ONYIDO

Interim Decision #3379

In re Basil Uzoma ONYIDO, Respondent

File A29 891 590 - El Paso

Decided March 4, 1999

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

An alien who was convicted of submitting a false claim with intent to defraud arising
from an unsuccessful scheme to obtain $15,000 from an insurance company was convicted of
an “attempt” to commit a fraud in which the loss to the victim exceeded $10,000 within the
meaning of section 101(a)(43)(U) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(U) (Supp. II 1996), and therefore is deportable under section 241(a)(2)(A)(iii) of
the Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), as an alien convicted of an aggravated felony.

Pro se

Robert S. Hough, Assistant District Counsel, for the Immigration and Naturalization Service

Before: Board En Banc: VACCA, HOLMES, HURWITZ, VILLAGELIU, FILPPU,
COLE, MATHON, JONES, GRANT, and SCIALABBA, Board Members.
Dissenting Opinion: HEILMAN, Board Member, joined by SCHMIDT, Chairman;
DUNNE, Vice Chairman; ROSENBERG and GUENDELSBERGER, Board
Members.

VILLAGELIU, Board Member:

In a decision dated August 8, 1997, the Immigration Judge found the
respondent deportable as charged under section 241(a)(2)(A)(iii) of the
Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994),
denied his motion to terminate proceedings, and ordered that he be deport-
ed to Nigeria. The respondent has appealed. The appeal will be dismissed.
The respondent’s motion to remand will be denied.1 The request for oral
argument before the Board is denied. See 8 C.F.R. § 3.1(e) (1998).

1
On January 26, 1998, the respondent filed a motion to reopen and reconsider with the
Immigration Judge. The motion was forwarded to the Board. Pursuant to 8 C.F.R. §§
3.2(b)(1) and (c)(4) (1998), the motion will be deemed a motion to remand.

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I. SUMMARY OF FACTS

The respondent entered the United States on June 14, 1986, as a non-
immigrant visitor. On January 20, 1993, the respondent’s status was adjust-
ed to that of a lawful permanent resident alien. On September 20, 1995, the
respondent was convicted pursuant to his plea of guilty in the Superior
Court of Hamilton County, Indiana, of the offense of submitting a false
claim with intent to defraud the Indiana Farmers Mutual Insurance
Company, in violation of section 35-43-5-4(10) of the Indiana Code. The
offense is a Class D felony for which the respondent received the maximum
penalty of 3 years’ confinement.
The offense arose out of a “slip and fall” in an Indiana convenience
store on February 2, 1993, after which the respondent submitted a false
medical bill to the insurance company in support of his claim. The respon-
dent initially sought $60,000 from the insurance company, but agreed to set-
tle for $15,000. He was arrested by law enforcement officers posing as
insurance company employees when he arrived at a meeting to sign a
release and collect the $15,000. Following his conviction, the respondent
was charged on December 27, 1996, with deportability under section
241(a)(2)(A)(iii) of the Act, as an aggravated felon. The Order To Show
Cause and Notice of Hearing (Form I-221) specifies that the respondent was
convicted of an aggravated felony as defined in section 101(a)(43) of the
Act, 8 U.S.C. § 1101(a)(43) (1994 & Supp. II 1996), “to wit: an offense that
involves fraud or deceit in which the loss or potential loss to the victim or
victims exceeds $10,000.” At the deportation hearing, the Immigration
Judge concluded that the respondent was deportable as an aggravated felon
under sections 101(a)(43)(M)(i) and (U) of the Act.

II. ISSUES

On appeal, the respondent contends that his conviction is not for an
aggravated felony, as defined under either section 101(a)(43)(M)(i) or (U)
of the Act because the insurance company did not suffer a loss in excess of
$10,000. He also contends that his conviction is not final because an appeal
is pending.

III. ANALYSIS

Section 101(a)(43)(M)(i) of the Act provides that the term “aggravated
felony” includes an offense that “involves fraud or deceit in which the loss
to the victim or victims exceeds $10,000.” Section 101(a)(43)(U) of the Act
provides that the term “aggravated felony” also includes “an attempt or con-

