Sat Verma v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 20-1761
SAT PAUL VERMA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A090-577-689)
Immigration Judge: Kelley Fowler
Submitted Under Third Circuit L.A.R. 34.1(a)
January 11, 2021
Before: AMBRO, KRAUSE, and PHIPPS, Circuit Judges
(Opinion filed: January 27, 2021)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
AMBRO, Circuit Judge,
Sat Verma, a native and citizen of India, entered the United States without proper
inspection in 1982 and became a legal permanent resident in 1990. In 2013, he pled
guilty to access device fraud in violation of 18 U.S.C. § 1029(a)(5) due to his role in
conducting and facilitating sham transactions using fraudulent credit cards and merchant
accounts at his jewelry store. The United States District Court for the District of New
Jersey convicted and sentenced him to twelve months’ imprisonment and three years of
supervised release. The Government charged Verma as removable for this conviction,
which it argues is an aggravated felony that “involves fraud or deceit in which the loss to
the victim or victims exceeds $10,000.” See 8 U.S.C. §§ 1101(a)(43)(M)(i) (“(M)(i)”),
1227(a)(2)(A)(iii). One immigration judge (“IJ”) agreed Verma indeed committed an
aggravated felony, and another denied his application for adjustment of status and
waivers of inadmissibility as a matter of discretion. The Board of Immigration Appeals
(the “BIA”) dismissed Verma’s appeal.
In his petition for review to us, Verma argues he did not commit an aggravated
felony because the Government failed to prove losses to victims exceeding $10,000. He
also challenges the discretionary denial of his application for adjustment of status.
I.
We exercise plenary review over the BIA’s determination that Verma committed
an aggravated felony under (M)(i). See Singh v. Att’y Gen., 677 F.3d 503, 508 (3d Cir.
2012). In determining whether an offense meets the statutory loss requirement under that
provision, we employ a “circumstance-specific” approach, examining “the specific way
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in which [the noncitizen] committed the crime on a specific occasion.” Nijhawan v.
Holder, 557 U.S. 29, 34, 36 (2009). We are permitted to consider the presentence
investigation report and any “sentencing-related material” so long as the noncitizen has
been given “a fair opportunity to challenge the Government’s claim.” Fan Wang v. Att’y
Gen., 898 F.3d 341, 348–49 (3d Cir. 2018) (internal quotation marks and citation
omitted).
Verma does not dispute his offense involves the requisite “fraud or deceit” under
(M)(i), though he argues that a charge under it cannot be supported when the victims are
not identified. But this misstates the law. As we recently explained in Rad v. Attorney
General, 983 F.3d 651, 669 (3d Cir. 2020), the Government “can establish the loss
element without specifically identifying a victim or victims; all the statutory text requires
is that victims exist, and that they have collectively lost over $10,000.” Here the
Government clearly identified financial institutions as the victims of Verma’s fraud and
declined to identify them individually only because the number was so large as to make
restitution impractical.
Verma next argues that the BIA improperly treated the “gain” he received from
the fraud as a “loss” under (M)(i). We see no evidence the BIA improperly conflated
gain and loss. Verma’s November 2017 pre-sentencing report (“PSR”) repeatedly stated
that he was responsible for a “loss” amount of $270,000. See, e.g., AR 652 (“Verma is
responsible for losses totaling $270,000”). Verma was offered the opportunity to
challenge the characterization of this amount as a loss, but never did so. In fact, Verma’s
counsel effectively conceded “the loss in question was $270,000.” AR 676. Further,
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Verma and the Government agreed on this loss amount following plea negotiations, for
the Government initially charged Verma with an offense that caused losses of more than
$1 million.
Even if Verma is correct that the BIA could have better explained the
characterization of the $270,000 as a loss, we have no reason to doubt it reflects actual
loss “particularly tethered to the convicted counts.” Rad, 983 F.3d at 667 (internal
citation and quotation marks omitted). While (M)(i) does not allow the agency “to treat
gains and losses as interchangeable,” we have recognized that “[i]n many cases, a
defendant’s earnings will provide powerful circumstantial evidence of victim loss.” Id. at
668. The amount of Verma’s fraudulent transactions relates directly to the financial
institutions’ injury, such that the Government easily satisfies the $10,000 loss
requirement in (M)(i).
II.
Verma requested waivers of inadmissibility under 8 U.S.C. §§ 1182(h) and (i),
noting his lengthy residency and employment history, as well as the hardship his removal
would pose to his U.S. citizen wife and four children. The IJ determined Verma did not
merit the waivers as a matter of discretion. While acknowledging the hardships Verma’s
removal would pose, the IJ emphasized Verma’s history of crime in the United States,
including his active role in the credit card fraud. Further, Verma lied about the number of
times he had been married and arrested in his 2011 naturalization application. 1 The BIA
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Verma argues he later withdrew his guilty plea for the 1983 conviction, which was
vacated in part in July 2020. See Letter dated December 2, 2020, ECF No. 41. Even if
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affirmed the IJ’s conclusion that Verma did not merit the waivers despite acknowledging
the “significant equities.” AR 5. He now challenges that decision in his petition for
review.
We generally lack jurisdiction to review discretionary denials of immigration
relief, including the BIA’s determination that an applicant does not merit a waiver of
inadmissibility. See 8 U.S.C. § 1252(a)(2)(B). Our hands are further tied because Verma
committed an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C). He relies on Guerrero-
Lasprilla v. Barr, 140 S. Ct. 1062, 1067–68 (2020), arguing that the BIA’s failure to
balance positive equities against negative ones improperly applies a legal standard, thus
permitting judicial review. Verma’s Op. Br. 26. We reject this argument as an attempt to
“dress up factual findings and discretionary decisions” as legal issues, for a
“disagreement about weighing hardship factors is a discretionary judgment call, not a
legal question.” Hernandez-Morales v. Att’y Gen., 977 F.3d 247, 248–49 (3d Cir. 2020)
(internal citation omitted).
* * * * *
While we appreciate that Verma’s removal may have harsh consequences for his
family, he committed an aggravated felony while in the United States and we lack
jurisdiction to review the agency’s denial of discretionary relief. We thus deny his
we could consider this evidence, which was not presented to the BIA, it does not erase
that Verma lied about his criminal history in his naturalization application. See Berishaj
v. Ashcroft, 378 F.3d 314, 330 (3d Cir. 2004) (“[C]ourts reviewing the determination of
an administrative agency must approve or reject the agency’s action purely on the basis
of . . . the record compiled before[] the agency itself.”).
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petition for review on the first issue and dismiss the petition with respect to the second
issue.
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