Maria Arce Fuentes v. Loretta E. Lynch, 788 F.3d 1177

Arce Fuentes, a Mexican-born lawful permanent resident since 1990, was indicted in Puerto Rico in 2006 for conspiracy to commit money laundering under 18 U.S.C. § 1956(h).
Counts 17–21 alleged five transfers totaling about $25,000, with the conspiracy alleged to launder funds through Western Union; the transfers were below $10,000 to avoid reporting requirements.
In 2007, Arce pled guilty to count one (the conspiracy to launder), and the PSR notes a plea agreement totaling over $70,000 laundered.
Removal proceedings were initiated in 2008 based on an aggravated felony conviction and a controlled-substance offense; the IJ and BIA held Arce removable and ineligible for cancellation of removal.
The BIA held the $10,000 threshold in 8 U.S.C. § 1101(a)(43)(D) refers to the specific circumstances of the money laundering offense, and relied on the indictment, judgment, and PSR to find more than $10,000 was laundered; Arce challenged these methods but the court ultimately affirmed the use of the PSR and denied review.
The panel denied the petition for review, concluding the BIA’s reliance on the PSR in applying a circumstance-specific approach did not render the removal proceeding fundamentally unfair.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the $10,000 threshold refer to a specific circumstance or an element?	Arce argues the threshold is an element of the offense.	Lynch argues the threshold is a specific circumstance.	Threshold is a specific circumstance supporting aggravated felony.
Is an overt act required for conspiracy to commit money laundering under §1956(h)?	Overt acts are not required for conviction.	Overt acts can be relied on for proof.	Overt act is not an element; reliance on overt acts in counts 17–21 was improper but harmless.
May the BIA rely on sentencing-related materials, like a PSR, under Nijhawan’s circumstance-specific approach?	PSR should be admissible in the circumstance-specific approach.	BIA must rely on documents permissible under modified categorical approach.	PSR may be used; no fundamental unfairness in using it.
Did the BIA correctly determine Arce as an aggravated felon based on the $10,000 threshold?	Evidence did not show more than $10,000 laundered.	Evidence, including PSR, shows more than $10,000.	Yes, Arce is an aggravated felon; ineligible for cancellation of removal.
Does the court have jurisdiction to review the aggravated felony determination and related removal order?	Court should review the removal order.	Court lacks jurisdiction over final removal orders based on aggravated felonies.	The court lacks jurisdiction to review the removal order but reviews the aggravated felony determination.

Nijhawan v. Holder, 557 U.S. 29 (Supreme Court 2009) (circumstance-specific approach to threshold amounts; fair determinations allowed with evidence)
Kawashima v. Holder, 615 F.3d 1043 (9th Cir. 2010) (use of sentencing-related material in Nijhawan framework)
Cazares, United States v., 121 F.3d 1241 (9th Cir. 1997) (over acts not admitted by a guilty plea; not an element of the conspiracy)
Chowdhury v. INS, 249 F.3d 970 (9th Cir. 2001) (relevant to whether total funds laundered, not loss to victim)
Whitfield v. United States, 543 U.S. 209 (Supreme Court 2005) (overt act not required for conspiracy under §1956(h))
Varughese v. Holder, 629 F.3d 272 (2d Cir. 2010) (supports PSR consideration in circumstance-specific approach)
Kaplun v. Atty. Gen., 602 F.3d 260 (3d Cir. 2010) (PSR admissible in Nijhawan framework)
Polanco De Los Angeles v. Holder, 543 F. App’x 26 (2d Cir. 2013) (PSR admissible in circumstance-specific approach)
Hamilton v. Holder, 584 F.3d 1284 (10th Cir. 2009) (PSR use in determination of threshold)
Li v. Holder, 656 F.3d 898 (9th Cir. 2011) (scope of review for BIA decisions related to offense classification)