Odelson Georges v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13643
Non-Argument Calendar
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Agency No. A047-031-175
ODELSON GEORGES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(August 11, 2020)
Before BRANCH, GRANT, and FAY, Circuit Judges.
PER CURIAM:
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Odelson Georges seeks review of the Board of Immigration Appeals (BIA)
order affirming an order of removal based on his conviction for an aggravated
felony. Georges argues that none of his convictions (for conspiracy to possess 15
or more unauthorized access devices—namely, Social Security numbers—
possession of 15 or more unauthorized access devices, and aggravated identity
theft) qualify as an aggravated felony as that term is defined in 8 U.S.C.
§ 1101(a)(43)(M)(i) and (U) because the conduct for which he was convicted did
not result in loss to the victim exceeding $10,000. We hold that the BIA correctly
determined that Georges had been convicted of an aggravated felony, and we
therefore deny the petition.
I.
Georges is a native and citizen of Haiti who was granted lawful permanent
residency in the United States in 1999. In 2013, a federal grand jury returned an
indictment charging Georges and a codefendant with conspiracy to possess 15 or
more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3) and
(b)(2) (Count 1); possession of 15 or more unauthorized access devices, in
violation of 18 U.S.C. §§ 1029(a)(3) and 2 (Count 2); and three counts of
aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2 (Counts
3–5). The indictment alleged that the purpose of the conspiracy charged in Count
1 was to possess stolen personal identifying information in order to file fraudulent
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tax returns and collect refunds from the IRS. Georges pleaded guilty to Counts 1
through 3 of the indictment. The district court sentenced him to 32 months’
imprisonment and ordered him to pay restitution in the “total loss” amount of
$12,982.
The Department of Homeland Security issued Georges a notice to appear
charging that he was subject to removal for having been convicted of an
aggravated felony under 8 U.S.C. § 1101(a)(43)(M) (an offense involving fraud or
deceit in which the total loss to the victim exceeds $10,000) and (a)(43)(U)
(attempt or conspiracy to commit such an offense). Georges denied that the loss to
his victim exceeded $10,000 and denied that he was subject to removal. He moved
to terminate the removal proceedings, arguing that the amount of the restitution
order did not represent the amount of loss for purposes of § 1101(a)(43)(M)
because it included loss that was due to uncharged conduct. Specifically, he
asserted that the district court’s “total loss” calculation of $12,982 was based on
the refunds for five fraudulent tax returns, two of which were accounted for in the
charges that were dismissed as part of his plea agreement and two of which were
never charged. According to Georges, the IRS paid a refund of $2,000 to $3,000
for each of the five tax returns, so the loss from the single fraudulent tax return that
formed the basis for his conviction on Count 3 could not have exceeded $10,000.
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The immigration judge denied Georges’s motion to terminate the
proceedings and entered an order of removal, finding that there was a clear
connection between the five fraudulent tax returns and Georges’s convictions for
possession and conspiracy to possess unauthorized access devices with intent to
defraud. Georges appealed to the BIA, which dismissed his appeal. He now seeks
review of the final order of removal.
II.
Whether we have subject matter jurisdiction over a petition for review is a
threshold question that we consider de novo. Guzman-Munoz v. U.S. Att’y Gen.,
733 F.3d 1311, 1313 (11th Cir. 2013). We also 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).
III.
We first address the government’s contention that we should dismiss
Georges’s petition for lack of jurisdiction. Under the Immigration and Nationality
Act (INA), our jurisdiction to review a final order of removal that is based on the
alien’s conviction for an aggravated felony is limited; in such circumstances, the
alien “may obtain judicial review of constitutional and legal challenges to the final
order of removal, but not of factual challenges to the final order of removal.”
