Osarias Monday Omoregbee v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13755 ELEVENTH CIRCUIT
APRIL 21, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A29-891-115
OSARIAS MONDAY OMOREGBEE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 21, 2009)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Osarias Monday Omoregbee, a native and citizen of Nigeria with lawful
permanent residency in the United States, appeals the order of the Board of
Immigration Appeals (“BIA”) finding Omoregbee removable as an alien who had
been convicted of two crimes of moral turpitude, pursuant to INA
§ 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), and affirming the order of the
Immigration Judge (“IJ”) finding Omoregbee ineligible for cancellation of removal
as an alien who had been convicted of an aggravated felony, pursuant to INA §§
240A(a) and 101(a)(43)(M), 8 U.S.C. §§ 1229b(a) and 1101(a)(43)(M). For the
reasons set forth below, we deny the petition.
I. Background
In a notice to appear (“NTA”), the Department of Homeland Security
(“DHS”) stated that, inter alia, Omoregbee had been convicted on September 1,
2004, in U.S. District Court for the Eastern District of North Carolina, of credit
card fraud that caused $10,508.79 in loss, in violation of 18 U.S.C. § 1029(a)(3).
The DHS charged that, inter alia, based on this and other convictions, Omoregbee
was removable as an alien who had been convicted of (1) two crimes of moral
turpitude, pursuant to INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii); and
(2) an aggravated felony as defined in INA § 101(a)(43)(M), 8 U.S.C.
§ 1101(a)(43)(M), or an offense of fraud or deceit that caused a loss of more than
$10,000, pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
2
The government submitted a judgment of conviction from the U.S. District
Court for the Eastern District of North Carolina, which indicated that Omoregbee
pled guilty to charges of access device fraud, production of false identification, and
use of a false social security number and was sentenced to concurrent terms of 24
months’ imprisonment and ordered to pay restitution to Sears National Bank,
Target Corporation, JC Penney, and First USA Bank in the total amount of
$10,508.79.
An IJ order Omoregbee removed to Nigeria, but did not prepare a written
decision. Omoregbee pro se appealed to the BIA, arguing that he had not been
convicted of an aggravated felony because his federal offenses did not cause a loss
of more than $10,000 and that he was entitled to cancellation of removal. The BIA
remanded the case to the IJ to prepare a written decision. On remand, the IJ did so.
Omoregbee pro se appealed to the BIA, raising the same grounds as before.
Omoregbee also submitted a formal application for cancellation of removal. The
BIA again remanded the case to the IJ, reasoning that the government should
submit further evidence on whether Omoregbee’s federal offenses caused more
than $10,000 in loss. On remand, the government argued that further evidence was
unnecessary. The IJ sustained his earlier finding and denied Omoregbee’s
application for cancellation of removal, reasoning that he was ineligible as an
aggravated felon. Omoregbee, through counsel, appealed to the BIA, raising the
3
same grounds as before. In the course of his appeals to the BIA, Omoregbee
submitted the (1) federal indictment, which did not indicate a specific loss amount;
and (2) portions of the presentence investigation report (“PSI”) prepared for his
federal convictions, which indicated that Omoregbee caused Sears $7,558.07 in
loss, Target $480.33 in loss, JC Penney $843.72 in loss, Exxon $286.39 in loss,
and Chadwick’s of Boston $1,038.80 in loss and that Omoregbee did not object to
the loss amount.1
The BIA affirmed the IJ’s finding that Omoregbee was removable and
ineligible for cancellation of removal. The BIA acknowledged that Omoregbee
had not disputed that he was removable as an alien convicted of two crimes of
moral turpitude and found that, therefore, it need not address whether he also was
removable as an alien convicted of an aggravated felony based on his federal
offenses causing more than $10,000 in loss. The BIA also found that Omoregbee
had not satisfied his burden of proving that he was eligible for cancellation of
removal. Omoregbee, through counsel, appealed to this Court, raising the same
grounds as before. In support of his argument that he merits cancellation of
removal, Omoregbee cites Obasohan v. Gonzales, 479 F.3d 785 (11th Cir. 2007),
and Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130 (9th Cir. 2007).
