Manuk Muradkhanyan v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION FILED
DEC 16 2016
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUK MURADKHANYAN, No. 14-72196
Petitioner, Agency No. A047-198-131
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 13, 2016**
San Francisco, CA
Before: BERZON and MURGUIA, Circuit Judges, and BLOCK,*** District Judge.
Petitioner Manuk Muradkhanyan petitions for review of an order of removal
from the Board of Immigration Appeals (BIA), based on Muradkhanyan’s
conviction of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Frederic Block, District Judge for the Eastern District of
New York, sitting by designation.
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By statute, we lack jurisdiction to review a removal order against an alien
who committed an aggravated felony where the aggravated felony led to removal.
See 8 U.S.C. § 1252(a)(2)(C); Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir.
2010). We review only whether Muradkhanyan’s underlying offense was an
aggravated felony. Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011). We also
have jurisdiction to consider whether the proceedings violated constitutional due
process. See 8 U.S.C. § 1252(a)(2)(D); Rodriguez-Castellon v. Holder, 733 F.3d
847, 852 (9th Cir. 2013). Whether an offense is an aggravated felony is a legal
question, and the panel reviews de novo. Barragan-Lopez v. Holder, 705 F.3d
1112, 1114 (9th Cir. 2013). We affirm the BIA’s conclusions and deny
Muradkhanyan’s petition for review.
1. In a removal proceeding, the government “bears the burden of establishing
by clear, unequivocal, and convincing evidence, all facts supporting deportability.”
Ayala-Villanueva v. Holder, 572 F.3d 736, 737 n.3 (9th Cir. 2009) (citing Chau v.
INS, 247 F.3d 1026, 1029 n.5 (9th Cir. 2001)). Here, the government offered clear
and convincing evidence that Muradkhanyan was convicted of conspiracy
racketeering under 18 U.S.C. § 1962(d). Though the judgment of conviction for
Muradkhanyan listed 18 U.S.C. § 1926(d) as the statute of conviction—a non-
existent provision—other parts of the judgment, the underlying indictment, and the
federal code all make clear Muradkhanyan was convicted under 18 U.S.C. §
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1962(d). The BIA permissibly looked to this evidence to find the existence of
Muradkhanyan’s conviction. 8 C.F.R. § 1003.41(d).
2. Aggravated felonies include “an offense described in section 1962 of Title
18 (relating to racketeer influenced corrupt organizations) . . . for which a sentence
of one year imprisonment or more may be imposed[.]” 8 U.S.C. § 1101(a)(43)(J).
Muradkhanyan’s conviction for conspiracy racketeering under 18 U.S.C. § 1962(d)
“qualifies as an aggravated felony on its face.” See United States v. Gonzalez-
Corn, 807 F.3d 989, 991 (9th Cir. 2015).
3. Muradkhanyan also raises procedural challenges to the proceedings before
the immigration judge. Such challenges require showing prejudice. See Gutierrez
v. Holder, 662 F.3d 1083, 1090–91 (9th Cir. 2011). Muradkhanyan does not
attempt to show prejudice, and his argument that showing prejudice is unnecessary
must fail. See Chuyon Yon Hong v. Mukasey, 518 F.3d 1030, 1035 (9th Cir. 2008).
PETITION DENIED.
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