Chhabra v. Holder

10-927-ag (L); 10-4397-ag (Con)
Chhabra v. Holder
BIA
Hom, IJ
A035 450 508
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10th day of November, two thousand eleven.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
DENNY CHIN,
Circuit Judges.
_______________________________________
VIJAY K. CHHABRA,
Petitioner,
v. 10-927-ag (L);
10-4391-ag (Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Thomas E. Moseley, Newark, N.J.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Terri J. Scadron, Assistant
Director; Kathryn L. Deangelis,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC
UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petitions for review
are DENIED.
Vijay K. Chhabra (“Chhabra”), a native and citizen of
India, seeks review of a March 9, 2010 decision of the BIA
affirming the August 26, 2008 decision of Immigration Judge
(“IJ”) Sandy K. Hom, which found Chhabra removable as
charged and denied his application for cancellation of
removal. In re Vijay Kumar Chhabra, No. A035 450 508
(B.I.A. Mar. 9, 2010), aff’g No. A035 450 508 (Immig. Ct.
N.Y. City Aug. 26, 2008). Chhabra additionally seeks review
of a September 29, 2010 decision of the BIA denying his
motion to reopen. In re Vijay Kumar Chhabra, No. A035 450
508 (B.I.A. Sept. 29, 2010). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we review the
IJ’s decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well-established. See Mendez v.
Mukasey, 547 F.3d 345, 346-47 (2d Cir. 2008); Kaur v. BIA,
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413 F.3d 232, 233 (2d Cir. 2005) (per curiam).
I. Crime Involving Moral Turpitude
Although federal courts are without jurisdiction to
review a final order of removal against an alien “who is
removable by reason of having committed” a crime involving
moral turpitude, 8 U.S.C. § 1252(a)(2)(C), we retain
jurisdiction to review questions of law, including whether
an underlying conviction constitutes a crime involving moral
turpitude, and review such questions of law de novo. See
8 U.S.C. § 1252(a)(2)(D); Mendez, 547 F.3d at 346-47.
The BIA has defined moral turpitude generally to
encompass “conduct that shocks the public conscience as
being inherently base, vile, or depraved, and contrary to
the accepted rules of morality and the duties owed between
persons or to society in general.” Rodriguez v. Gonzales,
451 F.3d 60, 63 (2d Cir. 2006) (per curiam) (quoting Hamdan
v. INS, 98 F.3d 183, 186 (5th Cir. 1996) (citations
omitted)). “[C]rimes in which fraud was an ingredient have
always been regarded as involving moral turpitude.” Jordan
v. De George, 341 U.S. 223, 232 (1951).
Chhabra argues that his conviction is not a crime
involving moral turpitude because intentional fraud is not
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an element of the statute. The statute, however, does
require willful evasion of income tax, see 26 U.S.C. § 7201,
and willful evasion of income tax includes a specific intent
to defraud. Costello v. INS, 311 F.2d 343, 348 (2d Cir.
1962) (“There can be no ‘wilful’ evasion without a specific
intent to defraud.”), rev’d on other grounds by Costello v.
INS, 376 U.S. 120 (1964); see also Carty v. Ashcroft, 395
F.3d 1081, 1085 (9th Cir. 2005) (federal tax statutes with
an “intent to evade” element, and no specific fraud
requirement, have still been interpreted as requiring an
intent to defraud). Consequently, we find no error in the
agency’s determination that Chhabra was convicted of a crime
of moral turpitude.
II. Aggravated Felony
Chhabra also argues that he is eligible for
cancellation of removal because his tax evasion conviction
did not constitute an aggravated felony. The agency found
that Chhabra committed an aggravated felony under INA
§ 101(a)(43)(M)(ii), 8 U.S.C. § 1101 (a)(43)(M)(ii), because
he was convicted of an offense described in 26 U.S.C. § 7201in which the revenue loss to the government exceeded
$10,000. Id. We retain jurisdiction to review whether an
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alien is statutorily eligible for relief, see Sepulveda v.
Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005), and whether a
conviction constitutes an aggravated felony. See Vargas-
Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159, 164 (2d
Cir. 2006). We also have jurisdiction to review the
agency’s fact-finding used to determine whether a particular
conviction constitutes an aggravated felony. See Ljutica v.
Holder, 588 F.3d 119, 125-26 (2d Cir. 2009) (reviewing
agency fact-finding as to whether a conviction resulted in a
loss greater than $10,000 to ascertain whether the
conviction constituted an aggravated felony).
For the purpose of determining whether an amount of
loss in a conviction exceeds $10,000 as required under INA
§ 101(a)(43)(M), 8 U.S.C. § 1101(43)(M)(I), we consider the
specific circumstances surrounding the commission of the
crime, rather than taking a categorical or modified
categorical approach. See Nijhawan v. Holder, 129 S. Ct.
2294, 2302 (2009). Chhabra pled guilty to tax evasion in
violation of 26 U.S.C. § 7201, but he challenges the
agency’s determination that the revenue loss associated with
this conviction exceeded $10,000 since his plea did not
specify any tax deficiency amount.
This argument lacks merit. The charge against Chhabra,
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the plea colloquy, and the guilty plea itself all clearly
indicate that the amount of revenue loss to the United
States government exceeded $42,000. Thus, when looking at
the specific circumstances surrounding the commission of
Chhabra’s crime, the record shows that he admitted, and pled
guilty, to tax evasion with a revenue loss to the United
States which exceeded $10,000. Consequently, the agency did
not err in finding that Chhabra’s conviction constituted an
aggravated felony under INA § 101(a)(43)(M)(ii), 8 U.S.C. §
(a)(43)(M)(ii), and pretermitting his application for
cancellation of removal.
Next, Chhabra argues that Nijhawan, 129 S. Ct. 2294,
and Carchuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010),
which were issued after he filed his appeal with the BIA,
changed the way the amount of loss involved should be
calculated and that, as a result, the agency incorrectly
calculated the loss. In Carachuri-Rosendo, the Supreme
Court indicated, in dicta, while discussing the holding of
Nijhawan, that once an alien has been convicted, the
circumstance specific approach should then be employed to
calculate the amount of loss suffered by the victim. 130 S.
Ct. at 2586 n.11 (2010). This Court held in Puello v. BCIS,
511 F.3d 324 (2d Cir. 2007), that conviction occurs when
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judgment is entered. Attempting to combine the holdings of
these cases, Chhabra contends that the agency failed to
employ a circumstance specific approach at the time judgment
was entered because, at that point, he had already paid his
tax deficiency and there was no outstanding tax revenue
loss.
This argument also fails. Chhabra misinterprets
Carachuri-Rosendo, which simply indicates that there must
first be a conviction for fraud or tax evasion before an
inquiry can be made into the amount of loss involved in that
conviction, not that the payment of restitution or of the
tax deficiency should be considered when determining the
amount of loss. See Carachuri-Rosendo, 130 S. Ct. at 2586
n.11; Ljutica, 588 F.3d at 126 (when considering an
aggravated felony under INA § 101(a)(43)M)(I), holding that
the “amount of actual loss . . . is irrelevant - all that
matters is the intended loss”). After Chhabra pled guilty
to violating 26 U.S.C. § 7201, the agency looked at the
specific circumstances of his conviction to determine that
the loss exceeded $10,000. Consequently, Chhabra’s argument
that the agency erred in its calculation is without merit,
and the BIA did not abuse its discretion in denying his
motion to reopen. See Kaur, 413 F.3d at 233.
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For the foregoing reasons, the petitions for review are
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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