Rashid Abdulai v. Attorney General United States ( 2022 )


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  •                                                                   NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 20-2305
    _____________
    RASHID ABDULAI,
    Petitioner
    v.
    ATTORNEY GENERAL UNITED STATES OF AMERICA
    _______________
    On Petition for Review of a Final Administrative Removal Order of the
    Department of Homeland Security
    (Agency No. A216-473-874)
    Immigration Judge: Alice Song Hartye
    _______________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    November 16, 2021
    Before: AMBRO, JORDAN, and RENDELL, Circuit Judges
    (Filed: August 10, 2022)
    _______________
    OPINION ∗
    _______________
    ∗
    This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
    does not constitute binding precedent.
    JORDAN, Circuit Judge.
    The Department of Homeland Security (“DHS”) placed Rashid Abdulai in
    expedited removal proceedings, charging him with being removable as a person
    convicted of an aggravated felony. It eventually issued a Final Administrative Removal
    Order (“FARO”), and Abdulai filed a petition for review. He challenges the DHS’s legal
    conclusion that his prior conviction for conspiracy to commit fraud was an aggravated
    felony, and he also asserts that the government’s handling of his case violated his
    procedural due process rights. For the following reasons, we will dismiss the petition for
    review.
    I.     BACKGROUND
    Abdulai is a native and citizen of Ghana who entered the United States in
    September 2013 with a non-immigrant visitor visa. He overstayed his visa’s departure
    deadline. Years later, in November 2018, he was indicted in federal court in Tennessee
    for money laundering and for conspiring to commit bank fraud, wire fraud, and mail
    fraud. The indictment alleged that, in furtherance of a scheme to defraud businesses and
    individuals, Abdulai: received a check from one victim for approximately $15,000;
    received wire transfers from other victims and from co-conspirators in amounts totaling
    $48,000; and sent wire transfers to co-conspirators in amounts totaling $42,000. He pled
    guilty to the conspiracy charge; the money-laundering charge was dismissed.
    A presentence investigation report added more details about Abdulai’s
    involvement in the scheme. It concluded that the total loss amount attributable to his
    involvement was approximately $145,000, and a supplement to the report described how
    2
    Abdulai impersonated a woman on Facebook in order to trick a man from Georgia into
    mailing Abdulai’s wife a check for $51,000. Based on the presentence report and
    supplement, Abdulai was ordered to pay $51,000 in restitution and was sentenced to a
    prison term of twelve months and one day.
    On March 10, 2020, DHS served Abdulai with a Notice of Intent to Issue a FARO.
    The Notice of Intent charged Abdulai with being deportable under 
    8 U.S.C. § 1227
    (a)(2)(A)(iii) because he was convicted of an aggravated felony, as defined in 
    8 U.S.C. § 1101
    (a)(43)(M) and (U). DHS issued the FARO on April 22, 2020, and it was
    served on Abdulai on May 26.
    After receiving the FARO, Abdulai sought protection from removal, and, after
    consideration by an asylum officer and an immigration judge (“IJ”), Abdulai was
    scheduled for “withholding-only proceedings.” Those proceedings went forward, and the
    IJ denied Abdulai’s application in an order that was served on November 6, 2020.
    Abdulai did not appeal that denial to the Board of Immigration Appeals (“BIA”), so the
    IJ’s ruling became final and unappealable on December 7, 2020. 
    8 C.F.R. § 1003.38
    (b).
    Prior to the IJ’s ruling in the withholding-only proceedings, Abdulai filed the
    pending petition for review of the FARO.
    II.    DISCUSSION
    A.     Jurisdiction
    We begin by determining whether, under the Immigration and Nationality Act
    (“INA”), we have jurisdiction over Abdulai’s petition for review. There are three
    questions that present potential obstacles to jurisdiction: first, whether the FARO is a
    3
    final order of removal; second, whether Abdulai exhausted his administrative remedies;
    and, finally, whether the aggravated-felony bar strips us of jurisdiction.
    Under 
    8 U.S.C. § 1252
    (a), we have appellate jurisdiction over final orders of
    removal only. “[A]n order is final for jurisdictional purposes when a removability
    determination has been made that is no longer appealable to the BIA, regardless [of]
    whether a formal order of removal has been entered.” Yusupov v. Att’y Gen., 
    518 F.3d 185
    , 195 (3d Cir. 2008) (collecting cases). There are arguably two times we might count
    as making Abdulai’s FARO “final” and thus challengeable under § 1252(a). First, we
    might say the FARO was final when issued, even though withholding-only proceedings
    stayed his removal. See Guerrero-Sanchez v. Warden York Cnty. Prison, 
    905 F.3d 208
    ,
    216 (3d Cir. 2018) (holding a reinstated removal order is not rendered nonfinal by
    reasonable fear proceedings because “withholding-only proceedings do not disturb the
    underlying order of removal; rather, they only potentially impede the order’s execution
    with respect to a specific country”). The other option is to say that the FARO did not
    become final until the IJ denied Abdulai’s application for relief and he declined to appeal
    to the BIA. If that is the time of finality, then Abdulai filed his petition for review in our
    Court prematurely because he filed before the IJ reached her decision. 
