IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 29, 2008
No. 06-61056 Charles R. Fulbruge III
Clerk
TARUN HASMUKHLAI PATEL
Petitioner
v.
MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
This case involves an issue of first impression: whether a misprision of a
felony offense involving a loss to the victim that exceeds $10,000 constitutes an
“aggravated felony” as defined in 8 U.S.C. § 1101(a)(43)(M)(i). For the following
reasons, we hold that it does. We, therefore, deny the petition for review.
I. BACKGROUND FACTS
Tarun Hasmukhlai Patel, a native and citizen of India, entered the United
States on October 21, 1994 without inspection. On October 27, 1995, he filed
applications for asylum and withholding of deportation.1 On December 19, 1995,
the former Immigration and Naturalization Service (“INS”), now the Department
1
He subsequently withdrew these applications.
No. 06-61056
of Homeland Security (“DHS”), served him with a notice, charging that he was
removable as an alien who had entered the United States without inspection.
He failed to appear at the scheduled hearing and the Immigration Judge (“IJ”)
ordered him removed in absentia. He then filed a motion to reopen the
deportation proceeding and rescind the deportation order. The IJ granted the
motion. On October 7, 1999, Patel appeared before the IJ, conceded
deportability on the basis that he had entered the United States without
inspection, and requested time to supplement his asylum application. The IJ
found him removable as charged and continued the deportation proceeding.
Meanwhile, Patel was seeking a family-sponsored visa petition based on
his then-recent marriage to a lawful permanent resident of the United States.
The IJ continued the deportation proceeding to allow the INS to evaluate the
petition. On April 2, 2002, the INS approved the petition and on September 20,
2002, Patel filed an application for adjustment of status based on his newly-
obtained visa. On January 10, 2003, however, the DHS and Patel jointly moved
to administratively close the deportation proceeding because Patel was in federal
custody for a criminal charge of bank fraud in violation of 18 U.S.C. § 1344. The
IJ granted the motion. On April 29, 2004, Patel was convicted of misprision of
a felony in violation of 18 U.S.C. § 4, sentenced to eight months of imprisonment,
and ordered to pay restitution.
On August 13, 2004, the DHS served Patel with another notice, charging
that based on his conviction, he was also removable as an alien who had been
convicted of an aggravated felony. The IJ held a hearing, agreed that Patel was
removable for having committed an aggravated felony, and ordered him deported
to India.2 The BIA affirmed and Patel filed a timely petition for review.
II. JURISDICTION AND STANDARD OF REVIEW
2
The IJ also denied Patel’s applications for adjustment of status and waiver of
inadmissibility. Patel does not appeal those rulings and they are not before us.
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Because the question of whether an offense constitutes an aggravated
felony is a purely legal one, we have jurisdiction to review Patel’s petition. See
Larin-Ulloa v. Gonzales, 462 F.3d 456, 460-61 & n.7 (5th Cir. 2006). Although
we owe deference to the BIA’s interpretation of the Immigration and Nationality
Act (“INA”), in accordance with the principles of Chevron USA, Inc. v. NRDC,
467 U.S. 837 (1984), we review de novo whether an offense constitutes an
aggravated felony. Id. at 461 & n.8.
III. ANALYSIS
The issue on appeal is whether the instant misprision of a felony offense
constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i), which
defines an “aggravated felony” to include “an offense that involves fraud or deceit
in which the loss to the victim or victims exceeds $10,000.” The first inquiry is
whether a misprision of a felony offense involves fraud or deceit. This court has
recognized that “[w]hether an offense ‘involves’ fraud [or deceit] is a broader
question than whether it constitutes fraud [or deceit].” See Omari v. Gonzales,
419 F.3d 303, 309 n.11 (5th Cir. 2005). Thus, when an aggravated felony
provision uses “involves” language, we focus on whether violation of the statute
“necessarily entails” the involved behavior. Id. at 307 (citing United States v.
Montgomery, 402 F.3d 482, 486-88 (5th Cir. 2005)). “Fraud” and “deceit” retain
their commonly understood legal meanings. James v. Gonzales, 464 F.3d 505,
508 (5th Cir. 2006) (citing Omari, 419 F.3d at 307). Black’s Law Dictionary
defines “fraud” as “a knowing misrepresentation of the truth or concealment of
a material fact to induce another to act to his or her detriment,” and “deceit” as
“the act of intentionally giving a false impression.” Black’s Law Dictionary 413,
670 (7th ed. 1999).
We first note that the IJ and the BIA both erred in going beyond the
statutory definition of misprision of a felony and focusing on the record of
conviction to determine whether this offense necessarily entails fraud or deceit.
