Ikwazema Eric Abakporo v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12750
Non-Argument Calendar
________________________
Agency No. A078-201-679
IKWAZEMA ERIC ABAKPORO,
a.k.a. Ifeanyichukwu Eric Abakporo,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 13, 2021)
Before MARTIN, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
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Ikwazema Eric Abakporo, proceeding pro se, petitions for review of the
Board of Immigration Appeals’ order denying his motion to reopen or reconsider
and reissuing its dismissal of his appeal of the immigration judge’s final order of
removal. The immigration judge found Abakporo ineligible for cancellation of
removal because he had been convicted of an aggravated felony under 8 U.S.C.
§ 1227(a)(2)(A)(iii). After careful consideration, we dismiss Abakporo’s petition
for lack of jurisdiction as to the Board’s dismissal of his appeal and deny it as to
the denial of his motion to reopen or reconsider.
I.
Abakporo, a native and citizen of Nigeria, was admitted to the United States
on a visitor’s visa in 1996 and adjusted his status to lawful permanent resident in
2002. In 2014, he was convicted in federal court of conspiracies to commit bank
and wire fraud, in addition to substantive bank fraud, and aiding and abetting that
offense. In its judgment, the district court ordered Abakporo to pay $2,420,917.64
in restitution, including $36,521.02 to victim JP Morgan Chase Bank N.A., the
successor to Washington Mutual N.A. The judgment noted three additional
victims with amounts listed for the remaining restitution, but the words “relevant
conduct” were handwritten next to those amounts.
In 2018, the Department of Homeland Security initiated removal
proceedings against Abakporo by filing a notice to appear, charging him as
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removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an
aggravated felony, defined as (1) an attempt or conspiracy to commit a fraud or
deceit in which the loss to the victims exceeded $10,000, under 8 U.S.C.
§ 1101(a)(43)(U); and (2) a fraud or deceit in which the loss to the victims
exceeded $10,000, under 8 U.S.C. § 1101(a)(43)(M)(i). Abakporo admitted the
factual allegations in the notice to appear but argued that his conviction was not an
aggravated felony and that he was therefore eligible for cancellation of removal
and adjustment of status.
Abakporo then moved to terminate his removal proceedings, arguing that the
restitution order in his criminal case was based on uncharged and unadmitted-to
conduct that was only proved by a preponderance of the evidence. He argued that
the victims did not suffer any actual loss because the fraudulent loans at issue were
fully repaid, that Washington Mutual actually profited by $6,000, and that the
restitution order was based on relevant conduct, so the Department of Homeland
Security had not proven by clear and convincing evidence that he had been
convicted of an aggravated felony as defined under § 1101(a)(43)(M)(i).
Abakporo attached to his motion a document titled “satisfaction of mortgage,”
which indicated that Chase Bank purchased one of the loans at issue as receiver for
Washington Mutual, and the loan was thereafter assigned to another institution, but
did not indicate whether Chase Bank recouped any of its losses when it assigned
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the loan. He also attached copies of payments made on the loan after Chase Bank
accelerated it, a worksheet he created explaining what he perceived as the district
court’s erroneous loss amount calculation at his criminal sentencing proceeding,
and an excerpt of his sentencing transcript where the parties argued the loss
calculation.
An immigration judge advised Abakporo that if he found Abakporo had
been convicted of an aggravated felony, Abakporo would not be eligible for
cancellation of removal, and that he should apply for any other relief he wished to
seek immediately. The immigration judge also told Abakporo that, depending on
the resolution of the motion to terminate, he might order Abakporo’s removal
before the next scheduled hearing. After the government responded to Abakporo’s
motion to terminate, Abakporo filed two replies, one counseled and one pro se,
arguing in both that the Department of Homeland Security had not carried its
burden of showing by clear and convincing evidence that the alleged victims of his
crime had incurred more than a $10,000 loss, because it had not presented any
evidence. He also reiterated that the district court had incorrectly calculated a
$36,000 loss to Washington Mutual and Chase Bank at his sentencing. He argued
that, even if the district court’s finding of actual loss was clear from the record, the
agency was not tied to the district court’s erroneous actual loss calculation and was
required to make its own determination of whether his crime resulted in a loss of
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more than $10,000 to a victim, including a consideration of the evidence he
submitted. Notably, an exhibit list Abakporo provided in anticipation of a hearing
did not include exhibits or proposed witnesses that were relevant to the loss
amount determination.
