FILED
United States Court of Appeals
Tenth Circuit
October 27, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
SHAWN JAMES HAMILTON,
Petitioner,
v. No. 09-9505
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
PETITION FOR REVIEW OF A DECISION OF THE BOARD OF
IMMIGRATION APPEALS
Submitted on the briefs: *
Yalila Guerrero, Houston, Texas, for Petitioner.
Anh-Thu P. Mai-Windle, Senior Litigation Counsel, Ann M. Welhaf, Civil
Division, Office of Immigration Litigation, U.S. Department of Justice,
Washington, D.C., for Respondent.
Before O’BRIEN, PORFILIO, and TYMKOVICH, Circuit Judges.
O’BRIEN, Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Shawn James Hamilton petitions for review of an order of the Board of
Immigration Appeals (BIA) affirming the decision by the immigration judge (IJ),
which found Hamilton ineligible for cancellation of removal because he had been
convicted of an aggravated felony. We deny the petition.
Background
Hamilton is a native and citizen of Canada. In 1993, he became a
permanent lawful resident of the United States. In 2006, the Department of
Homeland Security sought to remove Hamilton based upon his conviction of a
crime of moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). Hamilton conceded
removability but sought cancellation of removal for certain permanent residents
pursuant to 8 U.S.C. § 1229b(a), which required him to show he “ha[d] not been
convicted of any aggravated felony,” id. § 1229b(a)(3). 1 At his first merits
hearing before the IJ, Hamilton admitted to a conviction of conspiracy to commit
mail fraud. But, he argued, that conviction did not qualify as an aggravated
felony because, according to the restitution order contained in the judgment of
1
The statute also requires the alien make the following showings: “(1) [he]
has been an alien lawfully admitted for permanent residence for not less than 5
years,” and “(2) [he] has resided in the United States continuously for 7 years
after having been admitted in any status.” 8 U.S.C. § 1229b(a). These portions
of the statute were not in dispute during the removal proceedings, and are not at
issue in this appeal.
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conviction, the victims’ loss was limited to $9,900, below the $10,000 floor for a
felony offense. 2
The IJ wanted to further develop the record as to the amount of loss so he
continued the hearing to give the parties an opportunity to present additional
evidence on that issue. At the second hearing, the government submitted Exhibit
6, which contained the following evidence: (1) the plea agreement for Hamilton’s
co-conspirator, Gregory Maxwell; (2) Maxwell’s judgment of conviction; (3) the
information charging Hamilton with one count of conspiracy to commit mail
fraud; (4) Hamilton’s presentence investigation report (PSR); and (5) an
addendum to Hamilton’s PSR. See Admin. R. at 202-244. Hamilton objected to
all of the evidence in Exhibit 6, with the exception of the information, which had
previously been admitted with Hamilton’s judgment of conviction in Exhibit 5 at
the first merits hearing.
The IJ denied relief, concluding Hamilton was not eligible for cancellation
of removal because he had been convicted of a fraud or deceit offense resulting in
a loss to the victim or victims exceeding $10,000. Hamilton’s conviction came as
a result of his involvement in a scheme whereby he and a co-conspirator
(Maxwell) burned Maxwell’s automobile in order to collect insurance proceeds.
2
The relevant definition of “aggravated felony” for this case is “an offense
that . . . involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000.” 8 U.S.C. § 1101(a)(43)(M)(i).
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In determining the amount of loss to the victims the IJ relied on information
contained in Hamilton’s PSR, which reported the insurance claim for the loss of
Maxwell’s automobile at $22,240. 3 See Admin. R. at 6, 229. The BIA affirmed
the IJ’s decision. This petition for review followed.
Analysis
I. Jurisdiction
We first address jurisdiction. Although Congress has explicitly barred our
jurisdiction to review denials of discretionary relief under § 1229b, see 8 U.S.C.
