Beverli Garcia-Simisterra v. U.S. Attorney General

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13848
________________________
Agency No. A055-816-798
BEVERLI GARCIA-SIMISTERRA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 30, 2020)
Before WILLIAM PRYOR, Chief Judge, HULL and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
In this immigration proceeding, Beverli Garcia-Simisterra challenges a
decision by the Board of Immigration Appeals (“BIA”) affirming an Immigration
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Judge’s (“IJ”) order of removal because the petitioner had been convicted of an
aggravated felony in Broward County, Florida. The IJ and the BIA found that
Garcia-Simisterra’s Florida convictions for money laundering and workers’
compensation fraud were aggravated felonies because each conviction involved
fraud or deceit in which the amount of loss to the victim exceeded $10,000. 8
U.S.C. § 1101(a)(43)(M)(i). Garcia-Simisterra claims that the record does not
support the requisite amount of loss because the statutes of conviction only
required some amount of loss less than $20,000. But since the record, including
the petitioner’s admission of guilt and a concomitant plea agreement, fully
supports the agency’s finding, we dismiss this petition for review.
I.
The essential facts are these. Garcia-Simisterra is a citizen of El Salvador
and has been a lawful permanent resident of the United States since 2007. In 2014,
he and a co-defendant (Adalid Ramos-Rodriguez) were charged by criminal
information with one count of money laundering, in violation of Fla. Stat. §§
896.101(3)(a), (5)(c), and 777.011, and one count of workers’ compensation fraud,
in violation of Fla. Stat. §§ 440.105(4)(b)(5), (4)(f)(3) 1, and 777.011. The two men
were charged with the first-degree version of each count, indicating that the counts
1
The information filed by the State Attorney in Broward County appears to contain a scrivener’s
error -- it cites § “440.1085(4)(f)3,” but no such subsection exists in the Florida code.
2
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involved a monetary loss valued at $100,000 or more. See Fla. Stat. §§
440.105(4)(f)(3), 896.101(5)(c). The workers’ compensation fraud count (Count
2) alleged that Garcia-Simisterra and his co-defendant “misrepresent[ed] or
conceal[ed] payroll, classification of workers, or information” concerning Garcia-
Simisterra’s company’s loss history to his insurance company “for the purpose of
avoiding or diminishing the amount of payment of any worker’s compensation
premiums, and the monetary value of the violation is $100,000.00 or more.”
Garcia-Simisterra agreed to plead guilty to “Counts I and II charged in the
Information” and to a separately charged count of operating an unauthorized
money-service business, Fla. Stat. § 560.125(5)(a). In exchange for his pleas, the
State agreed to reduce the money-service business charge from a first-degree
felony to a third-degree felony. Garcia-Simisterra ultimately entered a plea of nolo
contendere to the money-laundering and workers-compensation fraud counts. In
exchange for his pleas, the State reduced the charges to third-degree felonies,
which involve a monetary loss of less than $20,000. Fla. Stat. §§ 896.101(5)(a),
440.105(4)(f)(1). Garcia-Simisterra agreed, as documented in his plea agreement,
to be sentenced to a “withhold of adjudication” and three years of probation, along
with a “special condition of disgorgement of criminal proceeds” in the amount of
$104,662. The plea agreement explained, and Garcia-Simisterra admitted, that the
disgorgement sum was “seized in connection with the State’s investigation in the
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underlying SUBJECT MATTER and is currently in the custody of the Broward
Sherriff’s Office and/or The Worker’s Compensation Fraud Task Force pending
forfeiture.” The agreement also provided that its execution “operate[d] as a
relinquishment on ownership of those funds and a withdrawal of any civil claim for
return of funds.” Garcia-Simisterra also was required to enter into a settlement
agreement with the Broward County Sheriff’s Office and/or the Worker’s
Compensation Task Force for the forfeiture of the disgorgement amount.
On October 13, 2014, the Department of Homeland Security (“DHS”)
initiated removal proceedings against Garcia-Simisterra, filing a Notice to Appear
before the immigration court in Miami, Florida. DHS alleged that he was
removable pursuant to Section 237(a)(2)(A)(iii) of the Immigration and Nationality
Act (“INA”) because he was convicted of an offense that involves fraud or deceit
in which the loss to the victim or victims “exceeds $10,000”; that is an aggravated
felony under the INA. 8 U.S.C. § 1101(a)(43)(M)(i). 2
In Florida, a trial judge “may withhold an adjudication of guilt if the judge
places the defendant on probation.” Fla. R. Crim. P. 3.670. This does not mean
that Garcia-Simisterra was not “convicted” for immigration purposes, however,
because the INA defines a “conviction” to include a withhold of adjudication
2
DHS also alleged that he was removable for a domestic violence conviction, pursuant to INA §
237(a)(2)(E)(i). However, the IJ ruled against DHS on this point because the evidence was
insufficient; this matter has not been raised on appeal.
