36 F.4th 634
5th Cir.2022Background
- Fosu, a Ghanaian lawful permanent resident admitted in 2007, was convicted in 2018 of conspiracy to commit bank and wire fraud (18 U.S.C. § 1349) and sentenced to 1 year + 1 day and $229,717.30 restitution.
- DHS charged removability under 8 U.S.C. § 1227(a)(2)(A)(iii) as an aggravated felony under § 1101(a)(43)(M) (fraud/deceit loss > $10,000) and (U) (conspiracy).
- Fosu applied for withholding of removal and CAT protection; at the IJ hearing he admitted the conviction and restitution and testified he sought post-conviction relief for ineffective assistance of criminal counsel.
- The IJ found him removable and denied withholding/CAT; the BIA affirmed. Fosu filed a petition for review that the court examined for timeliness.
- The Fifth Circuit held it had jurisdiction (applying the prison mailbox rule to a pro se detainee), accepted the restitution order as tied to the conviction, concluded the offense was an aggravated felony, and declined to review an unexhausted ineffective-assistance claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / Jurisdiction (prison mailbox rule) | Fosu: petition was timely by prison mailbox (postmarked Aug. 11 with certificate) | Government: argued timely; court must decide applicability | Court: prison mailbox rule applies to pro se detainees; jurisdiction exists |
| Aggravated felony (loss > $10,000 under §1101(a)(43)(M)) | Fosu: $229,717.30 restitution was untethered to the specific conviction/count, so loss threshold not shown | Govt: restitution order is part of record of conviction and proves loss > $10,000 tied to conviction | Court: restitution order provides clear and convincing evidence; conviction is aggravated felony |
| Ineffective assistance of counsel (to continue proceedings) | Fosu: raised ineffective-assistance claim (criminal counsel) at IJ and sought relief | Govt: claim regarding immigration counsel not raised before BIA; failure to exhaust | Court: lack of exhaustion before BIA deprives court of jurisdiction; claim dismissed |
| Withholding of removal / CAT & constitutional challenges to §1101(a)(43) | Fosu: raised withholding/CAT and constitutional arguments | Govt: arguments were unbriefed or unsupported on appeal | Court: claims abandoned for failure to brief; dismissed |
Key Cases Cited
- Nijhawan v. Holder, 557 U.S. 29 (2009) (loss amount must be tied to the specific conviction; sentencing materials may establish loss)
- Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. 2008) (amount of loss is factual and determined from record of conviction)
- Guirguis v. INS, 993 F.2d 508 (5th Cir. 1993) (pre-1993 approach to prisoner mailings)
- Smith v. Conner, 250 F.3d 277 (5th Cir. 2001) (discussing the 1993 amendment adopting prison mailbox rule)
- Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (distinguishing represented detainees concerning mailbox rule)
- Stone v. INS, 514 U.S. 386 (1995) (30-day filing deadline is jurisdictional and not subject to equitable tolling)
- Ouedraogo v. INS, 864 F.2d 376 (5th Cir. 1989) (time to file begins when BIA mails decision to address of record)
- Goonsuwan v. Ashcroft, 252 F.3d 383 (5th Cir. 2001) (court must address jurisdiction sua sponte when necessary)
- Rodriguez v. Barr, [citation="812 F. App'x 196"] (5th Cir. 2020) (restitution order may be used to show victim loss absent contrary evidence)
- Avelar-Oliva v. Barr, 954 F.3d 757 (5th Cir. 2020) (failure to exhaust before the BIA is a jurisdictional bar)
- Omari v. Holder, 562 F.3d 314 (5th Cir. 2009) (issue exhaustion requires raising before BIA or in a motion to reopen)