan v. Holder, 557 U.S. 29, 40
(2009), the agency and courts considering whether a conviction is an aggravated felony
under § 101(a)(43)(M) should apply a “circumstance-specific” approach, rather than a
categorical approach, to determine whether the alien’s crime involved a loss to the victim
over $10,000. The Supreme Court stated that “the loss must be tied to the specific counts
covered by the conviction.” Id. at 42. In Nijhawan, the alien had stipulated at sentencing
that the loss exceeded $100 million. The Supreme Court held that it was not unfair for
3
the IJ to refer to sentencing-related material in determining the loss amount for purposes
of § 101(a)(43)(M). Id. at 43. Indeed, we have held that the BIA’s reliance on a PSR in
conducting the circumstance-specific approach does not render a removal proceeding
fundamentally unfair. See Kaplun v. Att’y Gen., 602 F.3d 260, 266 (3d Cir. 2010).
Here, the record clearly and convincingly supports the BIA’s conclusion that the
loss to the victims exceeded $10,000, and that that loss was tied to the specific counts
covered by the conviction. According to the PSR, Johnson “committed mortgage fraud
involving at least 22 properties, including the nine properties charged in the indictment,
plus an additional 13 properties that constitute relevant conduct. . . . [T]he Government
calculated the loss amount based on an estimate using 30 percent of the total mortgage
price of the 22 properties, which was approximately $3,097,496.40.” We recognize that
the $10,000 threshold cannot be satisfied with losses related to the 13 properties
constituting only “unconvicted” relevant conduct. See Alaka v. Att’y Gen., 456 F.3d 88,
106 (3d Cir. 2006) (noting that the plain language of the statute “forecloses inclusion of
losses stemming from unconvicted offenses.” (quoting Knutsen v. Gonzales, 429 F.3d
733, 736-37 (7th Cir. 2005))). But the PSR indicates that several of the nine properties
identified in Count One of the indictment involved losses exceeding $10,000. See Singh
v. Att’y Gen., 677 F.3d 503, 512 (3d Cir. 2012) (indicating that circumstance-specific
approach properly includes examination of the indictment). For example, Johnson was
convicted of using a fraudulent mortgage application to obtain a loan totaling
approximately $609,076 to purchase property located at 254A Saratoga Avenue,
Brooklyn, New York. Using the “30 percent of the total mortgage price” calculation that
4
the Government employed, the actual loss from this single transaction equaled
approximately $183,000, well above the $10,000 threshold.1 See id. at 510 (holding that
the Government must prove actual loss, rather than intended or potential loss).
Johnson also alleges that the Board erred in concluding that he is not statutorily
eligible for relief under INA § 212(h). That section provides the Attorney General with
discretion to waive inadmissibility if the alien establishes that his departure would cause
hardship to a spouse, parent, son, or daughter who is a United States citizen or lawful
permanent resident.2 INA § 212(h)(1)(B) [8 U.S.C. § 1182(h)(1)(B)]. Notably, however,
a lawful permanent resident present in the United States may obtain a § 212(h) waiver
“only if he is an applicant for admission or assimilated to the position of an applicant for
1
We reject Johnson’s claim that the loss amount did not exceed $10,000 because the
Judgment did not order restitution. Notably, the Judgment did direct Johnson to forfeit
almost $5 million in United States currency, which the PSR identified as “property . . .
involved in the offense . . . for which he is jointly and severally liable.” There is also no
merit to Johnson’s assertion that no victims were established as a result of his criminal
offense. The PSR indicated that “the victims in this case were Nationstar Mortgage and
Citimortgage Inc; however the loans guaranteed by these lenders were bought by other
lenders.” Although the identity of the “other lenders” was not known at the time of
sentencing, Johnson has not convincingly alleged that the lenders who purchased the
loans are not victims. Finally, Johnson’s assertion in his Reply Brief that he is currently
challenging his conviction under 28 U.S.C. § 2255 does not affect the finality of that
conviction for immigration purposes. See Orabi v. Att’y Gen., 738 F.3d 535, 542 (3d
Cir. 2014)
2
Section 212(h) also provides that “an alien who has previously been admitted to the
United States as an alien lawfully admitted for permanent residence,” who is later
convicted of an aggravated felony, is statutorily ineligible for a waiver of inadmissibility.
8 U.S.C. § 1182(h). This aggravated felony bar does not apply to Johnson, however,
because he was admitted on a visitor’s visa and only later adjusted his status to that of an
LPR. Hanif v. Att’y Gen., 694 F.3d 479, 487 (3d Cir. 2012) (holding that § 212(h)
precludes a waiver only for those persons who, at the time they lawfully entered into the
United States, had attained the status of lawful permanent resident).
5
admission by applying for an adjustment of status.” Poveda, 692 F.3d at 1177; see also
Cabral v. Holder, 632 F.3d 886, 891 (5th Cir. 2011) (“[A]liens who are already in the
United States must apply for an adjustment of status under 8 U.S.C. § 1255; upon
application, the applicant is assimilated to the position of an alien outside the United
States seeking entry as an immigrant.”) (internal quotation marks omitted). Indeed, “the
statute does not provide for an alien in removal proceedings to obtain a ‘stand alone’
waiver without an application for adjustment of status.” In re Rivas, 26 I. & N. Dec. 130,
132-33 (BIA 2013); see also 8 C.F.R. § 1245.1(f) (“an application [for adjustment of
status] shall be the sole method of requesting the exercise of discretion under sections
212(g), (h), (i), and (k) of the Act, as they relate to the inadmissibility of an alien in the
United States.”).
Johnson did not apply for adjustment of status and essentially faults the IJ for
failing to advise him of the opportunity to do so. Cf. Bonhometre v. Gonzales, 414 F.3d
442, 448 (3d Cir. 2005) (noting BIA authority for the proposition that “[a]n IJ has a duty
to inform aliens of potential forms of relief for which they are apparently eligible . . .”).
But any error by the IJ was harmless because Johnson’s purported basis for seeking
adjustment – an I-130 Petition for Alien Relative – was not approvable. See Coraggioso
v. Ashcroft, 355 F.3d 730, 733 (3d Cir. 2004) (providing that to be prima facie eligible
for adjustment of status, an alien must have an immediately available visa). In particular,
although Johnson sought to rely on an I-130 petition filed by his 27 year-old son, who is
an LPR, there is currently no corresponding immigrant visa category for the parent of a
lawful permanent resident. See INA § 203(a) [8 U.S.C. § 1153(a)]. Johnson also has a
6
12 year-old son who is a United States citizen, but that son cannot petition on Johnson’s
behalf until he turns 21 years old. See INA § 201(b)(2)(A)(i) [8 U.S.C.
§ 1151(b)(2)(A)(i)].
For the foregoing reasons, we will deny the petition for review.
7