Chiao Ku v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 17-3001
_____________

CHIAO FANG KU,
AKA Chiao Fang Ronan, AKA Anna Ronan,
Petitioner
v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_____________

On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A077-160-352)
Immigration Judge: Walter A. Durling
______________

Argued September 12, 2018
______________

Before: JORDAN, VANASKIE, and NYGAARD, Circuit
Judges


The Honorable Judge Vanaskie transmitted the opinion to the Clerk for
filing prior to retiring from the bench on January 1, 2019. Due to the
intervening holiday, the opinion has been entered on the docket by the
Clerk this day.
 (Opinion Filed: January 3, 2019)

Thomas M. Griffin [Argued]
Surin & Griffin
718 Arch Street
Suite 701N
Philadelphia, PA 19106
Counsel for Petitioner

Chad A. Readler, Acting Assistant Attorney General
Nancy E. Friedman, Senior Litigation Counsel
Justin R. Markel, Senior Litigation Counsel
Gregory A. Pennington, Jr. [Argued]
United States Department of Justice
Office of Immigration Litigation
Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent

________________

OPINION
________________

VANASKIE, Circuit Judge.

Seeking to remain in this country, Chiao Fang Ku
petitions for review of a final order of removal issued by the
Board of Immigration Appeals (“BIA” or “Board”). The
Board determined that Ku had committed an aggravated felony

2
under 8 U.S.C. § 1101(a)(43)(M)(i) because her prior
conviction for wire fraud constituted an offense involving
fraud or deceit in which the loss to the victims exceeded
$10,000. The Board also found that Ku’s wire fraud conviction
constituted a “crime involving moral turpitude” under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) such that, without a waiver, she is
ineligible for an adjustment of status. Although the
Immigration Judge (“IJ”) granted Ku a waiver of
inadmissibility under 8 U.S.C. § 1182(h)(1)(B) based on the
extreme hardship that her deportation would cause her U.S.
Citizen children, the Board reversed that decision. Ku
challenges each of the Board’s decisions.

In Nijhawan v. Holder, 557 U.S. 29 (2009), the Court
held that determination of whether a fraud offense involved
loss to the victims of $10,000 or more requires a circumstance-
specific approach, allowing the immigration court to review
both the charging document and sentencing-related materials
to determine the loss amount attributable to the offense. On
the facts of this case, we find that the undisputed loss to the
victims of well over $10,000 was sufficiently tethered to Ku’s
wire fraud conviction such that the conviction qualifies as an
aggravated felony. Furthermore, we find no error in the
Board’s determination that wire fraud constitutes a crime of
moral turpitude. Lastly, regarding the waiver of admissibility,
we do not have jurisdiction to review the discretionary denial
of a waiver under § 212(h) of the INA. Accordingly, we will
deny in part and dismiss in part Ku’s petition for review.

I.

Ku is a native and citizen of Taiwan. She was admitted
to the United States in 1997 and gained status as a lawful
permanent resident in 2002. In 2014, Ku was charged with a

3
single count of wire fraud, in violation of 18 U.S.C. § 1343.
Ku waived her right to an indictment and was charged by
information only. The Information alleged that Ku was tasked
with managing the finances of her in-laws, E.R. and M.R, and
that she was provided access to her in-laws’ bank accounts in
connection with this role. The Information further alleged that,
between May 2008 and July 2013, Ku defrauded her in-laws
by using her access to their accounts to take money from them
for her personal use. In particular, it alleged that Ku: (1)
transferred funds from her in-laws’ accounts to her own
accounts; (2) withdrew funds from her in-laws’ accounts as
cash; (3) made payments from her in-laws’ accounts to pay off
her personal credit cards; (4) wrote and cashed checks payable
to herself by forging her mother-in-law’s signature; and (5)
fraudulently applied for and obtained credit cards in her
mother-in-law’s name and used them for her own purposes.
The Information alleged that, in total, Ku stole more than
$950,000 from her in-laws.

These allegations were incorporated by reference into
the sole count of the Information, which alleged that, on or
about November 7, 2011, Ku,

having devised and intending to devise a
scheme and artifice to defraud and to obtain
money and property by means of materially
false and fraudulent pretenses,
representations, and promises, did cause
writings, signs, signals, pictures, and sounds
to be transmitted by means of wire
communications in interstate commerce for
the purpose of executing such scheme and
artifice, to wit: executing an online payment
from M.R.’s Sovereign Bank account, ending

4
 in 8497, to the defendant’s Chase credit card
account, ending in 6567, in the amount of
$2,290.53.