Without holding a hearing, the immigration judge issued a written decision
sustaining the charge of removability, denying the motion to terminate and
application for cancellation of removal, and ordering Abakporo removed to
Nigeria, after noting that he had considered the entire record and all of the
evidence. In so ruling, the immigration judge noted the Department of Homeland
Security’s burden and found that the restitution order indicated a $36,521.02 loss
to successor Chase Bank, which was corroborated by the sentencing transcript, and
which was based on conduct that Abakporo was charged for and convicted of.
Abakporo appealed to the Board of Immigration Appeals. The Board
dismissed Abakporo’s appeal, finding no error in the immigration judge’s
conclusion that the loss associated with his convictions was more than $10,000
and, thus, that he had been convicted of an aggravated felony. The Board
explained that the Department of Homeland Security need only prove that the
potential loss to a victim was more than $10,000, and was not required to show
instead, as Abakporo had contended, that the actual loss exceeded that amount.
Nonetheless, the Board concluded, the district court found at sentencing an excess
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of $36,000 in actual loss to Chase Bank, and the immigration judge had not erred
by considering the sentencing material Abakporo submitted in making its loss
determination. In addition, the Board concluded that the restitution ordered to
Chase Bank was tied to the conduct Abakporo was convicted of and was distinct
from the other restitution amounts, which were notated as tied to relevant conduct.
Finally, the Board explained that any difficulty the district court had in calculating
the loss amount did not obviate the district court’s loss findings as reflected in the
sentencing transcript and restitution order.
Abakporo then filed a pro se petition for review in our Court, which we
dismissed sua sponte as untimely. Abakporo filed a motion to reopen and
reconsider with the Board, arguing that his counsel had prevented him from timely
filing an appeal with our Court by failing to inform him of the Board’s decision
dismissing his appeal, failed to argue that the immigration judge erred by not
holding a hearing before ordering his removal, and failed to file replies to the
government’s response to his motion to terminate. He further argued that his
counsel was ineffective for failing to inform the immigration judge or the Board
that he was eligible for a waiver of inadmissibility or that his wife had filed an I-
130 petition for an alien relative on his behalf. He also challenged the Board’s
dismissal of his appeal, arguing again that the Department of Homeland Security
had failed to present any evidence on the loss amount issue and that the Board
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should have remanded and ordered the immigration judge to hold a hearing instead
of addressing the issue of potential loss. Abakporo later filed an addendum to his
motion, asserting that an I-130 petition filed by his wife had been approved, with
the dates of the petition indicating it had been filed after the immigration judge’s
order and approved after the filing of his motion to reconsider and reopen.
The Board denied the motion but reissued its earlier decision dismissing
Abakporo’s appeal. The Board found no error in its prior decision that warranted
reconsideration and concluded that Abakporo’s motion to reopen did not establish
prima facia eligibility for adjustment of status because he did not attach either an
application for adjustment of status or for a waiver of inadmissibility, which he
was required to submit simultaneously since his aggravated felony conviction
rendered him inadmissible. In addition, the Board found that Abakporo had not
demonstrated prima facie eligibility for a waiver of inadmissibility because he had
not alleged that his wife or two children would suffer extreme hardship if he were
removed.
As to his ineffective assistance claims, the Board first found that counsel
was not ineffective for failing to pursue a waiver of inadmissibility since, at the
time of his removal proceedings, Abakporo was not the beneficiary of an approved
visa petition and, since he could not seek a standalone waiver of inadmissibility, he
was ineligible for adjustment of status with or without a waiver. Further, the
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Board concluded that counsel was not ineffective for failing either to request a
hearing or object to the lack of one because, as the issues regarding Abakporo’s
removal rested on purely legal grounds, the immigration judge was not required to
hold a hearing. And, the Board found, because the immigration judge properly
found Abakporo ineligible for cancellation of removal due to his aggravated felony
conviction, the lack of a hearing was not prejudicial. Finally, the Board found that
Abakporo was not prejudiced by counsel’s failure to timely inform him of its
earlier decision since it denied his request for reconsideration on the merits and
reissued its earlier decision to allow him another chance to appeal. The Board
therefore denied Abakporo’s motion to reopen, and this petition for review
followed.
II.
Our jurisdiction to review orders of removal is limited by the Immigration
and Nationality Act, which provides that “no court shall have jurisdiction to review
any final order of removal against an alien who is removable by reason of having
committed a criminal offense covered in [8 U.S.C. § 1227(a)(2)(A)(iii)].” 8 U.S.C.
