Petitioner Susana Ferreira, a lawful permanent resident, appeals the district court’s denial of her petition for writ of habeas corpus. Ferreira pled guilty to one count of False Statement to Obtain Aid in violation of California Welfare and Institutions Code (“WIC”) section 10980(c)(2). On account of that conviction, an immigration judge concluded that Ferreira had been convicted of an aggravated felony and found her removable from the United States and ineligible for relief from removal. Ferreira contends that her conviction did not constitute an aggravated felony. She further argues that the Board of Immigration Appeals (“BIA”) violated her due process rights when it affirmed the immigration judge’s decision, without comment, pursuant to the new BIA streamlining provisions. Because Ferreira’s conviction involved fraud or deceit with a loss to a victim exceeding $10,000, and because streamlining does not violate an alien’s due process rights, we affirm the. district court’s denial of Ferreira’s habeas petition.
BACKGROUND
Ferreira, a native and citizen of Venezuela, was admitted to the United States in 1980 as a lawful permanent resident. Between 1997 and 2000, Ferreira was convicted of one petty theft violation and two drug related charges. Ferreira pled guilty in 1998 to welfare fraud pursuant to WIC section 10980(c)(2). Ferreira’s plea agreement to the welfare fraud charge required her to pay $22,305 in restitution to the State of California.
The Immigration and Naturalization Service (“INS”) 1 issued a Notice to Appear charging Ferreira with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii)(conviction of two crimes involving moral turpitude) and § 1227(a)(2)(B)(i) (conviction for controlled substance). The INS subsequently lodged additional charges of removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for conviction of an “aggravated felony” as defined by 8 U.S.C. § 1101(a)(43)(M)(i)(offense involving fraud or deceit with a loss in excess of $10,000).
An immigration judge found Ferreira removable because of her controlled substance convictions. The immigration judge also found Ferreira ineligible for cancellation of removal, concluding that her welfare fraud conviction constituted an aggravated felony. Pursuant to recently adopted streamlining procedures, the BIA affirmed the immigration judge’s decision without comment.
Ferreira then filed a petition for writ of habeas corpus in the United States District Court for the District of Arizona. In her habeas petition, Ferreira argued that her conviction for welfare fraud did not constitute an aggravated felony because the offense did not involve an element of fraud or deceit and the government had *1095 not proven that the amount of loss to the victim exceeded $10,000. Ferreira also argued that the BIA’s decision to streamline her appeal violated her right to due process. The district court denied Ferreira’s habeas petition, and Ferreira now appeals that denial.
STANDARD OF REVIEW
We review the district court’s denial of a habeas corpus petition de novo.
Nulph v. Cook,
DISCUSSION
A. Aggravated Felony
Under 8 U.S.C. § 1227(a)(2)(A)(iii), an alien is removable if he or she has been convicted of an aggravated felony. An aggravated felony conviction also renders an alien ineligible for cancellation of removal. 8 U.S.C. § 1229b(a)(3). In determining whether an offense qualifies as an aggravated felony, we look to the statute under which the person was convicted and compare its elements to the relevant definition of an aggravated felony in 8 U.S.C. § 1101(a)(43).
See Taylor v. United States,
Under the modified categorical approach, we conduct a limited examination of documents in the “record of conviction.”
Id.
Upon this examination, we determine whether there is sufficient evidence to conclude that the alien was convicted of the elements of the generically defined crime even though his or her statute of conviction was facially overinclusive.
Id.
The record of conviction consists of a narrow, specified set of documents that includes “the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment.”
Hernandez-Martinez v. Ashcroft,
Ferreira was convicted under WIC section 10980(c)(2), which at the time of her conviction provided:
(c) Whenever any person has, by means of false statement or representation or by impersonation or other fraudulent device, obtained or retained aid under the provisions of this division for himself or herself or for a child not in fact entitled thereto, the person obtaining this aid shall be punished as follows:
(2) If the total amount of the aid obtained or retained is more than four hundred dollars ($400), by imprisonment *1096 in the state prison for a period of 16 months, two years, or three years, by a fine of not more than five thousand dollars ($5,000), or by both imprisonment and fine; or by imprisonment in the county jail for a period of not more than one year, by a fíne of not more than one thousand dollars ($1,000), or by both imprisonment and fine.
Thus, the elements of the statutory crime include: (1) “by means of false statement or representation or by impersonation or other fraudulent device, obtaining] or retaining] aid,” and (2) in an amount more than $400. The two elements of the applicable aggravated felony definition are: (1) the offense “involves fraud or deceit,” and (2) the “loss to the victim or victims exceeds $10,000.” 8 U.S.C. § 1101 (a)(43)(M)(i). As will be established by the following discussion, the first element of WIC section 10980(c)(2) is a categorical match with the first element of the aggravated felony definition in that both require an element of fraud or deceit. The second element is not a categorical match, but a modified categorical inquiry establishes that Ferreira’s conviction involved a loss exceeding $10,000.
