Varughese v. Holder ( 2010 )


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  •      10-0467-ag
    Varughese v. Holder
    1                         UNITED STATES COURT OF APPEALS
    2
    3                             FOR THE SECOND CIRCUIT
    4
    5
    6
    7                               August Term, 2010
    8
    9   (Argued: November 10, 2010                 Decided: November 12, 2010)
    10
    11                             Docket No. 10-0467-ag
    12
    13
    14                    VARUGHESE ADACKAMANGAL VARUGHESE,
    15                       a/k/a Varughese Varughese,
    16
    17                                                                   Petitioner,
    18
    19                                       –v.–
    20
    21                    ERIC H. HOLDER, JR., United States
    22                             Attorney General,
    23
    24                                                                   Respondent.
    25
    26
    27
    28   Before:
    29         B.D. P ARKER, W ESLEY, Circuit Judges, J ONES, Judge. *
    30
    31        Petition for review of a final order of removal issued
    32   by the Board of Immigration Appeals (“BIA” or “Board”), on
    33   January 22, 2010, which affirmed the decision of the
    34   Immigration Judge (“IJ”) finding petitioner removable as
    35   charged. Petitioner contends principally that his removal
    36   is improper because his money laundering conviction, in
    37   violation of 18 U.S.C. 1956(a)(3)(b), does not constitute an
    38   “aggravated felony” under the INA. He also challenges the
    *
    The Honorable Barbara S. Jones, of the United States District Court
    for the Southern District of New York, sitting by designation.
    1   Board’s conclusion that he is ineligible for adjustment of
    2   status pursuant to INA § 245, 
    8 U.S.C. § 1255
    .
    3
    4             P ETITION D ENIED.
    5
    6
    7
    8                 T HOMAS E. M OSELEY, Law Offices of Thomas E. Moseley,
    9                        Newark, NJ, for Petitioner.
    10
    11                 C ARMEL A. M ORGAN, Trial Attorney, Office of
    12                        Immigration Litigation, Civil Division, (Tony
    13                        West, Assistant Attorney General, Russell J.
    14                        E. Verby, Senior Litigation Counsel, on the
    15                        brief), for Eric H. Holder Jr., United States
    16                        Attorney General, Respondent.
    17
    18
    19
    20   P ER C URIAM: 1
    21         Petitioner Varughese Adackamangal Varughese seeks
    22   review of a final order of removal issued by the BIA, which
    23   affirmed the decision of the IJ finding Varughese removable
    24   as charged.        In re Varughese, A 036 123 229 (B.I.A. Jan. 22,
    25   2010).       Specifically, the Board concluded that Varughese’s
    26   conviction for money laundering, in violation of 
    18 U.S.C. § 27
       1956(a)(3)(B), constitutes an “aggravated felony,” rendering
    28   him removable pursuant to § 101(a)(43)(D) of the Immigration
    29   and Nationality Act (“INA”).           
    8 U.S.C. § 1101
    (a)(43)(D).
    30   Varughese challenges that determination on appeal, along
    1
    This matter was initially resolved by summary order, but we now
    reissue that decision following the grant of the Government’s motion for
    publication of the summary order as a precedential opinion.
    2
    1   with the BIA’s conclusion that he is ineligible for
    2   adjustment of status pursuant to INA § 245, 
    8 U.S.C. § 1255
    .
    3   We deny the petition for review.
    4
    5                           I. Background
    6       Varughese, a native and citizen of India, was admitted
    7   to the United States on or about April 24, 1981 as a lawful
    8   permanent resident.   On November 25, 2002, Varughese was
    9   arrested pursuant to a “sting” operation and charged in a
    10   one-count indictment with money laundering, in violation of
    11   
    18 U.S.C. § 1956
    (a)(3)(b), which provides that
    12        [w]hoever, with the intent to conceal or
    13        disguise the nature, location, source,
    14        ownership, or control of property believed to be
    15        the proceeds of specified unlawful activity . .
    16        . conducts or attempts to conduct a financial
    17        transaction involving property represented to be
    18        the proceeds of specified unlawful activity, or
    19        property used to conduct or facilitate specified
    20        unlawful activity, shall be fined under this
    21        title or imprisoned for not more than 20 years,
    22        or both.
    23
    24       On October 7, 2005, pursuant to a cooperation
    25   agreement, Varughese pled guilty to the charged offense.
