Doe v. Sessions

15-2026 (L)
Doe v. Sessions
BIA
Mulligan, IJ
A047 137 723
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 APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER 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 TO 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 Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
27th day of September, two thousand seventeen.
PRESENT:
REENA RAGGI,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________
JOHN DOE,
Petitioner,
v. 15-2026(L),
16-58(Con)
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Nancy Morawetz, Supervising
Attorney; Juliana Morgan-Trostle,
Andrea Savdie, Allison Wilson, Rhiya
Trivedi, Student Interns,
Washington Square Legal Services,
Inc., New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Mary
Jane Candaux, Assistant Director;
Jeremy M. Bylund, 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 in part and DISMISSED in part.
Petitioner John Doe, a native and citizen of the Dominican
Republic, seeks review of a June 18, 2015 decision of the BIA
affirming a December 29, 2014 decision of an Immigration Judge
(“IJ”) denying Doe’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re John Doe, No. A047-137-723 (B.I.A. June 18,
2015), aff’g No. A047-137-723 (Immig. Ct. N.Y.C. Dec. 29,
2014).1 Doe also seeks review of a December 9, 2015 decision
of the BIA denying his motion to reconsider. In re John Doe,
1
We previously granted the petitioner’s motion to proceed in
our court under a pseudonym. Citations to the agency’s
decisions have been modified to reflect that pseudonym.
2
No. A047-137-723 (B.I.A. Dec. 9, 2015). We assume the parties’
familiarity with the facts and record of prior proceedings,
which we reference only as necessary to explain our decision
to deny in part and dismiss in part.
Because the agency ordered Doe removed for having been
convicted of an aggravated felony fraud offense (a fraud offense
in which the loss to the victims exceeded $10,000, see 8 U.S.C.
§ 1101(a)(43)(M)(i)), our “appellate jurisdiction is limited
to review of constitutional claims and questions of law.”
Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015); see also
8 U.S.C. § 1252(a)(2)(C), (D).
1. Aggravated Felony Determination
Doe was ordered removed based on his conviction, following
a guilty plea, for conspiracy to commit wire fraud and identity
theft in connection with a cellphone “cloning” scheme. Doe
here disputes that his conviction was for an aggravated felony,
arguing that the agency erred in finding that his fraud caused
losses in excess of $10,000.
Whether a crime qualifies as an aggravated felony is a
question of law that we review de novo. See Vargas-Sarmiento
3
v. U.S. Dep’t of Justice, 448 F.3d 159, 164-65 (2d Cir. 2006);
see also Ortiz-Franco v. Holder, 782 F.3d at 86 (holding that
appellate jurisdiction to review removal orders is limited to
constitutional claims and questions of law). Embedded within
the legal determination that Doe committed an aggravated felony
fraud offense is the agency’s finding that he caused more than
$10,000 in victim losses. We have jurisdiction to review that
factual finding because it determines whether the
jurisdictional bar applies. See Kuhali v. Reno, 266 F.3d 93,
100-01 (2d Cir. 2001). Because the Government has the burden
of proving victim losses by clear and convincing evidence, see
8 C.F.R. § 1240.8(a), we review the agency’s loss-amount
finding with a standard “more demanding” than substantial
evidence: to grant the petition, we “must find that 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). That
is not this case.
The Supreme Court has construed the loss-amount clause in
8 U.S.C. § 1101(a)(43)(M)(i) to call for “a
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‘circumstance-specific,’ not a ‘categorical,’
interpretation.” Nijhawan v. Holder, 557 U.S. 29, 36 (2009).
In short, the $10,000 “monetary threshold applies to the
specific circumstances surrounding an offender’s commission of
a fraud and deceit crime on a specific occasion.” Id. at 40.
In Nijhawan, the agency relied on the petitioner’s “own
stipulation, produced for sentencing purposes,” and the
sentencing court’s restitution order to find the requisite loss
amount. Id. at 42-43. The Supreme Court held that, “[i]n the
absence of any conflicting evidence (and petitioner mentions
none), this evidence is clear and convincing.” Id. at 43.
The agency’s finding against Doe rested on two documents:
the indictment and the judgment of conviction. The indictment
charged Doe and his co-defendants with a conspiracy to commit
wire fraud that included two overt acts whereby the defendants
distributed cellphone identifiers used to make a total of
$108,301 in unauthorized calls. The Government argues that
losses in a cellphone cloning conspiracy are “the amount that
the defrauded telephone companies would have been paid if the
calls had been made legitimately,” Resp’t’s Br. 25 (quoting
5
United States v. Pervaz, 118 F.3d 1, 10 (1st Cir. 1997)), and
thus Doe, as a member of the conspiracy, is liable for more than
$100,000 in foreseeable losses. See Pinkerton v. United
States, 328 U.S. 640, 647 (1946).
In urging otherwise, Doe responds that the loss figures in
the indictment were never proved at trial, and that those
figures reflect the price phone companies charged to consumers,
not the much lower cost of processing the calls, so that the
indictment vastly overstates the phone company victims’ losses.
The second document relied on by the agency is the judgment
of conviction, which ordered restitution of $11,115.12. The
sentencing court also entered a forfeiture order in the amount
of $11,115.12. Doe alleges that the judgment was erroneous in
referencing “restitution”; it should have said “forfeiture.”
