Tim Tian v. Eric H. Holder, Jr. ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 08-3391
________________
Tim Tian, also known as *
Tian Hongguo, also known *
as Hongguo Tian, *
*
Petitioner, *
* Petition for Review from the
v. * Board of Immigration Appeals.
*
Eric H. Holder, Jr.,1 Attorney *
General of the United States, *
*
Respondent. *
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Submitted: June 10, 2009
Filed: August 19, 2009
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Before MURPHY, ARNOLD and GRUENDER, Circuit Judges.
________________
GRUENDER, Circuit Judge.
Tim Tian, a native and citizen of the People’s Republic of China, petitions for
review of a decision of the Board of Immigration Appeals (“BIA”) finding that he is
1
Eric H. Holder, Jr., became the Attorney General on February 3, 2009, and is
automatically substituted as respondent under Rule 43(c)(2) of the Federal Rules of
Appellate Procedure.
removable as an aggravated felon and denying his application for asylum,
withholding of removal, and protection under Article 3 of the Convention Against
Torture (“CAT”). For the following reasons, we deny Tian’s petition.
I. BACKGROUND
Tian first entered the United States in September 1996 to attend graduate school
at the University of Minnesota. In January 2000, Tian began working for Parametric
Technology Corporation as a software engineer at Parametric’s offices in Arden Hills,
Minnesota.
In September 2005, Tian informed Parametric that he needed to return to China
to deal with a family emergency. There was no such emergency, and Tian did not
return to China. Instead, Tian remained in Minnesota and began working for
Medtronic Corporation. Over the next three months, Tian communicated with
Parametric employees on several occasions by e-mail and telephone, claiming all the
while that he was in China. In the meantime, Tian collected paychecks from
Parametric, which had granted him a leave of absence, and from his new employer,
Medtronic. In early November 2005, Parametric told Tian that if he did not return to
work he would be fired on December 5, 2005. On December 6, Parametric notified
Tian that his employment was terminated, effective immediately.
On December 9, 2005, at about 11:00 p.m., and again on December 10, at about
1:00 a.m., Tian entered Parametric’s offices in Arden Hills using his employee
security badge, which Parametric had not yet deactivated. Tian logged in to
Parametric’s computer network and downloaded the source code for a software
product on which he had worked, called “QA Link.” Tian then sent the source code
for QA Link from his workstation at Parametric to two of his personal e-mail
accounts. Tian also copied files containing the QA Link source code and other data
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to a server that he could access from an off-site location. On December 11, Tian
accessed the server and saved the relevant files to his personal computer.
Parametric reported Tian’s unauthorized access to its computer network to law
enforcement. Tian was eventually arrested and charged with one count of
unauthorized access to a computer in violation of 18 U.S.C. § 1030(a)(4) and five
counts of wire fraud in violation of 18 U.S.C. §§ 1343 and 1346. Tian agreed to plead
guilty to the charge of unauthorized access to a computer in exchange for the
dismissal of the other charges. On December 20, 2006, the district court2 sentenced
Tian to 11 months’ imprisonment and ordered him to pay $47,015 in restitution to
Parametric and $96,099.38 in restitution to Medtronic. The amount of restitution that
Tian was ordered to pay to Parametric included $29,800 that Parametric spent on an
internal investigation to assess the damage caused by Tian’s unauthorized access to
its computer network.
On February 14, 2007, U.S. Immigration and Customs Enforcement took Tian
into custody and issued a notice to appear before an immigration judge (“IJ”) for
removal proceedings. The notice to appear charged that Tian was removable because
he had been convicted of an “aggravated felony,” a term that is defined by statute to
include “an offense 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). Tian contested the
charge, arguing that although his crime involved fraud or deceit, it did not result in
any loss to the victim. Tian also applied for asylum, withholding of removal, and
protection under Article 3 of the CAT.