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spiracy to commit an offense described in [section 101(a)(43)].”
We agree with the Immigration Judge that the respondent is deportable
as an aggravated felon because he was convicted of an offense involving an
attempt to defraud $15,000 from the insurance company.2 We find that
under the Indiana statute in question an attempt to defraud is included with-
in the offense of which the respondent was convicted. The statute under
which the respondent was convicted provides that “a person who knowing-
ly and with intent to defraud, makes, utters, presents, or causes to be pre-
sented to an insurer, a claim statement that contains false, incomplete, or
misleading information concerning the claim . . . commits fraud, a Class D
Felony.” Ind. Code Ann. § 35-43-5-4(10) (West 1995) (see Appendix A).
The Indiana statute does not require proof that the insurer incurred a loss. It
encompasses both successful frauds and unsuccessful attempts to defraud
an insurance company.
Where a criminal charge of attempted fraud is alleged under Indiana
law, the State need only prove that a substantial step toward the commission
of the fraud occurred, along with the requisite intent to defraud. Houston v.
State, 528 N.E.2d 818 (Ind. Ct. App. 1988). The record of conviction
reflects that the respondent had initiated the paperwork necessary to com-
plete the fraud and was arrested after he arrived at a meeting to collect the
$15,000. Like the defendant in Houston v. State, supra, the respondent in
this case had not completed the transaction required to obtain the proceeds
of his crime when he was arrested while trying to flee from the undercover
police officers. The Indiana court in Houston v. State, supra, ruled that the
substantial step of presenting a stolen credit card belonging to someone else
for payment of a watch was a sufficient substantial step to support a con-
viction for attempted fraud even though the defendant did not actually sign
the credit card charge slip or receive the watch when the store security offi-
cer took possession of the credit card as stolen.
We disagree with the respondent’s contention that section
101(a)(43)(U) of the Act requires that the victim suffer an actual loss which
exceeds $10,000. By its very nature, an attempt involves an unsuccessful
effort to commit a crime. Wayne R. LaFave et al., Criminal Law § 6.2 (2d
ed. 1986). Here, the offense for which the respondent was convicted
involved an attempt to obtain $15,000 from the insurance company through
fraud and deceit. The respondent’s actions support a conviction for attempt-
ed fraud which is a lesser included offense within a conviction for fraud
under Indiana law. Houston v. State, supra. The fact that the respondent
failed to obtain the money is of no consequence under section
101(a)(43)(U) of the Act, which prescribes deportability as an aggravated

2
We note that the Immigration Judge incorrectly identified the amount of the respon-
dent’s Nigerian medical bill in dollars, rather than Nigerian Naira.

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felon for aliens convicted of an attempt or conspiracy to commit an offense
described in section 101(a)(43) of the Act. In view of this conclusion we
need not address at this time the Immigration Judge’s additional finding that
the respondent is also deportable as an aggravated felon under section
101(a)(43)(M)(i), as an alien convicted of a fraud or deceit in which the loss
to the victim exceeds $10,000.
With regard to the respondent’s contention that his conviction is not
final, we agree with the Immigration Judge that the conviction is final. The
respondent was convicted upon his plea of guilty on September 20, 1995,
and has no right of direct appeal from his guilty plea under Indiana law.
Tumulty v. State, 666 N.E.2d 394 (Ind. 1996); Weyls v. State, 362 N.E.2d
481 (Ind. 1977). Instead, he may only seek relief under Indiana Post-
Conviction Rule PC 1. On December 6, 1996, the respondent submitted a
late appeal from his conviction, along with other motions, claiming that the
trial court lacked jurisdiction, and thus, his conviction was not yet final.
However, we note that on January 17, 1997, the clerk’s office for Hamilton
County, Indiana, referred to all these filings as part of the respondent’s April
15, 1996, Petition for Post-Conviction Relief. The deadline for appealing
criminal convictions in Indiana is 30 days, and upon expiration of the filing
period, a defendant waives his right for direct appeal under Indiana
Criminal Rule 11. Clark v. State, 506 N.E. 2d 810 (Ind. 1987).
The availability of post-conviction motions or other forms of collateral
attack does not affect the finality of a criminal conviction for immigration
purposes, unless and until the conviction has been overturned pursuant to
such a motion. Okabe v. INS, 671 F.2d 863 (5th Cir. 1982). We therefore
conclude that the respondent’s conviction is final, regardless of any impact
that new section 101(a)(48) may have on the notion of “finality” as it
evolved before enactment of a definition of “conviction.” See Matter of
Chairez, 21 I&N Dec. 44 (BIA 1995); Matter of Polanco, 20 I&N Dec. 894
(BIA 1994).
Finally, in the respondent’s motion, he raises the issue of ineffective
assistance of counsel. However, he has failed to comply with the require-
ments of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). We also find the
respondent’s constitutional arguments to be without merit. See Matter of
Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997). Accordingly, the motion
will be denied.