(App. 590). The Information further contained forfeiture
allegations, which directed that, upon conviction of the sole
count of the Information, Ku “forfeit to the United States . . .
any property, real or personal, that constitutes, or is derived
from, proceeds traceable to the commission of the offense,
including but not limited to at least $950,000 in United States
currency.” (App. 591).

Ku pleaded guilty, pursuant to a plea agreement,1 to the
single count of the Information. In her sentencing
memorandum, Ku, through counsel, acknowledged that she
was “now subject to automatic deportation as a result of her
conviction in this case.” (App. 740). Ku was ultimately
sentenced to a term of 18 months’ imprisonment, followed by
one year of supervised release. The judgment includes a total
loss determination of $954,515.71 and orders restitution in that
amount. (App. 582).

After Ku completed her sentence, she was served with
a Notice to Appear and placed in removal proceedings. The
Notice to Appear charged Ku with being removable under
§ 237(a)(2)(A)(iii) of the Immigration and Nationality Act
(“INA” or the “Act”), 8 U.S.C. § 1227(a)(2)(A)(iii), as an
individual convicted of an aggravated felony as defined in 8
U.S.C. § 1101(a)(43)(M)(i). The Immigration Judge
concluded that Ku was removable as charged because the

1
The plea agreement is not part of the administrative
record before us, nor was it in the record before the IJ or BIA.

5
record of conviction substantiated a finding that the wire fraud
involved a loss of more than $10,000.

In order to avoid deportation, Ku sought to re-adjust her
status based on her U.S. Citizen husband.2 The Immigration
Judge granted Ku’s application for a waiver of inadmissibility
under § 212(h)(1)(B) of the Act, 8 U.S.C. § 1182(h)(1)(B),
based on the extreme hardship that her deportation would cause
her U.S. Citizen children, and granted Ku’s adjustment of
status pursuant to § 245(a) of the INA, 8 U.S.C. § 1255(a).

On appeal, the Board affirmed that the Government
demonstrated by clear and convincing evidence that Ku was
removable as an aggravated felon as defined at
§ 1101(a)(43)(M)(i) in that her offense involved fraud or deceit
in which the loss to the victims exceeded $10,000. In doing so,
the Board noted that the Information alleged that Ku stole more
than $950,000 in funds belonging to her in-laws, and that this
allegation was incorporated by reference into the count to
which Ku pleaded guilty. It also observed that the Information
also contained a forfeiture allegation stating that, upon
conviction, Ku would forfeit over $950,000 in currency.
Finally, the Board considered relevant that the Judgment of
Conviction found a total loss of over $950,000 and ordered
restitution in that amount.

The Board further concluded that Ku’s conviction was
for a crime involving moral turpitude, making her inadmissible
under § 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), such that she required a § 212(h) waiver

2
Ku's present husband is not the man to whom she was
previously married and whose parents are the elderly in-laws
she defrauded.

6
in order to adjust her status. See 8 U.S.C. § 1255(a) (providing
for adjustment of status of certain aliens to that of an alien
lawfully admitted for permanent residence); see also 8 U.S.C.
§ 1182(h)(1)(B) (providing for waiver of inadmissibility at the
discretion of the Attorney General). Although it acknowledged
the hardship posed to her family, the Board ultimately found
that, given the severity of her crime, Ku did not merit a
§ 212(h) waiver. It accordingly vacated the decision of the IJ
and denied Ku’s applications for a § 212(h) waiver and for
adjustment of status. Ku timely filed a petition for review.

II.

