CHIAO FANG KU, AKA Chiаo Fang Ronan, AKA Anna Ronan, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent
No. 17-3001
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
January 3, 2019
PRECEDENTIAL. Argued September 12, 2018.
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A077-160-352)
Immigration Judge: Walter A. Durling
Argued September 12, 2018
Before: JORDAN, VANASKIE*, and NYGAARD, Circuit Judges
* The Honorable Judge Vanaskie transmitted the opinion to the Clerk for filing prior to retiring from the bench on January 1, 2019. Due to the intervening holiday, the opinion has been entered on the docket by the Clerk this day.
(Opinion Filed: January 3, 2019)
Thomas M. Griffin [Argued]
Surin & Griffin
718 Arch Street
Suite 701N
Philadelphia, PA 19106
Counsel for Petitioner
Chad A. Readler, Acting Assistant Attorney General
Nancy E. Friedman, Senior Litigation Counsel
Justin R. Markel, Senior Litigation Counsel
Gregory A. Pennington, Jr. [Argued]
United States Department of Justice
Office of Immigration Litigation
Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
VANASKIE, Circuit Judge.
Seeking to remain in this country, Chiao Fang Ku petitions for review of a final order of removal issued by the Board of Immigration Appeals (“BIA” or “Board“). The Board determined that Ku had committed an aggravated felony under
In Nijhawan v. Holder, 557 U.S. 29 (2009), the Court held that determination of whether a fraud offense involved loss tо the victims of $10,000 or more requires a circumstance-specific approach, allowing the immigration court to review both the charging document and sentencing-related materials to determine the loss amount attributable to the offense. On the facts of this case, we find that the undisputed loss to the victims of well over $10,000 was sufficiently tethered to Ku‘s wire fraud conviction such that the conviction qualifies as an aggravated felony. Furthermore, we find no error in the Board‘s determination that wire fraud constitutes a crime of moral turpitude. Lastly, regarding the waiver of admissibility, wе do not have jurisdiction to review the discretionary denial of a waiver under
I.
Ku is a native and citizen of Taiwan. She was admitted to the United States in 1997 and gained status as a lawful permanent resident in 2002. In 2014, Ku was charged with a single count of wire fraud, in violation of
These allegations were incorporated by reference into the sole count of the Information, which alleged that, on or about November 7, 2011, Ku,
having devised and intending to devise a scheme and artifice to defraud and to obtain money and property by means of materially false and fraudulent pretenses, representations, and promises, did cause writings, signs, signals, pictures, and sounds to be transmitted by means of wire communications in interstate
commerce for the purpose of executing such scheme and artifice, to wit: executing an online payment from M.R.‘s Sovereign Bank account, ending in 8497, to the defendant‘s Chase credit card account, ending in 6567, in the amount of $2,290.53.
(App. 590). The Information further contained forfeiture allegations, which directed that, upon conviction of the sole count of the Information, Ku “forfeit to the United States . . any property, real or personal, that constitutes, or is derived from, proceeds traceable to the commission of the offense, including but not limited to at least $950,000 in United States currency.” (App. 591).
Ku pleaded guilty, pursuant to a plea agreement,1 to the single count of the Information. In her sentencing memorandum, Ku, through counsel, acknowledged that she was “now subject to automatic deportation as a result of her conviction in this case.” (App. 740). Ku was ultimately sentenced to a term of 18 months’ imprisonment, followed by one year of supervised release. The judgment includes a total loss determination of $954,515.71 and orders restitution in that amount. (App. 582).
After Ku completed her sentence, she was served with a Notice to Appear and placed in removal proceedings. The Notice to Appear charged Ku with being removable under
In order to avoid deportation, Ku sought to re-adjust her status based on her U.S. Citizen husband.2 The Immigration Judge granted Ku‘s application for a waiver of inadmissibility under
On appeal, the Board affirmed that the Government demonstrated by clear and convincing evidence that Ku was removable as an aggravated felon as defined at
The Board further concluded that Ku‘s conviction was for a crime involving moral turpitude, making her inadmissible under
II.
Although we have jurisdiction to review final orders of removal under
III.
On appeal, Ku challenges all three aspects of the BIA‘s order. First, she contends that the BIA incorrectly determined that her wire-fraud conviction involved a loss of more than $10,000 by relying on evidence that was not sufficiently tethered to the sole cоunt of conviction.4 Second, Ku argues that the Board erred in finding that her wire-fraud conviction was for a crime involving moral turpitude because the statute of conviction does not require a showing of intent. Third, Ku asserts that the BIA applied the incorrect legal standard in reversing the IJ‘s grant of a discretionary waiver of inadmissibility. We reject all three of Ku‘s challenges and therefore deny the petition for review.
