Balkaran v. Attorney General of the United States, 567 F. App'x 106

Background

Amar Balkaran, a Guyanese national and lawful permanent resident, was convicted of conspiracy to defraud the United States under 18 U.S.C. § 371; the criminal judgment attributed nearly $1.5 million in loss.
DHS charged Balkaran as removable for an aggravated felony and a crime involving moral turpitude; Balkaran (through counsel) conceded removability.
Before the Immigration Judge (IJ) Balkaran conceded he was ineligible for asylum and withholding of removal and pursued only relief under the Convention Against Torture (CAT).
The IJ denied CAT relief based on an adverse credibility finding and insufficient country‑conditions proof that torture was more likely than not.
The Board of Immigration Appeals (BIA) affirmed: it held Balkaran bound by counsel’s concession on withholding, upheld the adverse‑credibility finding, and rejected the CAT claim as speculative; it also classified the § 371 conviction as an aggravated felony (fraud loss > $10,000).
The Third Circuit retained jurisdiction only over constitutional claims and questions of law (due to aggravated‑felony classification) and dismissed or denied review in part for lack of jurisdiction or procedural/default reasons.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 371 conspiracy to defraud conviction is an aggravated felony (fraud loss > $10,000)	Balkaran effectively concedes aggravated‑felony classification but elsewhere suggests § 371 might not be a crime involving moral turpitude	BIA/DHS: conviction (conspiracy to defraud the U.S.) involves fraud; judgment shows ~$1.5M loss, meeting § 1101(a)(43)(M)(i)	Court agrees with BIA; conviction qualifies as an aggravated felony; jurisdiction limited to legal/constitutional questions
Whether BIA erred in refusing to consider withholding of removal on the merits	Balkaran later attempted to press withholding/withholding‑of‑removal arguments on appeal	BIA: Balkaran is bound by counsel’s stipulation at the IJ that he was ineligible for withholding	Denied: petitioner is bound by counsel’s admission; no error in refusing to consider withholding on merits
Whether the IJ/BIA erred in adverse‑credibility finding	Balkaran did not contest the adverse‑credibility determination on appeal	BIA/IJ: testimony and record support adverse credibility	Waived: petitioner failed to challenge credibility, so claim is waived
Whether BIA erred denying CAT relief (factual finding)	Balkaran argued risk of torture in Guyana due to homosexuality	BIA/IJ: country‑conditions evidence speculative; petitioner failed to show torture more likely than not	Dismissed for lack of jurisdiction as it is a factual finding outside the court’s review
Whether conviction is a crime involving moral turpitude or other challenge to removability	Balkaran argued § 371 may not be moral turpitude; also claimed no evidentiary basis for plea to listed offense	BIA/DHS: removability findings stand; petitioner did not raise these issues before the BIA	Dismissed: issues not exhausted before the BIA; court lacks jurisdiction to review them

Key Cases Cited

Shehu v. Att’y Gen., 482 F.3d 652 (3d Cir. 2007) (court must independently examine jurisdiction)
Nijhawan v. Att’y Gen., 523 F.3d 387 (3d Cir. 2008) (fraud/deceit and loss‑amount analysis)
Nijhawan v. Holder, 557 U.S. 29 (2009) (Supreme Court affirming Nijhawan analysis)
Singh v. Att’y Gen., 677 F.3d 503 (3d Cir. 2012) (use of modified categorical approach and criminal judgment)
Marrero v. United States, 743 F.3d 389 (3d Cir. 2014) (divisible statutes and modified categorical approach)
Pinos‑Gonzalez v. Mukasey, 519 F.3d 436 (8th Cir. 2008) (party bound by counsel’s admission regarding eligibility)
Hoodho v. Holder, 558 F.3d 184 (2d Cir. 2009) (judicial admissions bind a party)
Kaplun v. Att’y Gen., 602 F.3d 260 (3d Cir. 2010) (limits on review of factual determinations like CAT credibility)
Lin v. Att’y Gen., 543 F.3d 114 (3d Cir. 2008) (exhaustion doctrine and jurisdictional limits)