Although we have jurisdiction to review final orders of
removal under 8 U.S.C. § 1252(a),3 “no court shall have

3
We have taken a broad view of what constitutes a
“final order of removal” under § 1252. Higgs v. Att’y Gen.,
655 F.3d 333, 337–38 (3d Cir. 2011). “[A]n order is final for
jurisdictional purposes when a removability determination has
been made that is no longer appealable to the BIA, regardless
[of] whether a formal order of removal has been entered.” Id.
(quoting Yusupov v. Att’y Gen., 518 F.3d 185, 195 (3d Cir.
2008)); see also Shehu v. Att’y Gen., 482 F.3d 652, 656 (3d
Cir. 2007) (“[D]enial of a . . . petition for asylum, withholding
of removal, and relief under the [Convention Against Torture]
constitutes ‘a final order of removal’ within the meaning of
[§ 1252], [because] the alien is entitled to no further process
before deportation.”). Here, although the Board did not
explicitly order Ku removed to Taiwan, it found her removable
and denied her application for adjustment of status, her only
petition for relief. (App. 5). Furthermore, the Board sustained
DHS’s appeal, which requested that Ku be ordered removed to
Taiwan. Accordingly, for the purposes of this appeal, we

7
jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed [an
aggravated felony].” 8 U.S.C. § 1252(a)(2)(C). “We do,
however, have jurisdiction to examine ‘constitutional claims or
questions of law.’” Fan Wang v. Att’y Gen., 898 F.3d 341, 343
(3d Cir. 2018) (quoting Catwell v. Att’y Gen., 623 F.3d 199,
205 (3d Cir. 2010); 8 U.S.C. § 1252(a)(2)(D)). Therefore, we
have authority to take up the issue, applying plenary review, of
whether Ku’s conviction qualifies as an aggravated felony
because it is “a purely legal question, and one that governs our
own jurisdiction.” Id. (quoting Valansi v. Ashcroft, 278 F.3d
203, 207 (3d Cir. 2002)). We also review de novo the legal
question of what elements of a federal criminal statute
implicate moral turpitude, while affording Chevron deference
to the Board’s definition of “moral turpitude.” Knapik v.
Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004).

III.

On appeal, Ku challenges all three aspects of the BIA’s
order. First, she contends that the BIA incorrectly determined
that her wire-fraud conviction involved a loss of more than
$10,000 by relying on evidence that was not sufficiently
tethered to the sole count of conviction.4 Second, Ku argues

consider the Board’s order to be a final order of removal. The
Government’s motion to remand this case to the Board for
issuance of an order directing that Ku be removed to Taiwan
and to allow the IJ to make additional findings on removability
will be denied as moot.
4
We note that Ku does not challenge—and did not
challenge before the IJ or the Board—that her wire fraud

8
that the Board erred in finding that her wire-fraud conviction
was for a crime involving moral turpitude because the statute
of conviction does not require a showing of intent. Third, Ku
asserts that the BIA applied the incorrect legal standard in
reversing the IJ’s grant of a discretionary waiver of
inadmissibility. We reject all three of Ku’s challenges and
therefore deny the petition for review.

A.

Section 237(a)(2)(A)(iii) of the INA, as amended,
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 defines “aggravated felony,” in
relevant part, as an offense that “involves fraud or deceit in
which the loss to the victim or victims exceeds $10,000.” 8
U.S.C. § 1101(a)(43)(M)(i).

In Nijhawan v. Holder, the Supreme Court addressed
the issue of whether the $10,000 threshold of the aggravated
felony statute “refers to an element of a fraud statute or to the
factual circumstances surrounding commission of the crime on
a specific occasion.” 557 U.S. at 33. The Court adopted the
latter interpretation, characterizing the review as examining
“the specific way in which an offender committed the crime on
a specific occasion.” Id. at 34. The Court distinguished the
“circumstance-specific approach” to be used in determining
whether a crime “involves fraud or deceit in which the loss to
the victim or victims exceeds $10,000” from the “categorical
approach” used in determining whether a crime is a “violent
felony” under the Armed Career Criminal Act (“ACCA”), 18

conviction “involves fraud or deceit” under 8 U.S.C.
§ 1101(a)(43)(M).

9
U.S.C. § 924(e). Id. at 34–40. It also rejected the use of the
so-called “modified categorical approach” employed in some
contexts, which would limit an IJ’s consideration to charging
documents, jury instructions, special jury findings, or some
equivalent judge-made findings and—in the case of a guilty
plea—to the written plea documents or plea colloquy. Id. at
41. While the Supreme Court acknowledged that “the statute
foresees the use of fundamentally fair procedures,” it rejected
the argument that fairness requires such evidentiary
limitations. Id. Accordingly, it found “nothing unfair” about
the IJ’s reliance upon the defendant’s stipulation and the
district court’s restitution order to determine that the crime at
issue was an “aggravated felony” under § 1101(a)(43)(M)(i).
Id. at 42–43.

