Dulal-Whiteway v. U.S. Department of Homeland Security

• Decision Date: 19 September 2007
• Docket Number: Docket No. 05-3098-ag.
• Parties: Spencer DULAL-WHITEWAY, Petitioner, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

501 F.3d 116

Spencer DULAL-WHITEWAY, Petitioner, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Respondent.

Docket No. 05-3098-ag.

United States Court of Appeals, Second Circuit.

Argued: March 27, 2007.

Decided: September 19, 2007.

Sandra Greene, York, PA, for petitioner.

Manuel A. Palau, Trial Attorney, Office of Immigration Litigation (Terri J. Scadron, Assistant Director, on the brief), for Peter D. Keisler, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC, for respondent.

Before: FEINBERG, SOTOMAYOR and KATZMANN, Circuit Judges.

SOTOMAYOR, Circuit Judge:

Spencer Dulal-Whiteway ("Dulal") petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming the decision of Immigration Judge ("IJ") Alan Vomacka ordering Dulal removed on the grounds that his conviction for making false statements in connection with the acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6), was a removable firearm offense within the meaning of 8 U.S.C. § 1227(a)(2)(C), and that his conviction for fraud in connection with unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(2), was an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(M)(i). In re Spencer Hamilton Dulal-Whiteway, No. A45 164 992 (B.I.A. May 10, 2004), aff'g No. A45 164 992 (Immig. Ct. New York City May 27, 2003). We hold that the IJ did not err in finding Dulal removable for the firearm offense, but erred in finding him removable for the fraud offense. It was improper for the IJ and BIA to have relied upon a restitution order to determine that Dulal was convicted of an offense "involv[ing] fraud or deceit in which the loss to the victim or victims exceeds $10,000," 8 U.S.C. § 1101(a)(43)(M)(i), because no part of the record of conviction established that Dulal had been convicted of fraud causing loss over that amount. We GRANT in part and DISMISS in part Dulal's petition for review, VACATE the BIA's removal order insofar as it is based on a finding that Dulal was convicted of an aggravated felony, and REMAND for further proceedings consistent with this decision.

BACKGROUND

Dulal, a citizen of Trinidad and Tobago, was lawfully admitted to the United States on May 6, 1996. On March 22, 2001, a federal grand jury returned an indictment against him, alleging that he had stolen the identity of Wayne Nashaud Barakat and used that identity to obtain credit and calling cards, submit a car loan application, make withdrawals from Barakat's personal bank account and purchase firearms. Count One of the indictment charged Dulal with using a number of unauthorized access devices (specifically, credit and calling cards) to obtain things of value aggregating $1000 or more, in violation of 18 U.S.C. § 1029(a)(2). Counts Two, Three and Four, which the government ultimately moved to dismiss, charged Dulal with one count of making false statements in connection with loan applications, in violation of 18 U.S.C. § 1014, and two counts of bank fraud, in violation of 18 U.S.C. § 1344. Count Five alleged that Dulal gave Barakat's name and Social Security number to Alexander's Pawn Shop in order to purchase a .380 caliber pistol, and charged Dulal with making false statements in connection with the acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6). Count Six, which the government also eventually moved to dismiss, charged a similar crime in connection with the purchase of a different firearm.

On October 5, 2001, Dulal appeared before the United States District Court for the Southern District of Florida (Hurley, J.) and entered a guilty plea as to Counts One and Five. The court accepted his plea, and dismissed the other counts on the motion of the government. The Probation Office prepared a Presentence Investigation Report ("PSR"), which, in relevant part, identified the seven unlawfully obtained credit cards forming the basis of the conduct charged in Count One, and set forth the amount of loss associated with each card. The PSR noted that the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A(a)(1), required the court to order restitution, and recommended that Dulal be ordered to pay $20,824.09, the sum of the losses from the seven cards, "to the victims in the attached list," presumably referring to the list of unlawfully obtained cards.

The district court sentenced Dulal principally to thirteen months' imprisonment for each of the two counts of conviction, to be served concurrently, imposed a three-year term of supervised release, and ordered him to pay restitution. The restitution order set the total amount of loss and the restitution amount at $20,824.09, and identified the payees as those "indicated in the Presentence Investigation Report."

