Shogbuyi v. Garland ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 11, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
MUYI ATANDA SHOGBUYI,
Petitioner,
v. No. 19-9597
(Petition for Review)
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BRISCOE, and CARSON, Circuit Judges.
_________________________________
Muyi Atanda Shogbuyi, a native and citizen of Nigeria who proceeds pro se,
petitions for review of the decision of the Board of Immigration Appeals (Board or
BIA) denying his motion to reconsider a previous decision. We dismiss the petition
in part and deny it in part.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
BACKGROUND
Mr. Shogbuyi came to the United States in 1982 and became a lawful
permanent resident in 1990. He has three adult children, all United States citizens.
In 2014, Mr. Shogbuyi was convicted of one count of bank fraud in violation
of 18 U.S.C. § 1344. The conviction arose out of his participation in a scheme to
submit a fraudulent application for a $291,000 mortgage loan to an Illinois bank.
The scheme was unsuccessful because it was a sting operation and the government
arrested the participants before the fraud was completed. Mr. Shogbuyi was
sentenced to 25 months’ imprisonment.
After serving his sentence, Mr. Shogbuyi was charged with removability as an
alien convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). The
relevant felonies were fraud where the loss to the victim exceeds $10,000,
see 8 U.S.C. § 1101(a)(43)(M)(i), and attempt or conspiracy to commit fraud where
the loss to the victim exceeds $10,000, see id. § 1101(a)(43)(U).
Before an immigration judge (IJ),1 Mr. Shogbuyi admitted most of the factual
allegations, but he denied his conviction involved a loss of more than $10,000. After
holding a hearing, the IJ sustained the factual allegations regarding financial loss and
the removability charges. Mr. Shogbuyi filed a motion to reconsider, which the IJ
denied in March 2018.
1
The case was assigned to three different IJs during the course of the
proceedings. For ease of reference, we simply refer to “an” or “the” IJ.
2
Mr. Shogbuyi also sought to adjust his status, which required a waiver of
inadmissibility and a finding that qualifying relatives would incur an extreme
hardship if he were removed. In September 2018, the IJ denied the waiver, holding
that Mr. Shogbuyi had not demonstrated his adult children would experience extreme
hardship. The September decision also incorporated the March 2018 denial of the
motion to reconsider regarding removability. Mr. Shogbuyi appealed to the Board,
which upheld the IJ’s decisions and dismissed the appeal on April 11, 2019.
Mr. Shogbuyi then filed a motion to reconsider the April 11, 2019, decision
with the Board. After filing the motion to reconsider, in July 2019 Mr. Shogbuyi
filed a petition for review. This court determined it lacked jurisdiction because the
thirty-day deadline to file a petition for review of the Board’s April 11, 2019, merits
decision had passed, and the motion to reconsider that decision was still pending
before the Board. We therefore dismissed the matter on the government’s motion.
The Board denied the motion to reconsider on October 17, 2019.
Mr. Shogbuyi then filed a second petition for review, commencing the instant matter.
DISCUSSION
I. Scope of Review
Although the agency has issued several orders during Mr. Shogbuyi’s
immigration proceedings, the second petition for review was timely only as to the
Board’s October 17, 2019, order denying reconsideration of its April 11, 2019,
decision. See 8 U.S.C. § 1252(b)(1) (requiring a petition for review to be filed no
later than thirty days after the agency decision); Stone v. INS, 514 U.S. 386, 405
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(1995) (holding that filing a motion for reconsideration with the Board does not toll
the time to petition for review of the merits decision). Accordingly, we have
jurisdiction to review only the October 17, 2019, order.
We construe Mr. Shogbuyi’s filings liberally because he has proceeded pro se
both before the agency and this court. See Awuku-Asare v. Garland, 991 F.3d 1123,
1125 n.1 (10th Cir. 2021). We review the Board’s denial of a motion to reconsider
only for an abuse of discretion. Rodas-Orellana v. Holder, 780 F.3d 982, 990
(10th Cir. 2015). “The BIA abuses its discretion when its decision provides no
rational explanation, inexplicably departs from established policies, is devoid of any
reasoning, or contains only summary or conclusory statements.” Id. (internal
quotation marks omitted). But “[t]here is no abuse of discretion when the BIA’s
rationale is clear, there is no departure from established policies, and its statements
are a correct interpretation of the law, even when the BIA’s decision is succinct.” Id.(internal quotation marks omitted).
