452 F. App'x 15
2d Cir.2011Background
- Petitioner Jeromi Horns Bazuaye challenges a Board of Immigration Appeals removal order after a 2009 decision affirming an IJ order, focusing on a 2004 conviction for violations of 18 U.S.C. §§ 1344 and 1029(a).
- Petitioner was remanded in 2005 to vacate and resentence in light of Booker v. United States and was resentenced on September 30, 2005.
- The IJ and BIA held that the 2004 conviction remained an aggravated felony under the INA and thus removable and ineligible for cancellation.
- The 2005 resentencing and the conviction’s continued status formed the basis for removal determinations, which were affirmed by this court.
- Nijhawan v. Holder later clarified that the monetary loss threshold in 8 U.S.C. § 1101(a)(43)(M)(i) must be evaluated based on the specific circumstances of the offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Booker remand affect the 2004 conviction's INA status? | Bazuaye: remand may erase INA conviction. | Government: conviction final post-2005 supports removability. | Conviction remained an INA conviction; removability upheld. |
| Was the monetary loss threshold properly applied under Nijhawan? | Loss threshold misapplied; not circumstance-specific. | Nijhawan requires circumstance-specific inquiry; permissible to rely on PSR and restitution. | IJ/BIA correctly applied the threshold. |
| Was there a due process or notice violation in using the 2004 date? | Notice/problem with charging document. | No prejudice; 2005 conviction reflects exact facts. | No due process violation; notice adequate. |
Key Cases Cited
- Booker v. United States, 543 U.S. 220 (Supreme Court, 2005) (remedial approach to sentencing under the federal advisory system)
- Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324 (2d Cir. 2007) (conviction status under INA considerations in the post-remand context)
- Nijhawan v. Holder, 129 S. Ct. 2294 (S. Ct. 2009) (monetary threshold applies to specific circumstances of the fraud offense)
- Pierre v. Holder, 588 F.3d 767 (2d Cir. 2009) (due process/notice rights preserved in INA removability proceedings)