§ 1252(a)(2)(C). Nevertheless, the question of whether a petitioner’s conviction
constitutes an “aggravated felony” within the meaning of the INA 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). We must determine whether a petitioner is “(1) an alien;
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(2) who is removable; (3) based on having committed a disqualifying offense.”
Keungne v. U.S. Att’y Gen., 561 F.3d 1281, 1283 (11th Cir. 2009) (citation
omitted). If these conditions are met, we lack jurisdiction to review the removal
order. Id. at 1283–84.
We review the Board’s decision as the final order of removal and review the
immigration judge’s decision to the extent the Board relied on it. Yu Xia v. U.S.
Att’y Gen., 608 F.3d 1233, 1239 (11th Cir. 2010). And 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). However, we review factual findings under
the substantial-evidence test, under which we view the evidence in the light most
favorable to, and draw all reasonable inferences in favor of, the agency’s decision.
Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350–51 (11th Cir. 2009). The
substantial-evidence standard applies to the Board’s finding that a conviction
involved more than $10,000 in actual loss. Garcia-Simisterra v. U.S. Att’y Gen.,
984 F.3d 977, 980–81 (11th Cir. 2020). Under this highly deferential standard, we
must affirm the Board’s decision if it is supported by substantial evidence on the
record considered as a whole. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818
(11th Cir. 2004). That the record may support a contrary conclusion is not enough
to reverse the Board’s findings. Kazemzadeh, 577 F.3d at 1351.
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III.
An alien who has been convicted of an aggravated felony is removable. 8
U.S.C. § 1227(a)(2)(A)(iii). An offense involving fraud or deceit that results in a
loss to a victim of over $10,000 is an aggravated felony. 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). Nevertheless, when an alien concedes a point, it eliminates the
government’s need to develop the record to support it. Dos Santos v. U.S. Att’y
Gen., 982 F.3d 1315, 1320 (11th Cir. 2020).
In Nijhawan v. Holder, the Supreme Court concluded that the $10,000 loss
component in § 1101(a)(43)(M)(i) is not an element of the fraud crime but rather a
factual circumstance surrounding the fraud. 557 U.S. 29, 32, 40 (2009).
Accordingly, it held that a court must conduct a circumstance-specific inquiry, not
a categorical one, to determine whether the amount of loss exceeded $10,000. Id.at 36–40. The sole purpose of the aggravated felony inquiry is to determine the
nature of the prior conviction and not to relitigate the conviction. Id. at 42. An
immigration judge may rely on district court records, including a restitution order,
to make the loss determination as long as the alien had a fair opportunity to dispute
the findings in those records. Id. at 41–43. The Court held that, because the
petitioner had not presented any conflicting evidence, the petitioner’s stipulation at
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sentencing and the court’s restitution order showing losses greater than $10,000
were clear and convincing evidence supporting the loss determination. Id. at 42–
43.
We have held that an immigration judge was not entitled to rely solely on a
restitution order to establish the loss amount for an aggravated felony when the
petitioner demonstrated that the order included conduct not included in a guilty
plea. Obasohan v. U.S. Att’y Gen., 479 F.3d 785, 789–91 (11th Cir. 2007),
overruled on other grounds by Nijhawan, 557 U.S. at 33, 36. We held that “the
restitution order was insufficient as a matter of law,” both because it referenced
conduct not charged, proven, or admitted prior to sentencing and because the
standard at sentencing was a lower “preponderance of the evidence” standard. Id.
at 791. In that case, however, the government admitted that the restitution order
was based on acts other than the offense of conviction. Id. at 789–90.
We have jurisdiction to determine whether Abakporo’s offense qualifies as
an aggravated felony under § 1227(a)(2)(A)(iii), which is a question we review de
novo. Accardo, 634 F.3d at 1335. But Abakporo challenges his removability on
the ground that the Department of Homeland security failed to prove that his fraud
convictions resulted in a loss of more than $10,000, which is a factual finding we
review for substantial evidence. See Garcia-Simisterra, 984 F.3d at 980–81.
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We conclude that the immigration judge’s loss determination was supported
by substantial evidence. This is so because, viewing the evidence in the light most
favorable to the decision, the restitution order and sentencing transcript established
approximately $36,000 in actual loss to Chase Bank and Abakporo failed to
provide evidence that conflicted with the district court’s findings. The documents
Abakporo provided—the Chase Bank statement, the mortgage satisfaction
document, and payments made on the loan—did not conflict with the district
court’s calculation of actual loss, because they did not indicate, as Abakporo
apparently contends, that Chase Bank recouped its losses on the loan. While the
government had the burden to prove the amount of the loss by clear and
convincing evidence, the district court’s restitution order and findings at sentencing
were powerful evidence of loss, especially given the lack of controverting
evidence. In addition, substantial evidence supports the conclusion that the
restitution owed to Chase Bank was not based on relevant conduct, as that
indication on the restitution order appeared only next to the remaining restitution
amounts, which were not at issue for purposes of the aggravated felony
determination.