    26   During the plea hearing, Varughese testified that he issued
    27   money orders through his check-cashing business to men that
    28   he believed to be connected with drug dealers.   He further
    3
    1   testified that he did so in exchange for extra commissions,
    2   and admitted specifically to three transactions involving
    3   $30,000, $50,000, and $100,000, respectively.   On July 16,
    4   2008, the United States District Court for the Eastern
    5   District of New York (Trager, J.) sentenced Varughese to
    6   time served, along with three years of supervised release.
    7       On March 30, 2009, Varughese was served with a Notice
    8   to Appear, charging him with removability pursuant to 8
    
    9 U.S.C. § 1227
    (a)(2)(A)(iii), for having been convicted of an
    10   “aggravated felony.”   Specifically, INA § 101(a)(43)(D), 8
    
    11 U.S.C. § 1101
    (a)(43)(D) provides that an “aggravated felony”
    12   includes “an offense described in [
    18 U.S.C. § 1956
    ]
    13   (relating to monetary instruments) if the amount of the
    14   funds exceeded $10,000.”   § 1101(a)(43)(D).
    15       On several occasions in 2009, Varughese appeared before
    16   the IJ and contested his removability.   Specifically,
    17   Varughese argued that: (1) he was not convicted of
    18   laundering “funds exceed[ing] $10,000,” because the statute
    19   under which he was convicted uses the term “proceeds” and
    20   not “funds”; (2) even if the term “proceeds” is equated to
    21   “funds,” the Supreme Court has interpreted the term
    22   “proceeds” in another context to mean “profits,” and,
    4
    1   because this was a sting operation, no real profits were
    2   obtained; and (3) the legislative history of § 1956
    3   indicates that the term “funds” actually refers to the
    4   amount of the fine imposed, and not the amount of money
    5   laundered.
    6          On September 3, 2009, the IJ issued a written decision
    7   finding Varughese removable as charged.     The IJ concluded
    8   that, because the money laundering statute under which
    9   Varughese pled guilty is silent as to monetary amount, it
    10   was appropriate to consider statements made by Varughese
    11   during his plea colloquy to determine the amount of funds
    12   implicated in the offense of conviction.     In so doing, the
    13   IJ found “clear evidence” that Varughese’s offense involved
    14   amounts far exceeding the $10,000 threshold set forth in the
    15   INA.    Furthermore, the IJ rejected Varughese’s contention
    16   that the statute’s use of the word “funds” actually refers
    17   to the amount of the fine imposed, instead of the amount of
    18   money laundered.     Accordingly, the IJ concluded that
    19   Varughese was removable as charged, and ordered him removed
    20   to India.
    21          On January 22, 2010, the BIA dismissed Varughese’s
    22   appeal.     The BIA adopted, and expounded upon, the reasoning
    5
    1   of the IJ.   Specifically, the BIA explained that, pursuant
    2   to the Supreme Court’s decision in Nijhawan v. Holder, ---
    3   U.S. ---, 
    129 S. Ct. 2294
     (2009), the IJ properly relied
    4   upon the statements made by Varughese during his plea
    5   colloquy to conclude that the amount of funds involved in
    6   his crime exceeded $10,000.
    7       Varughese now seeks review in this Court.   For the
    8   reasons that follow, Varughese’s arguments are without
    9   merit.   His petition is therefore denied and his appeal
    10   dismissed.
    11                           II. Discussion
    12       Where, as here, the BIA has adopted the IJ’s reasoning
    13   and offered additional commentary, our Court reviews the
    14   decision of the IJ as supplemented by the Board.
    15   Gertsenshteyn v. U.S. Dep’t of Justice, 
    544 F.3d 137
    , 142
    16   (2d Cir. 2008).   “While the BIA’s interpretation of
    17   immigration statutes is generally entitled to Chevron
    18   deference, interpretations in non-precedential unpublished
    19   BIA decisions, as in the instant case, are not so entitled.”
    20   Dobrova v. Holder, 
    607 F.3d 297
    , 300 (2d Cir. 2010).     We
    21   need not, and do not, resolve whether such unpublished
    22   decisions are entitled to Skidmore deference, because our de
    6
    1   novo review reveals that the determination below was
    2   correct.
