Kelvin Molina Morillo v. Attorney General United States ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1839
___________
KELVIN RICARDO MOLINA MORILLO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A044-132-975)
Immigration Judge: Honorable Kuyomars Q. Golparvar
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 12, 2018
Before: VANASKIE, COWEN and NYGAARD, Circuit Judges
(Opinion filed: October 17, 2018)
___________
OPINION *
___________
PER CURIAM
Kelvin Ricardo Molina Morillo (“Molina”) petitions for review of an order of the
Board of Immigration Appeals (“BIA”), which dismissed his appeal from an Immigration
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Judge’s (“IJ”) decision that found him removable and denied his applications for relief.
We will deny the petition for review.
I.
Molina, a citizen of the Dominican Republic, entered the United States as a
permanent resident at the age of six in 1993. In December 2015, he was convicted of
possession of a forged instrument and bribery in violation of New York law. He was
placed in removal proceedings and charged with being removable for having been
convicted of two crimes involving moral turpitude, and for having been convicted of an
aggravated felony as defined in INA § 101(a)(43)(R) [8 U.S.C. § 1101(a)(43)(R)]. 1 A.
580. About a year later, an additional charge was lodged, noting that Molina had been
convicted in November 2015 of possession of forged money orders in violation of 18
U.S.C. § 500, which constituted an aggravated felony as defined in INA
§ 101(a)(43)(M)(i) [8 U.S.C. § 1101(a)(43)(M)(i)]. 2 A. 576.
The IJ sustained the charges and informed Molina that he would be ineligible for
most forms of relief because of his criminal convictions. A.R. 96-97. However, although
the IJ determined that Molina had been convicted of an aggravated felony, he concluded
that Molina’s crimes were not “particularly serious,” making him eligible to apply for
withholding of removal, as well as protection under the Convention Against Torture
1
Subsection “R” defines an aggravated felony as “an offense relating to commercial
bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of
which have been altered for which the term of imprisonment is at least one year.”
2
Subsection “M(i)” defines an aggravated felony as “an offense that--(i) involves fraud
or deceit in which the loss to the victim or victims exceeds $10,000.”
2
(“CAT”). A.R. 97. The IJ ultimately denied relief, however, because Molina had not
met the high burden of showing that it was more likely than not that he would be
persecuted based on a protected ground. 3 A. 105.
The BIA agreed with the IJ that Molina’s conviction under 18 U.S.C. § 500 was an
aggravated felony as defined in subsection (M)(i). A.R. 2. The BIA found it unnecessary
to consider whether Molina had also been convicted of an aggravated felony as defined in
subsection (R). Id. n.1. As for relief, the BIA agreed that Molina had not shown “that his
life or freedom would be threatened in the future in the Dominican Republic on account
of a protected ground,” as he had not “shown that he is a member of a particular social
group within the meaning of the Act.” A.R. 3. The BIA also affirmed that Molina had
not shown that it was more likely than not that he would be tortured in the Dominican
Republic. A.R. 4.
Molina filed a timely petition for review. In his brief, he argues only that the
agency erred by determining that his conviction under 18 U.S.C. § 500 constituted an
aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i).
II.
We have jurisdiction under 8 U.S.C. § 1252(a), but because of Molina’s
convictions, our review is confined to constitutional claims and legal claims. 8 U.S.C.
§ 1252(a)(2)(C), (D). Where, as here, the BIA issues its own opinion, we review that
3
Molina claimed he would be persecuted by co-defendants who viewed him as a “snitch”
and that he would be persecuted because he would be viewed by Dominicans as
“Americanized” and wealthy, due to his many years in the United States.
3
decision, but to the extent it adopts some of the IJ’s determinations, we may look to the
IJ’s decision for its analysis. See Dutton-Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir.
2017). We review the legal conclusions in a single-member non-precedential opinion of
the BIA de novo, deferring to the conclusions “only insofar as they have the power to
persuade.” Singh v. Att’y Gen., 807 F.3d 547, 550 (3d Cir. 2015).
