Polanco-De Los Angeles v. Holder, 543 F. App'x 26

Polanco-De Los Angeles petitions for review of a BIA decision affirming an IJ's removal ruling
The BIA found Polanco removable on two grounds: (a) aggravated felony under 8 U.S.C. §1101(a)(43)(M)(i) and (b) two crimes involving moral turpitude under 8 U.S.C. §1227(a)(2)(A)(ii)
The BIA also concluded Polanco was ineligible for cancellation of removal due to an aggravated felony (conspiracy to traffic in unauthorized access devices under 18 U.S.C. §1029(b)(2))
Polanco pleaded guilty to a single-count indictment; the PSR suggested loss amounts between $70,000 and $120,000 including relevant conduct
The central issue on appellate review is whether Polanco may be deemed ineligible for cancellation of removal based on the aggravated felony determination, and whether the PSR can support loss amount for that determination

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the PSR may be used to determine the loss amount for an aggravated felony	Polanco argues PSR inadmissible for loss calculation	BIA may rely on PSR per Nijhawan after Nijhawan, and PSR supports loss over $10,000	Yes; PSR admissible for loss amount under Nijhawan
Whether loss amount must be tied to the specific count of conviction	Loss must be tied to specific count, not relevant conduct	Loss can include relevant conduct per Nijhawan to show over $10,000	Loss amount sufficiently tied to conviction to support aggravated felony finding
Whether Polanco is ineligible for cancellation of removal because of an aggravated felony	N/A (focus is on loss amount)	Conviction of aggravated felony precludes cancellation	Polanco is ineligible for cancellation; petition dismissed for lack of jurisdiction over aggravated felony adverse ruling

Shepard v. United States, 544 U.S. 13 (U.S. 2005) (modified-categorical approach limits sources to record of conviction)
Nijhawan v. Holder, 557 U.S. 29 (U.S. 2009) (loss amount may be determined from case circumstances beyond record of conviction)
Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116 (2d Cir. 2007) (before Nijhawan, PSR not used for loss amount; after Nijhawan, permissible to rely on PSR)
Bazuaye v. Holder, 452 F. App’x 15 (2d Cir. 2011) (PSR used to determine loss amount in aggravated felony context)
Ragbir v. Holder, 389 F. App’x 80 (2d Cir. 2010) (summary order; uses PSR in context of aggravated felonies)
Kaplun v. Attorney General, 602 F.3d 260 (3d Cir. 2010) (supports use of PSR post Nijhawan)
Santana v. Holder, 714 F.3d 140 (2d Cir. 2013) (lack of jurisdiction to review aggravated-felony removals; review limited to legal questions)