Okobi v. Holder , 527 F. App'x 710 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
June 7, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
IFEANYI GODWIN OKOBI,
Petitioner, No. 12-9555
v. (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
Petitioner Ifeanyi Godwin Okobi, a citizen of Nigeria, filed a petition for
review of a Final Administrative Removal Order (FARO) issued by the
Department of Homeland Security (DHS). We have jurisdiction under 8 U.S.C.
§ 1252(a)(1) and deny the petition.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent except under the doctrines of law of the case, res judicata,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.
I. BACKGROUND
In August 2005 Petitioner was lawfully admitted to the United States as a
nonimmigrant visitor. Without the permission of the government, he stayed in the
United States beyond the expiration of his visa in February 2006. In January
2010 he pleaded guilty to conspiracy to commit bank fraud and possession of
stolen mail in federal court in California. He was sentenced to 40 months’
imprisonment and ordered to pay restitution in the amount of $598,387.55.
On April 17, 2012, the government issued Petitioner a notice to appear in
immigration court. Shortly thereafter, however, the government determined that
Petitioner was subject to expedited removal under 8 U.S.C. § 1228(b) because he
was not lawfully admitted for permanent residency and was deportable for having
committed an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien
who is convicted of an aggravated felony at any time after admission is
deportable.”); id. § 1101(a)(43)(M)(i), (U) (Aggravated felony includes an
attempt or conspiracy to commit an offense involving “fraud or deceit in which
the loss to the victim or victims exceeds $10,000.”). It canceled the notice to
appear, and on April 20 it issued a Notice of Intent to Issue a Final
Administrative Removal Order (the Notice). The Notice advised Petitioner of the
procedural safeguards available to him.
The deportation officer checked boxes on the Notice indicating that
Petitioner had refused to acknowledge receiving it but wished to contest his
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deportability. Petitioner did not, however, respond to the Notice, and on May 7,
2012, the government served him with the FARO. It stated that the government
had determined that he was ineligible for discretionary relief from the Secretary
of Homeland Security and that the record had established “by clear, convincing,
and unequivocal evidence” that he was deportable as an alien convicted of an
aggravated felony. R. at 5. The FARO ordered Petitioner’s deportation to
Nigeria.
Petitioner argues that the government violated his due-process rights
because (1) it failed to comply with the procedural protections afforded under
8 U.S.C. § 1228(b), as interpreted by the accompanying regulations; (2)
Petitioner’s deportability as an aggravated felon was not established by clear and
convincing evidence in the record; (3) Petitioner was eligible for adjustment of
status because he was married to a United States citizen; and (4) the government
improperly canceled the Notice and commenced the FARO process against him.
II. DISCUSSION
Our jurisdiction under § 1228(b) does not include review of certain
discretionary decisions, but we may review “constitutional claims or questions of
law.” 8 U.S.C. § 1252(a)(2)(B), (D). Our review of such matters is de novo. See
N-A-M v. Holder, 587 F.3d 1052, 1055 (10th Cir. 2009).
Petitioner first argues that the government violated his right to due process
by failing to follow its own regulations regarding the issuance of a FARO. But
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the Notice and the FARO themselves show compliance with those procedural
requirements that applied to him, and Petitioner has not offered any evidence of
noncompliance or shown prejudice. See Berrum-Garcia v. Comfort, 390 F.3d
1158, 1165 (10th Cir. 2004) (Petitioner must show prejudice to prevail on due-
process challenge.).
Second, Petitioner argues that his deportability was not established by clear
and convincing evidence in the record because (1) the government improperly
relied on the “unattested” conviction documents in the administrative record, and
(2) the restitution order, which the government relied on to show a loss of more
than $10,000, was based on only a finding by a preponderance of the evidence.
Aplt. Br. at 25. But Petitioner does not argue that the information in the
conviction documents is inaccurate, so any lack of authentication did not
prejudice him. Also, in the absence of conflicting evidence the government may
rely on restitution orders to determine the loss to victims by clear and convincing
evidence, and Petitioner does not point to any evidence that the amount in the
restitution order is inaccurate. See Nijhawan v. Holder, 557 U.S. 29, 42–43
(2009) (There was “nothing unfair” about the immigration judge’s relying on
“earlier sentencing-related material,” including a restitution order, to find clear
and convincing evidence of a loss to victims of more than $10,000, “[i]n the
absence of any conflicting evidence.”); cf. Singh v. Att’y Gen. of U.S., 677 F.3d
503, 515 (3d Cir. 2012) (Restitution orders “may be helpful to the loss inquiry,
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but [are] not definitive” if there is “sufficient conflicting evidence to justify
looking past the restitution order.” (internal quotation marks omitted)).
Third, Petitioner argues that the government violated his due-process rights
by commencing FARO proceedings against him because he was eligible for
adjustment of status in an immigration court based on the U.S. citizenship of his
wife. But he has supplied no evidence that he had a wife who was a U.S. citizen.
Finally, Petitioner challenges the government’s decision to cancel the
notice to appear and initiate FARO proceedings. But a DHS officer may “cancel
such notice prior to jurisdiction vesting with the immigration judge,” if the
“officer is satisfied that” the “notice to appear was improvidently issued.”
8 C.F.R. § 239.2(a)(6). And Petitioner has failed to show that there was any legal
bar to a finding of improvidence in this case.
III. CONCLUSION
The Petition for Review is DENIED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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