406 F. App'x 23
6th Cir.2010Background
- Ibe is a Nigerian citizen who entered the U.S. as a student in 1989, later becoming a lawful permanent resident, married to a U.S. citizen with three children.
- In 2002, Ibe pled guilty to Medicare fraud, alleging losses to Medicare of more than $45,500; restitution was ordered at $29,000.
- At the removal hearing, Ibe conceded removability for a crime involving moral turpitude and potential ineligibility for relief due to an aggravated felony.
- The Immigration Judge and the Board held Ibe’s Medicare fraud was an aggravated felony because the loss exceeded $10,000, barring discretionary relief.
- Ibe sought discretionary relief nonetheless; the proceedings proceeded with documentary evidence (Exhibit 2) indicating a loss over $10,000, and Ibe did not offer contrary evidence.
- The court ultimately denied Ibe’s petition for review, reaffirming the Board’s dismissal of the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether loss exceeds $10,000 for aggravated felony | Ibe argues the loss figure is disputed and must be proven. | Ibe’s loss is shown by Exhibit 2; the restitution and indictment support $29,000 loss. | Yes; government proved loss over $10,000, establishing aggravated felony. |
| Whether Nijhawan governs the interpretation | Nijhawan requires a fair, circumstance-specific assessment of loss. | Nijhawan supports the government’s facts-specific approach. | Nijhawan supports the court’s circumstance-specific reading in this case. |
| Whether Ibe was denied due process by late classification as aggravated felony | Notice did not list aggravated felony status until hearing; time to present evidence was insufficient. | Notice alleged Medicare fraud and moral turpitude; aggravate status arose only when relief was sought. | No due process violation; Ibe had opportunity to present evidence and briefing time. |
Key Cases Cited
- Nijhawan v. Holder, 129 S. Ct. 2294 (2009) (circumstance-specific interpretation of loss in aggravated felony statute)
- Matovski v. Gonzales, 492 F.3d 722 (6th Cir. 2007) (government not required to list every defense in notice)
- Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005) (interpretation of broad language in context)
- Perez v. Dep’t of Justice, 480 F.3d 1309 (6th Cir. 2007) (interpretation of statutory language in context)