1
These figures total $10,207.31.
4
II. Standard of Review
When the BIA affirms the IJ’s decision, but issues a separate opinion, we
review the BIA’s opinion “except to the extent that [the BIA] expressly adopts the
IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Thus,
when the BIA affirms the IJ’s decision on alternative grounds not addressed by the
IJ, we review the BIA’s decision only. Id. In conducting this review, we review
legal determinations de novo and factual determinations under the “substantial
evidence test.” See D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir.
2004); Al Najjar, 257 F.3d at 1283-84. Under this test, which is “highly
deferential,” “ we must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Al
Najjar, 257 F.3d at 1283-84 (quotation omitted). In applying this highly
deferential standard, we view the record in the light most favorable to the BIA’s
decision and are bound by that decision unless a reasonable adjudicator would be
compelled to conclude to the contrary. Adefemi v. Ashcroft, 386 F.3d 1022,
1026-27 (11th Cir. 2004) (en banc). Accordingly, “even if the evidence could
support multiple conclusions, we must affirm the [BIA’s] decision unless there is
no reasonable basis for that decision.” Id. We will not address issues that have not
been raised before the IJ or BIA, as these issues have not been exhausted properly.
Al Najjar, 257 F.3d at 1283 n. 12; INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). We
5
also will not consider issues not discussed on appeal before this Court, as these
issues have been abandoned. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228
n.2 (11th Cir. 2005).
III. Law and Analysis
A. Removal
Pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), the
Attorney General shall remove an alien who is convicted of, inter alia, an
aggravated felony. The INA defines aggravated felonies as being offenses that,
inter alia, “involve[] fraud or deceit in which the loss to the victim or victims
exceeds $10,000.” INA § 101(a)(43)(M); 8 U.S.C. § 1101(a)(43)(m). The
government bears the burden of demonstrating that the alien in question was
convicted of an offense that satisfied this definition. Obasohan, 479 F.3d at 791.
The Supreme Court has held that “[t]he grounds upon which an
administrative order must be judged are those upon which the record discloses that
its action was based.” S.E.C. v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459,
87 L.Ed. 626 (1943). The Supreme Court reasoned that,
[i]f an order is valid only as a determination of policy or judgment
which the agency alone is authorized to make and which it has not
made, a judicial judgment cannot be made to do service for an
administrative judgment. For purposes of affirming no less than
reversing its orders, an appellate court cannot intrude upon the domain
which Congress has exclusively entrusted to an administrative agency.
6
Id. at 88, 63 S.Ct. at 459.
We have not previously applied the above principle of agency review in a
situation such as this, when the BIA did not consider a matter because it based its
holding on an independent ground. However, given this principle, it would be
inappropriate for us to address whether the government established that
Omoregbee’s federal offenses caused more than $10,000 in loss, such that he was
an aggravated felon for removal purposes. See id. Because the BIA affirmed the
IJ’s decision on alternative grounds, we may consider only the BIA’s decision.
See Al Najjar, 257 F.3d at 1284. In that decision, the BIA did not address whether
the government had established that Omoregbee was an aggravated felon. Were
we to now consider the matter, we would be doing so in the first instance and,
therefore, would be “intrud[ing] upon the domain which Congress has exclusively
entrusted to [the BIA].” See Chenery Corp., 318 U.S. at 88, 63 S.Ct. at 459. Thus,
we will not address the matter. It is not necessary to remand to the BIA to consider
the matter in the first instance, as we can affirm the BIA’s order of removal on its
finding that Omoregbee was an alien who had been convicted of two crimes
involving moral turpitude. We need not address the merits of that ground for
removal, because Omoregbee both failed to exhaust and abandoned any challenge
to this ground for removal, as he failed to raise the matter before the IJ or BIA or
on appeal to this Court. See Al Najjar, 257 F.3d at 1283 n. 12; Sepulveda, 401
7
F.3d at 1228 n.2; INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). Accordingly, we deny
the petition with regard to the BIA’s order of removal.
