S-I-K-, 24 I&N Dec. 324 (BIA 2007)

Cite as 24 I&N Dec. 324 (BIA 2007) Interim Decision #3586
In re S-I-K- Respondent
Decided October 4, 2007
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien convicted of conspiracy is removable as an alien convicted of an aggravated
felony within the meaning of sections 101(a)(43)(M)(i) and (U) of the Immigration and
Nationality Act, 8 U.S.C. §§ 1101(a)(43)(M)(i) and (U) (2000), where the substantive crime
that was the object of the conspiracy was an offense that involved “fraud or deceit” and
where the potential loss to the victim or victims exceeded $10,000.
FOR RESPONDENT: Alex Berd, Esquire, New York, New York
BEFORE: Board Panel: FILPPU and PAULEY, Board Members; M.C.GRANT, Temporary
Board Member
PAULEY, Board Member:
In a decision dated March 12, 2007, an Immigration Judge sustained the
charges of deportability against the respondent, denied his various applications
for relief from removal, and ordered him removed from the United States. The
respondent has appealed from that decision. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, who is a native and citizen of Ukraine, was first admitted
to the United States in February 1997 as a refugee pursuant to section 207 of
the Immigration and Nationality Act, 8 U.S.C. § 1157 (1994). In April 1999
his status was adjusted to that of a lawful permanent resident of the
United States pursuant to section 209(a) of the Act, 8 U.S.C. § 1159(a)
(Supp. V 1999). In 2004 the respondent sustained a Federal conviction for
conspiracy and mail fraud in violation of 18 U.S.C. §§ 371 and 1341 (2000),
respectively, based on offenses committed between 1998 and 2003. The
offenses that were the illegal object of the respondent’s conspiracy were the
making of false statements relating to a health care benefit program in
violation of 18 U.S.C. § 1035 (2000); mail fraud in violation of 18 U.S.C.
§ 1341; and health insurance fraud in violation of 18 U.S.C. § 1347 (2000).
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On the basis of these facts, the Immigration Judge determined that the
respondent is removable as an alien convicted of an “aggravated felony”
pursuant to section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii)
(2000). Specifically, the Immigration Judge concluded that the respondent’s
conviction was for conspiracy to commit an offense that involves fraud or
deceit in which the loss to the victim or victims exceeds $10,000, which is an
aggravated felony within the meaning of sections 101(a)(43)(M)(i) and (U) of
the Act, 8 U.S.C. §§ 1101(a)(43)(M)(i) and (U) (2000). The Immigration
Judge also denied the respondent’s applications for relief, which included,
inter alia, adjustment of status under section 209(a) of the Act, which he
sought in conjunction with a waiver of inadmissibility under section 209(c),
and withholding of removal under section 241(b)(3) of the Act, 8 U.S.C.
§ 1231(b)(3) (2000).
The respondent appeals, arguing that the aggravated felony charge cannot
be sustained in light of the applicable precedent decision of the United States
Court of Appeals for the Third Circuit in Alaka v. Attorney General, 456 F.3d
88, 106 (3d Cir. 2006). In addition, the respondent contends that he is eligible
for withholding of removal to Ukraine and that as a “refugee” under section
207 of the Act, he must be permitted to apply for adjustment of status under
section 209(a) in conjunction with a section 209(c) waiver.
II. ISSUE
The principal issue on appeal is whether the respondent’s conviction for
conspiracy to engage in various Federal fraud crimes renders him removable
from the United States as an alien convicted of an aggravated felony under
sections 101(a)(43)(M)(i) and (U) of the Act.
III. APPLICABLE LAW
The respondent has previously been admitted to the United States, so the
Department of Homeland Security (“DHS”) must prove his removability by
“clear and convincing evidence” that is “reasonable, substantial, and
probative.” Section 240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A)
(2000). The DHS charges the respondent with removability under section
237(a)(2)(A)(iii) of the Act, which provides that “[a]ny alien who is convicted
of an aggravated felony at any time after admission is deportable.” The term
“aggravated felony” is defined at length in section 101(a)(43) of the Act and
states as follows, in pertinent part:
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The term “aggravated felony” means–
. . . .