The administrative review in this case was unusually convoluted, requiring two
remands to the IJ before the BIA finally dismissed all of Tian’s claims. Initially, the
2
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
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IJ found that Tian was removable as an aggravated felon because the total loss to the
victims, including the amount of restitution that Tian was ordered to pay to Parametric
and Medtronic, exceeded $10,000. Based on this finding, the IJ held that Tian was
statutorily ineligible for asylum. Next, the IJ found that Tian’s conviction qualified
as a “particularly serious crime,” which made him statutorily ineligible for
withholding of removal. Finally, the IJ denied Tian’s application for deferral of
removal under Article 3 of the CAT on the merits.
The BIA reversed the IJ’s decision in part and remanded for further
proceedings. In particular, the BIA indicated that removability under §
1101(a)(43)(M)(i) depends on “evidence [of] a connection between the loss suffered
by the aggrieved party and the specific conduct that led to [the] alien’s conviction.”
The BIA found that a remand was necessary because the IJ in calculating the amount
of the loss “appears to have mistakenly relied on the restitution order,” which by
agreement included losses that were not tied to Tian’s unauthorized access to a
computer, “rather than relying on the charge to which [Tian] pleaded guilty.”
On remand, the IJ again found that Tian was removable as an aggravated felon
because the total loss to Parametric exceeded $10,000. This time, the IJ specifically
noted that “at a minimum, the investigative costs incurred by [Parametric], in the
amount of $29,800, are properly considered a loss to the victim[].” Accordingly, the
IJ held that Tian was statutorily ineligible for asylum. Next, the IJ reconsidered its
previous finding that Tian’s conviction qualified as a particularly serious crime,
concluding that the “economic offense” of unauthorized access to a computer did not
meet the standard set out by the BIA in In re N-A-M-, 24 I. & N. Dec. 336 (B.I.A.
2007). On the merits, the IJ found that Tian met his burden of showing that it was
“more likely than not” that he would face persecution in China on account of his
religion and therefore granted Tian’s application for withholding of removal. The IJ
went on to deny Tian’s application for protection under Article 3 of the CAT.
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The BIA affirmed the IJ’s finding that Tian was removable as an aggravated
felon and the IJ’s holding that Tian was statutorily ineligible for asylum. The BIA
reasoned that because “the investigative costs alone, incurred by [Parametric], are
more than $10,000, and these costs were incurred because of [Tian’s] unauthorized
computer use, . . . [Tian’s] crime constitutes an aggravated felony.” Turning to Tian’s
application for withholding of removal, the BIA suggested that the IJ misinterpreted
its decision in In re N-A-M-. The BIA noted in this regard that In re N-A-M- did not
overturn BIA precedent “holding that a crime involving property alone may be a
particularly serious one.” The BIA also noted that the IJ’s most recent decision lacked
a full analysis of the nature of Tian’s conviction, the type of sentence imposed by the
district court, the circumstances of the offense, and other relevant factors. As a result,
the BIA again remanded the case for further proceedings concerning Tian’s
application for withholding of removal. The BIA went on to dismiss Tian’s appeal
insofar as it related to the denial of his application for protection under Article 3 of the
CAT.
On remand, the IJ determined that “the elements of [Tian’s] offense potentially
bring it within the ambit of a particularly serious crime.” The IJ then considered in
detail “all reliable information” about the sentence imposed by the district court and
the circumstances of Tian’s offense. The IJ found that Tian’s conviction qualified as
a particularly serious crime and concluded that Tian was therefore statutorily
ineligible for withholding of removal. Nevertheless, the IJ made a conditional finding
that Tian failed to meet his burden of showing that it was “more likely than not” that
he would face persecution in China on account of his religion or any other ground.
The BIA affirmed the IJ’s finding that Tian’s conviction qualified as a
particularly serious crime. Because Tian was therefore statutorily ineligible for
withholding of removal, the BIA dismissed Tian’s appeal without addressing the
merits of his claim that he would face persecution in China. The BIA summarily
rejected Tian’s arguments relating to issues that were raised and decided in his
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previous appeals, including the denial of his application for protection under Article
3 of the CAT.