Section 237(a)(2)(A)(iii) of the INA, as amended, provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.”
In Nijhawan v. Holder, the Supreme Court addressed the issue of whether the $10,000 threshold of the aggravated felony statute “refers to an element of a fraud statute or to the factual circumstances surrounding commission of the crime on a specific occasion.” Id. at 33. The Court adopted the latter interpretation, characterizing the review as examining “the specific way in which an offender committed the crime on a specific occasion.” Id. at 34. The Court distinguished the “circumstance-specific approach” to be used in determining whether a crime “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” from the “categorical approach” used in determining whether a crime is a “violent felony” under the Armed Career Criminal Act (“ACCA“),
Since Nijhawan, we have consistently applied the circumstance-specific approach to dеtermine the amount of loss in “aggravated felony” cases. See, e.g., Kaplun v. Att‘y Gen., 602 F.3d 260, 265–66 (3d Cir. 2010); Doe v. Att‘y Gen., 659 F.3d 266, 274–76 (3d Cir. 2011). Most recently, we addressed the issue in Fan Wang, in which we reviewed “not only those documents that may be considered in a modified categorical approach (the indictment, plea agreement, and judgment),” but also others, including “the presentence investigation report and any sentencing-related material.” Id. at 348–49 (citations and internal quotation marks omitted). Relying on Nijhawan, we reasoned that consideration of such materials “is appropriate so long as the petitioner has been given a ‘fair opportunity’ to challengе the Government‘s claim.” Id. at 349 (quoting Nijhawan, 557 U.S. at 41). Accordingly, we determined that the Board did not go beyond the bounds of proper review by examining the record—including the sole count of the superseding information, the plea colloquy, the presentence investigation report, the “total loss” specified in the judgment, and the restitution order—to determine whether the petitioner‘s prior conviction was an “aggravated felony.” Id. at 349–50. In determining the proper amount of loss in that case, we were persuaded by the Government‘s argument that the loss amount listed in the judgment and restitution order was “undeniably tethered” to the conduct for which the petitioner was convicted. Id. at 351.
We consider the loss to the victims in this case—as evidenced by the Information,
1.
First, Ku сontends that the circumstance-specific approach described in Nijhawan does not apply in her case because the single count of the Information made clear that it was for the specified amount of $2,290.53. She urges us to read Nijhawan to have kept intact the modified categorical approach for cases in which the charging document contains a clear indication of the loss amount. Under the modified categorical approach, she contends, the Board was correct in reviewing the Information but, because the count of conviction contains a loss amount of $2,290.53, the Board should have stopped there.
Contrary to Ku‘s assertion, Nijhawan does not stand for the proposition that, when the count of conviction contains a loss amount, immigration officials must look no further. The Supreme Court explicitly rejected the use of the modified categorical approach in determining whether a prior conviction is an aggravated felony under
Nothing in Nijhawan suggests that the circumstance-specific approach applies in some cases but not others, or that the documents reviewable under that approach vary from case to case. Furthermore, we have consistently interpreted Nijhawan as allowing an IJ, in determining the loss amount, to look beyond the charging document to sentencing-related materials. See Kaplun, 602 F.3d at 265–66; Fan Wang, 898 F.3d at 348–49. Ku has not persuaded us that our reading is incorrect.
2.
Second, Ku contends that, because her conviction was for “a single act of a
We are similarly unpersuaded by Ku‘s contention that, because Paragraphs 1 through 8 of the Information describe conduct that does not necessarily amount to wire fraud, such conduct cannot count toward the total loss resulting from her conviction. It is incontrovertible that the “scheme and artifice to defraud” charged in Count One of the Information encompassed the whole course of Ku‘s unlawful conduct, including the one incident in which Ku committed wire fraud in the amount of $2,390.53, and which resulted in a total loss of over $950,000. In short, because Ku plеaded guilty to committing wire fraud as part of a scheme to defraud her in-laws of more than $950,000, the total loss amount is, to use our language from Fan Wang, “undeniably tethered” to her wire fraud conviction.
3.
Finally, Ku contends that the single-count Information to which she pleaded guilty is part of the “justice package” worked out between her and the Government and urges the Court to defer to that agreement. (Petitioner‘s Br. at 35). In doing so, Ku relies on our opinion in Alaka v. Attorney General, 456 F.3d 88 (3d Cir. 2006). However, the facts of this case make it distinguishable from Alaka.