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This court employs a categorical approach to determine whether an offense
necessarily entails fraud or deceit. See Martinez v. Mukasey, 508 F.3d 255, 258
(5th Cir. 2007); Omari, 419 F.3d at 307. Under this approach, “we refer only to
the statutory definition of the crime for which the alien was convicted (rather
than attempt to reconstruct the concrete facts of the actual criminal offense) and
ask whether that legislatively-defined offense necessarily fits within the INA
definition of an aggravated felony.” Larin-Ulloa, 462 F.3d at 463 (emphasis
added). The purpose of the categorical approach is to avoid “the practical
difficulties and fairness problems that would arise if courts were permitted to
consider the facts behind prior convictions. . . . [which] would potentially require
federal courts to relitigate a defendant’s prior conviction in any case where the
government alleged that the defendant’s actual conduct fit the definition of a
predicate offense.” Id. (citing Taylor v. United States, 495 U.S. 575, 601 (1990)).
Although this court recognizes a narrow exception to the categorical
approach that permits reference to the record of conviction, it is inapplicable in
this case because the federal misprision statute does not contain disjunctive
elements or divisible subsections creating multiple offenses. See James, 464
F.3d at 508 n.16 & n.21 (stating that exception applies when statute is divisible
into discrete subsections); Omari, 419 F.3d at 308 (same); Smalley v. Ashcroft,
354 F.3d 332, 336 (5th Cir. 2003) (same); see also Calderon-Pena, 383 F.3d 254,
258 (5th Cir. 2004) (en banc) (stating that exception applies when statute
provides list of alternative methods of commission). Moreover, unlike the federal
aiding and abetting statute involved in James, the federal misprision of a felony
statute defines a separate offense, distinct from the underlying felony. See
James, 464 F.3d at 510 n.24 (citing Londono-Gomez v. INS, 699 F.2d 475, 476
(9th Cir. 1983)). Thus, the fact that Patel was specifically indicted for misprision
of a bank fraud is irrelevant to our inquiry of whether the statutory definition
of the offense itself necessarily entails fraud or deceit.
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We now turn to the statutory definition in question, which provides:
Whoever, having knowledge of the actual commission of a felony
cognizable by a court of the United States, conceals and does not as
soon as possible make known the same to some judge or other
person in civil or military authority under the United States, shall
be fined under this title or imprisoned not more than three years, or
both.
18 U.S.C. § 4. This court has set forth the following elements for a misprision
of a felony conviction: (1) knowledge that a felony was committed; (2) failure to
notify the authorities of the felony; and (3) an affirmative step to conceal the
felony. See United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992). “[U]nder
the misprision statute, the defendant must commit an affirmative act to prevent
discovery of the earlier felony.” Id. “Mere failure to make known does not
suffice.” Id. at 508-09 (citation omitted). It is irrelevant whether at the time of
concealment the Government had knowledge of either the crime or the identity
of the perpetrator. Lancey v. United States, 356 F.2d 407, 409 (9th Cir. 1966).
The Government argues that the third element, an affirmative step to
conceal the felony, necessarily entails fraud or deceit. We agree. To be convicted
of a misprision of a felony offense, the defendant must commit some affirmative
act to prevent discovery of the earlier felony. Adams, 961 F.2d at 508. Such
conduct necessarily entails the act of intentionally giving a false impression, i.e.,
the false impression that the earlier felony never occurred. See Itani v. Ashcroft,
298 F.3d 1213, 1216 (11th Cir. 2002) (per curiam) (concluding that misprision
of a felony is a crime of moral turpitude because it necessarily involves dishonest
or fraudulent conduct). Thus, we agree that a misprision of felony offense
necessarily entails deceit, thereby satisfying the first prong of 8 U.S.C. §
1101(a)(43)(M)(i).
With respect to the second prong, whether the loss to the victim exceeds
$10,000, Patel does not dispute -- and during the IJ hearing, concedes -- that the
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amount in question exceeds $10,000. Instead, in the final paragraph of his brief,
he argues only that there is no evidence of any loss because he never spent the
money, which always remained in his bank account. Thus, his challenge goes
towards the initial order of restitution. However, whether there was an actual
loss sufficient to justify an order of restitution under 18 U.S.C. § 3664 is an issue
that should have been raised and argued before the sentencing court. See 18
U.S.C. § 3664(e) (noting that any dispute to the amount or type of restitution
shall be resolved by the sentencing court by the preponderance of the evidence).
Patel cannot now collaterally attack the validity of his restitution order during
these proceedings. See Rivera-Bottzeck v. Gonzales, 240 F. App’x 272, 276 (10th
Cir. 2007) (unpublished); see also Brown v. INS, 856 F.2d 728, 730 (5th Cir.
1986) (holding that petitioner may not collaterally attack legitimacy of his
conviction during removal proceedings). For our purposes, the fact remains that
Patel does not dispute -- and during the IJ hearing, concedes -- that he was
convicted of an offense and ordered to pay restitution to a victim in which the
amount of loss resulting from his conviction exceeds $10,000, thereby satisfying
the second prong of 8 U.S.C. § 1101(a)(43)(M)(i).
Because Patel was convicted of an offense that necessarily entails fraud
or deceit and involves a loss to the victim exceeding $10,000, the IJ and the BIA
did not err in concluding that Patel is removable for having committed an
aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i).
IV. CONCLUSION
For the foregoing reasons, we deny the petition for review.
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