Orozco De Anda v. Holder

09-0655-ag
Orozco De Anda v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders filed after
January 1, 2007, is permitted and is governed by this court’s Local Rule 32.1 and Federal Rule of
Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a summary order, in each
paragraph in which a citation appears, at least one citation must either be to the Federal Appendix or
be accompanied by the notation: “(summary order).” A party citing a summary order must serve a
copy of that summary order together with the paper in which the summary order is cited on any party
not represented by counsel unless the summary order is available in an electronic database which is
publicly accessible without payment of fee (such as the database available at
http://www.ca2.uscourts.gov/). If no copy is served by reason of the availability of the order on such
a database, the citation must include reference to that database and the docket number of the case in
which the order was entered.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 3rd day of December, two thousand nine.
Present: WILFRED FEINBERG,
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
Circuit Judges.
____________________________________________________________
LETICIA OROZCO DE ANDA,
Petitioner,
No. 09-0655-ag
- v.-
ERIC H. HOLDER, JR., Attorney General,
Respondent.
____________________________________________________________
For Petitioner: JUSTIN CONLON , Law Offices of Michael Boyle, North
Haven, C.T.
For Respondent: KILEY L. KANE, Trial Attorney (Tony West, Assistant
Attorney General, John S. Hogan, Senior Litigation
Counsel, on the brief), Office of Immigration Litigation,
United States Department of Justice, Washington, D.C.
Petition for review of a decision of the Board of Immigration Appeals.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
Petitioner Leticia Orozco De Anda (“Orozco”), a native and citizen of Mexico, petitions
this Court for review of a decision of the Board of Immigration Appeals (“BIA”) entered January
28, 2009, affirming the decision of Immigration Judge (“IJ”) Michael W. Straus denying
Orozco’s motion to terminate removal proceedings and ordering her removed to Mexico. In re
Orozco De Anda, No. A35-704-210 (B.I.A. Jan. 28, 2009), aff’g No. A35-704-210 (Immig. Ct.
Hartford, Conn. Oct. 1, 2008). We assume the parties’ familiarity with the underlying facts and
procedural history of the case.
We review factual findings for substantial evidence and legal conclusions de novo. Bah
v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). Where, as here, a petitioner argues that the
government failed to meet its burden of proof as to the grounds for deportation, we grant a
petition for review if “any rational trier of fact would be compelled to conclude that the proof did
not rise to the level of clear and convincing evidence.” Francis v. Gonzales, 442 F.3d 131, 138-
39 (2d Cir. 2006).
Although we generally lack jurisdiction to review “any final order of removal against an
alien who is removable by reason of having committed” certain enumerated aggravated felonies,
we retain jurisdiction to review “constitutional claims or questions of law.” 8 U.S.C. §
1252(a)(2)(C)-(D). Similarly, we always “have jurisdiction to determine whether we have
jurisdiction,” Ashton v. Gonazles, 431 F.3d 95, 97 (2d Cir. 2005), and thus retain jurisdiction to
decide “whether a petitioner satisfies the jurisdictional facts such as convictions for an
aggravated felony,” Gertsenshteyn v. U.S. Dep’t of Justice, 544 F.3d 137, 142 (2d Cir. 2008), and
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to decide “what evidence may satisfy a party’s burden of proof” as to those facts. Gui Yin Lui v.
INS, 475 F.3d 135, 137 (2d Cir. 2007) (per curiam).
Here, the government contends that we lack jurisdiction to consider Orozco’s petition
because it raises a purely factual question, rather than a legal or constitutional challenge to the
BIA’s decision. The sole issue presented in Orozco’s petition, however, centers on whether the
government demonstrated that she is removable for having been convicted of an aggravated
felony. “The jurisdictional inquiry thus merges with the question on the merits: If [Orozco] is in
fact removable because [s]he was convicted of an aggravated felony . . ., we must dismiss [her]
petition for lack of jurisdiction, while if [s]he is not removable . . ., we may exercise jurisdiction
and vacate the order of removal.” Sui v. INS, 250 F.3d 105, 110 (2d Cir. 2001).
The government also contends that Orozco failed to exhaust her administrative remedies,
thus preventing her from challenging her removability before this Court. See Severino v.