Tian’s petition for review raises two principal issues: first, whether the IJ and
the BIA erroneously determined that his conviction qualifies as an aggravated felony;
and second, whether the IJ and the BIA failed to apply the correct legal standard in
determining that his conviction qualifies as a particularly serious crime.3
II. DISCUSSION
Our jurisdiction to consider Tian’s petition for review is limited by 8 U.S.C. §
1252(a)(2)(C) and (D). Subparagraph (C) generally precludes judicial review in cases
involving aliens who are removable as aggravated felons. See id. § 1252(a)(2)(C)
(cross-referencing id. § 1227(a)(2)(A)(iii)); Xiong v. Gonzales, 484 F.3d 530, 534 (8th
Cir. 2007). But subparagraph (D) provides that subparagraph (C) does not preclude
judicial review “of constitutional claims or questions of law.” Id. § 1252(a)(2)(D); see
Xiong, 484 F.3d at 534. To the extent Tian raises questions of law about whether his
conviction qualifies as an aggravated felony and a particularly serious crime, we have
jurisdiction to consider both of the principal issues raised in his petition. See Tostado
v. Carlson, 481 F.3d 1012, 1014 (8th Cir. 2007) (aggravated felony); Solis v.
Mukasey, 515 F.3d 832, 835 (8th Cir. 2008) (particularly serious crime).
3
Tian also argues that the BIA disregarded the transcript of his sentencing
hearing, which he describes as “the most reliable source of information about [his]
conviction.” Tian does not convincingly explain why the transcript is more reliable
than the plea agreement or the provisions of the presentence report to which Tian did
not object. In any event, we conclude that the BIA considered all pertinent evidence
in the record, including the transcript of Tian’s sentencing hearing. Indeed, both the
IJ and the BIA cited relevant portions of the transcript in support of their findings.
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In dismissing Tian’s administrative appeal, albeit in piecemeal fashion, the BIA
adopted the IJ’s reasoning in relevant part while adding reasoning of its own; thus, we
will consider both decisions. See Rafiyev v. Mukasey, 536 F.3d 853, 856 (8th Cir.
2008). We review legal questions de novo, giving “substantial deference” to the
BIA’s interpretation of any ambiguous provisions in the immigration statutes and
regulations that it administers. See Zheng v. Mukasey, 509 F.3d 869, 871 (8th Cir.
2007); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999).
Tian first argues that the IJ and the BIA erroneously determined that his
conviction for unauthorized access to a computer in violation of 18 U.S.C. §
1030(a)(4) qualifies as an aggravated felony. Recall that “aggravated felony” is
defined to include “an offense that involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). From the outset,
Tian has conceded that his offense involved fraud or deceit. The question, then, is
whether Tian’s offense is one in which the loss to the victim or victims exceeded
$10,000.
The Supreme Court recently resolved a split in the circuits about “whether the
$10,000 threshold in subparagraph (M)(i) refers to an element of a fraud statute or to
the factual circumstances surrounding commission of the crime on a specific
occasion.” Nijhawan v. Holder, 557 U.S. ---, 129 S. Ct. 2294, 2298 (2009). The
Court held that the statute “calls for a ‘circumstance-specific,’ not a ‘categorical,’
interpretation.” Id. at 2300. Thus, the $10,000 threshold “applies to the specific
circumstances surrounding an offender’s commission of a fraud and deceit crime on
a specific occasion.” Id. at 2302.
The parties agree that the amount of the loss attributed to Tian must be tied to
his unauthorized access to a computer—the only count of the indictment to which he
pled guilty. See id. at 2303 (“[A]s the Government points out, the ‘loss’ must ‘be tied
to the specific counts covered by the conviction.’”). Tian contends that the IJ and the
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BIA improperly calculated the amount of the loss by including losses that related to
the dismissed wire fraud counts. In support, Tian asserts that the relevant sources of
evidence—the plea agreement, the presentence report, and the restitution order—all
included losses that were untethered to Tian’s underlying conviction. We are not
persuaded.