(M) an offense that–
(i) involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000; [and]
. . . .
(U) an attempt or conspiracy to commit an offense described in this paragraph.
Whether the respondent’s offense qualifies as an aggravated felony is a
question of law that we review de novo. See 8 C.F.R. § 1003.1(d)(3)(ii)
(2007). Moreover, to the extent that the immigration statute requires a focus
on a “conviction,” all facts tied to the elements of a predicate offense must be
proven “categorically.” Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004)
(citing Taylor v. United States, 495 U.S. 575 (1990)).
IV. ANALYSIS
A. Removability
Because the respondent is charged with removability under sections
101(a)(43)(M)(i) and (U) of the Act, the DHS bears a three-fold burden in
proving the aggravated felony charge. At the outset, the DHS must
demonstrate by clear and convincing evidence that the respondent was
convicted of engaging in a “conspiracy” within the meaning of section
101(a)(43)(U) of the Act. Having met that threshold burden, the DHS must
then prove that at least one of the unlawful acts that was the object of the
conspiracy was an offense involving “fraud or deceit” within the meaning of
section 101(a)(43)(M)(i) of the Act. Finally, the DHS must prove that the
“fraud or deceit” offense that was the object of the conspiracy resulted in or
contemplated a loss to his victims of more than $10,000.
With respect to this last point, we observe that Congress’s inclusion of a
separate aggravated felony category for inchoate crimes of attempt and
conspiracy reflects a legislative judgment that an offense described in one or
more of the subparagraphs of section 101(a)(43) may be considered an
aggravated felony, even if it was not consummated, where the DHS can prove
that the alien was convicted of an “attempt” or “conspiracy” to commit such
a crime. We so held as to an attempted fraud offense in Matter of Onyido,
22 I&N Dec. 552, 554 (BIA 1999), where we determined that an alien’s
conviction for an attempt to defraud an insurance company was an aggravated
felony under sections 101(a)(43)(M)(i) and (U) where the object of the
unsuccessful fraudulent transaction was to defraud the insurance company of
more than $10,000. See also Matter of Davis, 20 I&N Dec. 536, 544-45 (BIA
1992) (holding that a Maryland misdemeanor conviction for conspiracy to
distribute a controlled substance was an aggravated felony because the felony
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distribution offense that was the object of the conspiracy would have been an
aggravated felony had it been completed).1 Thus, the proper analysis in a
conspiracy case is whether the substantive crime that was the object of the
conspiracy would have fit within the particular aggravated felony category had
it been successfully completed. Matter of Davis, supra.
With respect to conspiracies to commit fraud crimes enumerated under
section 101(a)(43)(M)(i), this necessarily means that the DHS need not prove
an actual loss to victims of more than $10,000; instead, it will be sufficient if
the potential loss was more than $10,000. Cf. Li v. Ashcroft, 389 F.3d 892,
896 n.8 (9th Cir. 2004) (citing Matter of Onyido, supra, at 554-55, and
indicating that in an attempt case “[p]otential or intended loss” can satisfy the
victim loss requirement of section 101(a)(43)(M)(i)).2 Accordingly, we reject
the respondent’s appellate argument that the DHS must prove that his
conspiracy offense caused an actual loss to victims of more than $10,000.
In this instance, there is no dispute that the respondent’s conviction for
“conspiracy” in violation of 18 U.S.C. § 371 qualifies categorically as a
“conspiracy” conviction within the meaning of section 101(a)(43)(U) of the
Act.3
Furthermore, the respondent does not dispute that the offenses that
1 It is well settled that conspiracy “is ‘a distinct evil,’ which ‘may exist and be punished
whether or not the substantive crime ensues.’” United States v. Jimenez Recio, 537 U.S. 270,
274-75 (2003) (quoting Salinas v. United States, 522 U.S. 52, 65 (1997)). 2 Portions of the Eleventh Circuit’s decision in Obasohan v. U.S. Att’y Gen., 479 F.3d 785,
789 n.8 (11th Cir. 2007), seem to question whether a conspiracy conviction can give rise to
victim loss, since the convicted conduct in a conspiracy is the agreement to commit a crime,
not the commission of the substantive offense. However, it does not appear that the
Obasohan court was presented with any substantial argument regarding the concept of
potential loss espoused in Matter of Onyido, supra. Moreover, requiring proof of an actual
loss (rather than a potential loss) exceeding $10,000 from attempts and conspiracies would
defeat the very purpose behind section 101(a)(43)(U). Cf. Perez v. Elwood, 294 F.3d 552,
557 n.1 (3d Cir. 2002) (observing, in relation to a money laundering conspiracy conviction
charged under sections 101(a)(43)(D) and (U), that the “amount of money to be laundered
in the conspiracy for which [the alien] was convicted exceeded $10,000” (emphasis added)).
