Sui v. Immigration & Naturalization Serv.

Decision Date19 March 2001
Docket NumberDocket No. 00-4061
Citation250 F.3d 105
Parties(2nd Cir. 2001) MING LAM SUI, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. August Term 2000 Argued:
CourtU.S. Court of Appeals — Second Circuit

Petition for review of a final order of the Board of Immigration Appeals, which affirmed the decision of an immigration judge who found that Sui was subject to removal as an alien who had committed an aggravated felony. Held, Sui's prior conviction was not properly classified as an "attempt," and so was not an aggravated felony.

Petition for review granted. Decision of the Board of Immigration Appeals vacated. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Theodore N. Cox, New York, NY, for Petitioner.

Meredith E. Kotler, New York, NY (Mary Jo White, United States Attorney for the Southern District of New York, Gideon A. Schor, of counsel, for Respondent.

Before: Feinberg, Newman, and Sack, Circuit Judges.

Feinberg, Circuit Judge

Ming Lam Sui (Sui) petitions for review of a Board of Immigration Appeals (BIA) decision dismissing his appeal of a removal order issued by an immigration judge (IJ) who found Sui deportable as an alien convicted of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Specifically, the IJ and the BIA found that Sui had been convicted of an attempt to commit an offense that involves fraud or deceit in which the loss to victims exceeds $10,000 and thus had been convicted of an aggravated felony as defined in 8 U.S.C. §§ 1101(a)(43)(M)(i), 1101(a)(43)(U).

I. Background
A. Sui's federal conviction

Sui immigrated to the United States from China in 1990 when he was 15 years old. In May 1997, in the United States District Court for the Western District of Wisconsin, he pleaded guilty to a one-count indictment charging him with knowingly and unlawfully possessing counterfeit securities with the intent to deceive another in violation of 18 U.S.C. § 513(a). Specifically, the indictment alleged that Sui possessed approximately 227 counterfeit Chase Visa traveler's checks with a total face value of approximately $22,700. The Presentence Investigation Report (PSR) prepared in connection with Sui's sentencing described the underlying circumstances of Sui's conviction as follows. In February 1997, Wisconsin State Troopers stopped a car in which Sui and a companion were traveling near Eau Claire, Wisconsin, after the troopers clocked it at 82 miles per hour. When the troopers approached the car, they noted that it was filled with "a large amount of merchandise, shopping bags, and cartons of cigarettes." The troopers asked if they could search the car for drugs or large sums of money, and Sui consented. Ninety-eight $100 Chase Visa traveler's checks were found in the car, and a call to Visa established that the checks were counterfeit.

Sui and his companion were arrested, and 105 $100 checks were found on Sui in a search incident to arrest. During booking, a further 23 $100 checks were found in Sui's possession. The Secret Service subsequently recovered 47 $100 checks that had been passed by Sui and his companion at 13 businesses in Wisconsin. Not all the counterfeit checks cashed by Sui were recovered by the Secret Service, but three more victim businesses were identified, with losses of $1,769.43.1

According to the PSR, Sui told the Probation Office that he was on his way to a shopping mall in Minnesota with the checks. Sui's companion indicated that they planned to buy as much merchandise as possible at the Minnesota mall and then bring it back to New York to sell it. Sui did not object to these portions of the PSR. In July 1997, Sui was sentenced to 16 months imprisonment and ordered to pay $8,664.43 in restitution.

B. Immigration proceedings

As a result of this conviction, the Immigration and Naturalization Service (INS) instituted removal proceedings against Sui, charging that he was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii)2 as an alien who had been convicted of an aggravated felony as defined in the Immigration and Naturalization Act (INA), 8 U.S.C. § 1101(a)(43).3 That definition section of the INA lists 21 subsections, each identifying one or more offenses qualifying as an "aggravated felony." However, the initial INS document charging Sui, dated October 29, 1997, did not identify the particular aggravated felony statutory subsection under which the INS sought Sui's removal. In July 1998, the IJ, rejecting the INS position, determined that Sui's conviction did not fall within the definition of an aggravated felony contained in subsection (D) of § 1101(a)(43), that is, "an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000." The IJ then adjourned the hearing to give the INS time to amend the charging document to identify other charges that would qualify as an "aggravated felony."