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where the alien has entered a plea of guilty or nolo contendere and “the judge has
ordered some form of punishment, penalty, or restraint on the alien’s liberty to be
imposed.” 8 U.S.C. § 1101(a)(48)(A).
Garcia-Simisterra disputed the aggravated felony charge. On January 5,
2015, the IJ conducted a full evidentiary hearing, at which Garcia-Simisterra’s
criminal defense attorney and a detective testified about Garcia-Simisterra’s
convictions and the amount of loss resulting from his fraudulent scheme. The IJ
sustained the aggravated felony charge of removability, finding that Garcia-
Simisterra’s convictions for money laundering and workers’ compensation fraud
were aggravated felonies as defined in 8 U.S.C. § 1101(a)(43)(M)(i). The IJ
observed that Garcia-Simisterra’s plea agreement included the special condition
that he disgorge criminal proceeds in the amount of $104,662. The IJ found that
the “information contained in the plea agreement, as well as in the testimonial
evidence,” fully supported a conviction for a fraud offense where the amount of
loss to the victim exceeded $10,000.
The Board of Immigration Appeals dismissed Garcia-Simisterra’s appeal,
sustaining the IJ’s finding that the amount of loss in the case exceeded $10,000.
The BIA determined that the government had met its burden of establishing the
petitioner’s removability by clear and convincing evidence. As for Garcia-
Simisterra’s claim that he was only convicted of crimes involving less than
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$20,000, the BIA determined that under controlling law, in a removal proceeding
arising under this section of the INA, it calculates the amount of a victim’s loss
using a “circumstance-specific” inquiry, not a “categorical” one. The BIA
concluded that Garcia-Simisterra’s plea agreement was tied to Count 2 of the
criminal information, which averred that the amount of the monetary value in his
workers’ compensation fraud offense was “$100,000 or more.”
Garcia-Simisterra timely petitioned this Court for review of the BIA’s
decision.
II.
A.
We review only the decision of the BIA, except to the extent that it adopts
the IJ’s decision or expressly agrees with the IJ’s reasoning. Kazemzadeh v. U.S.
Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009) (quoting Mohammed v. U.S.
Att’y Gen., 547 F.3d 1340, 1344 (11th Cir. 2008)). Although we review de novo
whether a prior conviction qualifies as an aggravated felony, Accardo v. U.S. Att’y
Gen., 634 F.3d 1333, 1335 (11th Cir. 2011), we “review[] administrative fact
findings under the highly deferential substantial evidence test.” Adefemi v.
Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004). Under this test, “we view the
record evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Id. at 1027. Moreover, the
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agency’s “findings of fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see
Adefemi, 386 F.3d at 1027 (holding that we may only reverse factual findings
made by the BIA “when the record compels a reversal; the mere fact that the
record may support a contrary conclusion is not enough to justify a reversal of the
administrative findings”). Accordingly, we apply an exceedingly deferential
standard of review to the agency’s fact-finding about the amount of loss.
B.
Garcia-Simisterra argues here, as he did before the BIA, that the evidence
was insufficient to establish that he committed a fraud with a loss amount
exceeding $10,000. Under the INA, “[a]ny alien who is convicted of an
aggravated felony at any time after admission is deportable.” 8 U.S.C. §
1227(a)(2)(A)(iii). The INA defines an “aggravated felony” 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). The government bears the burden of
establishing an aggravated felony by clear and convincing evidence. 8 U.S.C. §
1229a(c)(3)(A); 8 C.F.R. § 1240.8(a).
In Nijhawan v. Holder, the Supreme Court unanimously concluded that the
$10,000 loss component found in § 1101(a)(43)(M)(i) is not an element of the
fraud crime; “[r]ather, the monetary threshold applies to the specific circumstances
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surrounding an offender’s commission of a fraud and deceit crime on a specific
occasion.” 557 U.S. 29, 32, 40 (2009). Accordingly, we are required to conduct a
circumstance-specific inquiry, not a categorical one, in order to determine whether
the amount of loss exceeds $10,000. Id. at 34, 36, 38–40. In order to make this
determination, we may consider the entire record from a person’s conviction. Id.
at 41–43.