Because Mr. Shogbuyi has been declared removable due to a criminal offense
covered by § 1227(a)(2)(A)(iii) and seeks a waiver of inadmissibility under 8 U.S.C.
§ 1182(h), our review is limited to constitutional claims and questions of law.
See 8 U.S.C. § 1252(a)(2)(B)-(D); Infanzon v. Ashcroft, 386 F.3d 1359, 1362
(10th Cir. 2004) (recognizing that review of a motion to reopen is precluded if review
of the underlying order of removal is precluded).
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II. Analysis
A. Intended Loss Amount
Mr. Shogbuyi first challenges the agency’s determination that his conviction
satisfies § 1101(a)(43)(M)(i) and (U) because it involved an intended loss of more
than $10,000. He argues that the agency did not comply with Nijhawan v. Holder,
557 U.S. 29 (2009). Under Nijhawan, “the monetary threshold [of subparagraph
(M)(i)] applies to the specific circumstances surrounding an offender’s commission
of a fraud and deceit crime on a specific occasion.” Id. at 40. Because the amount of
loss was not an element of Mr. Shogbuyi’s offense, see id. at 32, the agency was
tasked with determining whether the specific circumstances of his offense involved a
loss of more than $10,000, see id. at 40-42. In proving the loss amount, the
government must submit “clear and convincing” evidence tying the loss “to the
specific counts covered by the conviction.” Id. at 42 (internal quotation marks
omitted).
In its April 11, 2019, decision, the Board stated that it could not relitigate
whether Mr. Shogbuyi was factually innocent of bank fraud. It held that a conviction
under § 1344 is an aggravated felony under § 1101(a)(43)(M)(i) and (U). It further
held that the IJ properly determined that the amount of loss exceeded $10,000, stating
that the amount of loss can be calculated as either actual loss or potential loss. And it
held that the IJ had employed the circumstance-specific approach required by
Nijhawan. Noting different estimates of loss in the record—all of which exceeded
$10,000—the Board concluded that “there is ample evidence in the conviction
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records demonstrating that the intended loss from the respondent’s fraudulent activity
exceeded $10,000.” Admin. R. Vol. 1 at 103. “Therefore, the Immigration Judge
properly determined that there was clear and convincing evidence that the
respondent’s conviction met the threshold required under [8 U.S.C.
§ 1101(a)(43)(M)(i)].” Id. The Board accordingly dismissed the appeal.
In the October 19, 2019, decision denying reconsideration, the Board reiterated
it could not consider whether Mr. Shogbuyi was factually innocent of bank fraud. It
concluded it had not erred in upholding the consideration of intended loss. It noted
that contrary to Mr. Shogbuyi’s assertion, the IJ had considered the presentence
report (PSR) from the criminal case in determining the intended loss amount. The
Board further stated that, even assuming the IJ had not considered the PSR,
Mr. Shogbuyi had not shown substantial prejudice because he had not demonstrated
that, had the IJ considered the PSR, the outcome of his case would have been
different. And it held Mr. Shogbuyi had not shown the IJ committed clear error in
finding that the amount of intended loss exceeded $10,000.
Complaining that throughout the proceedings there have been varying (and
divergent) estimates of potential loss, Mr. Shogbuyi asserts the record is insufficient
to establish a loss amount by clear and convincing evidence, as required by
Nijhawan. He points out the PSR did not assess any loss, and he notes “the absence
of corroboratory evidence in [the] form of restitution amount, plea deal, or
acceptance of loss, judgment record and absence of statement of reasons needed to
establish the loss amount by clear and convincing standard of proof.” Opening Br. at
6
10; see also id. at 15 (“Since there was no admittance of any loss—intended or actual
or permanent or temporary—, no record of loss in the PSR and record of conviction,
the agency cannot lay claim to clear and convincing evidence of loss amount.”).