He argues that the distinction is dispositive here because while
“restitution . . . is intended to makes victims whole,”
“forfeiture is based on the offender’s gain.” Pet’r’s Br. 18.
In any event, Doe argues that restitution ordered pursuant to
a plea agreement is insufficient to meet the government’s burden
of showing loss because the parties can agree to compensate
6
losses beyond those caused by the crime of conviction. See
Singh v. Attorney General, 677 F.3d 503 (3d Cir. 2012). Singh
is distinguishable in two respects. First, Doe’s plea colloquy
shows that the sentencing court did not order restitution based
on Doe’s plea agreement. Second, in Singh, there were
“undisputed facts in the sentencing material that undermine[d]
the restitution order’s reliability as a measure of actual
loss,” including the prosecutor’s statement that the victim did
not suffer any losses as a result of Singh’s fraud. Id. at
515-18.
By contrast, Doe points to no “conflicting evidence” that
undermines the agency’s reliance on the judgment’s restitution
order to find loss. Nijhawan v. Holder, 557 U.S. at 43. The
question is not whether the Government could have introduced
more evidence of loss, e.g., Doe’s pre-sentence report
(calculating loss for purposes of both the Sentencing
Guidelines and restitution) or sentencing transcript. We ask
only “whether the record would compel any rational factfinder
to conclude that the Government’s burden of proof was not
satisfied,” Centurion v. Holder, 755 F.3d 115, 120 (2d Cir.
7
2014) (internal quotation marks omitted), and conclude that it
would not.2
2. Particularly Serious Crime Determination
Doe challenges the agency’s determination that his crimes
of conviction were particularly serious so as to bar him from
receiving withholding of removal. See 8 U.S.C.
§ 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2).
Where, as here, the crime is not per se particularly serious
because the alien was not sentenced to an aggregate prison term
of at least five years, see 8 U.S.C. § 1231(b)(3)(B), the agency
“examine[s] the nature of the conviction, the type of sentence
imposed, and the circumstances and underlying facts of the
conviction,” In re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A.
2007); see also Nethagani v. Mukasey, 532 F.3d 150, 154 n.1,
155 (2d Cir. 2008).
Doe charges the IJ with speculating that the cellphone
cloning scheme “surely caused significant stress” to the people
2
As the Supreme Court observed in Nijhawan, the time for the
petitioner to develop evidence to challenge the judgment and
restitution order was in the criminal action or at the
deportation hearing. See Nijhawan v. Holder, 557 U.S. at 42.
8
whose numbers had been stolen, Pet’r’s Br. 40, and with failing
to consider the nature of his crime and relevant mitigating
factors. These are disputes with the agency’s weighing of
facts, which are beyond our jurisdiction. See 8 U.S.C.
§ 1252(a)(2)(C), (D); Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 329 (2d Cir. 2006) (stating that, when assessing
jurisdiction, we must “study the arguments asserted” to
“determine, regardless of the rhetoric employed in the
petition, whether it merely quarrels over the correctness of
the factual findings” or raises true question of law).
Doe reads several BIA decisions to suggest that a
particularly serious crime must have violence as an element or
a connection to physical harm. He contends as well that BIA
precedent has effectively erased the dangerousness requirement
of the particularly serious crime bar, violating the principle
of non-refoulement. Neither of these arguments is persuasive.
As the Government notes, the BIA has found various fraud crimes
to be particularly serious. See, e.g., Arbid v. Holder, 700
F.3d 379, 382 (9th Cir. 2012). Moreover, Doe’s argument
regarding dangerousness is foreclosed by Flores v. Holder, 779
9
F.3d 159, 167 (2d Cir. 2015); see also In re N-A-M-, 24 I. &
N. Dec. at 342 (stating that BIA “no longer engage[s] in a
separate determination to address whether the alien is a danger
to the community”). In any event, the BIA separately found that
identity theft poses a serious danger to society.
Here, the agency hewed to the relevant factors by analyzing
Doe’s crimes, their impact on victims, and his 28-month sentence
before determining that they were particularly serious.
Nothing more was required. See Nethagani v. Mukasey, 532 F.3d
at 155 (holding that, where the BIA addressed relevant factors,
it “properly applied its own precedent in determining that
Nethagani had been convicted of a particularly serious crime”).
3. CAT Relief
In challenging the denial of CAT relief, Doe argues that
the BIA erroneously added a time limitation to the CAT when it
cited the lack of any threats since 2012, and also failed to
consider all the record evidence, including documentation of
the Dominican government’s acquiescence to torture. These
arguments go to the agency’s weighing of the facts, which is
beyond our jurisdiction. See Xiao Ji Chen v. U.S. Dep’t of
10
Justice, 471 F.3d at 329.
Doe also faults the BIA for failing to explain why it was
reasonable for the IJ to expect certain factual corroboration.
As the Government correctly notes, Doe failed to exhaust this
argument on appeal to the BIA, and so we decline to consider
it. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 121-22
(2d Cir. 2007).
4. Consolidated Petition: Motion for Reconsideration
Doe’s consolidated petition challenges the denial of his
motion for reconsideration, which targeted various aspects of
the loss-amount finding. As we have rejected the challenge to
that finding, we conclude that the agency did not abuse its
discretion in denying reconsideration. See Jin Ming Liu v.
Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (“The BIA’s denial
of a motion to reconsider is reviewed for abuse of
discretion.”).
For the foregoing reasons, the petitions for review are
DENIED in part and DISMISSED in part.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
11