NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0108n.06
Filed: February 20, 2008
06-4538
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NICHOLAS ANTONIO GRAHAM, )
)
Petitioner, )
) ON PETITION FOR REVIEW OF
v. ) A FINAL ORDER OF THE BUREAU
) OF IMMIGRATION APPEALS
MICHAEL MUKASEY, Attorney General of )
the United States, )
)
Before: MERRITT, DAUGHTREY, and MOORE, Circuit Judges.
PER CURIAM. Petitioner Nicholas Antonio Graham is a citizen of Jamaica who
entered the United States as a visitor, overstayed his visa, and was subsequently convicted
in federal court on two counts of conspiracy to commit mail fraud. He now petitions for
review of the final administrative order of removal based on his status as an alien convicted
of an aggravated felony, under 8 U.S.C. § 1227(a)(2)(A)(iii). Graham contends that the
expedited removal procedure to which he was subjected, pursuant to 8 U.S.C. § 1228(b),
violated both his due process and his equal protection rights. We find no merit to these
contentions and, therefore, deny the petition for review.
FACTUAL AND PROCEDURAL BACKGROUND
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Graham is a native and citizen of Jamaica who entered the United States on a
temporary visitor’s visa in March 1988 and remained in this country without ever obtaining
lawful permanent residence. In July 2004, Graham pleaded guilty in the United States
District Court for the Eastern District of New York to two counts of conspiracy to commit
mail fraud. Several other counts were dismissed upon motion of the United States. In
addition to a prison sentence of 41 months, Graham was ordered to pay restitution totaling
$878,235, to be distributed among three victims.
While Graham was incarcerated, Immigration and Customs Enforcement placed him
in expedited removal proceedings that are applicable to aliens who are not permanent legal
residents and who commit certain crimes. See 8 U.S.C. § 1228(b). On November 8, 2006,
Graham was served in person with an official notice of intent to remove based on his
conviction for an “aggravated felony,” pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).
“Aggravated felony” is defined in 8 U.S.C. § 1101(a)(43), in pertinent part, as an offense
that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.”
Conspiracy to commit such an offense also qualifies as an aggravated felony. See 8
U.S.C. §§ 1101(a)(43)(M)(i), (a)(43)(U). The notice informed Graham of his procedural
rights, including the right to be represented by counsel at his own expense. It also
indicated that Graham had a right to contest removal “with supporting evidence,” request
an opportunity to review the government’s evidence, admit deportability, designate the
country to which he would be removed, and apply for withholding of removal on certain
grounds listed in the notice. Finally, the notice informed Graham that any written response
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had to be received by the Immigration and Naturalization Service within 10 calendar days
from the date of personal service on Graham and that, for good cause, Graham could
request an extension of time in which to file a response within that same 10-day period.
The notice included a check-off list setting out these options but, instead of selecting
one or more of those options, Graham simply refused to sign the notice when it was served
on him on November 8, 2006. A week later, he apparently obtained counsel, who
contacted the INS by letter dated November 17, 2006, requesting an extension of time and
explaining that he had just been retained and had not yet received copies of the notice or
other relevant documents. Counsel also requested an opportunity to review the
government’s evidence. The INS received this letter on November 20, 2006, the day
Graham’s written response was due if sent by mail. But Graham’s attorney had called the
INS in the meantime and, although there is some dispute about the content of this
conversation, immigration officials were clearly left with the impression that Graham’s
attorney intended to defend against removal on the ground that Graham’s convictions did
not qualify as aggravated felonies. By letter dated November 20, the same day the written
request for an extension was received, the INS deportation officer in charge of Graham’s
case denied the extension, directing counsel to the statutory definition of “aggravated
felony” in § 1101(a)(43) and explaining that “[t]he loss to the victims in this case is a matter
of public record and is well over ten thousand dollars.” Also on November 20, the INS
issued a final administrative removal order.
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Graham filed a timely notice of appeal petitioning for review of the removal order,
arguing that various aspects of the expedited proceeding violated his due process rights
and that the Attorney General’s unfettered discretion to place him in either expedited or
general removal proceedings violated his right to equal protection.
DISCUSSION
Because the petitioner was ordered to be removed from the United States pursuant
to 8 U.S.C. § 1227(a)(2)(A)(iii) following his conviction for an aggravated felony, we are
foreclosed from review of the final order of removal under 8 U.S.C. § 1252(a)(2)(C), except
to the extent that “constitutional claims or questions of law” are raised in a challenge to the
final order. 8 U.S.C. § 1252(a)(2)(D). The government contends that we lack jurisdiction
to review the order of removal in this case because Graham did not challenge the order at
the agency level. Alternatively, the government argues that Graham has waived his right
to challenge the legal basis of the order of removal by failing to contest the legality of the
order before this court. Beyond those arguments, the government also contends that the
constitutional claims have no merit. We conclude that there is at least some evidence in
the record to support the first and second of these contentions and a solid legal basis to
support the third.