Nijhawan, however, does not require any particular type of evidence, and it
declined to limit the immigration court to considering charging documents, jury
instructions, jury findings, plea documents, and similar documents. See 557 U.S. at
41. The agency was not required to treat the PSR’s assessment of no loss as
determinative. In denying reconsideration, the Board identified several pieces of
evidence regarding the intended loss amount and determined that it had not erred in
holding that the IJ had found the loss amount by clear and convincing evidence. And
to the extent that Mr. Shogbuyi attacks the correctness of the agency’s ultimate
factual finding regarding the amount of loss, § 1252(a)(2)(C) strips us of jurisdiction
to review that issue.
B. Due Process
Mr. Shogbuyi suggests his right to due process was violated when the IJ
decided the loss amount without having reviewed the PSR and the statement of
reasons. As stated above, the Board concluded the IJ did consider the PSR, and that
even if he had not, Mr. Shogbuyi had not demonstrated prejudice.
Mr. Shogbuyi is correct that the IJ did not have the PSR before him either in
making the initial decision on loss or in denying reconsideration in March 2018.
Shortly after denying reconsideration, however, the IJ ordered the government to
obtain the PSR from the federal district court. The government complied, submitting
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the PSR to the IJ in May 2018. The IJ informed Mr. Shogbuyi at a hearing on
May 29, 2018, that he had received the PSR and reviewed it, and that it did not
change his decision. The IJ subsequently incorporated his March 2018 decision into
the September 2018 decision. But the IJ never had access to the sentencing court’s
statement of reasons.
Mr. Shogbuyi has failed to demonstrate the belated consideration of the PSR
and failure to consider the statement of reasons denied him due process. “An alien in
removal proceedings is entitled only to the Fifth Amendment guarantee of
fundamental fairness. Therefore, when facing removal, aliens are entitled only to
procedural due process, which provides the opportunity to be heard at a meaningful
time and in a meaningful manner.” Schroeck v. Gonzales, 429 F.3d 947, 952
(10th Cir. 2005) (citation and internal quotation marks omitted). There is no
indication that the late provision of the PSR and the failure to consider the statement
of reasons deprived Mr. Shogbuyi of the opportunity meaningfully to be heard.
C. Substantial Step
Mr. Shogbuyi denies that he attempted to dispute the validity of his criminal
conviction before the Board. Instead, he states that he simply sought to explain the
circumstances of the offense, in compliance with Nijhawan. But he then goes on to
assert that the record does not support that he took a substantial step or overt act
toward defrauding the bank. This argument attacks the existence of an element of
attempt. See United States v. Irving, 665 F.3d 1184, 1195 (10th Cir. 2011) (“An
attempt requires both (1) an intent to commit the substantive offense, and (2) the
8
commission of an act which constitutes a substantial step towards commission of the
substantive offense.” (internal quotation marks omitted)). The Board did not err
either in construing the argument as disputing the validity of the conviction, or in
rejecting it on that basis, see Vasiliu v. Holder, 651 F.3d 1185, 1187 (10th Cir. 2011)
(“[A] challenge to an alien’s criminal conviction, upon which a removal order is
based, is beyond the scope of removal proceedings.”).
Mr. Shogbuyi further complains that in denying reconsideration, the Board
switched from addressing attempt crimes to addressing conspiracy crimes. This
argument appears to challenge the Board’s reliance on In re S-I-K-, 24 I. & N. Dec.
324 (BIA 2007). But the Board cited S-I-K- in its April 11, 2019, merits decision,
and Mr. Shogbuyi did not challenge that reliance in his motion for reconsideration.