Since Nijhawan, we have consistently applied the
circumstance-specific approach to determine the amount of
loss in “aggravated felony” cases. See, e.g., Kaplun v. Att’y
Gen., 602 F.3d 260, 265–66 (3d Cir. 2010); Doe v. Att’y Gen.,
659 F.3d 266, 274–76 (3d Cir. 2011). Most recently, we
addressed the issue in Fan Wang, in which we reviewed “not
only those documents that may be considered in a modified
categorical approach (the indictment, plea agreement, and
judgment),” but also others, including “the presentence
investigation report and any sentencing-related material.” 898
F.3d at 348–49 (citations and internal quotation marks
omitted). Relying on Nijhawan, we reasoned that
consideration of such materials “is appropriate so long as the
petitioner has been given a ‘fair opportunity’ to challenge the
Government’s claim.” Id. at 349 (quoting Nijhawan, 557 U.S.
at 41). Accordingly, we determined that the Board did not go
beyond the bounds of proper review by examining the record—
including the sole count of the superseding information, the

10
plea colloquy, the presentence investigation report, the “total
loss” specified in the judgment, and the restitution order—to
determine whether the petitioner’s prior conviction was an
“aggravated felony.” Id. at 349–50. In determining the proper
amount of loss in that case, we were persuaded by the
Government’s argument that the loss amount listed in the
judgment and restitution order was “undeniably tethered” to
the conduct for which the petitioner was convicted. Id. at 351.

We consider the loss to the victims in this case—as
evidenced by the Information, Judgment, and Restitution
Order—to be sufficiently tethered to the count of conviction
such that Ku’s conviction was an aggravated felony.
Paragraphs 1 through 10 of the Information allege that Ku stole
more than $950,000 in funds belonging to her in-laws, and
these paragraphs were incorporated by reference into the count
to which Ku pleaded guilty. Furthermore, the forfeiture
allegation contained in the Information states that, upon
conviction, Ku would forfeit the “proceeds traceable to the
commission of the offense, including but not limited to at least
$950,000 in United States currency.” (App. 591). Finally, the
Judgment of Conviction indicates a loss of $954,515.71 and
orders restitution in that amount. Each of these documents is
reviewable under the circumstance-specific approach laid out
by the Supreme Court in Nijhawan. Together, they provide
clear and convincing evidence that Ku’s offense involved a
loss of over $10,000. Nonetheless, we briefly addresses Ku’s
arguments to the contrary, all of which lack merit.

1.

First, Ku contends that the circumstance-specific
approach described in Nijhawan does not apply in her case
because the single count of the Information made clear that it

11
was for the specified amount of $2,290.53. She urges us to
read Nijhawan to have kept intact the modified categorical
approach for cases in which the charging document contains a
clear indication of the loss amount. Under the modified
categorical approach, she contends, the Board was correct in
reviewing the Information but, because the count of conviction
contains a loss amount of $2,290.53, the Board should have
stopped there.

Contrary to Ku’s assertion, Nijhawan does not stand for
the proposition that, when the count of conviction contains a
loss amount, immigration officials must look no further. The
Supreme Court explicitly rejected the use of the modified
categorical approach in determining whether a prior conviction
is an aggravated felony under § 1101(a)(43)(M)(i). Nijhawan,
557 U.S. at 41–42; see also Kaplun, 602 F.3d at 265–66
(interpreting Nijhawan). Rather, it determined that the
circumstance-specific approach is required because the
aggravated felony statute “refers to the particular
circumstances in which an offender committed a (more broadly
defined) fraud or deceit crime on a particular occasion,” and
not to an element of the offense. Nijhawan, 557 U.S. at 32.
Noting that the Government in immigration proceedings is
held only to a “clear and convincing” burden of proof, and not
“beyond a reasonable doubt,” the Supreme Court found
“nothing unfair about [an IJ] rel[ying] upon earlier sentencing-
related material”—in that case a sentencing stipulation and
restitution order. Id. at 42–43. It also noted that “the sole
purpose of the aggravated felony inquiry is to ascertain the
nature of a prior conviction; it is not an invitation to relitigate
the conviction itself.” Id. (internal quotation marks omitted).

