Zapico-Delgado v. Holder , 407 F. App'x 138 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NATALIA MARGARITA ZAPICO- No. 06-74321
DELGADO, etc.
Agency No. A091-637-431
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, JR., ATTORNEY
GENERAL,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 4, 2010
San Francisco, California
Before: THOMAS and IKUTA, Circuit Judges, and SETTLE, ** District Judge.
We deny the petition for review. In 2009 the United States Supreme Court
decided the case of Nijhawan v. Holder, 129 S. Ct. 2294 (2009), and held that,
*
This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
**
The Honorable Benjamin Hale Settle, United States District Judge for
the Western District of Washington, sitting by designation.
when evaluating offenses under 8 U.S.C. § 1101(a)(43)(M)(i), courts should treat
the references to “victim or victims” and a monetary loss in excess of $10,000 “not
. . . [as] an element of the fraud or deceit crime,” but as “refer[ences] to the
particular circumstances in which an offender committed a (more broadly defined)
fraud or deceit crime on a particular occasion.” Id. at 2297-98. In determining
whether these circumstances were present in a particular case, the Court also
indicated that the decisionmaker would not be limited to reviewing the record of
conviction, but could also consider a restitution order. Id. at 2303. Here,
Nijhawan is controlling. The Board of Immigration Appeals did not err in
affirming the Immigration Judge’s reliance on the order of restitution to find that
Petitioner’s conviction for unlawful use of means of identification, in violation of
18 U.S.C. § 1028(a)(7), constituted an aggravated felony conviction under 8
U.S.C. § 1101(a)(43)(M)(I). Therefore, we lack jurisdiction to review Petitioner’s
final order of removal. 8 U.S.C. § 1252(a)(2)(C).
DENIED.
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