B. Cancellation of Removal
Pursuant to INA § 240A(a), 8 U.S.C. §§ 1229b(a), “[t]he Attorney General
may cancel removal in the case of an alien who is inadmissible or deportable from
the United States if the alien . . . has not been convicted of any aggravated felony.”
An alien who requests this discretionary form of relief bears the burden of
establishing his eligibility. 8 C.F.R. § 1240.8(d). Indeed, “[i]f the evidence
indicates that one or more of the grounds for mandatory denial of the application
for relief may apply, the alien shall have the burden of proving by a preponderance
of the evidence that such grounds do not apply.” Id.In determining whether an alien is an aggravated felon, we apply a modified
categorical approach. See Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1353
(11th Cir. 2005) (citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143,
109 L.Ed.2d 607 (1990) (considering whether the government had met its burden
of proving that an alien was an aggravated felon for removal purposes). Under this
approach, the IJ must first look to the language of the statute and determine
whether the statutory language covers some offenses that would be aggravated
felonies and others that would not. Id. at 1353-55. If the statute is “divisible” in
8
this manner, then the IJ must look to the record of conviction, which “includes the
charging document, plea, verdict or judgment, and sentence.” Id. at 1355.
In Obasohan, we applied this modified categorical approach in determining
whether the government had satisfied its burden of proving that an alien, convicted
of conspiracy to commit credit card fraud and ordered to pay restitution of $37,000
to 3 financial institutions, was an aggravated felon, based on his federal offenses
causing more than $10,000 in loss, for removal purposes. 479 F.3d at 785-86. We
held that the government had not and remanded the case to the BIA. Id. at 791.
We first concluded that the statute in question was divisible. Id. at 788. We then
concluded that the record of conviction did not support the IJ’s finding. Id. at 791.
To this end, we noted that the IJ had cited the alien’s guilty plea, plea colloquy,
PSI, and judgment of conviction and restitution order in finding that the alien’s
offenses had caused losses of more than $10,000. Id. at 787. We found that
neither the indictment nor the plea agreement and colloquy supported the IJ’s
finding, reasoning as follows.
[T]he elements of the conspiracy with which [the alien] was charged
did not require that any loss amount be proved. Neither the
indictment nor the plea agreement specified any loss amount. Indeed,
[the alien] was not charged with any loss, and did not admit to any
loss by pleading guilty as charged.
Id. at 789. We also found that the restitution order did not support the IJ’s finding,
reasoning as follows. At the plea hearing, the government admitted that no loss
9
was attributable to the fraudulent credit card on which the indictment was based.
Id. at 786. The government indicated, though, that it was pursuing evidence
suggesting that the alien was responsible for thousands of dollars of loss tied to the
use of another credit card. Id. In the PSI, the probation officer indicated that
further investigation had revealed that the alien had fraudulently used other credit
cards and caused $37,000 in loss. Id. Thus, the restitution order was based on
additional conduct that was not charged, proved, or admitted. Id. at 789, 791. We
held that, therefore, the IJ could not base its finding that the alien was removable
solely on the restitution order. Id. at 791.
In Sandoval-Lua, the Ninth Circuit applied this modified categorical
approach in determining whether an alien had satisfied his burden of proving that
he was not an aggravated felon for cancellation-of-removal purposes. 499 F.3d at
1129. The Ninth Circuit considered whether an alien convicted of a controlled
substance offense, defined under state law as transporting, importing, selling,
furnishing, administering, or giving away, or offering to transport, import, sell,
furnish, administer, or give away, a controlled substance, was an aggravated felon
as defined in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), or an alien
convicted of drug trafficking. Id. at 1127-28. The Ninth Circuit first concluded
that the statute of conviction was divisible, as it included conduct that was an
aggravated felony and conduct that was not, namely, soliciting. Id. at 1128. The
10
Ninth Circuit then concluded that the record of conviction, or the indictment and
judgment, were inconclusive as to the nature of the alien’s offense of conviction, as
the indictment merely included the statutory language and the judgment merely
cited the statue. Id. at 1129. The Ninth Circuit held, however, that, “[b]y
submitting an inconclusive record of conviction, [the alien] ha[d] affirmatively
proven under the modified categorical analysis that he was not necessarily
convicted of any aggravated felony.” Id. at 1130. The Ninth Circuit reasoned as
follows. Under the modified categorical approach, the IJ must determine whether
the record of conviction established that the alien “necessarily” was found to have
committed all of the elements of the “generic” aggravated felony, here, trafficking
drugs. Id. at 1130-31. Because the documents in the record of conviction were the
only evidence that could be considered, they had to establish either that the alien
necessarily was convicted of these elements or necessarily was not convicted of
these elements. Id. at 1131. Thus, because the record of conviction in question left
open the possibility that the alien was found to have committed some act other than
the elements of a generic aggravated felony, namely, soliciting rather than
trafficking a controlled substance, then it did not establish that the alien necessarily
was convicted of the requisite element of trafficking and the only remaining
option was that the alien necessarily was not convicted of the requisite element of
trafficking, such that he was not an aggravated felony. Id. at 1132.