Nothing in Nijhawan suggests that the circumstance-
specific approach applies in some cases but not others, or that

12
the documents reviewable under that approach vary from case
to case. Furthermore, we have consistently interpreted
Nijhawan as allowing an IJ, in determining the loss amount, to
look beyond the charging document to sentencing-related
materials. See Kaplun, 602 F.3d at 265–66; Fan Wang, 898
F.3d at 348–49. Ku has not persuaded us that our reading is
incorrect.

2.

Second, Ku contends that, because her conviction was
for “a single act of a $2,290.53 on-line transfer,” the losses she
caused through other acts and transactions are not sufficiently
“tethered” to the count of conviction for purposes of the
aggravated felony statute. (Petitioner’s Br. at 27). In doing so,
Ku asks us to read the Information as charging her in Count
One with a “scheme and artifice to defraud” her in-laws of
$2,290.53, and not as charging her with one instance of wire
fraud that was part of a broader “scheme and artifice to
defraud” her in-laws of over $950,000. However, such an
interpretation is inconsistent with the language of the
Information. In Count One, the Government “re-alleges and
incorporates by reference” the first eight paragraphs, which
allege that, over five years, Ku defrauded her in-laws of more
than $950,000 by transferring funds from their accounts to her
own accounts, withdrawing funds as cash, making payments to
credit card companies for charges she incurred, and writing and
cashing checks payable to herself. (App. 588–90). The explicit
incorporation of those paragraphs into the count to which Ku
pleaded guilty supports an interpretation of the count itself as
describing Ku’s “scheme and artifice to defraud” her in-laws
of more than $950,000.

13
 We are similarly unpersuaded by Ku’s contention that,
because Paragraphs 1 through 8 of the Information describe
conduct that does not necessarily amount to wire fraud, such
conduct cannot count toward the total loss resulting from her
conviction. It is incontrovertible that the “scheme and artifice
to defraud” charged in Count One of the Information
encompassed the whole course of Ku’s unlawful conduct,
including the one incident in which Ku committed wire fraud
in the amount of $2,390.53, and which resulted in a total loss
of over $950,000. In short, because Ku pleaded guilty to
committing wire fraud as part of a scheme to defraud her in-
laws of more than $950,000, the total loss amount is, to use our
language from Fan Wang, “undeniably tethered” to her wire
fraud conviction.

3.

Finally, Ku contends that the single-count Information
to which she pleaded guilty is part of the “justice package”
worked out between her and the Government and urges the
Court to defer to that agreement. (Petitioner’s Br. at 35). In
doing so, Ku relies on our opinion in Alaka v. Attorney
General, 456 F.3d 88 (3d Cir. 2006). However, the facts of
this case make it distinguishable from Alaka.

In Alaka—which we decided prior to Nijhawan5—we
held that the IJ erred by considering the amount of intended

5
Because Alaka was decided prior to the Supreme
Court’s decision in Nijhawan, its application of the modified
categorical approach to the aggravated-felony analysis does
not affect our decision. However, to the extent that Alaka
stands for the proposition that an IJ may not consider dismissed

14
loss for all of the charges against the petitioner rather than the
single count for which she was convicted. Alaka, 456 F.3d at
106. The petitioner had been indicted on three counts for
conduct involving fraudulent checks, but was convicted of only
one count, for which the actual loss was $4,716.68. Id. at 92.
The sentencing court nonetheless held that the petitioner’s
conduct was part of a “common scheme or plan,” and therefore
found the total intended loss to be nearly $50,000. Id. It
ordered her to pay $4,716.68 in restitution. Id. In subsequent
immigration proceedings, the IJ concluded that the petitioner
had been convicted of an aggravated felony on the ground that
the intended loss was more than $10,000. Id. at 105, n.27. On
appeal, we determined that, while the IJ properly considered
the factual findings of the sentencing report in determining
whether the offense was an aggravated felony, the loss amount
tied to the dismissed charges was not properly considered as
part of the aggravated-felony analysis. Id. at 106–08. In doing
so, we noted that “the plain and unambiguous language of the
statute . . . predicates removal on a convicted offense resulting
in losses greater than $10,000,” thereby foreclosing inclusion
of losses stemming from unconvicted offenses. Id. 106–07
(citations omitted). Furthermore, we considered that, because
it is “the plea agreement that establishes the offense for which
the defendant will be convicted, it is to that agreement, and not
the indictment or the sentence, that we look in determining the
intended loss.” Id. at 107. The petitioner “unmistakably pled
guilty to one count, and the plea agreement plainly documented
that loss at less than $10,000.” Id. at 108 (citations and
alterations omitted). Because the plea agreement “spell[ed] it
out for us in black and white,” we concluded that the plea

charges when calculating the loss attributable to the conviction,
it remains good law.