Both the IJ and the BIA expressly recognized that the amount of the loss
attributed to Tian must be tied to his unauthorized access to a computer. In the second
of the IJ’s three opinions, the IJ described the dispositive question as “whether the loss
to the victims of the offense for which the respondent was convicted . . . exceeds
$10,000.” Likewise, in the second of the BIA’s three opinions, the BIA reiterated
“that the loss[] must be attributable to the unauthorized use [of a computer], and not
to . . . wire fraud, because [Tian] was not convicted of the [wire fraud] charge[s].”
Both the IJ and the BIA made clear that their findings concerning the amount of the
loss were premised on the investigative costs incurred by Parametric. The IJ
specifically noted that “at a minimum, the investigative costs incurred by [Parametric],
in the amount of $29,800, are properly considered a loss to the victim[].” And the
BIA reasoned that because “the investigative costs alone, incurred by [Parametric], are
more than $10,000, and these costs were incurred because of [Tian’s] unauthorized
computer use, . . . [Tian’s] crime constitutes an aggravated felony.”
At sentencing, Tian conceded through counsel that the investigative costs
incurred by Parametric were directly related to his unauthorized access to a computer,
the specific count covered by his conviction.4 Tian has not disputed the total amount
4
According to Tian’s trial counsel,
[Parametric] . . . clearly suffered a loss and we have stipulated that they
have suffered a loss. . . . [I]n essence, what you’ve got is he went in and
burgled out the software and [Parametric] had to see what it was, what
damages he caused. . . . [Parametric] spent a chunk of change figuring
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of the investigative costs ($29,800) at any stage of the criminal or administrative
proceedings. Because the investigative costs alone exceeded $10,000, the fact that the
plea agreement, the presentence report, and the restitution order included other losses,
such as the salary and benefits that Tian collected from Parametric during his leave
of absence, is simply beside the point.
At oral argument, Tian insisted that the investigative costs incurred by
Parametric were related, at least in part, to the dismissed counts of wire fraud rather
than Tian’s unauthorized access to a computer. This contradicts Tian’s concession at
sentencing that the investigative costs incurred by Parametric were directly related to
the specific count of his conviction, and Tian has made no attempt to reconcile these
seemingly incompatible positions. Moreover, Tian has not identified any evidence
indicating that the investigation extended to matters that were unrelated to his
unauthorized access to a computer. Even assuming that the investigation did extend
to extraneous matters, Tian has not identified any evidence indicating that the portion
of the investigative costs attributable to his unauthorized access to a computer came
to $10,000 or less. As a result, we conclude that the IJ and the BIA correctly
determined that Tian’s conviction qualifies as an aggravated felony. It follows that
Tian is removable as an aggravated felon, see 8 U.S.C. § 1227(a)(2)(A)(iii), and that
he is therefore statutorily ineligible for asylum, see id. § 1158(b)(2)(A)(ii), (B)(i).
Tian next argues that the IJ and the BIA failed to apply the correct legal
standard in determining that his conviction qualifies as a particularly serious crime.
Ordinarily, an alien may not be removed to a country in which his life or freedom
out what he did to them and then discovered, in essence, he really didn’t
do anything to them, which is good. . . . His conviction then is based on
two things. The conviction was for going in and doing that [i.e.,
accessing Parametric’s computer network and downloading the source
code for QA Link]. . . . The loss figure is the loss for what it cost[] for
[Parametric] to find out that that’s all he did.