1) WIC section 10980(c) Involves Fraud or Deceit Under the Categorical Approach
Ferreira argues that the statute under which she was convicted does not “involve fraud or deceit” under the categorical approach. She argues that WIC section 10980(c) prohibits four types of conduct, including: (1) false statement; (2) false representation; (3) impersonation; or (4) fraudulent device, and that some but not all of these offenses involve fraud or deceit. We are not persuaded by Ferreira’s interpretation of the statute. We conclude that WIC section 10980(c) and the first element of section 1101(a)(43)(M)(i)’s aggravated felony definition are a categorical match (i.e., both require an element of fraud or deceit) because California caselaw provides that all convictions under WIC section 10980(c) necessarily involve an element of fraud or deceit.
In
People v. Camillo,
In
People v. Ochoa,
although also in dicta, the California Court of Appeal reaffirmed this analysis.
Ferreira correctly asserts that both of the above statements are dicta, but the California Court of Appeal has specifically held that WIC section 10980(c)(2)’s predecessor statute, which contained language identical to the present statute, required proof of intent to defraud.
People v. Faubus,
Ferreira argues that WIC section 10980(c) could not involve fraud or deceit because fraud or deceit is an explicit element in WIC section 10980(a) but not subsection (c). Subsection (c), Ferreira argues, is a lesser offense that does not involve fraud or deceit. Subsection (a) and (c) respectively provide:
(a) Any person who, willfully and knowingly, with the intent to deceive, makes a false statement or representation or knowingly fails to disclose a material fact in order to obtain aid under the provisions of this division or who, knowing he or she is not entitled thereto, attempts to obtain aid or to continue to receive aid to which he or she is not entitled, or to receive a larger amount than that to which he or she is legally entitled, is guilty of a misdemeanor, punishable by imprisonment in the county jail for a period of not more than six months, by a fine of not more than five hundred dollars ($500), or by both imprisonment and fine.
* * *
(c) Whenever any person has, by means of false statement or representation or by impersonation or other fraudulent device, obtained or retained aid under the provisions of this division for himself or herself or for a child not in fact entitled thereto, the person obtaining this aid shall be punished as follows:
(1) If the total amount of the aid obtained or retained is four hundred dollars ($400) or less, by imprisonment in the county jail for a period of not more than six months, by a fine of not more than five hundred dollars ($500), or by both imprisonment and fine.
(2) If the total amount of the aid obtained or retained is more than four hundred dollars ($400), by imprisonment in the state prison for a period of 16 months, two years, or three years, by a fine of not more than five thousand dollars ($5,000), or by both imprisonment and fine; or by imprisonment in the county jail for a period of not more than one year, by a fine of not more than one thousand dollars ($1,000), or by both imprisonment and fine.
WIC § 10980 (emphasis added).
The California Court of Appeal has had difficulty determining how subsection (a) differs from subsection (c).
See Camillo,
Consistent with California caselaw, we conclude that Ferreira’s conviction under WIC section 10980(c)(2) necessarily “involves fraud or deceit” and matches the first requirement of the aggravated felony definition under the categorical approach.
*1098 2) Ferreira’s Conviction Involved a Loss Exceeding $10,000 Under the Modified Categorical Approach
The second requirement of the 8 U.S.C. § 1101(a)(43)(M)(i) aggravated felony definition requires that the “loss to the victim or victims exceeds $10,000.” WIC section 10980(c)(2) is significantly broader in that it punishes welfare fraud in any amount greater than $400. Thus, it punishes conduct that does and conduct that does not qualify as an aggravated felony. We therefore apply the modified categorical approach to determine whether Ferreira’s conviction involved a loss to a victim in excess of $10,000. Our examination is limited to the “record of conviction,” which includes the criminal complaint against Ferreira and Ferreira’s plea agreement.
Hernandez-Martinez,
The record of conviction establishes that the loss to the State of California exceeds $10,000. Specifically, the plea agreement set the amount of restitution at $22,305. We conclude that the immigration judge correctly looked to the restitution order in the plea agreement to determine that the loss to the State of California exceeded $10,000.
Ferreira cites
Chang v. INS,
In
Chang,
a federal indictment charged Chang with fourteen counts of bank fraud, each count corresponding to a different bad check.
Despite the restitution order in the amount of $32,628.67, we held that Chang’s bank fraud conviction did not satisfy the requirement that the loss to the victim exceed $10,000 because “the plea agreement firmly establishes that Chang’s conviction caused a loss to the victim well below the statutory threshold.” Id. at 1190. Rather than announce a sweeping rule that a restitution order is not evidence of the amount of loss, however, we noted that this case was distinguishable from other cases involving restitution orders because of “[t]he fact that the loss-to-the-victim amount for Chang’s conviction is separately and clearly stated in the plea agreement.” Id. at 1191.