    8 C.F.R. § 1003.38
    (a).
    We need not firmly determine at which of those two points the removal order
    became final because, under either option, we have jurisdiction. If it was when the
    FARO was issued, there was a final order of removal and Abdulai timely petitioned for
    review within 30 days of service. See Villegas de la Paz v. Holder, 
    640 F.3d 650
    , 653-55
    4
    (6th Cir. 2010). And if it was when the withholding-only proceedings concluded,
    Abdulai’s petition ripened when the IJ issued her decision and the thirty-day deadline for
    appealing that order, 
    id.
     § 1003.38(b), came and went without any action by Abdulai. See
    Khan v. Att’y Gen., 
    691 F.3d 488
    , 494 (3d Cir. 2012) (“So long as the Attorney General
    has not shown that he will suffer prejudice resulting from the premature filing of a
    petition for review, and we have yet to take action on the merits of the appeal, a
    premature petition for review can ripen once the BIA issues a final order[.]”). Thus, the
    final-order rule does not deprive us of jurisdiction. 1
    Next, we may review a final order only if the alien has “exhausted all
    administrative remedies available to the alien as of right[.]” 
    8 U.S.C. § 1252
    (d)(1).
    Abdulai did not timely respond to the Notice of Intent, 2 and this is the first proceeding in
    which he has challenged the determination that his conviction was an aggravated felony.
    We recently decided, however, that “the INA’s exhaustion requirement does not deprive
    1
    The government initially moved to dismiss Abdulai’s petition for lack of
    jurisdiction due to non-finality. After the IJ issued its decision in the withholding-only
    proceedings, however, the government moved to withdraw its motion to dismiss. Both
    motions are moot and effectively disposed of by our decision today to dismiss the petition
    for review.
    2
    Abdulai alleges that he responded to the Notice of Intent and that the DHS
    received his response on April 23, 2020, after the Notice was served on him on March 10.
    But that purported response was not included in the supplemented administrative record,
    and Abdulai does not describe the substance of his response. Even if his response
    contested his conviction’s qualification as an aggravated felony, it would not help
    Abdulai because it was filed well after the applicable deadline. See 
    8 C.F.R. § 238.1
    (c)(1) (“The alien will have 10 calendar days from service of the Notice of
    Intent[,] or 13 calendar days if service is by mail, to file a response to the Notice of
    Intent.”).
    5
    us of jurisdiction to consider [a petitioner’s] legal challenge for the first time on his
    petition for review” of a final order of removability resulting from expedited removal
    proceedings. Barradas Jacome v. Att’y Gen., 
    39 F.4th 111
    , 116 (3d Cir. 2022). We
    reasoned that the applicable regulations, as well as DHS’s practices, “strongly suggest”
    that legal challenges may not be raised during such proceedings. 
    Id. at 118-21
    . Thus, the
    exhaustion-of-remedies rule does not deprive us of jurisdiction.
    Lastly, § 1252 also limits our jurisdiction by prohibiting review of “any final order
    of removal against an alien who is removable by reason of having committed [an
    aggravated felony].” 
    8 U.S.C. § 1252
    (a)(2)(C). But that jurisdictional-stripping provision
    applies only if the petitioner “is, in fact, an alien who has committed an aggravated
    felony.” Singh v. Att’y Gen., 
    677 F.3d 503
    , 508 (3d Cir. 2012). We therefore may
    exercise jurisdiction over the predicate legal question of whether an offense is an
    aggravated felony. 
    Id.
     Likewise, we retain jurisdiction to “examine constitutional claims
    or [other] questions of law.” Fan Wang v. Att’y Gen., 
    898 F.3d 341
    , 343 (3d Cir. 2018)
    (citation and internal quotation marks omitted).
    B.     Legal Challenges
    Abdulai raises two legal claims in his petition for review. First, he argues that the
    government wrongly determined that he had been convicted of an aggravated felony.
    Second, he argues that the government violated his right to procedural due process by
    delaying service of the FARO. Neither of those arguments is persuasive.
    6
    1.     Challenge to Aggravated Felony Determination 3
    Under the INA, “[a]ny alien who is convicted of an aggravated felony at any time
    after admission is deportable.” 
    8 U.S.C. § 1227
    (a)(2)(A)(iii). The INA defines an
    “aggravated felony” as, among other things, “an offense that [] involves fraud or deceit in
    which the loss to the victim or victims exceeds $10,000[,]” or “an attempt or conspiracy
    to commit [such] an offense[.]” 
    Id.
     § 1101(a)(43)(M)(i), (U). Abdulai does not
    meaningfully dispute that the crime of which he was convicted, conspiracy to commit
    bank fraud, wire fraud and mail fraud, is an offense that involves fraud or deceit. 4
    Instead, he argues that his offense did not involve a loss to victims exceeding $10,000.