It is clear, for example, that when given the opportunity to raise a defense to
removal when the notice of intent was served personally on the petitioner, Graham not only
refused to sign the form but also failed to indicate on the list of options that he had any
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opposition to removal. Apparently the only objection raised at the agency level by his
attorney concerned Graham’s status as an “aggravated felon” under the immigration
statute. In this court, the objection concerns the process by which the petitioner’s removal
was secured rather than to the validity of the order itself.
As to the procedural due process appeal raised here, it is clear that “[e]ven if an
alien enters the United States illegally, he or she ‘may be expelled only after proceedings
conforming to traditional standards of fairness encompassed in due process of law.’”
Warner v. Ashcroft, 381 F.3d 534, 538 (6th Cir. 2004) (quoting Shaughnessy v. United
States ex. rel. Mezei, 345 U.S. 206, 212 (1953)). Graham contends that his expedited
deportation violated the traditional standards of fairness guaranteed by the due process
clause in various ways, such as: in failing to address the reasons given for his request for
an extension before denying it; in failing to allow examination of the government’s evidence
before issuing the final order; and in failing to provide him with the opportunity to rebut that
evidence in a hearing before an immigration judge. Instead, he contends, there was a
“rush to judgment” and his “right to counsel [was] swept under the rug.”
However, in order to prevail on a procedural due process challenge, Graham must
also show prejudice. Indeed, we need not address the merits of a claim if there is no
demonstration of prejudice. See id. at 539 & n. 1. Moreover, to establish the requisite
prejudice, he must show that the due process violations led to a substantially different
outcome from that which would have occurred in the absence of those violations. See
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Garza-Moreno v. Gonzales, 489 F.3d 239, 241-242 (6th Cir. 2007) (alien must show that
the absence of the due process violation “would have changed the outcome of the case.”).
Here, the only claim of prejudice came very late in the process – in the petitioner’s final
reply brief in this court, in which he asserted that “the record of conviction does not
establish the requisite amount of loss to the victim” of over $10,000 and, therefore, that his
convictions do not qualify as aggravated felonies.
This argument is completely unsupported by “the record of conviction.” It is true that
the notice of intent served on Graham does not indicate on its face that the losses resulting
from his mail fraud offenses totaled more than $10,000. However, the certified copy of the
judgment of conviction entered against him includes an order of restitution to three
separate victims that totals $878,235. Moreover, his reliance on the Ninth Circuit’s
decision in Chang v. I.N.S., 307 F.3d 1185 (9th Cir. 2002), to support his contention that
the mere recitation of the amount of restitution is insufficient to establish losses over
$10,000 is wholly misplaced, because Chang’s situation is factually distinguishable from
Graham’s.
In Chang, the petitioner had executed an agreement with the government that
permitted him to plead guilty to one count of bank fraud in return for the government’s
dismissal of the remaining 13 counts in the indictment. See Chang, 307 F.3d at 1187-88.
The plea agreement provided that “[t]he defendant and the United States agree that the
offense in Count Seven to which the defendant is pleading guilty involves a loss to the
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victim of $605.30.” Id. at 1187. As part of the plea bargain, however, the defendant also
agreed to pay restitution in excess of the specific loss caused by the conduct to which he
pled guilty, specifically $32,628.67. See id. at 1187-88. Thereafter, the INS initiated
removal proceedings against Chang, who was a native of South Korea, arguing that he
was removable as an alien convicted of an aggravated felony. See id. at 1188. The
immigration judge and in turn the BIA relied upon facts in his pre-sentence report to find
that Chang’s conduct caused a loss of over $10,000. See id. The Ninth Circuit reversed,
holding that to ignore the limiting language in the plea agreement would effectively nullify
the requirement in the immigration statute that the $10,000 loss be tied to the alien’s
conviction. See id. at 1191.
In so holding, the Chang court distinguished Khalayleh v. I.N.S., 287 F.3d 978 (10th
Cir. 2002), a case in which the petitioner had pleaded guilty to one count of passing a bad
check in the amount of $9,308, but the INS nonetheless used losses from other bad
checks to allege that more than $10,000 in losses had occurred. See Chang, 307 F.3d at
1191. The Tenth Circuit affirmed, explaining that the count to which the petitioner had
pleaded guilty did not allege a discrete fraud but, rather, a scheme to defraud that
encompassed a number of checks and, therefore, that the loss tied to the count of
conviction was the loss from the entire scheme. See Khalayleh, 287 F.3d at 980. The
Chang court also explained that it was concerned about the “sandbagging of . . . non-
citizen criminal defendants,” i.e., that “[u]nwitting alien defendants might choose to plead
guilty to only a minor charge (one that clearly wouldn’t count as an aggravated felony) . .
