Luis Leonard v. Matthew Whitaker ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1609
LUIS CALDERON LEONARD,
Petitioner,
v.
MATTHEW G. WHITAKER, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: December 18, 2018 Decided: December 31, 2018
Before GREGORY, Chief Judge, KING, Circuit Judge, and TRAXLER, Senior Circuit
Judge.
Petition denied by unpublished per curiam opinion.
Alfred L. Robertson, Jr., ROBERTSON LAW OFFICE, PLLC, Alexandria, Virginia, for
Petitioner. Joseph H. Hunt, Assistant Attorney General, Shelly R. Goad, Assistant
Director, Laura Halliday Hickein, Trial Attorney, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Calderon Leonard, a native and citizen of El Salvador, petitions for review of
an order of the Board of Immigration Appeals finding him removable as an aggravated
felon. For the reasons set forth below, we deny the petition for review.
Calderon Leonard was found removable as an alien convicted of an aggravated
felony defined in 8 U.S.C. § 1101(a)(43)(M)(i) (2012) (defining aggravated felony as
including “an offense that . . . involves fraud or deceit in which the loss to the victim or
victims exceeds $10,000”). On appeal, Calderon Leonard argues that the agency erred in
concluding that the Department of Homeland Security met its burden of demonstrating by
clear and convincing evidence that his fraudulent activity caused a loss of more than
$10,000. After reviewing Calderon’s claims in conjunction with the administrative record,
we conclude that substantial evidence supports the agency’s finding that the loss amount
exceeded $10,000 and find no error in the agency’s reliance on sentencing-related material,
including the presentence investigation report. See Nijhawan v. Holder, 557 U.S. 29, 42
(2009). We therefore uphold the agency’s loss determination for the reasons stated by the
Board. In re Calderon Leonard (B.I.A. Apr. 30, 2018).
Relying on the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105(2018) (holding that a notice to appear that fails to designate specific time or place of
removal proceeding does not trigger “stop-time rule” ending alien’s continuous presence
period for purposes of cancellation of removal), Calderon Leonard also contends that the
agency did not have jurisdiction over his removal proceedings. We conclude that the
narrow holding of Pereira does not apply in this situation. See Mauricio-Benitez v.
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Sessions, 908 F.3d 144, 148 n.1 (5th Cir. 2018) (stating that “[b]ecause the issues in this
case pertain only to reopening, Pereira’s rule regarding cancellation is inapplicable” and
citing district court cases holding that Pereira does not apply where the “stop-time rule”
applicable to cancellation of removal is not involved); In re Bermudez-Cota, 27 I. & N.
Dec. 441, 447 (B.I.A. 2018) (“[A] notice to appear that does not specify the time and place
of an alien’s initial removal hearing vests an Immigration Judge with jurisdiction over the
removal proceedings and meets the requirements of [8 U.S.C. § 1229(a) (2012)], so long
as a notice of hearing specifying this information is later sent to the alien.”).
Accordingly, we deny the petition for review. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
PETITION DENIED
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