Doe v. Sessions

15-2026 (L)
Doe v. Sessions
BIA
Mulligan, IJ
A047 137 723
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.

At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
27th day of September, two thousand seventeen.

PRESENT:
REENA RAGGI,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________

JOHN DOE,
Petitioner,

v. 15-2026(L),
16-58(Con)
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________

FOR PETITIONER: Nancy Morawetz, Supervising
Attorney; Juliana Morgan-Trostle,
Andrea Savdie, Allison Wilson, Rhiya
Trivedi, Student Interns,
Washington Square Legal Services,
 Inc., New York, New York.

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Mary
Jane Candaux, Assistant Director;
Jeremy M. Bylund, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, DC.

UPON DUE CONSIDERATION of these petitions for review of

Board of Immigration Appeals (“BIA”) decisions, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petitions for review

are DENIED in part and DISMISSED in part.

Petitioner John Doe, a native and citizen of the Dominican

Republic, seeks review of a June 18, 2015 decision of the BIA

affirming a December 29, 2014 decision of an Immigration Judge

(“IJ”) denying Doe’s application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). In re John Doe, No. A047-137-723 (B.I.A. June 18,

2015), aff’g No. A047-137-723 (Immig. Ct. N.Y.C. Dec. 29,

2014).1 Doe also seeks review of a December 9, 2015 decision

of the BIA denying his motion to reconsider. In re John Doe,

1
We previously granted the petitioner’s motion to proceed in
our court under a pseudonym. Citations to the agency’s
decisions have been modified to reflect that pseudonym.

2
No. A047-137-723 (B.I.A. Dec. 9, 2015). We assume the parties’

familiarity with the facts and record of prior proceedings,

which we reference only as necessary to explain our decision

to deny in part and dismiss in part.

Because the agency ordered Doe removed for having been

convicted of an aggravated felony fraud offense (a fraud offense

in which the loss to the victims exceeded $10,000, see 8 U.S.C.

§ 1101(a)(43)(M)(i)), our “appellate jurisdiction is limited

to review of constitutional claims and questions of law.”

Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015); see also

8 U.S.C. § 1252(a)(2)(C), (D).

1. Aggravated Felony Determination

Doe was ordered removed based on his conviction, following

a guilty plea, for conspiracy to commit wire fraud and identity

theft in connection with a cellphone “cloning” scheme. Doe

here disputes that his conviction was for an aggravated felony,

arguing that the agency erred in finding that his fraud caused

losses in excess of $10,000.

Whether a crime qualifies as an aggravated felony is a

question of law that we review de novo. See Vargas-Sarmiento

3
v. U.S. Dep’t of Justice, 448 F.3d 159, 164-65 (2d Cir. 2006);

see also Ortiz-Franco v. Holder, 782 F.3d at 86 (holding that

appellate jurisdiction to review removal orders is limited to

constitutional claims and questions of law). Embedded within

the legal determination that Doe committed an aggravated felony

fraud offense is the agency’s finding that he caused more than

$10,000 in victim losses. We have jurisdiction to review that

factual finding because it determines whether the

jurisdictional bar applies. See Kuhali v. Reno, 266 F.3d 93,

100-01 (2d Cir. 2001). Because the Government has the burden

of proving victim losses by clear and convincing evidence, see

8 C.F.R. § 1240.8(a), we review the agency’s loss-amount

finding with a standard “more demanding” than substantial

evidence: to grant the petition, we “must find that any rational

trier of fact would be compelled to conclude that the proof did

not rise to the level of clear and convincing evidence.”

Francis v. Gonzales, 442 F.3d 131, 138-39 (2d Cir. 2006). That

is not this case.

The Supreme Court has construed the loss-amount clause in

8 U.S.C. § 1101(a)(43)(M)(i) to call for “a

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‘circumstance-specific,’ not a ‘categorical,’

interpretation.” Nijhawan v. Holder, 557 U.S. 29, 36 (2009).

In short, the $10,000 “monetary threshold applies to the

specific circumstances surrounding an offender’s commission of

a fraud and deceit crime on a specific occasion.” Id. at 40.

In Nijhawan, the agency relied on the petitioner’s “own

stipulation, produced for sentencing purposes,” and the

sentencing court’s restitution order to find the requisite loss

amount. Id. at 42-43. The Supreme Court held that, “[i]n the

absence of any conflicting evidence (and petitioner mentions

none), this evidence is clear and convincing.” Id. at 43.

The agency’s finding against Doe rested on two documents:

the indictment and the judgment of conviction. The indictment

charged Doe and his co-defendants with a conspiracy to commit

wire fraud that included two overt acts whereby the defendants

distributed cellphone identifiers used to make a total of

$108,301 in unauthorized calls. The Government argues that

losses in a cellphone cloning conspiracy are “the amount that

the defrauded telephone companies would have been paid if the

calls had been made legitimately,” Resp’t’s Br. 25 (quoting

5
United States v. Pervaz, 118 F.3d 1, 10 (1st Cir. 1997)), and

thus Doe, as a member of the conspiracy, is liable for more than

$100,000 in foreseeable losses. See Pinkerton v. United

States, 328 U.S. 640, 647 (1946).

In urging otherwise, Doe responds that the loss figures in

the indictment were never proved at trial, and that those

figures reflect the price phone companies charged to consumers,

not the much lower cost of processing the calls, so that the

indictment vastly overstates the phone company victims’ losses.

The second document relied on by the agency is the judgment

of conviction, which ordered restitution of $11,115.12. The

sentencing court also entered a forfeiture order in the amount

of $11,115.12. Doe alleges that the judgment was erroneous in

referencing “restitution”; it should have said “forfeiture.”