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. [but] the INS could later rely on information relating to a more serious charge and effect
the defendant’s removal even though the defendant would have thought justifiably that his
agreement with the government to plead guilty to only a minor charge foreclosed any such
efforts by the INS.” Chang, 307 F.3d at 1192 & n.3.
Graham has not even alleged, let alone provided documentation, that he was a
party to a plea agreement that limited the loss caused by his convictions to less than the
restitution amount or that the government is otherwise attempting to “sandbag” him with
removal despite a prior agreement to the contrary. Without such limiting language or any
other substantiated claim by Graham that the losses to his victims were less than $10,000,
we are left to conclude that the restitution ordered in the sentencing order was either
specifically tied to the counts of conviction or, as in Khalayleh, was the aggregate of loss
from a “plan or scheme” alleged in the counts of conviction, both of which charged a
conspiracy. Chang is not controlling, and we are satisfied that the record establishes
losses to Graham’s victims well above the $10,000 minimum for purposes of finding that
he was convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43). Consequently,
Graham has failed to demonstrate the requisite prejudice necessary to sustain his due
process claim.
Nor do we find any merit to the petitioner’s claim that his right to equal protection
was violated by the expedited removal process used in his case. Pursuant to the statutory
scheme for removal of non-permanent resident aliens convicted of aggravated felonies,
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the Attorney General has the discretion to place the alien in expedited proceedings, as
Graham was, or in general removal proceedings. See 8 U.S.C. § 1228(b) (expedited); 8
U.S.C. § 1229a (general). As the terminology suggests, expedited removal proceedings
are conducted more quickly and with less formal procedure than general removal
proceedings, and aliens placed in expedited proceedings are not eligible for certain types
of discretionary relief available to those placed in general proceedings. See Flores-
Ledezma v. Gonzales, 415 F.3d 375, 379 (5th Cir. 2005) (explaining the differences
between the two procedures).
The petitioner argues that the Attorney General’s “unfettered discretion to choose
between expedited removal procedure . . . and the general removal procedure . . . to
effectuate the removal of an alien who is not a lawful permanent resident” violates the
equal protection component of the Fifth Amendment’s due process clause because the
government has provided no standards governing the exercise of this discretion. However,
the petitioner concedes, as he must, that because no suspect class is involved, rational
basis scrutiny applies to this claim. Of course, “[r]ational basis review begins with a strong
presumption of constitutional validity,” and “[i]t is Petitioner’s burden to show that the law,
as-applied, is arbitrary; and not the government’s to establish rationality.” Malagon de
Fuentes v. Gonzales, 462 F.3d 498, 504 (5th Cir. 2006) (internal citations and quotation
marks omitted). Moreover, “[u]nder rational basis review, differential treatment must be
upheld against equal protection challenge if there is any reasonably conceivable state of
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facts that could provide a rational basis for the classification.” Id. (Internal citations and
quotation marks omitted).
Significantly, in this case the petitioner himself offers a rational basis for the
expedited process, noting in his appellate brief that “the decision seemingly depends
solely on how confident the ICE adjudicator is that [an] ‘aggravated felony’ has been
committed.” Just so. An adjudicator’s assessment that a case is simple as opposed to
complex is certainly a rational basis upon which to adopt expedited proceedings in
preference to general proceedings, especially when considered in conjunction with
Congress’s purpose in passing 8 U.S.C. § 1228(b), i.e., “to expedite the removal of criminal
aliens” who are not lawful permanent residents, along with the administrative constraints
of providing all such aliens with full hearings. See United States v. Hernandez-Vermudez,
356 F.3d 1011, 1014 (9th Cir. 2004) (discussing the legislative history of 8 U.S.C. §
1228(b)). Given the utterly straightforward nature of the government’s case against the
petitioner, and the obvious rationality of the decision to proceed with expedition in his
removal, we find no violation of Graham’s right to equal protection on this record.
In finding no intrinsic equal protection violation in the expedited removal procedure
authorized by § 1228(b), we join at least three of our sister circuits that have addressed this
same issue in circumstances very similar to the ones now before us and have reached the
same conclusion. See United States v. Calderon-Segura, ___ F.3d ___, 2008 WL 80705
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(9th Cir., Jan. 9, 2008); Gonzales v. Chertoff, 454 F.3d 813, 818 (8th Cir. 2006); Flores-
Ledezma, 415 F.3d at 381-82.
CONCLUSION
For the reasons set out above, we DENY review of the final order of removal in this
case.
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Combined Opinion