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would be threatened on account of race, religion, nationality, membership in a
particular social group, or political opinion. Id. § 1231(b)(3)(A); 8 C.F.R. §
1208.16(b). This statutory restriction on the Attorney General’s removal authority
does not apply, however, “if the Attorney General decides that . . . the alien, having
been convicted by a final judgment of a particularly serious crime is a danger to the
community of the United States.” 8 U.S.C. § 1231(b)(3)(B)(ii). Section
1231(b)(3)(B) provides that “an alien who has been convicted of an aggravated
felony . . . for which the alien has been sentenced to an aggregate term of
imprisonment of at least 5 years shall be considered to have committed a particularly
serious crime.” Since Tian was sentenced to just 11 months’ imprisonment, it fell to
the Attorney General to determine whether Tian’s conviction qualified as a
particularly serious crime. See id. § 1231(b)(3)(B) (providing that the Attorney
General may “determin[e] that, notwithstanding the length of sentence imposed, an
alien has been convicted of a particularly serious crime”). Although the statute
provides no additional guidance about what constitutes a particularly serious crime,
see Brue v. Gonzales, 464 F.3d 1227, 1234 (10th Cir. 2006), the BIA has “generally
examined a variety of factors and found that the ‘consideration of the individual facts
and circumstances is appropriate,’” In re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A.
2007) (quoting In re L-S-, 22 I. & N. Dec. 645, 651 (B.I.A. 1999) (en banc)); see In
re Frentescu, 18 I. & N. Dec. 244, 246-47 (B.I.A. 1982).
In In re Frentescu, the BIA announced that it “look[s] to such factors as the
nature of the conviction, the circumstances and underlying facts of the conviction, the
type of sentence imposed, and, most importantly, whether the type and circumstances
of the crime indicate that the alien will be a danger to the community.” 18 I. & N.
Dec. at 247. More recently, the BIA noted in In re N-A-M- that its “approach . . . has
evolved since the issuance of [its] decision in Matter of Frentescu.” 24 I. & N. Dec.
at 342. In particular, the BIA clarified that “once an alien is found to have committed
a particularly serious crime, we no longer engage in a separate determination to
address whether the alien is a danger to the community.” Id. The “proper focus,”
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according to the BIA, “is on the nature of the crime and not the likelihood of future
serious misconduct.” Id. (citing In re Carballe, 19 I. & N. Dec. 357 (B.I.A. 1986)).
Here, both the IJ and the BIA considered the relevant factors, including the
nature and circumstances of Tian’s conviction and the sentence imposed by the district
court. Tian asserts that the “BIA failed to consider whether . . . [he] would be a
danger to the community.” But in fact, the BIA specifically referred to Tian’s
argument that “persons who commit economic crimes [do not] constitute a danger to
the community,” describing the claim as “speculative” and ultimately “unpersuasive.”
The BIA went on to say that it did not consider “a separate determination of danger
to the community to be necessary,” citing its decision in In re N-A-M-.
Having thoroughly examined the underlying opinions, we are left with no doubt
that the IJ and the BIA applied the correct legal standard in determining that Tian’s
conviction qualifies as a particularly serious crime. Given the jurisdictional limitation
under 8 U.S.C. § 1252(a)(2)(C) and (D) that we discussed above, we may not proceed
to review the IJ’s or the BIA’s weighing of the relevant factors. See Afridi v.
Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006) (“While we cannot reweigh evidence
to determine if the crime was indeed particularly serious, we can determine whether
the BIA applied the correct legal standard in making its determination.”), overruled
on different grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1160 n.15 (9th
Cir. 2008) (en banc); accord Solis v. Mukasey, 515 F.3d 832, 835 (8th Cir. 2008)
(citing the jurisdictional holding in Afridi with approval). Hence, we may not
overturn the determination that Tian’s conviction qualifies as a particularly serious
crime. It follows that Tian is statutorily ineligible for withholding of removal. See
8 U.S.C. § 1231(b)(3)(B)(ii).5
5
The Government notes that an alien who is ineligible for withholding of
removal under § 1231(b)(3)(B) is also ineligible for withholding of removal under
Article 3 of the CAT. See 8 C.F.R. § 1208.16(d)(2). While an alien may still be
granted deferral of removal to a country where he is more likely than not to be
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III. CONCLUSION
For the foregoing reasons, we deny Tian’s petition for review.
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tortured, see id. § 1208.17(a), Tian has not addressed that issue, so we need not
consider it, see, e.g., Latorre v. United States, 193 F.3d 1035, 1037 n.1 (8th Cir.
1999).
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