Because Mr. Shogbuyi did not first present his argument to the Board, we lack
jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1); Garcia-Carbajal v. Holder,
625 F.3d 1233, 1237 (10th Cir. 2010).
D. Remaining Arguments
With regard to the waiver of inadmissibility, Mr. Shogbuyi complains that
(1) the IJ violated his right to due process when he did not adjourn the hearing and
reconvene to examine statements regarding financial support, instead simply allowing
the submission of that evidence after the hearing, and (2) the Board impermissibly
engaged in factfinding when it determined that the cumulative hardships did not
reach the level of extreme hardship. It does not appear, however, that Mr. Shogbuyi
presented either of these arguments to the Board. We therefore lack jurisdiction
9
consider them. See § 1252(d)(1); Garcia-Carbajal, 625 F.3d at 1237;
see also Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094 (10th Cir. 2008)
(“[O]bjections to procedural errors or defects that the BIA could have remedied must
be exhausted even if the alien later attempts to frame them in terms of constitutional
due process on judicial review”); Sidabutar v. Gonzales, 503 F.3d 1116, 1122
(10th Cir. 2007) (holding that petitioners failed to exhaust their claim that the Board
conducted de novo factfinding when they did not raise it in a motion to reopen or a
motion to reconsider).
CONCLUSION
Mr. Shogbuyi’s motion to proceed without prepayment of costs or fees is
granted. We dismiss for lack of jurisdiction the arguments that were not first
presented to the Board, and we deny the remainder of the petition for review.
Entered for the Court
Joel M. Carson III
Circuit Judge
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No. 19-9597, Shogbuyi v. Garland
BRISCOE, Circuit Judge, concurring.
I write separately on the issue of loss. I write only to emphasize the BIA’s correct
focus on Mr. Shogbuyi’s criminal charges, criminal convictions, and that 8 U.S.C.
§ 1101(a)(43)(U) is satisfied if Mr. Shogbuyi has only attempted to commit fraud where
loss to the victim exceeds $10,000. 8 U.S.C. § 1101(a)(43)(U) (“The term ‘aggravated
felony’ means . . . an attempt or conspiracy to commit an offense described in this
paragraph.”). Actual loss to the victim need not be shown.
As stated in the BIA’s ruling of April 11, 2019: “[Mr. Shogbuyi] was convicted on
August 6, 2014, in the United States District Court, Northern District of Illinois, for Bank
Fraud in violation of 18 U.S.C. §§ 2 [attempt] & 1344 [bank fraud]. He was sentenced to
25 months’ imprisonment.” Admin. R. Vol. 1 at 100 (citations omitted). The BIA went
on to state that “the Immigration Judges properly determined that the amount of loss
involved in the 18 U.S.C. § 1344 conviction exceeded $10,000.00. The amount of loss is
calculated either as actual or the potential loss to the victim.” Id. at 102 (citing Matter of
S-I-K-, 24 I. & N. Dec. 324, 328–29 (BIA 2007)) (emphasis added).
Mr. Shogbuyi’s unfortunate confusion on the issue of loss stems from his reliance
on his Presentence Report, which I note was clearly listed and included in the record
reviewed by the IJs. His Presentence Report calculated a Guideline range of 6–12
months’ imprisonment. As stated by the BIA, the Presentence Report considered by the
district court “indicated that during an early sentencing hearing the federal court
concluded there was no determinable loss based on information and evidence provided
by the parties.” Id. at 103 (citation omitted) (emphasis added). Meaning no actual loss.
But again, actual loss is not the only measure. As Mr. Shogbuyi’s 25 months’ sentence
under the Sentencing Guidelines confirms, “the trial judge determined the intended loss
was in an amount of over $30,000.00.” Id. (citing U.S.S.G. § 2B1.1) (emphasis added).
This increase from the Presentence Report’s calculated Guideline range of 6 to 12 months
is explained by the trial judge’s consideration of intended loss.
The IJs and the BIA were correct to focus on Mr. Shogbuyi’s conviction of
attempted bank fraud and that while he was not successful in his attempted fraud, the loss
he intended was over $30,000.
The BIA correctly denied Mr. Shogbuyi’s motion for reconsideration of its ruling
that he was removable as an alien convicted of an aggravated felony. See 8 U.S.C.
§ 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(a)(43)(U).
2