11
Omoregbee has not satisfied his burden of demonstrating that he was not an
aggravated felon. See 8 C.F.R. § 1240.8(d). Because Omoregbee’s offense of
conviction applies to offenses that might not involve a loss of more than $10,000,
the statute is divisible. See Jaggernauth, 432 F.3d at 1353-55; 18 U.S.C.
§ 1029(a)(3) (instructing that a person is guilty of credit card fraud if he
“knowingly and with intent to defraud possesses fifteen or more devices which are
counterfeit or unauthorized access devices”). Thus, the question is whether
Omoregbee has shown that the record of conviction demonstrates that his offense
caused a loss of less than $10,000. See Jaggernauth, F.3d at 1355. Omoregbee’s
only effort at showing as much are citing Obasohan for the proposition that the
restitution order was an insufficient basis for finding that his federal offenses
caused more than $10,000 in losses and Sandoval-Lua for the proposition that
presenting an inconclusive record was tantamount to satisfying his burden of proof.
First, Sandoval-Lua is inapplicable. In that case, the statute of conviction
did not “match” the applicable definition of an aggravated felony, as it listed acts
that were not covered by the definition, such that the issue was whether the record
of conviction demonstrated whether the alien had committed the act that was
covered by the definition or one of those acts that was not. See Sandoval-Lua, 499
F.3d at 1127-28. The statute of conviction and definition of an aggravated felony
were, in part, mutually exclusive. See id. In this case, the applicable definition of
12
an aggravated felony does not so much define the elements of an aggravated felony
as add an extra element to any statutory offense of fraud or deceit, namely, that it
caused a loss of more than $10,000. See INA § 101(a)(43)(M), 8 U.S.C.
§ 1101(a)(43)(M). Thus, while Omoregbee’s statute of conviction, criminalizing
credit card fraud, applies to offenses that might not involve a loss of more than
$10,000, it does not apply to offenses that necessarily do not involve more than
$10,000. Stated differently, the statute of conviction and definition of an
aggravated felony are not at all mutually exclusive. Therefore, the Ninth Circuit
was considering a matter not at issue here and its approach and reasoning are
inapplicable.
Also, Obasohan is distinguishable. In that case, we held that a restitution
order alone was insufficient to demonstrate that the alien in question was an
aggravated felon. See Obasohan, 479 F.3d at 785-86. The restitution order in
question, however, was based on an act other than the offense of conviction, such
that it did not demonstrate that the alien had been convicted of an offense causing a
loss of more than $10,000. See id. at 789, 791. Indeed, the government admitted
that the offense of conviction did not involve any loss. See id. at 786. In the
instant case, Omoregbee has not alleged that the restitution order was based on
some other act besides the credit card fraud for which he was convicted or
otherwise presented evidence to this effect. Therefore, the holding in Obasohan,
13
which depended on the facts of that case, in distinguishable from the facts of the
instant case. Because Omoregbee only has cited cases that are inapplicable or
distinguishable, he has not satisfied his burden. See 8 C.F.R. § 1240.8(d).
Accordingly, we deny the petition with regard to the BIA’s denial of cancellation
of removability.
DENY PETITION.
14