IV. CONCLUSION

Upon consideration, therefore, we find no error in the Immigration
Judge’s determination that the respondent is deportable on account of his
conviction for an aggravated felony. Furthermore, the respondent has not
complied with the requirements for showing that he was denied the effec-

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tive assistance of counsel. Accordingly, the appeal will be dismissed and the
motion denied.
ORDER: The appeal is dismissed.
FURTHER ORDER: The motion is denied.
Board Member Anthony C. Moscato did not participate in the decision in
this case.

DISSENTING OPINION: Michael J. Heilman, Board Member, in which
Paul W. Schmidt, Chairman; Mary Maguire Dunne, Vice Chairman; John
W. Guendelsberger and Lory D. Rosenberg, Board Members, joined

I respectfully dissent.
In its decision, the majority finds that the respondent’s conviction for a
completed fraud under Indiana law is an “attempt” falling within the param-
eters of section 101(a)(43)(U) of the Immigration and Nationality Act, 8
U.S.C. § 1101(a)(43)(U) (Supp. II 1996). The respondent was entitled to
notice of that charge of deportability so that he could defend against it.
However, he did not receive notice of the charge upon which the majority
has found him deportable. Moreover, the respondent’s conviction under
Indiana law was for a completed fraud—not an “attempt” as set forth under
section 101(a)(43)(U) of the Act. Accordingly, I would sustain the respon-
dent’s appeal.
The respondent was not charged with deportability under section
101(a)(43)(U) of the Act. He was charged in the Order To Show Cause and
Notice of Hearing (Form I-221) (“OSC”) as follows:
Section 241(a)(2)(A)(iii) of the Immigration and Nationality Act (Act), as amended, in
that, at any time after entry, you have been convicted of an aggravated felony as
defined in section 101(a)(43) of the Act, to wit: an offense that involves fraud or deceit
in which the loss or potential loss to the victim or victims exceeds $10,000.

The plain wording of the OSC does not describe a conviction for
“attempt” or make reference to section 101(a)(43)(U) of the Act. Instead,
the wording is similar to the language set forth in section 101(a)(43)(M)(i),
which provides that the term “aggravated felony” includes any offense that
“involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000.” Given the plain wording of the OSC and its similarity to the lan-
guage set forth in section 101(a)(43)(M)(i), the respondent filed a motion to
terminate the deportation proceedings, in part on the basis that the victim of
his fraud had not suffered any monetary loss, much less a financial loss in
an amount exceeding $10,000. His motion clearly demonstrates that he was
not given adequate notice of the precise charge of deportability against him.
The Immigration Judge also recognized that the language in the OSC raised
an issue with regard to the adequacy of the notice to the respondent of the

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precise charge of deportability set forth in the OSC. However, in her writ-
ten order on the motion to terminate, the Immigration Judge concluded that
the use of the term “potential” in the OSC charge was sufficient to give the
respondent notice of the “specific charge of deportability.” The
Immigration Judge cites no legal precedent for her conclusion. I cannot
agree that insertion of the word “potential” in the OSC charge gives the
respondent notice that he has been charged with an attempt under section
101(a)(43)(U) of the Act.
An alien is entitled to notice of the nature of the charge against him.
Kwong Hai Chew v. Colding, 344 U.S. 590, 596-98 (1953). The OSC neg-
lects to state that the charge upon which the respondent is deportable is an
attempt under section 101(a)(43)(U) of the Act. In this respect, the OSC
fails to satisfy the requirement that the OSC inform the respondent of the
“designation of the charge against the respondent and the statutory provi-
sions alleged to have been violated.” See 8 C.F.R. § 242.1(b) (1997).
Therefore, I conclude that the respondent in this case was not given ade-
quate notice of the charge of deportability against him. See Matter of Siffre,
14 I&N Dec. 444 (BIA 1973) (stating that an alien is entitled to know the
correct ground upon which his deportation is being sought); see also Matter
of Liburd, 15 I&N Dec. 769 (BIA 1976) (same). Accordingly, I would sus-
tain the appeal.
I also disagree with the majority’s conclusion that the offense of which
the respondent was convicted is an “attempt” falling within the parameters
of section 101(a)(43)(U) of the Act. The inclusion of subparagraph (U) in
section 101(a)(43), which lists offenses that are deemed to constitute aggra-
vated felonies, must be read in conjunction with section 241(a)(2)(A)(iii) of
the Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), which plainly requires a con-
viction for any designated offense relied upon to establish deportability.
Thus, to come within the statutory language regarding an attempt or con-
spiracy to commit an offense described in this paragraph, a respondent must
have been convicted of either attempt or conspiracy, and the attempt or con-
spiracy of which a respondent was convicted must be for an offense includ-
ed under the other subsections of section 101(a)(43) of the Act. Under sec-
tion 35-43-5-4(10) of the Indiana Code, the offense of fraud against an
insurer is complete when an individual knowingly presents a claim con-
taining false information to the insurer. The statute does not require proof
that the insurer suffer a loss in order to obtain a conviction. The respon-
dent’s contention on appeal that he is not deportable as charged for an
aggravated felony based on section 101(a)(43)(M)(i) of the Act is correct.
The record of conviction reflects that no loss was suffered in connection
with the offense of which the respondent was convicted.
The majority, however, now takes the respondent’s conviction for a
completed fraud under the Indiana statute and concludes that “[t]he respon-
dent’s actions support a conviction for attempted fraud which is a lesser