Nasrallah v. Barr, 140 S. Ct. 1683, 1687–88 (2020); see 8 U.S.C. § 1252(a)(2)(C)–
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(D). Whether a petitioner’s conviction constitutes an aggravated felony is a
question of law that falls within our jurisdiction. Balogun v. U.S. Att’y Gen., 425
F.3d 1356, 1360 (11th Cir. 2005); see also Guerrero-Lasprilla v. Barr, 140 S. Ct.
1062, 1067 (2020) (federal appellate court jurisdiction to decide questions of law
includes jurisdiction to review “the application of a legal standard to undisputed or
established facts”). We therefore proceed to consider the limited question of
whether Georges was convicted of an aggravated felony, as that term is defined in
the INA, rendering him removable under 8 U.S.C. § 1227(a)(2)(A)(iii).
IV.
“Any alien who is convicted of an aggravated felony at any time after
admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). An offense that “involves
fraud or deceit in which the loss to the victim or victims exceeds $10,000” is an
aggravated felony, as is an attempt or conspiracy to commit such an offense. 8
U.S.C. § 1101(a)(43)(M)(i), (U). To prove that an alien is removable for having
been convicted of an aggravated felony under § 1101(a)(43)(M)(i) or (U), the
government must present clear and convincing evidence that the loss to the victim
exceeds $10,000. 8 U.S.C. § 1229a(c)(3)(A); see Nijhawan v. Holder, 557 U.S.
29, 42 (2009). The amount of loss is determined by reference to the specific
circumstances surrounding the alien’s commission of the crime, and “the ‘loss’
must ‘be tied to the specific counts covered by the conviction.’” Nijhawan, 557
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U.S. at 40, 42 (citation omitted). The government may meet its burden of proof by
reference to “sentencing-related material” (in addition to charging documents, jury
findings, or plea documents), as long as the alien has been given a fair opportunity
to contest the evidence. Id. at 41–42.
Georges does not deny that the crimes at issue involved fraud or deceit. His
only contention is that the order of restitution in the amount of $12,982 is not the
appropriate measure of loss to the IRS because that amount was not “tied to the
specific counts” of conviction. We disagree.
We have no difficulty concluding that the loss associated with Georges’s
conviction for conspiracy to possess 15 or more unauthorized access devices
exceeded $10,000. 1 According to uncontested information in the presentence
investigation report (PSR) and the plea documents, Georges and at least one
coconspirator obtained the names, birth dates, and Social Security numbers of
more than 100 patients from a hospice care provider and a local hospital. They
used the stolen patient information to file fraudulent tax returns in an effort to
collect refunds from the IRS. The IRS paid refunds to the coconspirators for at
least five of the fraudulent tax returns, resulting in a loss of $12,982.
1
Because Georges’s conspiracy offense qualifies as an aggravated felony under the INA, we
need not consider whether his conviction for possession of 15 or more unauthorized access
devices also qualifies.
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By pleading guilty to Count 1 as charged in the indictment, Georges
admitted that the purpose of the conspiracy was to obtain personal identifying
information in order to file fraudulent tax returns and make money from the
refunds paid by the IRS. The five fraudulent tax returns referenced in Georges’s
PSR clearly were filed in furtherance of this conspiracy, so that the total loss from
all five of the tax returns was “tied to” the conspiracy count of conviction.
Georges has never disputed—and has therefore admitted—the statements in his
PSR that the loss from those five tax returns amounted to $12,982. See United
States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir. 2014) (defendant is deemed
to have admitted statements in the PSR “that he has not objected to ‘with
specificity and clarity’” (citation omitted)). Thus, the government presented clear
and convincing evidence that the loss associated with Georges’s conviction for
conspiracy to possess 15 or more unauthorized access devices exceeded $10,000.
V.
Because Georges was convicted of conspiring to commit an offense
involving fraud in which the loss to the victim exceeded $10,000, the BIA
correctly concluded that Georges was deportable under § 1227(a)(2)(A)(iii) for
having committed an aggravated felony. We therefore deny the petition for review
of the final order of removal.
PETITION DENIED.
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