Balkaran v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-1024
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AMAR K. BALKARAN, AKA Amar Kumar Balkaran, AKA Amar Balkaran
Amar K. Balkaran,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A096-539-788)
Immigration Judge: Honorable Dorothy Harbeck
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 14, 2014
Before: FISHER, VANASKIE and ALDISERT, Circuit Judges
(Opinion filed: May 20, 2014)
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OPINION
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PER CURIAM
Pro se petitioner Amar Balkaran seeks review of a final order of removal issued by
the Board of Immigration Appeals (BIA). For the reasons detailed below, we will
dismiss the petition for review in part and deny it in part.
Balkaran is a citizen of Guyana. He entered the United States in 1996, and later
became a lawful permanent resident. However, he was subsequently convicted of several
criminal offenses — most importantly, conspiracy to defraud the United States in
violation of 18 U.S.C. § 371. Based on this conviction, the Department of Homeland
Security charged him with being removable as an alien who had been convicted of an
aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), and a crime involving moral
turpitude, see § 1227(a)(2)(A)(i). Balkaran, through counsel, conceded removability.
Further, while he had initially applied for asylum, withholding of removal, and deferral of
removal under the Convention Against Torture (CAT), at the hearing before the
Immigration Judge (IJ), he stipulated that he was not eligible for asylum or withholding
of removal, and thus pursued only the CAT claim. Balkaran alleged that in Guyana, due
to his homosexuality, he had been expelled from school, beaten, arrested, and sexually
assaulted, and that he feared that he would be tortured if he returned.
The IJ denied Balkaran’s application. The IJ concluded, first, that Balkaran had
not testified credibly about his experiences in Guyana. Further, the IJ ruled that the
country-conditions evidence that Balkaran provided did not establish that it was more
likely than not that he would be tortured in Guyana. Balkaran then appealed to the BIA,
which dismissed his appeal. The BIA observed that while Balkaran (now proceeding pro
se) attempted to argue that he was entitled to withholding of removal, he was bound by
his prior counsel’s admission that he was not eligible for that relief. The BIA next upheld
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the IJ’s adverse-credibility determination. Finally, the BIA agreed with the IJ that
Balkaran had failed to show that he was entitled to CAT relief, holding that “mere
speculation about the potential dangers that may await an alien in the country of removal
will not support a claim under the CAT.” Balkaran then filed a timely petition for review
in this Court.
The contours of our jurisdiction over this case depend on the correctness of the
BIA’s conclusion that Balkaran’s federal offense qualifies as an aggravated felony.
Balkaran does not challenge this aspect of the BIA’s opinion, see Br. at 8 (“petitioner’s
conviction satisfied the relevant definition of aggravated felony”), but because we have
an independent obligation to examine our jurisdiction, see Shehu v. Att’y Gen., 482 F.3d
652, 655 (3d Cir. 2007), we must address this issue notwithstanding Balkaran’s
concession.
The BIA ruled that Balkaran’s offense was an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(M)(i), which includes within that category “an offense that involves fraud
or deceit in which the loss to the victim or victims exceeds $10,000.” We agree with the
BIA’s determination. The statute under which Balkaran was convicted, 18 U.S.C. § 371,
is a divisible statute, so we may use the modified categorical approach. See generally
United States v. Marrero, 743 F.3d 389, 396 (3d Cir. 2014). That approach permits us to
consider the criminal judgment, see Singh v. Att’y Gen., 677 F.3d 503, 512 (3d Cir.
2012), which reveals that Balkaran was convicted under the part of § 371 that
criminalizes conspiracy “to defraud the United States.” This offense involves fraud or
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deceit. See Nijhawan v. Att’y Gen., 523 F.3d 387, 390-91 (3d Cir. 2008), aff’d sub nom.
Nijhawan v. Holder, 557 U.S. 29 (2009). Further, the criminal judgment states that the
loss caused by the fraud was nearly $1.5 million, which is sufficient to establish the
requisite loss amount. See id. at 395. Thus, the crime qualifies as an aggravated felony,
see Kellermann v. Holder, 592 F.3d 700, 707 (6th Cir. 2010) (so holding), and our
jurisdiction is consequently limited to review of constitutional claims and questions of
law, see 8 U.S.C. § 1252(a)(2)(C), (D).