    When determining whether an alien’s offense caused over $10,000 in losses, we
    look to “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). To do
    so, we review “the indictment, judgment, presentence investigation report, and any other
    ‘sentencing-related material’ that sheds light on [the alien’s] conduct.” Rad v. Att’y Gen.,
    
    983 F.3d 651
    , 659 (3d Cir. 2020) (quoting Nijhawan, 
    557 U.S. at 42
    ). A conspiracy to
    3
    We have plenary review over the legal question of whether a conviction qualifies
    as an aggravated felony. Rad v. Att’y Gen., 
    983 F.3d 651
    , 658 (3d Cir. 2020).
    4
    Abdulai appears to argue that his conduct was more akin to money laundering
    than fraud, such that his offense was not a crime involving fraud or deceit. That is a non-
    starter. It should be obvious that he may not relitigate here the crime for which he has
    already pled guilty – conspiracy to commit fraud – which is categorically a crime of fraud
    and deceit. See Nijhawan v. Att’y Gen., 
    523 F.3d 387
    , 390-91 (3d Cir. 2008) (holding
    that a conviction for conspiracy to commit fraud in violation of 
    18 U.S.C. § 371
     is
    categorically a crime involving fraud or deceit), aff’d, 
    557 U.S. 29
     (2009).
    7
    commit fraud or deceit satisfies the dollar threshold as long as the conspiracy intended to
    cause over $10,000 in losses, even if the conspiracy resulted in no actual losses. Id. at
    670. Still, the loss must be “tethered” to the actual “offense of conviction,” and not to
    “acquitted or dismissed counts or general conduct.” Singh, 
    677 F.3d at 508
     (quoting
    Nijhawan, 
    557 U.S. at 42
    ).
    The relevant materials plainly show that Abdulai’s conspiracy intended to, and
    actually did, cause over $10,000 in losses to victims. The indictment, under the
    “Conspiracy to Commit Fraud” count to which Abdulai pleaded guilty, accused him of
    receiving and forwarding tens of thousands of dollars as part of the fraudulent scheme. 5
    The presentence investigation report concluded that he was responsible for approximately
    $144,955 of the loss caused by the conspiracy. That report also described how Abdulai
    fraudulently caused one victim to send a check for $51,000 to Abdulai’s wife, and the
    judgment required Abdulai to pay $51,000 in restitution. That information alone
    establishes that the conspiracy’s victims suffered over $10,000 in losses and that those
    losses were “tethered” to Abdulai’s conspiracy to commit fraud. Thus, his crime
    qualified as an aggravated felony under the INA.
    5
    Abdulai also appears to argue that, once the transfers to his co-conspirators are
    accounted for, he personally received less than $10,000 in total for his participation in the
    defrauding scheme. Even if that were true, it would not affect our analysis. The loss
    requirement focuses on quantifying the “loss to the victim[,]” not the gain to the
    perpetrator. 
    8 U.S.C. § 1101
    (a)(43)(M)(i).
    8
    2.     Procedural Due Process Challenge 6
    Abdulai’s due process challenge fails because he has not shown that “substantial
    prejudice resulted from the alleged procedural errors.” Delgado-Sobalvarro v. Att’y
    Gen., 
    625 F.3d 782
    , 787 (3d Cir. 2010). He argues that the government’s more-than-
    thirty-day delay in serving the FARO deprived him of his right to timely petition for
    review of that order. Under the INA’s procedures for judicial review, “[a] petition for
    review must be filed not later than 30 days after the date of the final order of removal.” 
    8 U.S.C. § 1252
    (b)(1). But the thirty-day deadline for seeking review of an order runs
    from the time that the order is properly served on the alien. Villegas de la Paz, 
    640 F.3d at 653-55
    . Abdulai filed his petition for review within thirty days of service, and so his
    petition was timely. He was not prejudiced by the supposed delay in service of the
    FARO. 7
    “We review de novo whether [Abdulai’s] due process rights were violated[.]”
    6
    Abdulrahman v. Ashcroft, 
    330 F.3d 587
    , 595-96 (3d Cir. 2003).
    7
    When the government submitted the administrative record containing the FARO,
    it failed to include the Notice of Intent. Later, the government sought leave to
    supplement the administrative record with the Notice of Intent, and we allowed it do so.
    Abdulai complains that the initial omission of the Notice of Intent violated Federal Rule
    of Appellate Procedure 17, which requires an agency to “file the record … within 40 days
    after being served with a petition for review[.]” Fed. R. App. P. 17(a). But Rule 17 goes
    on to say that “[t]he court may shorten or extend the time to file the record.” 
    Id.
     Thus, it
    was within our discretion to grant the government additional time to file a complete
    administrative record. We allowed Abdulai to submit a new opening brief after the
    government corrected its mistake, so he suffered no prejudice from that omission. See
    NLRB v. Int’l Bhd. of Elec. Workers, Loc. Union 16, 
    425 F.3d 1035
    , 1039 (7th Cir. 2005)
    (excusing the late filing of an administrative record where there was no prejudice).
    9
    III.   CONCLUSION
    Ultimately, because Abdulai was convicted of an aggravated felony, we lack
    jurisdiction to further consider his petition for review. 
    8 U.S.C. § 1252
    (a)(2)(C). We
    will therefore dismiss the petition.
    10