In Alaka—which we decided prior to Nijhawan5—we held that the IJ erred by considering the amount of intended loss for all of the charges against the petitioner rather than the single count for which she was convicted. Alaka, 456 F.3d at 106. The petitioner had been indicted on three counts for conduct involving fraudulent checks, but was convicted of only one count, for which the actual loss was $4,716.68. Id. at 92. The sentencing court nonetheless held that the petitioner‘s conduct was part of a “common scheme or plan,” and therefore found the total intended loss to be nearly $50,000. Id. It ordered her to pay $4,716.68 in restitution. Id. In subsequent immigration proceedings, the IJ concluded that the petitioner had been convicted of an aggravated felony on the ground that the intended loss was more
agreement alone established the loss amount, and “not . . . the loss charged in the indictment, tabulated for restitution purposes, or calculated for sentencing.” Id. (citations omitted).
Here, in stark contrast to the petitioner in Alaka, the record before us contains no plea agreement, and certainly not one which explicitly spells out the loss amount to which Ku pleaded guilty. Instead, Ku urges us to find that, based on the fact that the Government could have charged her with a much longer list of crimes but did not, the loss amount as indicated in Count One was part of an explicit bargain between her and the Government. However, this argument is based on pure conjecture. Absent a clear and unmistakable indication of loss in a written plea agreement, we arе left with only the Information, Judgment, and Restitution Order to determine the loss attributable to Ku‘s conviction. As explained above, these documents, taken together, provide clear and convincing evidence that the loss amount attributable to Ku‘s wire fraud conviction exceeded $10,000, and Ku has provided no plea agreement or any other document to the contrary.6
Ku‘s argument that this Court should respect the “justice package” between her and the Government also touches on the Supreme Court‘s landmark holdings in Padilla v. Kentucky, 559 U.S. 356 (2010), and Descamps v. United States, 570 U.S. 254 (2013), both of which, she argues, counsel toward respecting agreements between criminal defendants and the Government with respect to the collateral consequences of a conviction. But this line of argument merely highlights another critical shortcoming of Ku‘s case. To the extent Ku argues that the Information was designed specifically to avoid immigration consequences, there is no evidence in the record to support such a finding. Indeed, Ku‘s attorney indicated in her sentencing memorandum that Ku “is now subject to automatic deportation as a result of her conviction in this case.” (App.
B.
Having concluded that the Board did not err in finding that Ku was convicted of an aggravated felony, we turn to the question of whether Ku‘s conviction constituted a “crime involving moral turpitude” under the INA. Ku argues that wire fraud is not a “crime involving moral turpitude” under
The statute provides that a person is guilty of wire fraud if, “having devised or intending to devise any scheme or artifice to defraud,” that person “transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice.”
Seeking to persuade us to revisit these tenets, Ku asks us to read the statutory terms “having devised” and “intending to devise” as disjunctive means of committing wire fraud, the latter containing the mens rea of intent, and the former eschewing any mens rea at all. But the language of the statute does not lend itself to such an interpretation. The specific intent requirement is contained in the latter part of the statute—“for the purpose of executing [a] scheme or artifice [to defraud]“—and must be proved regardless of whether the person made the transmission after “having devised” or while “intending to devise” the scheme to defraud.
Ku‘s statutory interpretation argument holds no weight. Accordingly, we see no need to revisit the long-held tenet that fraud crimes—including wire fraud—are crimes involving moral turpitude under the INA.
C.
Finally, Ku asks us to find that the Board committed error in its reversal of the IJ‘s finding that she was eligible for a discretionary waiver of inadmissibility
The INA provides that an alien is inadmissible to the United States if she has been convicted of a crime involving moral turpitude.
We may, however, review “constitutional claims or questions of law raised upon a petition for review . . . .”
Ku argues that we have jurisdiction to consider her petition for review on the waiver issue because it presents a question of law, namely whether the Board applied the proper legal standard in making the discretionary determination. But Ku‘s argument boils down to her contention that the Board failed to consider certain equities relevant to the hardship determination. As we have consistently held, “arguments such as that an Immigration Judge or the BIA incorrectly weighed evidence, fаiled to consider evidence or improperly weighed equitable factors are not questions of law under
IV.
For the foregoing reasons, we will deny in part and dismiss in part Ku‘s petition for review, and we will deny as moot the Government‘s motion to remand.