On April 3, 2002, the Immigration and Naturalization Service ("INS")¹ issued Dulal a notice to appear ("NTA"), alleging that his conviction for fraud in connection with access devices was an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000," 8 U.S.C. § 1101(a)(43)(M)(i), and that he was therefore removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii). Seven months later, the INS lodged an additional charge against Dulal, alleging that his conviction for making false statements to acquire a firearm was a firearm offense rendering him removable under 8 U.S.C. § 1227(a)(2)(C), which authorizes the removal of aliens convicted of "purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying" a firearm or attempting or conspiring to do so.

Dulal appeared with counsel before the Immigration Court in New York (Vomacka, I.J.) on May 27, 2003. Dulal admitted the facts alleged in the NTA, but denied that his convictions rendered him removable. He did not seek any relief from removal. The IJ rejected Dulal's arguments and ordered him removed. The IJ found first that 8 U.S.C. § 1227(a)(2)(C) "is broad enough to cover a crime committed in reference to purchasing or attempting to purchase a firearm, even if the crime is not related to violence or firearms, as in this case, making false statements." Thus, the IJ found, Dulal's conviction under 18 U.S.C. § 922(a)(6) made him removable. With regard to Dulal's fraud offense, the IJ rejected Dulal's argument that the record failed to establish a loss to his victims greater than $10,000, as required to establish that the crime was an aggravated felony. The IJ held that it was proper to consult both the PSR and the restitution order to determine the amount of loss resulting from the offense, and that these documents reflected a loss of slightly over $20,000. He thus found that Dulal also was removable on the second ground of having been convicted of an aggravated felony.

Dulal appealed the IJ's determination to the BIA, which affirmed without opinion. He timely petitioned this Court for review.

DISCUSSION

I. Jurisdiction and Standard of Review

Under the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, this Court lacks jurisdiction to review orders of removal based on an alien's conviction for certain criminal offenses, including aggravated felonies and firearm offenses. Our jurisdiction to consider "questions of law," 8 U.S.C. § 1252(a)(2)(D), however, allows us to review whether an alien's conviction qualifies as a removable offense under the immigration laws. See Blake v. Gonzales, 481 F.3d 152, 155-56 (2d Cir.2007). If we find that it does, we must dismiss the petition for lack of jurisdiction. See id. at 156.

"Where, as here, the BIA summarily affirms the IJ pursuant to 8 C.F.R. § 1003.1(e)(4)(I), we review the IJ's decision directly." Dos Santos v. Gonzales, 440 F.3d 81, 83 (2d Cir.2006). Though we ordinarily grant deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to the BIA's construction of the immigration laws, we do not "extend Chevron deference to any statutory construction of the INA set forth in a summarily affirmed IJ opinion," like the one in this case. Shi Liang Lin v. U.S. Dep't of Justice, 416 F.3d 184, 191 (2d Cir.2005). We also do not extend Chevron deference to the BIA's or an IJ's construction of federal criminal laws. Michel v. INS, 206 F.3d 253, 262 (2d Cir.2000).

As noted, the IJ found Dulal removable on two grounds. We address both grounds, despite finding Dulal removable on the first ground, because the parties have agreed that removal for a firearms offense and removal for an aggravated felony carry different collateral consequences. For example, removal for an aggravated felony imposes a permanent bar on an alien's reentry to the United States, while removal based on a firearm offense imposes only a ten-year bar. 8 U.S.C. § 1182(a)(9)(A)(ii) ("Any alien . . . who . . . has been removed under [8 U.S.C. § 1229a] . . . and who seeks admission within 10 years of the date of such alien's departure or removal (. . . or at any time in the case of an alien convicted of an aggravated felony) is inadmissible."). The parties have also conceded that were we to decline to reach the BIA's aggravated felony determination, that finding likely would continue to bind future agency adjudicators. Cf. Johnson v. Ashcroft, 378 F.3d 164, 172 (2d Cir.2004) ("[R]es judicata may, in appropriate circumstances, apply to removal proceedings."). Because a refusal on our part to reach the aggravated felony ground could result in harsher immigration consequences to Dulal, he has a stake in our correcting any erroneous finding by the BIA concerning an aggravated felony conviction. See United States v. Hamdi, 432 F.3d 115, 121 (2d Cir.2005) ("`[H]av[ing] a chance at reentering the United States' in the discretion of the immigration authorities `is sufficient to give petitioner a personal stake in the litigation that presents a live case or controversy.'") (quoting Swaby v. Ashcroft, 357 F.3d 156, 161 (2d...