    3         At the outset, we reject Varughese’s contention that
    4   INA § 101(a)(43)(D), which defines an “aggravated felony” as
    5   a money laundering offense in which “the amount of the funds
    6   exceeded $10,000," 
    8 U.S.C. § 1101
    (a)(43)(D), captures only
    7   those violations of criminal statutes that use the specific
    8   word “funds.”      It is irrelevant that Varughese was convicted
    9   under a subsection of the money laundering statute that does
    10   not actually use the word “funds,” because the phrase “the
    11   amount of the funds exceeded $10,000” in the INA simply
    12   “refers to the particular circumstances in which an offender
    13   committed a . . . crime on a particular occasion.”                  Nijhawan
    14   v. Holder, 
    129 S. Ct. at 2298
    .            Simply put, it refers to the
    15   amount of money laundered. 2         See Chowdhury v. INS, 
    249 F.3d 16
       970, 974 (9th Cir. 2001).          That determination is properly
    17   made pursuant to a “circumstance-specific” approach, and not
    18   a “categorical” one.          Nijhawan, 
    129 S. Ct. at 2300
    .          Because
    19   Varughese admitted to laundering well in excess of $10,000
    20   on multiple occasions during his plea colloquy, the record
    2
    We are unpersuaded by Varughese’s contention that the term “amount of
    the funds,” as it is used in the money laundering statute, refers to the
    amount of the fine imposed.
    7
    1   of conviction sufficiently establishes that the
    2   circumstances of his money laundering conviction involved
    3   funds in excess of $10,000.    
    Id. at 2303
     (defendant’s
    4   stipulation at sentencing constitutes proper basis to assess
    5   circumstance-specific fact).
    6       Varughese next urges that, even assuming the “amount of
    7   the funds” inquiry is circumstance-specific, the amounts
    8   that he admitted laundering during his plea colloquy are not
    9   sufficiently “tethered” to his conviction in order to
    10   establish his removability.    See 
    id.
     (observing that “the
    11   loss must be tied to the specific counts covered by the
    12   conviction”) (internal quotation marks omitted).    In
    13   substance, Varughese argues that because no amount is cited
    14   in the indictment to which he pled guilty, the statements he
    15   made during his plea colloquy are not sufficiently related
    16   to his conviction to establish that his conviction was an
    17   “aggravated felony.”
    18       We are unpersuaded.   Varughese was charged in a one-
    19   count indictment alleging multiple “financial transactions”
    20   over the course of several months in 2001 and 2002.       A. 155.
    21   Varughese confirmed during the sentencing hearing that he
    22   was involved in multiple instances of money laundering
    8
    1   between “November 2001 and January 2002.”              A. 205.
    2   Accordingly, his admissions to laundering funds in excess of
    3   $10,000 are sufficiently related to the count for which he
    4   was convicted. 3
    5         Finally, we reject Varughese’s contention that he is
    6   eligible for adjustment of status pursuant to INA § 245.
    7   Adjustment of status is a discretionary benefit affordable
    8   to an alien who, among other things, is “eligible to receive
    9   an immigrant visa and is admissible to the United States for
    10   permanent residence.”        INA § 245, 
    8 U.S.C. § 1255
    (a).
    11   Because Varughese’s money laundering conviction renders him
    12   ineligible for admissibility to the United States, he is
    13   similarly ineligible for adjustment of status.                INA §
    14   212(a)(2)(I)(i), 
    8 U.S.C. § 1182
    (a)(2)(I)(i) (“Any alien who
    15   . . . has engaged, is engaging, or seeks to enter the United
    16   States to engage, in an offense described in section 1956 or
    17   1957 of Title 18 (relating to laundering of monetary
    18   instruments) is inadmissible” to the United States.).
    3
    Varughese also contends that the money laundering statute’s use of the
    term “proceeds” must mean “profits,” in light of the Supreme Court’s decision
    in United States v. Santos, 
    553 U.S. 507
     (2008), and that his conviction is
    therefore infirm because there can be no true “profits” realized in a sting
    operation. Not only is this argument baseless — the specific subsection under
    which Varughese was convicted expressly contemplates sting operations — but it
    is also irrelevant. The soundness of Varughese’s underlying conviction is not
    before us, for “[c]ollateral attacks are not available in a . . . petition
    challenging the BIA’s removal decision.” Lanferman v. BIA, 
    576 F.3d 84
    , 88
    (2d Cir. 2009).
    9
    1   Moreover, because Varughese’s money laundering conviction
    2   constitutes an “aggravated felony,” the Attorney General was
    3   without discretion to afford him a waiver of
    4   inadmissibility.     INA § 212(h), 
    8 U.S.C. § 1182
    (h).
    5
    6                            III. Conclusion
    7         For the foregoing reasons, the petition for review is
    8   D ENIED.   Having completed our review, any stay of removal
    9   previously granted in this petition is V ACATED, and any
    10   pending motion for a stay of removal is D ISMISSED as moot.
    10