On December 9, 1998, the INS served a new charging document on Sui, which alleged that he was subject to removal as an alien convicted of an aggravated felony as described in subsection (M)(i) of § 1101(a)(43), that is, "an offense that involves fraud or deceit in which the loss to . . . victims exceeds $10,000." Thereafter, at a hearing in March 1999, the IJ also asked for briefing regarding (1) whether the conviction fell under subsection (G) as a theft offense or burglary offense for which the term of imprisonment is at least one year and (2) whether the conviction might fall under any other subsection of § 1101(a)(43).4

In May 1999, the INS submitted a brief to the IJ arguing that Sui was removable both under subsection (G) and under subsections (M)(i) and (U) of § 1101(a)(43). Subsection (U) provides that a conviction for "an attempt or conspiracy to commit" any of the offenses described in the other 20 subsections of § 1101(a)(43) is an aggravated felony conviction. Although the actual loss to victims in Sui's case was only $8,664.43, the INS argued that Sui's conviction should be understood as an attempt to undertake a crime of fraud or deceit in which the loss to victims would exceed $10,000. Sui responded to these arguments in writing and at a hearing in early June. On June 23, 1999, the IJ held in a written opinion that even though the actual loss to victims in Sui's case was less than $10,000, Sui's conviction constituted an aggravated felony under subsections (U) and (M)(i), considered together, as an attempt to commit an offense involving fraud or deceit in which the loss to victims would be over $10,000. In addition, the IJ rejected the INS's subsection (G) argument. The IJ thereafter ordered Sui's removal, and Sui's motion for reconsideration was denied. The BIA accepted the IJ's analysis and dismissed Sui's appeal. This petition for review followed.

II. Analysis

In his petition, Sui argues to us principally that he is not removable under subsection (U) of § 1101(a)(43) as it relates to subsection (M)(i) because even if his conduct in fact constituted an attempt to defraud victims of more than $10,000, he was not convicted of an offense denominated as an "attempt," and therefore subsection (U) is inapplicable. He also argues that the INS charging documents failed to notify him of the charges against him in violation of the Constitution and federal regulations. Because we conclude, for reasons somewhat different from Sui's, that Sui is not removable pursuant to subsection (U), we do not reach the constitutional question.

A. Jurisdiction

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) stripped the federal courts of jurisdiction to review any final removal order against an alien "who is removable by reason of having committed" an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). However, this court retains jurisdiction to review the underlying jurisdictional fact at issue--namely, whether Sui has been convicted of an aggravated felony. Bell v. Reno, 218 F.3d 86, 89-90 (2d Cir. 2000). The jurisdictional inquiry thus merges with the question on the merits: If Sui is in fact removable because he was convicted of an aggravated felony as defined by subsection (U) and subsection (M)(i), we must dismiss his petition for lack of jurisdiction, while if he is not removable under these subsections, we may exercise jurisdiction and vacate the order of removal. See id.; Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000).

B. Waiver

Before turning to the merits, we must address the INS's contention that Sui has waived his argument regarding the inapplicability of subsection (U). The INS asserts that Sui never claimed before the IJ or the BIA that subsection (U) did not apply to him because he had not been formally convicted of an "attempt" to commit a crime.

During the INS proceeding, in reply to the INS's contention that under In Re: Onyido, Int. Dec. No. 3379, 1999 WL 126436 (BIA Mar. 4, 1999), Sui was removable pursuant to subsection (U), he argued that Onyido was not controlling in his case. Sui's argument stressed that in Onyido, the alien found deportable under subsection (U) had actually presented a fraudulent insurance claim for payment, thus taking a "substantial step" toward commission of the ultimate fraud, rather than merely possessing the fraudulent materials. Sui also argued in his brief that in Onyido, attempt was a lesser included offense of the fraud crime of which the alien had been convicted, which was not true in Sui's case. Similarly, in oral argument before the IJ, Sui's counsel emphasized the difference between Sui's possession of counterfeit checks and Onyido's actions, arguing that possession, in contrast to presenting a false claim, did not constitute a "substantial step" toward commission of the fraud crime. While Sui did not explicitly argue...

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