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included offense within a conviction for fraud under Indiana law.” Matter
of Onyido, 22 I&N Dec. 3379, at 4 (BIA 1999). That may well be true, but
it is completely irrelevant. The respondent was convicted of the completed
fraud—not an attempted fraud. It is not for us to look behind the conviction,
review the facts underlying the conviction, and conclude that the respondent
might have been convicted of some other lesser included offense, such as an
attempt or a conspiracy to commit the substantive offense underlying the
attempt or conspiracy. We have always found that the crimes of attempt and
conspiracy, as used in the Immigration and Nationality Act, referred only to
convictions for attempt and conspiracy—not to crimes of which the respon-
dent might have been convicted. See, e.g., Matter of Davis, 20 I&N Dec.
536 (BIA 1992) (conviction for conspiracy to distribute a controlled sub-
stance); Matter of J-, 4 I&N Dec. 512 (BIA 1951) (conviction for attempt
to escape); Matter of V-, 4 I&N Dec. 100 (BIA 1950) (conviction for
attempted bribery).
The majority appears to recognize that the respondent was not convict-
ed of an “attempt” and seeks to sweep that critical fact away by finding that
“under the Indiana statute in question an attempt to defraud is included
within the offense of which the respondent was convicted.” Matter of
Onyido, supra, at 3. That is simply incorrect. Section 35-41-5-1 of the
Indiana Code is the general attempt statute in Indiana. Section 35-43-5-
4(10) of the Indiana Code, the fraud statute under which the respondent was
convicted, does not include any lesser offense of attempted fraud. Indeed,
the very case upon which the majority relies so heavily, Houston v. State,
528 N.E.2d 818 (Ind. Ct. App. 1988), is a case involving a conviction under
section 35-41-5-1 of the Indiana Code, the general attempt statute, for the
offense of attempted credit card fraud. The defendant in Houston was not
convicted of the completed offense of fraud, as was the respondent in the
instant case. Thus, the case upon which the majority so heavily relies estab-
lishes the very point that is so crucial in this case—that the respondent was
not convicted of an “attempt.”

APPENDIX A

Indiana Statute

35-43-5-4 Fraud

Sec. 4. A person who:

(1) with intent to defraud, obtains property by:

(A) using a credit card, knowing that the credit card was unlawfully obtained
or retained;

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(B) using a credit card, knowing that the credit card is forged, revoked, or
expired;

(C) using, without consent, a credit card that was issued to another person;

(D) representing, without the consent of the credit card holder, that the per-
son is the authorized holder of the credit card; or

(E) representing that the person is the authorized holder of a credit card when
the card has not in fact been issued;

(2) being authorized by an issuer to furnish property upon presentation
of a credit card, fails to furnish the property and, with intent to defraud the
issuer or the credit card holder, represents in writing to the issuer that the
person has furnished the property;
(3) being authorized by an issuer to furnish property upon presentation
of a credit card, furnishes, with intent to defraud the issuer or the credit card
holder, property upon presentation of a credit card, knowing that the credit
card was unlawfully obtained or retained or that the credit card is forged,
revoked, or expired;
(4) not being the issuer, knowingly or intentionally sells a credit card;
(5) not being the issuer, receives a credit card, knowing that the credit
card was unlawfully obtained or retained or that the credit card is forged,
revoked, or expired;
(6) with intent to defraud, receives a credit card as security for debt;
(7) receives property, knowing that the property was obtained in viola-
tion of subdivision (1) of this section;
(8) with intent to defraud the person’s creditor or purchaser, conceals,
encumbers, or transfers property;
(9) with intent to defraud, damages property;
(10) knowingly and with intent to defraud, makes, utters, presents, or
causes to be presented to an insurer, a claim statement that contains false,
incomplete, or misleading information concerning the claim; or
(11) knowingly or intentionally:
(A) sells;
(B) rents;
(C) transports; or
(D) possesses;
a recording for commercial gain or personal financial gain that does not
conspicuously display the true name and address of the manufacturer of the
recording;

commits fraud, a Class D felony.

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