15
agreement alone established the loss amount, and “not . . . the
loss charged in the indictment, tabulated for restitution
purposes, or calculated for sentencing.” Id. (citations omitted).

Here, in stark contrast to the petitioner in Alaka, the
record before us contains no plea agreement, and certainly not
one which explicitly spells out the loss amount to which Ku
pleaded guilty. Instead, Ku urges us to find that, based on the
fact that the Government could have charged her with a much
longer list of crimes but did not, the loss amount as indicated
in Count One was part of an explicit bargain between her and
the Government. However, this argument is based on pure
conjecture. Absent a clear and unmistakable indication of loss
in a written plea agreement, we are left with only the
Information, Judgment, and Restitution Order to determine the
loss attributable to Ku’s conviction. As explained above, these
documents, taken together, provide clear and convincing
evidence that the loss amount attributable to Ku’s wire fraud
conviction exceeded $10,000, and Ku has provided no plea
agreement or any other document to the contrary.6

6
The sentencing court in Alaka calculated the total loss
amount based on the “common scheme or plan,” which, it
considered, included both the count of conviction and the
dismissed counts, and we considered the IJ’s reliance on that
calculation to be in error in light of the plea agreement. 456
F.3d at 106. But this does not help Ku. As explained above,
the wire fraud count to which Ku pleaded guilty was based in
part on her “scheme and artifice to defraud” her in-laws of over
$950,000. (App. 590). Unlike the sentencing court in Alaka,
the sentencing court in this case did not base its loss calculation
on any acts that were not explicitly incorporated into the count
of conviction.

16
 Ku’s argument that this Court should respect the
“justice package” between her and the Government also
touches on the Supreme Court’s landmark holdings in Padilla
v. Kentucky, 559 U.S. 356 (2010), and Descamps v. United
States, 570 U.S. 254 (2013), both of which, she argues, counsel
toward respecting agreements between criminal defendants
and the Government with respect to the collateral
consequences of a conviction. But this line of argument merely
highlights another critical shortcoming of Ku’s case. To the
extent Ku argues that the Information was designed
specifically to avoid immigration consequences, there is no
evidence in the record to support such a finding. Indeed, Ku’s
attorney indicated in her sentencing memorandum that Ku “is
now subject to automatic deportation as a result of her
conviction in this case.” (App. 740). This statement, while not
conclusive, certainly undermines any assertion that the “justice
package” referred to by Ku was designed to avoid an
aggravated felony conviction. Indeed, absent any other
evidence in the record to the contrary, the sentencing
memorandum supports a finding that, at the time of her guilty
plea, Ku understood that she was pleading guilty to an
aggravated felony.

B.

Having concluded that the Board did not err in finding
that Ku was convicted of an aggravated felony, we turn to the
question of whether Ku’s conviction constituted a “crime
involving moral turpitude” under the INA. Ku argues that wire
fraud is not a “crime involving moral turpitude” under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) because it does not include as an element
the specific intent to defraud. This is incorrect.

17
 The statute provides that a person is guilty of wire fraud
if, “having devised or intending to devise any scheme or
artifice to defraud,” that person “transmits or causes to be
transmitted by means of wire, radio, or television
communication in interstate or foreign commerce, any
writings, signs, signals, pictures, or sounds for the purpose of
executing such scheme or artifice.” 18 U.S.C. § 1343. Courts
have long treated fraud crimes as “involving moral turpitude.”
Jordan v. De George, 341 U.S. 223, 232 (1951) (“[T]he
decided cases make it plain that crimes in which fraud was an
ingredient have always been regarded as involving moral
turpitude.”); Singh v. Att’y Gen., 807 F.3d 547, 550 (3d Cir.
2015) (“Crimes . . . involving allegations of dishonesty or fraud
fall well within the recognized definition of ‘crimes involving
moral turpitude.’”). Furthermore, we have also consistently
read the wire fraud statute as containing the element of specific
intent. See, e.g., United States v. Andrews, 681 F.3d 509, 518
(3d Cir. 2012) (“To prove wire fraud, the Government must
establish (1) the defendant’s knowing and willful participation
in a scheme or artifice to defraud, (2) with the specific intent to
defraud, and (3) the use of . . . interstate wire communications
in furtherance of the scheme.”) (internal quotation marks
omitted) (emphasis added).

