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.
-5-
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.
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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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