USCA11 Case: 21-11597 Date Filed: 04/13/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11597
Non-Argument Calendar
____________________
ARMAND JOSEPH,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A090-597-547
____________________
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2 Opinion of the Court 21-11597
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
The Board of Immigration Appeals, affirming the decision of
an immigration judge, ruled that Armand Joseph was removable
from the United States because he committed an “aggravated fel-
ony,” see
8 U.S.C. § 1227(a)(2)(A)(iii), namely, a conspiracy offense
that “involves fraud or deceit in which the loss to the victim or vic-
tims exceeds $10,000,”
id. § 1101(a)(43)(M)(i), (U). Joseph petitions
this Court for review. We dismiss the petition.
The records shows that Joseph, a native and citizen of Ja-
maica, entered the United States in the 1970s and became a lawful
permanent resident in 1990. In May 2017, he pled guilty to partici-
pating in a conspiracy to defraud the government by cashing fraud-
ulently obtained income-tax refund checks, in violation of
18
U.S.C. § 371. According to undisputed facts in his presentence in-
vestigation report (“PSR”), Joseph stipulated in a written plea
agreement that, while working as a teller at a check-cashing busi-
ness, he cashed 34 federal income-tax refund checks—in the total
amount of $247,344—for an individual who fraudulently obtained
the checks. He received approximately $100 per check as a kick-
back. As a result of Joseph’s participation, the government sus-
tained a loss of $247,344. The district court sentenced him to serve
24 months in prison and to pay $247,344 in restitution to the Inter-
nal Revenue Service.
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21-11597 Opinion of the Court 3
The Department of Homeland Security subsequently
charged Joseph with removability under § 1227(a)(2)(A)(iii), alleg-
ing that his conviction was for an “aggravated felony.” Based on
the indictment, the criminal judgment and restitution order, and
undisputed facts in the PSR, the IJ determined that Joseph’s convic-
tion qualified as an aggravated felony because it involved fraud or
deceit and the loss to the victim exceeded $10,000. See
8 U.S.C.
§ 1101(a)(43)(M)(i).
Joseph appealed to the BIA, which affirmed the IJ. Accord-
ing to the BIA, the record supported the IJ’s finding that the loss
amount exceeded $10,000. Reviewing the “entire record of convic-
tion,” the BIA noted that Joseph stipulated in his plea agreement
that the 34 checks he cashed were worth approximately $247,344.
It also cited the PSR’s undisputed statement that, “[a]s a result of
Joseph’s participation in the scheme, the United States was de-
frauded of $247,344.21.” Finally, the BIA found in the alternative
that Joseph’s conviction qualified because the contemplated loss of
the conspiracy was well over $10,000, even if the actual loss was
not.
Joseph now petitions this Court for review. He contends
that the restitution order is not sufficient to prove the loss amount
because it “encompasses the losses from criminal activity other
than the conviction offense.” He asserts that the conspiracy count
to which he pled guilty “did not calculate or reference a specific loss
amount to any victim(s),” and so, in his view, the loss amount was
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4 Opinion of the Court 21-11597
not “tied to the specific counts covered by the conviction” as re-
quired.
“[W]e apply an exceedingly deferential standard of review
to the agency’s fact-finding about the amount of loss” for purposes
of determining whether a prior conviction qualifies as an aggra-
vated felony. Garcia-Simisterra v. U.S. Att’y Gen.,
984 F.3d 977,
980–81 (11th Cir. 2020). We will uphold the agency’s determina-
tion of the loss amount if it is “supported by reasonable, substantial,
and probative evidence on the record considered as a whole.”
Id.
at 981 (quotation marks omitted). If substantial evidence supports
the agency’s conclusion, we must dismiss the petition for review.
Id. at 982.
In determining whether the loss amount for a prior fraud or
deceit conviction exceeded $10,000, the agency may consider “the
specific circumstances surrounding an offender’s commission of a
fraud and deceit crime on a specific occasion.” Nijhawan v. Holder,
557 U.S. 29, 40 (2009) (holding that the categorical approach does
not apply to § 1101(a)(43)(M)(i)). It is not limited to the indictment
or the statutory definition or the “generic” form of the offense. Id.
Nevertheless, the loss amount “must be tied to the specific counts
covered by the convictions,” and cannot be based on uncharged or
acquitted conduct. Id. (quotation marks omitted).
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21-11597 Opinion of the Court 5
In examining the “specific circumstances” of the prior con-
viction, the agency is not limited to Shepard-approved 1 sources and
may rely more broadly on “sentencing-related material.” Nijha-
wan,
557 U.S. at 41–42. In Nijhawan, the Supreme Court held that
evidence of the “defendant’s own stipulation” that the conviction
involved losses exceeding $10,000 and a restitution order showing
that same thing was “clear and convincing” in the absence of con-
flicting evidence.
Id. at 42–43; see also Garcia-Simisterra, 984 F.3d
at 981–82 (finding that the agency’s loss amount was supported by
the criminal information and the plea agreement).
Here, substantial evidence supports the agency’s finding that
Joseph was convicted of a fraud offense involving losses exceeding
$10,000. Similar to Nijhawan, the agency here relied on evidence
of Joseph’s own stipulation as part of the plea agreement that the
34 tax refund checks he cashed as part of a conspiracy to defraud
resulted in a loss to the government of $247,344, as well as a resti-
tution order for that amount. See id. And Joseph does not point
to “any conflicting evidence.” Id.
Nor are we persuaded by Joseph’s claim that the restitution
order includes “losses from criminal activity other than the
1“Shepard-approved documents include the ‘charging document, the terms of
a plea agreement, or transcript of [plea] colloquy between judge and defendant
in which the factual basis for the plea was confirmed by the defendant, or to
some comparable judicial record of this information.’” United States v. Dud-
ley,
5 F.4th 1249, 1257 (11th Cir. 2021) (quoting Shepard v. United States,
544
U.S. 13, 16, 26 (2005)).
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6 Opinion of the Court 21-11597
conviction offense,” as was the case in Obasohan v. U.S. Att’y Gen.,
479 F.3d 785, 789–90 (11th Cir. 2007), abrogated on other grounds
by Nijhawan,
557 U.S. at 41–42. In Obasohan, we held that the
restitution order there was insufficient proof of loss for
§ 1101(a)(43)(M)(i) because “[t]he restitution was not based on the
conspiracy charge to which [the defendant] pled guilty, nor on the
overt acts to which [he] admitted by pleading guilty.”
479 F.3d at
789. Rather, it “was based on additional conduct” in the PSR that
was not “charged, proven or admitted.”
Id. at 789–91.
But the restitution in this case, in contrast to Obasohan, was
clearly based on conduct admitted by Joseph as part of his guilty
plea to the conspiracy offense. It was based on Joseph’s stipulation
that he cashed checks worth $247,344 for the conspiracy, causing a
loss of that same amount to the government. That evidence clearly
and convincingly established that the loss amount “tied to” the spe-
cific conspiracy conviction exceeded $10,000. See Nijhawan,
557
U.S. at 40–43.
Because “substantial evidence supported the BIA’s conclu-
sion, . . . we lack jurisdiction over [Joseph’s] petition.” Garcia-Si-
misterra, 984 F.3d at 982.
PETITION DISMISSED.