Turning to the substance of the case, we observe that Balkaran’s brief consists
largely of lengthy and unattributed reproductions of decisions by various courts of
appeals that have little relevance to his case. Cf. Fed. R. App. P. 28(a)(8)(A) (requiring
briefs to contain “citations to the authorities”). For instance, Balkaran spends seven
pages of his brief copying, nearly verbatim, passages from Carcamo-Flores v. I.N.S., 805
F.2d 60 (2d Cir. 1986), that discuss, among other things, the standards governing
withholding of removal. This discussion, however, skirts the key issue here. Before the
IJ, Balkaran’s attorney stipulated that Balkaran was ineligible for withholding of
removal, and the BIA concluded that Balkaran was bound by that stipulation. Balkaran
has made no effort to challenge this aspect of the BIA’s decision, and we discern no
error. See Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 438 (8th Cir. 2008) (denying
petition for review in similar circumstances); see also Hoodho v. Holder, 558 F.3d 184,
191 (2d Cir. 2009) (“Facts admitted by a party are judicial admissions that bind that party
throughout the litigation.” (quotation marks, alternations omitted)). Thus, to the extent
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that Balkaran seeks review of the BIA’s refusal to consider his withholding-of-removal
claim on the merits, we will deny his petition.
Further, as noted above, the BIA concluded that Balkaran was not credible.
Balkaran has not contested that ruling in any way. Therefore, he has waived any
argument regarding the BIA’s credibility determination. See Khan v. Att’y Gen., 691
F.3d 488, 495 n.4 (3d Cir. 2012).
Balkaran does argue, albeit without providing any meaningful discussion, that the
BIA erred in denying his CAT claim. The BIA concluded that Balkaran’s CAT claim
failed because “mere speculation about the potential dangers that may await an alien in
the country of removal will not support a claim under the CAT.” This is a factual
decision — that is, that Balkaran failed to establish that the torture he feared was more
likely than not to occur — that we lack jurisdiction to review. See Roye v. Att’y Gen.,
693 F.3d 333, 343 n.12 (3d Cir. 2012); Kaplun v. Att’y Gen., 602 F.3d 260, 271 (3d Cir.
2010). Accordingly, we will dismiss the petition for review to the extent that it
challenges this aspect of the BIA’s decision.
Balkaran also seems to argue (this time borrowing heavily from Huynh v. Holder,
321 F. App’x 649 (9th Cir. 2009)) that a conviction under § 371 does not qualify as a
crime involving moral turpitude. That issue, however, at least insofar as Balkaran raises
it to challenge the agency’s removability determination,1 is not properly before us:
1
It is true that our jurisdiction to review a final order of the BIA is restricted when an
alien is removable by virtue of a conviction for moral turpitude, Alaka v. Att’y Gen., 456
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because Balkaran did not challenge that ruling (or his attorney’s concession underlying it)
before the BIA, we lack jurisdiction to review it, see § 1252(d)(1), and we will dismiss
the petition for review to the extent that it presses this claim.
Finally, Balkaran argues (in a claim that is directly contradicted by his criminal
judgment) that “there is no evidentiary basis to conclude that respondent pleaded to an
offense involving a crime listed in the title or section 18 U.S.C. § 371.” However, he also
failed to raise this issue before the BIA; we therefore lack jurisdiction to consider it, see
Lin v. Att’y Gen., 543 F.3d 114, 120-21 & n.6 (3d Cir. 2008), and will dismiss the
petition for review in this respect.
Accordingly, we will dismiss Balkaran’s petition for review in part and deny it in
part.
F.3d 88, 94 (3d Cir. 2006), and, as noted above, we retain jurisdiction to consider our
own jurisdiction. However, given our conclusion that Balkaran’s conviction qualifies as
an aggravated felony, we need not reach this issue. See INS v. Bagamasbad, 429 U.S.
24, 25 (1976) (“As a general rule courts and agencies are not required to make findings
on issues the decision of which is unnecessary to the results they reach.”).
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