He argues that the distinction is dispositive here because while

“restitution . . . is intended to makes victims whole,”

“forfeiture is based on the offender’s gain.” Pet’r’s Br. 18.

In any event, Doe argues that restitution ordered pursuant to

a plea agreement is insufficient to meet the government’s burden

of showing loss because the parties can agree to compensate

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losses beyond those caused by the crime of conviction. See

Singh v. Attorney General, 677 F.3d 503 (3d Cir. 2012). Singh

is distinguishable in two respects. First, Doe’s plea colloquy

shows that the sentencing court did not order restitution based

on Doe’s plea agreement. Second, in Singh, there were

“undisputed facts in the sentencing material that undermine[d]

the restitution order’s reliability as a measure of actual

loss,” including the prosecutor’s statement that the victim did

not suffer any losses as a result of Singh’s fraud. Id. at

515-18.

By contrast, Doe points to no “conflicting evidence” that

undermines the agency’s reliance on the judgment’s restitution

order to find loss. Nijhawan v. Holder, 557 U.S. at 43. The

question is not whether the Government could have introduced

more evidence of loss, e.g., Doe’s pre-sentence report

(calculating loss for purposes of both the Sentencing

Guidelines and restitution) or sentencing transcript. We ask

only “whether the record would compel any rational factfinder

to conclude that the Government’s burden of proof was not

satisfied,” Centurion v. Holder, 755 F.3d 115, 120 (2d Cir.

7
2014) (internal quotation marks omitted), and conclude that it

would not.2

2. Particularly Serious Crime Determination

Doe challenges the agency’s determination that his crimes

of conviction were particularly serious so as to bar him from

receiving withholding of removal. See 8 U.S.C.

§ 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2).

Where, as here, the crime is not per se particularly serious

because the alien was not sentenced to an aggregate prison term

of at least five years, see 8 U.S.C. § 1231(b)(3)(B), the agency

“examine[s] the nature of the conviction, the type of sentence

imposed, and the circumstances and underlying facts of the

conviction,” In re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A.

2007); see also Nethagani v. Mukasey, 532 F.3d 150, 154 n.1,

155 (2d Cir. 2008).

Doe charges the IJ with speculating that the cellphone

cloning scheme “surely caused significant stress” to the people

2
As the Supreme Court observed in Nijhawan, the time for the
petitioner to develop evidence to challenge the judgment and
restitution order was in the criminal action or at the
deportation hearing. See Nijhawan v. Holder, 557 U.S. at 42.

8
whose numbers had been stolen, Pet’r’s Br. 40, and with failing

to consider the nature of his crime and relevant mitigating

factors. These are disputes with the agency’s weighing of

facts, which are beyond our jurisdiction. See 8 U.S.C.

§ 1252(a)(2)(C), (D); Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315, 329 (2d Cir. 2006) (stating that, when assessing

jurisdiction, we must “study the arguments asserted” to

“determine, regardless of the rhetoric employed in the

petition, whether it merely quarrels over the correctness of

the factual findings” or raises true question of law).

Doe reads several BIA decisions to suggest that a

particularly serious crime must have violence as an element or

a connection to physical harm. He contends as well that BIA

precedent has effectively erased the dangerousness requirement

of the particularly serious crime bar, violating the principle

of non-refoulement. Neither of these arguments is persuasive.

As the Government notes, the BIA has found various fraud crimes

to be particularly serious. See, e.g., Arbid v. Holder, 700

F.3d 379, 382 (9th Cir. 2012). Moreover, Doe’s argument

regarding dangerousness is foreclosed by Flores v. Holder, 779

9
F.3d 159, 167 (2d Cir. 2015); see also In re N-A-M-, 24 I. &

N. Dec. at 342 (stating that BIA “no longer engage[s] in a

separate determination to address whether the alien is a danger

to the community”). In any event, the BIA separately found that

identity theft poses a serious danger to society.

Here, the agency hewed to the relevant factors by analyzing

Doe’s crimes, their impact on victims, and his 28-month sentence

before determining that they were particularly serious.

Nothing more was required. See Nethagani v. Mukasey, 532 F.3d

at 155 (holding that, where the BIA addressed relevant factors,

it “properly applied its own precedent in determining that

Nethagani had been convicted of a particularly serious crime”).

3. CAT Relief

In challenging the denial of CAT relief, Doe argues that

the BIA erroneously added a time limitation to the CAT when it

cited the lack of any threats since 2012, and also failed to

consider all the record evidence, including documentation of

the Dominican government’s acquiescence to torture. These

arguments go to the agency’s weighing of the facts, which is

beyond our jurisdiction. See Xiao Ji Chen v. U.S. Dep’t of

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Justice, 471 F.3d at 329.

Doe also faults the BIA for failing to explain why it was

reasonable for the IJ to expect certain factual corroboration.

As the Government correctly notes, Doe failed to exhaust this

argument on appeal to the BIA, and so we decline to consider

it. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 121-22

(2d Cir. 2007).

4. Consolidated Petition: Motion for Reconsideration

Doe’s consolidated petition challenges the denial of his

motion for reconsideration, which targeted various aspects of

the loss-amount finding. As we have rejected the challenge to

that finding, we conclude that the agency did not abuse its

discretion in denying reconsideration. See Jin Ming Liu v.

Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (“The BIA’s denial

of a motion to reconsider is reviewed for abuse of

discretion.”).

For the foregoing reasons, the petitions for review are

DENIED in part and DISMISSED in part.

FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court

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