While Abakporo argues that the Department of Homeland Security failed to
support the actual loss attributed to his fraud convictions because it did not present
any evidence, it was not required to do so after Abakporo submitted the restitution
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order and sentencing transcript excerpt to the immigration judge. See Dos Santos,
982 F.3d at 1320 (holding that when a petitioner concedes a point, it eliminates the
Department of Homeland Security’s need to develop the record to support it).
Moreover, the immigration judge acknowledged that it was the Department of
Homeland Security’s burden to establish Abakporo’s removability before finding
that the restitution order and district court’s finding at sentencing were clear and
convincing evidence that his conviction involved a loss of more than $10,000.
Finally, Abakporo failed to present or identify any conflicting evidence despite
multiple opportunities to do so, even without a hearing.
Accordingly, because we conclude Abakporo is removable for having
committed a disqualifying aggravated felony offense, we lack jurisdiction to
review his final order of removal. See 8 U.S.C. § 1252(a)(2)(C)–(D); Keungne,
561 F.3d at 1283–84. We therefore dismiss his petition for review as to this issue.
IV.
We review the denial of a motion to reopen removal proceedings for an
abuse of discretion, a standard under which we will determine only whether the
Board exercised its discretion arbitrarily or capriciously. Jiang v. U.S. Att’y Gen.,
568 F.3d 1252, 1256 (11th Cir. 2009). We also review the Board’s denial of a
motion for reconsideration for an abuse of discretion. Assa’ad v. U.S. Att’y Gen.,
332 F.3d 1321, 1341 (11th Cir. 2003). “The BIA abuses its discretion when it
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misapplies the law in reaching its decision,” or when it fails to follow its own
precedents “without providing a reasoned explanation for doing so.” Ferreira v.
U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013). The appellant bears a
heavy burden to prove arbitrariness or capriciousness because motions to reopen in
the context of removal proceedings are particularly disfavored. Zhang v. U.S. Att’y
Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
A motion to reopen “shall state the new facts that will be proven at a hearing
to be held if the motion is granted, and shall be supported by affidavits or other
evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B); Verano-Velasco v. U.S. Att’y
Gen., 456 F.3d 1372, 1376 (11th Cir. 2006). Motions to reopen may be granted if
there is new evidence that is material, was not available previously, and could not
have been discovered or presented at the removal hearing. 8 C.F.R.
§§ 1003.2(c)(1), 1003.23(b)(3); Verano-Velasco, 456 F.3d at 1376–77. Removal
proceedings may be reopened on grounds of ineffective assistance of counsel.
Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005).
Motions to reconsider must be supported by pertinent authority. See 8
U.S.C. § 1229a(c)(6)(C); 8 C.F.R. §§ 103.5(a)(3), 1003.2(b), & 1003.23(b)(2).
“[A] motion that merely republishes the reasons that had failed to convince the
tribunal in the first place gives the tribunal no reason to change its mind.” Calle v.
U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007) (citation omitted).
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While individuals in civil removal proceedings are not entitled to the Sixth
Amendment right to counsel, we have held that individuals who have retained
counsel have a Fifth Amendment due process right to effective assistance of that
counsel. Dakane, 399 F.3d at 1273. A meritorious motion to reopen removal
proceedings based on ineffective assistance of counsel must establish that
counsel’s performance was deficient to the point that it impinged upon the
fundamental fairness of the hearing such that the petitioner was unable to
reasonably present his case. Id. at 1274.
To demonstrate prejudice, the petitioner must demonstrate that the
performance of counsel was “so inadequate that there is a reasonable probability
that but for the attorney’s error, the outcome of the proceedings would have been
different.” Sow v. U.S. Att’y Gen., 949 F.3d 1312, 1318 (11th Cir. 2020) (citation
omitted). A petitioner can establish prejudice by making a prima facie showing
that he would have been eligible for the relief sought. Dakane, 399 F.3d at 1274–
75.
