433 F. App'x 124
3rd Cir.2011Background
- Andrickson, a Dominican Republic native, became a lawful permanent resident in 1979.
- In 2006 she was convicted of conspiracy to defraud the United States and bank fraud tied to forged Treasury checks.
- Restitution was ordered in the amount of $197,350 and she received probation for one year.
- She was charged with removability on the basis of a crime involving moral turpitude.
- An IJ denied cancellation of removal, and the BIA dismissed her appeal; she petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether loss amount above $10,000 was properly determined | Andrickson argues the loss was not proven to exceed $10,000 | The government bears the burden when removal relief is challenged; loss proper to exceed $10,000 | Loss exceeded $10,000; adequate to establish aggravated felony |
| Whether the BIA properly reviewed the IJ's factual findings | De novo fact review should be limited | BIA can review questions of law de novo; factual review under clearly erroneous standard | BIA review of legal question de novo; factual review remains clearly erroneous |
| Due process challenge to denial prior to a hearing | Detention/denial violated due process by depriving hearing | No constitutionally protected liberty interest in discretionary relief; no prejudice shown | No due process violation; no prejudice shown |
Key Cases Cited
- Wallace v. Gonzales, 463 F.3d 135 (2d Cir. 2006) (BIA factual review does not convert discretionary relief into improper factfinding)
- Arambula-Medina v. Holder, 572 F.3d 824 (10th Cir. 2009) (no liberty or property interest in discretionary relief from removal)
- Etchu-Njang v. Gonzales, 403 F.3d 577 (8th Cir. 2005) (no liberty interest in speculative relief; discretionary relief viewed as mercy)
- Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003) (no due process violation absent prejudice)
- Sheriff v. Att'y Gen., 587 F.3d 584 (3d Cir. 2009) (jurisdictional framework for reviewing BIA decisions)
- Pierre v. Attorney General of the United States, 528 F.3d 180 (3d Cir. 2008) (en banc; standard for deference to agency determinations)