We further supported our conclusion in Chang by noting that restitution may differ from the amount of loss because, under *1099 the United States Sentencing Guidelines, “relevant conduct for sentencing purposes need not be admitted, charged in the indictment, or proven to a jury, in order to be used to impose a restitution order or enhanced sentence.” Id. at 1190.
In
Munroe,
the Third Circuit held that under certain circumstances the amount of restitution ordered is not controlling as to the amount of loss to the victim.
The amount of restitution ordered as a result of a conviction may be helpful to a court’s inquiry into the amount of loss to the victim if the plea agreement or the indictment is unclear as to the loss suffered. But when the amount of restitution ordered is not based on a finding as to the amount of the loss but is instead intended solely to affect the defendant’s immigration status, the amount of restitution is not controlling.
Id.
The present case is distinguishable from Chang and Munroe in at least two respects. First, both Chang and Munroe involved an amount of loss specified in a plea agreement or indictment that directly contradicted the restitution order. Here, the complaint against Ferreira did not indicate a specific amount of loss but stated only that it was “exceeding $400.” The plea agreement set restitution at $22,305, an amount consistent with, not contrary to, the complaint.
The second distinguishing feature is that the
Chang
court relied on the fact that the Federal Sentencing Guidelines allow for consideration of conduct not charged in an indictment or proven to a jury in setting an amount of restitution.
In
People v.
Crow, another case involving welfare fraud under WIC section 10980(c), the California Supreme Court considered the manner in which a restitution order is calculated where a defendant defrauds a government agency.
Crow
involved former California Government Code section 13967 rather than Penal Code section 1202.04, but its holding is still dispositive as to its instruction that a restitution order in favor of a government agency be set at the amount of loss to the agency. In 1994, the California legislature
*1100
consolidated the restitution provisions of former Penal Code section 1202.4 and Government Code section 13967 into current Penal Code section 1202.4, and the pertinent language interpreted in
Crow
is identical to that in the current statute.
See People v. Collins,
Thus, the immigration judge correctly rejected Ferreira’s argument that the restitution order is not a reliable source of the amount of loss to the State of California. California courts are required to order restitution “based on the amount of loss claimed by the victim.” Cal. Penal Code § 1202.04(f). As the immigration judge noted, nothing in this case indicates that the order did otherwise.
B. BIA Streamlining Provision
To address a burgeoning caseload and a growing adjudicatory delay, the INS promulgated regulations in 1999 to “streamline” administrative appeals. Pri- or to adoption of the streamlining regulations, a three-judge BIA panel would review an immigration judge’s decision. As explained in 8 C.F.R. § 1003.1(e)(4)®, the streamlining regulations authorize a single BIA member to affirm the immigration judge’s decision without opinion if:
the Board Member determines that the result ... was correct; that any errors ... were harmless or nonmaterial; and that (A) The issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve the application of precedent to a novel fact situation; or (B) The factual and legal questions raised on appeal are not so substantial that three-Member review is not warranted.
Ferreira argues that application of the streamlining procedures to her case violated her due process rights. This argument is foreclosed, however, by our recent decision in
Falcon Carriche v. Ashcroft,
holding that “streamlining does not violate an alien’s due process rights.”
To the extent that Ferreira challenges the BIA’s decision to streamline her particular case, that argument collapses into our review of the merits of her case. As we pointed out in Falcon Carriche, “[t]he decision to streamline becomes indistinguishable from the merits. Were we to find an error, we would either grant relief if permitted or simply remand to the BIA to proceed in a manner consistent with our decision.” Id. at 855. Because the immi *1101 gration judge properly found that Ferreira had been convicted of an aggravated felony, we need not consider whether the BIA properly streamlined Ferreira’s case. See id. (“where we can reach the merits of the decision by the [immigration judge] or the BIA, an additional review of the streamlining decision itself would be superfluous”).
CONCLUSION
We conclude that Ferreira’s conviction under WIC section 10980(c) constitutes an aggravated felony. California caselaw establishes that a conviction under WIC section 10980(c) involves an element of fraud or deceit. The record of conviction, specifically the plea agreement setting restitution at $22,305, establishes that the loss to the State of California exceeded $10,000. Finally, under Falcon Carriche, the BIA did not violate Ferreira’s due process rights by streamlining her appeal. We therefore AFFIRM the district court’s denial of Ferreira’s habeas petition.
Notes
. Pursuant to the Department of Homeland Security Reorganization Plan, as of March 1, 2003, the INS was abolished and its functions were transferred to the Department of Homeland Security. See 6 U.S.C. § 542.