§ 1252(a)(2)(B)(i), and to review final orders of removal against an alien who is
removable for committing a crime of moral turpitude, see id.
§ 1252(a)(2)(C)—both of which are applicable here—the government concedes
we have jurisdiction to consider the legal issue presented in this case under the
exception to these jurisdictional bars in 8 U.S.C. § 1252(a)(2)(D). See, e.g.,
Vargas v. Dep’t of Homeland Security, 451 F.3d 1105, 1106 (10th Cir. 2006).
Our review is limited to a narrow issue of law: whether it was proper for the IJ to
consider information contained in Hamilton’s PSR in order to determine if the
amount of loss sustained by the victims of his crime met the $10,000 threshold,
defining the offense as an aggravated felony, see 8 U.S.C. § 1101(a)(43)(M)(i).
3
They also destroyed other property in the process. The total loss amounted
to $65,908.96.
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II. Standard of Review
A single BIA member decided the merits of the appeal and issued an
opinion affirming the IJ’s decision. See 8 C.F.R. § 1003.1(e)(5). In these
circumstances, the BIA’s order is the final order under review but “we may
consult the IJ’s opinion to the extent that the BIA relied upon or incorporated it.”
Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). We review de novo the
BIA’s legal determination. Herrera-Castillo v. Holder, 573 F.3d 1004, 1007
(10th Cir. 2009).
III. Merits
Hamilton bears the burden of proving his eligibility for cancellation of
removal. Before the BIA he argued the IJ erred by admitting his PSR into
evidence. The BIA decided Hamilton’s case was governed by its decision in In re
Babaisakov, 24 I & N Dec. 306, 321 (BIA 2007). In that decision, the BIA held
the amount of loss (in an offense such as this) is not an element of the offense
and, therefore “is not subject to the limitations of the categorical approach, the
modified categorical approach, or a divisibility analysis and may be proved by
evidence outside the record of conviction.” Admin. R. at 3. It said: “[P]rovided
that the loss is still shown to relate to the conduct of which the person was
convicted . . . immigration judges are free to ‘consider any evidence, otherwise
admissible in removal proceedings, including witness testimony, bearing on the
loss to the victim.’” Id. (quoting Babaisakov, 24 I & N Dec. at 321)).
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The BIA acknowledged that in the criminal case Hamilton was only
required to pay $9,900 as victim compensation, but it explained “[a]lthough
restitution orders can be sufficient evidence of loss to the victim in certain cases,
they are not determinative.” Id. Neither the information nor the judgment of
conviction stated the amount of loss suffered by the victim insurance company,
but the PSR provided reliable evidence of the victim’s loss, which was directly
related to the conduct of which Hamilton was convicted. Id. Under these
circumstances, according to the BIA, the IJ “correctly considered the [PSR] in
determining . . . the amount of loss to this victim” and “[b]ased on the evidence
of record, [Hamilton] has failed to establish that the [§ 1229b(a)(3)] preclusion
does not apply.” Id. Because Hamilton failed to demonstrate he had not been
convicted of an aggravated felony the BIA affirmed the IJ’s decision leaving him
ineligible for cancellation of removal under § 1229b(a)(3).
Here Hamilton renews the argument he made to the BIA – the agency was
limited in the types of evidence it could consider based on our decision in United
States v. Venegas-Ornelas, 348 F.3d 1273, 1275 (10th Cir. 2003), applying the
categorical approach prescribed by the Supreme Court in Taylor v. United States,
495 U.S. 575, 600 (1990). 4 But the Supreme Court recently rejected Hamilton’s
4
The categorical approach developed in the criminal sentencing context to
determine whether a prior conviction could be used to enhance a sentence under
the Armed Career Criminal Act. See Taylor v. United States, 495 U.S. 575, 577-
(continued...)
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argument. See Nijhawan v. Holder, 129 S. Ct. 2294 (2009).