Accordingly, we do not require proof of actual loss where the offense of conviction was an
anticipatory offense. 3
The term “conspiracy” is not defined in the Immigration and Nationality Act. It is
therefore presumed that Congress intended to adopt the common law meaning of that term.
United States v. Shabani, 513 U.S. 10, 13 (1994) (citing Molzof v. United States, 502 U.S.
301, 307-08 (1992)). According to the United States Supreme Court, conspiracy is
generically understood as an inchoate offense, “the essence of [which] is an ‘agreement to
commit an unlawful act.’” United States v. Jimenez Recio, supra, at 274 (citing United
States v. Shabani, supra, at 16, and quoting Iannelli v. United States, 420 U.S. 770, 777
(1975)). And while 18 U.S.C. § 371 defines the offense of “conspiracy” to require that the
(continued…)
327 Cite as 24 I&N Dec. 324 (BIA 2007) Interim Decision #3586
were the illegal object of his conspiracy–i.e., health insurance fraud, mail
fraud, and the making of false statements relating to a health care benefit
program–involved “fraud or deceit.” Valansi v. Ashcroft, 278 F.3d 203, 210
(3d Cir. 2002). Thus, the sole question remaining to be decided is whether the
potential loss associated with the respondent’s incipient fraud offense was
more than $10,000.
The respondent’s plea agreement contains a stipulation that the loss
foreseeable to him arising from the offenses of conviction (that is, from the
conspiracy and mail fraud charges to which he pled guilty) was more than
$70,000, but less than $120,000, and the respondent testified to the same effect
during his plea colloquy. Furthermore, the trial judge imposed sentence on the
respondent based on her express determination that this $70,000 to $120,000
range represented the “intended loss” arising from his offenses of conviction.
On the basis of this evidence, we agree with the Immigration Judge that the
respondent’s conviction record establishes that the potential loss to victims
arising from his conviction for conspiracy to commit fraud (including the mail
fraud offense to which he also pled) exceeded $10,000.4
In coming to this
conclusion, we observe that the Third Circuit has expressly held that the
“record of conviction” in such cases includes a trial judge’s “‘explicit factual
findings’” made in the sentencing context. See Alaka v. Att’y Gen., supra, at
106 (quoting Shepard v. United States, 544 U.S. 13, 16 (2005), and holding
that an Immigration Judge “did not err in examining the District Court’s factual
findings as articulated in the sentencing report” when seeking to ascertain the
(…continued)
illicit agreement be accompanied by the commission of an “overt act” in furtherance of the
agreement by at least one of the conspirators, the Supreme Court has held that this “overt
act” requirement is purely a function of statute and does not inhere in the common law
concept of conspiracy. United States v. Shabani, supra, at 13-16; Singer v. United States,
323 U.S. 338, 340 (1945); Nash v. United States, 229 U.S. 373, 378 (1913) (Holmes, J.).
Because the present respondent was convicted of violating 18 U.S.C. § 371 itself, the
existence of an overt act was necessarily proven, and we therefore have no present occasion
to decide whether proof of such an act is always required for a “conspiracy” conviction under
section 101(a)(43)(U) of the Act.
4 Because the respondent’s conviction record contains evidence sufficient to establish the
requisite amount of potential loss, evidence outside the conviction record need not be
considered for this purpose. See Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007).
Furthermore, because the district court expressly found that the “intended loss” arising from
the respondent’s convicted conduct exceeded $10,000, we need not decide whether clear and
convincing proof with respect to other measures of potential loss–such as “foreseeable” or
“natural and probable” loss–would have been sufficient to satisfy the DHS’s burden. Cf.