The scope of our review is limited to the sole issue raised by Molina’s brief:
whether his conviction is an aggravated felony under subsection (M)(i). All other issues
are waived. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004). The Government
argues that we need not reach the issue of whether Molina is removable under subsection
(M)(i), because he remains removable for having committed two or more crimes
involving moral turpitude, and for having committed a commercial bribery aggravated
felony. Resp. Br. at 15. But, as the Government recognizes, the BIA did not reach the
issues of whether those convictions rendered Molina removable. Id. at 10-11. We thus
cannot deny Molina’s petition for review on that alternative basis. See Konan v. Att’y
Gen., 432 F.3d 497, 501 (3d Cir. 2005) (“It is a bedrock principle of administrative law
that judicial review of an agency’s decision is limited to the rationale that the agency
provides.”); Dutton-Myrie, 855 F.3d at 515 (“If the Board relies only on some of the
[IJ’s] grounds given for denying relief, we review only these grounds.”). We thus
continue with a discussion of the sole issue before us—whether Molina’s conviction
under 18 U.S.C. § 500 renders him removable because it is an aggravated felony under
subsection (M)(i).
III.
4
As noted, to constitute an aggravated felony under subsection (M)(i), the
conviction must “involve[] fraud or deceit in which the loss to the victim or victims
exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). Molina does not contest that his
conviction involved fraud or deceit; he only challenges the way the agency determined
the loss amount. As the parties agree, courts are to use a circumstance-specific approach
in determining loss amounts for subsection (M)(i), rather than a categorical approach,
“look[ing] to the facts and circumstances underlying an offender’s conviction” to
determine the loss amount. Nijhawan v. Holder, 557 U.S. 29, 34, 40 (2009). The loss
amount must be tethered to the offense of conviction. Id. at 42.
Molina argues that although the loss due to his conviction was stipulated to be
between $120,000 and $200,000, that amount “contains relevant and general conduct
from the un-convicted counts of the petitioner’s indictment” and that the Government did
not meet its burden of showing that there was a loss of over $10,000 that was tethered to
Count Five, the count of conviction. Pet. Br. at 10. The Government counters that under
the Mandatory Victims Restitution Act of 1996, a court can order restitution only if it
“finds that ‘an identifiable victim or victims has suffered a physical injury or pecuniary
loss’ as a ‘direct[ ] and proximate[ ]’ result of the offense. 18 U.S.C. § 3663A(a)(1) &
(2), (c)(1)(B).” Resp. Br. at 19. 4
4
The Government also properly distinguishes Singh v. Attorney General, 677 F.3d 503,
513 (3d Cir. 2012), where this Court stated that the Government’s reliance on the MVRA
and the restitution order in establishing the (M)(i) loss amount was misplaced. In Singh,
the restitution order was issued “pursuant to an express agreement by the parties, not the
MVRA.” Id. We noted in that case that orders issued pursuant to such an agreement
were not necessarily “limited to actual losses from the offense of conviction.” Id. But
5
 The Government is correct. The Order of Restitution states that Molina “shall pay
restitution in the total amount of $93,621.43, to be distributed to the victims of the offense
charged in Count Five on a pro rata basis.” A.R. 404 (emphasis added). Thus, the
amount is over $10,000, and one can infer that the Court found that amount to be owing
to the victims of the offense of conviction. See Nijhawan, 557 U.S. at 42-43
(immigration court properly considered “defendant’s own stipulation, produced for
sentencing purposes” and “court’s restitution order” in determining loss amount). While
Molina appears to argue that the sentencing court got the amount wrong, Molina cannot
challenge his restitution order in immigration proceedings or in his petition for review
here. Id. at 42 (citing with approval the Government’s argument that the determination of
the loss amount in immigration proceedings “is not an invitation to relitigate the
conviction itself”). 5
In sum, the IJ here properly relied on the restitution order to determine the loss
amount of Molina’s crime of conviction. Because that loss amount exceeded $10,000,
the record before us does not suggest that the restitution order in Molina’s case is based
on any such agreement.
5
In his opening brief, Molina noted that he had filed a petition for a writ of coram nobis
in the sentencing court. We take judicial notice that his petition has since been denied.
See United States v. Molina, E.D.N.Y. Crim. No. 15-cr-00065 (Dkt. #175, opinion and
order entered Aug. 15, 2018). The Court also filed an amended judgment on August 16,
2018, which is identical to the earlier criminal judgment, except that it includes an
amount of $93,621.43 for restitution—the amount that was previously set forth only in a
separate restitution order. See id., Dkt. #176 (amended judgment); Dkt. #112 (original
judgment); Dkt. #144 (restitution order).
6
Molina is removable due to an aggravated felony, as defined in subsection (M)(i). We
will therefore deny the petition for review.
7