In Nijhawan, the Court considered the same aggravated felony definition at
issue here to determine whether the relevant offense was “an offense that . . .
involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000.” 129 S. Ct. at 2297 (quoting 8 U.S.C. § 1101(a)(43)(M)(i)). In deciding
whether to apply Taylor’s categorical approach the Court concluded “the
italicized language does not refer to an element of the fraud or deceit crime.
Rather it refers to the particular circumstances in which an offender committed a
(more broadly defined) fraud or deceit crime on a particular occasion.” Id. at
2297-2298. It concluded the categorical approach was not appropriate;
consideration of this aggravated felony definition required a
“circumstance-specific” approach. Id. at 2300. Under the circumstance-specific
approach it was permissible for the IJ to rely upon sentencing-related material to
determine the amount of the loss. Id. at 2303.
4
(...continued)
78, 581, 599-600 (1990). Under the categorical approach, a court initially is
limited to considering the statutory definition of the crime, not the underlying
factual circumstances of the crime. See id. at 600. But in certain circumstances,
a court can also consider the charging documents and the jury instructions. Id. at
602. In Shepard v. United States, 544 U.S. 13, 16 (2005), this list of permissible
material was expanded to include documents in a non-jury case—a “written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.” When a court goes beyond the mere
statutory definition of the crime to consider other permissible documents, our
court has characterized this as the modified categorical approach. See, e.g.,
Batrez Gradiz v. Gonzales, 490 F.3d 1206, 1211 (10th Cir. 2007).
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The Nijhawan Court addressed the fairness concerns inherent in expanding
the types of evidence warranting consideration by the IJ, saying “that petitioner
and those in similar circumstances have at least one and possibly two
opportunities to contest the amount of loss, the first one at the earlier sentencing
and the second at the deportation hearing itself.” Id. Hamilton had such an
opportunity. He could have contested the amount of loss by objecting to the
contents of his PSR during his criminal sentencing. He did not. See Admin. R. at
243; see also Fed. R. Crim. P. 32(f),(i) (requiring a defendant to make written
objections to the material in the PSR and requiring the court to resolve “any
disputed portion of the presentence report or other controverted matter.”); United
States v. West, 550 F.3d 952, 957 n.3 (10th Cir. 2008) (“Fed. R. Crim. P. 32
continues to require a defendant, at or before sentencing, to make specific
objections to facts contained in the PSR. If a defendant fails to make such an
objection, we will deem him to have waived any dispute regarding the facts set
forth in the PSR.” (citations omitted)). During the immigration proceedings
Hamilton was offered an additional opportunity to provide evidence or
information to contest the amount of loss. See Admin. R. at 174.
The holding in Nijhawan forecloses Hamilton’s argument in favor of the
categorical or modified categorical approach. 5 The BIA’s decision was consistent
5
Nijhawan was decided the week after Hamilton filed his opening brief and
(continued...)
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with the holding in Nijhawan, in that it permitted the IJ to consider information in
Hamilton’s PSR 6 to determine whether the $10,000 loss threshold for an
aggravated felony was met. See 8 U.S.C. § 1101(a)(43)(M)(i). Because we
conclude the BIA committed no error of law in its holding, the petition for review
is denied.
5
(...continued)
therefore Hamilton did not address the case in his brief. The government raised
the Nijhawan argument in its response brief. Hamilton had the opportunity to
address the Nijhawan argument in his reply brief, but he failed to file a reply
brief.
6
Hamilton asserts the IJ admitted and considered the PSR and conviction
record of Hamilton’s co-conspirator, Gregory Maxwell, but that is not an accurate
representation of the record or the IJ’s evaluation of the evidence. Aplt. Br. at
6-7. Although the government did submit evidence of Maxwell’s plea agreement
and judgment of conviction, it did not submit Maxwell’s PSR. See Admin. R. at
204-222. And the IJ stated he was not going to refer to Maxwell’s conviction
record but instead he would only rely on Hamilton’s conviction record and PSR.
Id. at 189.
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