Seeking to persuade us to revisit these tenets, Ku asks
us to read the statutory terms “having devised” and “intending
to devise” as disjunctive means of committing wire fraud, the
latter containing the mens rea of intent, and the former
eschewing any mens rea at all. But the language of the statute
does not lend itself to such an interpretation. The specific
intent requirement is contained in the latter part of the statute—
“for the purpose of executing [a] scheme or artifice [to
defraud]”—and must be proved regardless of whether the

18
person made the transmission after “having devised” or while
“intending to devise” the scheme to defraud. 18 U.S.C. § 1343.
Plainly read, the language Ku seizes on, “having devised or
intending to devise,” refers not to the requisite mens rea but to
the temporal relationship between the formation of the fraud
scheme and the transmission itself. Either way, the person
must have made the transmission for the purpose of executing
the fraud scheme in order to be convicted.

Ku’s statutory interpretation argument holds no weight.
Accordingly, we see no need to revisit the long-held tenet that
fraud crimes—including wire fraud—are crimes involving
moral turpitude under the INA.

C.

Finally, Ku asks us to find that the Board committed
error in its reversal of the IJ’s finding that she was eligible for
a discretionary waiver of inadmissibility based on the hardship
her deportation would cause her U.S. citizen children.
However, we lack jurisdiction over the Board’s decision on
this point.

The INA provides that an alien is inadmissible to the
United States if she has been convicted of a crime involving
moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). The Act also
provides, however, that the Attorney General may waive
inadmissibility to allow an applicant to obtain adjustment of
status under § 1182(h), “if the alien is a spouse, parent, or child
of a United States citizen . . . and can show that denial of
admission would cause extreme hardship to the citizen . . . .”
De Leon–Reynoso v. Ashcroft, 293 F.3d 633, 637 (3d Cir.
2002). The authority to waive one or more grounds of
inadmissibility is vested solely in the Attorney General and “no

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court shall have jurisdiction to review” a decision to deny such
a request. 8 U.S.C. § 1252(a)(2)(B)(i).

We may, however, review “constitutional claims or
questions of law raised upon a petition for review . . . .” Id. at
§ 1252(a)(2)(D). Our jurisdiction in that respect is “narrowly
circumscribed” in that it is limited to “colorable claims or
questions of law.” Cospito v. Att’y Gen., 539 F.3d 166, 170 (3d
Cir. 2008) (per curiam) (quotation marks and citation omitted).
While “[t]he question of our jurisdiction over a colorable legal
claim does not turn on whether that claim is ultimately
meritorious . . . , a party may not dress up a claim with legal
clothing to invoke this Court's jurisdiction.” Pareja v. Att’y
Gen., 615 F.3d 180, 187 (3d Cir. 2010) (citations omitted).

Ku argues that we have jurisdiction to consider her
petition for review on the waiver issue because it presents a
question of law, namely whether the Board applied the proper
legal standard in making the discretionary determination. But
Ku’s argument boils down to her contention that the Board
failed to consider certain equities relevant to the hardship
determination. As we have consistently held, “arguments such
as that an Immigration Judge or the BIA incorrectly weighed
evidence, failed to consider evidence or improperly weighed
equitable factors are not questions of law under
§ 1252(a)(2)(D).” Jarbough v. Att’y Gen., 483 F.3d 184, 189
(3d Cir. 2007). Because the substance of Ku’s petition for
review amounts to contesting the weight the Board should have
given to the positive equities of her case, we do not have
jurisdiction over it and will dismiss in part that aspect of the
petition.

IV.

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 For the foregoing reasons, we will deny in part and
dismiss in part Ku's petition for review, and we will deny as
moot the Government's motion to remand.

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