Mukasey, 549 F.3d 79, 83 (2d Cir. 2008) (this Court “may consider only those issues that the
petitioner has presented in substance to the BIA”); Karaj v. Gonzales, 462 F.3d 113, 117 (2d Cir.
2006) (“Congress has limited this court’s power to review a final order of removal to those
removal orders for which ‘the alien has exhausted all administrative remedies available to the
alien as of right’”) (quoting 8 U.S.C. § 1252(d)(1)). Here, as below, Orozco argues that she was
not convicted of an aggravated felony under the immigration laws. Although Orozco’s argument
on appeal differs at least somewhat from the argument that she presented before the BIA, “we
have never held that a petitioner is limited to the exact contours of [her] argument below.” Gill
v. INS, 420 F.3d 82, 86 (2d Cir. 2005) (section 1252(d)(1) does not preclude consideration of
“specific, subsidiary legal arguments, or arguments by extension, that were not made below”).
Moreover, the BIA necessarily considered the issue presented here when it concluded that the
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government had offered “sufficient evidence to conclude that [Orozco’s] crime qualifies as an
aggravated felony.” Accordingly, even assuming that Orzoco failed to adequately raise this
specific issue below, we nevertheless may consider it here. See Xian Tuan Ye v. Dep’t of
Homeland Sec., 446 F.3d 289, 296-97 (2d Cir. 2006) (per curiam) (where the BIA addresses
claims or issues not raised by a petitioner, those issues are considered exhausted and may be
reviewed by this Court).
Turning to the sole issue raised in this petition, Orozco argues that the government failed
to produce evidence demonstrating that the money laundering offense for which she was
convicted involved funds in excess of $10,000, and thus failed to demonstrate by clear and
convincing evidence that she was convicted of an aggravated felony as defined in 8 U.S.C. §
1101(a)(43)(D). In support of its contention that Orozco’s conviction involved funds in excess
of $10,000, the government offered Orozco’s underlying indictment and judgment of conviction,
which were admitted into evidence without objection. Together, these documents demonstrate
that (1) Orozco pleaded guilty to a one-count indictment that charged her with, inter alia,
conspiring to conduct a financial transaction with the intent to promote drug trafficking and with
knowledge that the transaction involved nearly $1.3 million; (2) one of the indictment’s three
overt acts alleged that Orozco and others kept and maintained nearly $1.3 million in currency;
and (3) Orozco was required to forfeit her interest in the $1.3 million in currency. It was entirely
appropriate for the IJ and BIA to consider this evidence when determining whether Orozco had
been convicted of an aggravated felony, and, “[i]n the absence of any conflicting evidence (and
petitioner mentions none), this evidence is clear and convincing” proof that the “amount of the
funds involved exceeded $10,000.” Nijhawan v. Holder, 129 S. Ct. 2294, 2304 (2009).
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Orozco contends that the government failed to meet its burden because the indictment
purportedly charged two independent theories of criminal liability, only one of which made
reference to the amount of funds involved in the offense. To the contrary, though, the one-count
indictment unequivocally charged Orozco with conspiring to commit “certain offenses against
the United States,” which are listed in the conjunctive. The judgment, in turn, indicates that
Orozco pleaded guilty to all of the conduct listed in the indictment by separately identifying all
three sections of the money laundering statute that were listed in the indictment, including the
section that was explicitly tied to the $1.3 million. Similarly, the court’s forfeiture order required
Orozco to forfeit any interest in the nearly $1.3 million at issue in her conviction. Thus, the
government introduced clear and convincing evidence that the funds involved here were “tied to
the specific count[] covered by the conviction,” Nijhawan, 129 S. Ct. at 2303, and Orozco has
failed to point to any evidence that rebuts this fact. Because Orozco pleaded guilty to, and was
convicted of, an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(D), she is
deportable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).
We have considered Orozco’s remaining arguments and find them to be without merit.
Accordingly, for the reasons set forth above, the petition for review is hereby DENIED. As we
have completed our review, the pending motion for a stay of removal in this petition is
DISMISSED as moot.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE , CLERK
By:__________________________________
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