While an immigrant who committed an aggravated felony after being
admitted to the United States is removable, the Attorney General may, in his
discretion, waive a finding of inadmissibility for an immigrant who is the spouse or
parent of a United States citizen if the immigrant’s denial of admission would
result in extreme hardship to the qualifying relative. 8 U.S.C. § 1182(h)(1)(B). To
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obtain a waiver of inadmissibility, an immigrant who remains in the United States
must also apply for an adjustment of status. Poveda v. U.S. Att’y Gen., 692 F.3d
1168, 1176 (11th Cir. 2012); see also Rivas v. U.S. Att’y Gen., 765 F.3d 1324,
1327, 1329 (11th Cir. 2014).
Abakporo’s motion for reconsideration of the Board’s dismissal of his
appeal “merely republishe[d] the reasons that had failed to convince the tribunal in
the first place” and gave the Board “no reason to change its mind.” See Calle, 504
F.3d at 1329 (quotation marks omitted). For that reason, the Board did not abuse
its discretion by denying it.
The Board did not abuse its discretion in denying Abakporo’s motion to
reopen, either, because his counsel was not ineffective for failing to apply for a
waiver of inadmissibility for which Abakporo was not eligible. Specifically,
Abakporo was not the beneficiary of an approved I-130 petition until after the
Board dismissed his appeal, he had not filed for an adjustment of status, and he
could not seek a standalone waiver of inadmissibility. See Poveda, 692 F.3d at
1176. And as to Abakporo’s contention that his counsel was ineffective for
waiving or failing to request a hearing before the immigration judge, as we
explained, Abakporo never filed or identified the allegedly conflicting evidence
that he says should have been considered at a hearing, despite multiple
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opportunities to do so. See 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3);
Verano-Velasco, 456 F.3d at 1376–77.
Finally, Abakporo cannot demonstrate that he was prejudiced by any of his
counsel’s purported errors. Without the allegedly conflicting evidence, he cannot
establish a reasonable probability that, but for counsel’s errors, the outcome of his
removal proceedings would have been different. See Sow, 949 F.3d at 1318.
Accordingly, the Board did not abuse its discretion by denying Abakporo’s
motion to reopen or reconsider, and we deny his petition as to this issue.
PETITION DISMISSED IN PART AND DENIED IN PART.
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MARTIN, Circuit Judge, concurring:
I write separately to note why I prefer not to use the term “alien,” which the
panel opinion uses six times. Justice Kavanaugh has equated the term “noncitizen”
with the statutory term “alien.” Nasrallah v. Barr, 590 U.S. __, 140 S. Ct. 1683,
1689 n.2 (2020); see also United States v. Estrada, 969 F.3d 1245, 1253 n.3 (11th
Cir. 2020). “Alien” is increasingly recognized as an “archaic and dehumanizing”
term. Maria Sacchetti, ICE, CBP to Stop Using ‘Illegal Alien’ and ‘Assimilation’
Under New Biden Administration Order, Wash. Post (Apr. 19, 2021),
https://www.washingtonpost.com/immigration/illegal-alien-
assimilation/2021/04/19/9a2f878e-9ebc-11eb-b7a8-014b14aeb9e4_story.html.
To the extent the term “noncitizen” does not, in every instance, serve as a
perfect replacement for the term “alien,” that concern is not present in this case. I
see no need to use a term that “has become pejorative” where a non-pejorative
term works perfectly well. Library of Congress, Library of Congress to Cancel the
Subject Heading “Illegal Aliens” at 1 (2016),
https://www.loc.gov/catdir/cpso/illegal-aliens-decision.pdf.
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BRANCH, Circuit Judge, concurring:
In her separate concurrence, Judge Martin takes issue with the fact that the
majority uses the statutory term “alien,” rather than her preferred term
“noncitizen.” Although she declares that the term “alien” is pejorative, she does
not explain how the majority opinion “intend[s] to disparage or belittle” when it
uses a legal term of art Congress chose to use in the Immigration & Nationality
Act. See Pejorative, Merriam-Webster.com Dictionary, https://www.merriam-
webster.com/dictionary/pejorative (last visited August 5, 2021). Nor does she
explain how the Supreme Court and every circuit court of appeals have intended to
disparage or belittle by their use of the appropriate statutory term “alien.” See
Davis v. Gregory, No. 20-12716, 2021 WL 2944462, at *4 (11th Cir. July 14,
2021) (Branch, J., concurring); Jean-Louis v. U.S. Att’y Gen., No. 20-12082, 2021
WL 2885838, at *2 (11th Cir. July 9, 2021) (Branch, J., concurring); Rivera v. U.S.
Att’y Gen., No. 20-13201, 2021 WL 2836460, at *7 (11th Cir. July 8, 2021)
(Branch, J., concurring).
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