Applying the circumstance-specific approach to this case, we have little
difficulty concluding that the BIA’s determination of the loss amount is “supported
by reasonable, substantial, and probative evidence on the record considered as a
whole.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001), overruled on
other grounds by Patel v. U.S. Att’y Gen., 971 F.3d 1258 (11th Cir. 2020). As this
record reflects, Garcia-Simisterra agreed to plead guilty and ultimately pleaded
nolo contendere to both counts contained in the criminal information. The
information charged Garcia-Simisterra with workers’ compensation fraud with a
monetary value of “$100,000.00 or more.” See Fla. Stat. § 440.105(4)(f)(3); In re
Babaisakov, 24 I. & N. Dec. 306, 320 (BIA 2007) (noting that a defendant’s plea
to a criminal count alleging a fraudulent transaction in excess of $10,000 will most
likely suffice to meet a clear and convincing showing, “unless the convicting
jurisdiction treats the plea as only an admission of the bare elements of the
crime”); Carroso v. State, 129 So. 3d 374, 380 (Fla. Dist. Ct. App. 2013)
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(explaining that “monetary value” for workers-compensation fraud means
“monetary loss or potential loss sustained by the employer or the carrier that has
some relationship to the [fraudulent] representation.”). The information’s
recitation of the crimes -- specifying a loss amount of at least $100,000 -- fully
supports the agency’s fact-finding as to amount of loss, and, ultimately the
conclusion that Garcia-Simisterra’s crimes qualify as aggravated felonies.
Garcia-Simisterra emphasizes, however, that he did not plead guilty to the
charges as detailed in the information. Instead, in exchange for Garcia-
Simisterra’s plea, the State agreed to reduce the degrees in the counts from first-
degree felonies to third-degree felonies, thereby only requiring a loss under
$20,000. Garcia-Simisterra would have us look only to the statutes for which he
was convicted. But the problem with this argument is, “Nijhawan does not stand
for the proposition that, when the count of conviction contains a loss amount,
immigration officials must look no further.” Ku v. U.S. Att’y Gen., 912 F.3d 133,
140 (3d Cir. 2019). Rather, we “look to the facts and circumstances underlying an
offender’s conviction.” Nijhawan, 557 U.S. at 34.
The essential facts and circumstances underlying the petitioner’s convictions
are laid out in the criminal information and the plea agreement. And as we have
already noted, the information provided that Garcia-Simisterra was charged with a
loss amount of at least $100,000. The plea agreement explicitly provided that he
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would plead guilty to those counts. Garcia-Simisterra eventually pleaded nolo
contendere to the counts, and the State eventually reduced the charges to third-
degree felonies, but the important fact for Nijhawan is that Garcia-Simisterra’s
agreement to plead guilty to the first-degree versions of the crimes is powerful
evidence that the crimes involved a loss of much more than $10,000. See id. at
42–43 (relying on petitioner’s admission during a sentencing hearing); Varughese
v. Holder, 629 F.3d 272, 275 (2d Cir. 2010) (relying on petitioner’s admission
during a plea colloquy and a sentencing hearing). The record taken as a whole
establishes a loss greater than $10,000, and nothing we can discern compels a
different result. See 8 U.S.C. § 1252(b)(4)(B); Adefemi, 386 F.3d at 1027; see
also Ku, 912 F.3d at 139–40 (finding that the information, judgment, and
restitution order, taken together, provided clear and convincing evidence that the
loss amount exceeded $10,000). So substantial evidence supported the BIA’s
conclusion, and we lack jurisdiction over Garcia-Simisterra’s petition. 8 U.S.C. §
1252(a)(2)(C); Lopez v. U.S. Att’y Gen., 914 F.3d 1292, 1298 (11th Cir. 2019).
Because we resolve the petition on this ground, we need not address Garcia-
Simisterra’s arguments about whether the BIA relied on the disgorgement sum as
evidence of loss or whether that reliance was permissible. And because
documentary evidence amply supports the BIA’s finding, we similarly do not need
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to address the significance of the testimonial evidence about the disgorgement
sum.
PETITION DISMISSED.
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