Bazuaye v. Holder , 452 F. App'x 15 ( 2011 )

10-3557
Bazuaye v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 17th day of October, two thousand eleven,
Present: JOSEPH M. McLAUGHLIN,
ROSEMARY S. POOLER,
REENA RAGGI,
Circuit Judges.
_____________________________________________________
JEROMI HORNS BAZUAYE,
Petitioner,
-v- 10-3557
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,
Respondent.
Appearing for Petitioner: Brian L. Gardner, Sullivan Gardner, PC, New York, N.Y.
Appearing for Respondent: Kirti Vaidya Reddy, Benjamin H. Torrance (Assistant United
States Attorneys, of counsel) for Preet Bharara, United States
Attorney for the Southern District of New York.
Petition for review of an order of the Board of Immigration Appeals (“BIA”).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
Petitioner Jeromi Horns Bazuaye (“petitioner”) seeks review of an August 26, 2010 order
and decision of the BIA, affirming the April 9, 2009 order and decision of the Immigration Judge
(Page, J.), ordering petitioner removed and denying his application for cancellation of removal.
The main issue presented by this petition for review is whether the BIA erred in holding that
petitioner’s 2004 conviction for violations of 18 U.S.C. §§ 1344 and 1029(a) remained a
conviction constituting an aggravated felony under the Immigration and Nationality Act (“INA”)
after a June 8, 2005 remand from this court, in which we directed the district court to vacate
petitioner’s sentence and resentence him in accordance with United States v. Booker, 543 U.S.
220 (2005). We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.
Petitioner contends that this court’s remand for resentencing under Booker compels the
conclusion that his 2004 conviction does not constitute a conviction under the INA. A conviction
under the INA does typically require sentence, and so for some period between our remand and
the district court’s resentencing, petitioner’s 2004 conviction may not have been a conviction
within the meaning of the INA. See Puello v. Bureau of Citizenship & Immigration Servs., 511
F.3d 324, 331-32 (2d Cir. 2007). But whatever the status of petitioner’s conviction in the period
between remand and resentencing, it became indisputably final well before the IJ and the BIA
made their determinations as to his removability based on that conviction. Petitioner was
resentenced by the district court on September 30, 2005, and we affirmed by summary order on
April 23, 2008. See United States v. Bazuaye, 311 F. App’x 382 (2d Cir. 2008) (summary order).
At a minimum, petitioner’s conviction was a conviction within the meaning of the INA after the
2005 resentencing, and it was proper for the IJ and the BIA to find removability based upon it.
Petitioner’s due process rights were not violated by the government’s use of 2004 rather than
2005, the more accurate date for INA purposes, on petitioner’s Notice to Appear. Despite any
possible error, petitioner was not deprived of the “right to notice of the nature of the charges and
a meaningful opportunity to be heard” because the 2005 conviction involved the exact facts and
finding of guilt as the 2004 conviction. Pierre v. Holder, 588 F.3d 767, 776 (2d Cir. 2009).
Petitioner’s next argument is that the 2004 conviction was not properly deemed an
aggravated felony because the IJ and the BIA looked at the specific circumstances of his offense
to determine whether he had met the monetary threshold of loss to victims under 8 U.S.C. §
1101(a)(43)(M)(i). This argument is completely foreclosed by the Supreme Court’s decision in
Nijhawan v. Holder, 129 S. Ct. 2294 (2009). Nijhawan holds clearly that the “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 2302. The IJ
and the BIA were not only allowed, but indeed required, to make a circumstance-specific inquiry
into the amount of loss. In so doing, it was proper for them to rely on the presentence report and
restitution order in addition to the record of conviction. See id. at 2303.
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Because we affirm the IJ and BIA’s determination that petitioner has committed an
aggravated felony, and so is removable and ineligible for cancellation of removal on those
grounds alone, we need not and do not address whether petitioner’s convictions constitute crimes
involving moral turpitude.
We have examined petitioner’s remaining arguments and find them to be without merit.
We therefore DENY the petition for review. The previously granted stay of deportation is
VACATED.
Accordingly, the judgment of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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