Pinkerton v. United States, 328 U.S. 640 (1946) (stating that conspirators are liable for the
reasonably foreseeable criminal acts of coconspirators undertaken in furtherance of the
unlawful agreement); United States v. Casiano, 113 F.3d 420 (3d Cir.) (same).
328Cite as 24 I&N Dec. 324 (BIA 2007) Interim Decision #3586
relevant loss quantum in connection with a section 101(a)(43)(M)(i)
aggravated felony charge). Moreover, unlike a restitution order, this potential
loss quantum is tied directly to the counts of the indictment to which the
respondent pled guilty.
Accordingly, we conclude that the DHS has established by clear and
convincing evidence that the respondent was convicted of a conspiracy to
commit an offense involving fraud or deceit in which the potential loss to the
victims exceeded $10,000. The aggravated felony charge is therefore
sustained. Moreover, in view of the fact that the respondent is deportable as
an alien convicted of an aggravated felony, we need not decide whether to
sustain the lodged charge that the respondent was convicted of a crime
involving moral turpitude. Having sustained the aggravated felony charge, we
now turn to the respondent’s arguments regarding his eligibility for relief from
removal.
B. Relief From Removal
As a lawful permanent resident convicted of an aggravated felony,
the respondent is statutorily barred from applying for most forms of relief from
removal, including cancellation of removal, asylum, a waiver of
inadmissibility, and voluntary departure.5
Furthermore, although he is not
statutorily barred from seeking withholding of removal under section
241(b)(3) of the Act, the respondent has not demonstrated that he is eligible
for such relief on the merits. In support of his application, the respondent
contends that he experienced past persecution and faces a likelihood of future
persecution in his native Ukraine on account of his Jewish religion and
ethnicity. However, in an interim decision dated March 17, 2006, the
Immigration Judge concluded at length that the respondent had failed to
demonstrate that his past mistreatment in Ukraine was inflicted on account of
his religion or ethnicity or that he faced a clear probability of suffering future
persecution in that country on account of any protected ground. We find no
error in those determinations, which were based on a permissible view of the
evidence. See 8 C.F.R. § 1003.1(d)(3)(i); see also Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 573 (1985). Accordingly, we will not
disturb the Immigration Judge’s denial of the respondent’s application for
withholding of removal.
We note that although the respondent previously applied for other forms of relief before
the Immigration Judge, his present appeal challenges only the denial of his applications for
withholding of removal under section 241(b)(3) and adjustment of status under section
209(a).
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5 Cite as 24 I&N Dec. 324 (BIA 2007) Interim Decision #3586
Finally, the respondent maintains that he remains a “refugee,” regardless of
his deportability, and that he must be given an opportunity to apply (or rather,
reapply) for adjustment of status pursuant to section 209(a) of the Act, in
conjunction with a waiver of inadmissibility under section 209(c) of the Act.
See generally Matter of H-N-, 22 I&N Dec. 1039 (BIA 1999). However, the
respondent’s eligibility for such relief is foreclosed by the plain language of
the statute, which declares that a refugee admitted under section 207 of the Act
can be admitted as an immigrant only if he “has not acquired permanent
resident status.” Section 209(a)(1)(C) of the Act. The respondent previously
acquired permanent resident status in April 1999 and is therefore prohibited
from acquiring such status again by means of section 209(a) of the Act.
Moreover, inasmuch as the respondent is ineligible to apply for adjustment of
status under section 209(a), he cannot obtain a section 209(c) waiver, which
is applicable only to an “alien seeking adjustment of status under [section
209].” Cf. also Romanishyn v. Att’y Gen., 455 F.3d 175 (3d Cir. 2006)
(extending administrative deference to Matter of Smriko, 23 I&N Dec. 836
(BIA 2005), in which we held that an alien admitted as a refugee who later
adjusted his status to that of a lawful permanent resident is subject to removal
based on convictions, notwithstanding the fact that refugee status was never
terminated).
V. CONCLUSION
In conclusion, the respondent is deportable as an alien convicted of an
aggravated felony. We find no reversible error in the Immigration Judge’s
decision denying or pretermitting his various applications for relief from
removal. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
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