Abakporo v. U.S. Attorney Gen.
| Decision Date | 13 August 2021 |
| Docket Number | 20-12750 |
| Parties | IKWAZEMA ERIC ABAKPORO, a.k.a. Ifeanyichukwu Eric Abakporo, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A078-201-679
Before MARTIN, BRANCH, and GRANT, Circuit Judges.
Ikwazema Eric Abakporo, proceeding pro se, petitions for review of the Board of Immigration Appeals' order denying his motion to reopen or reconsider and reissuing its dismissal of his appeal of the immigration judge's final order of removal. The immigration judge found Abakporo ineligible for cancellation of removal because he had been convicted of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). After careful consideration, we dismiss Abakporo's petition for lack of jurisdiction as to the Board's dismissal of his appeal and deny it as to the denial of his motion to reopen or reconsider.
Abakporo a native and citizen of Nigeria, was admitted to the United States on a visitor's visa in 1996 and adjusted his status to lawful permanent resident in 2002. In 2014, he was convicted in federal court of conspiracies to commit bank and wire fraud, in addition to substantive bank fraud, and aiding and abetting that offense. In its judgment, the district court ordered Abakporo to pay $2, 420, 917.64 in restitution including $36, 521.02 to victim JP Morgan Chase Bank N.A. the successor to Washington Mutual N.A. The judgment noted three additional victims with amounts listed for the remaining restitution, but the words "relevant conduct" were handwritten next to those amounts.
In 2018, the Department of Homeland Security initiated removal proceedings against Abakporo by filing a notice to appear charging him as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony, defined as (1) an attempt or conspiracy to commit a fraud or deceit in which the loss to the victims exceeded $10, 000, under 8 U.S.C. § 1101(a)(43)(U); and (2) a fraud or deceit in which the loss to the victims exceeded $10, 000, under 8 U.S.C. § 1101(a)(43)(M)(i). Abakporo admitted the factual allegations in the notice to appear but argued that his conviction was not an aggravated felony and that he was therefore eligible for cancellation of removal and adjustment of status.
Abakporo then moved to terminate his removal proceedings, arguing that the restitution order in his criminal case was based on uncharged and unadmitted-to conduct that was only proved by a preponderance of the evidence. He argued that the victims did not suffer any actual loss because the fraudulent loans at issue were fully repaid, that Washington Mutual actually profited by $6, 000, and that the restitution order was based on relevant conduct, so the Department of Homeland Security had not proven by clear and convincing evidence that he had been convicted of an aggravated felony as defined under § 1101(a)(43)(M)(i). Abakporo attached to his motion a document titled "satisfaction of mortgage," which indicated that Chase Bank purchased one of the loans at issue as receiver for Washington Mutual, and the loan was thereafter assigned to another institution, but did not indicate whether Chase Bank recouped any of its losses when it assigned the loan. He also attached copies of payments made on the loan after Chase Bank accelerated it, a worksheet he created explaining what he perceived as the district court's erroneous loss amount calculation at his criminal sentencing proceeding, and an excerpt of his sentencing transcript where the parties argued the loss calculation.
An immigration judge advised Abakporo that if he found Abakporo had been convicted of an aggravated felony, Abakporo would not be eligible for cancellation of removal, and that he should apply for any other relief he wished to seek immediately. The immigration judge also told Abakporo that, depending on the resolution of the motion to terminate, he might order Abakporo's removal before the next scheduled hearing. After the government responded to Abakporo's motion to terminate, Abakporo filed two replies, one counseled and one pro se, arguing in both that the Department of Homeland Security had not carried its burden of showing by clear and convincing evidence that the alleged victims of his crime had incurred more than a $10, 000 loss, because it had not presented any evidence. He also reiterated that the district court had incorrectly calculated a $36, 000 loss to Washington Mutual and Chase Bank at his sentencing. He argued that, even if the district court's finding of actual loss was clear from the record, the agency was not tied to the district court's erroneous actual loss calculation and was required to make its own determination of whether his crime resulted in a loss of more than $10, 000 to a victim, including a consideration of the evidence he submitted. Notably, an exhibit list Abakporo provided in anticipation of a hearing did not include exhibits or proposed witnesses that were relevant to the loss amount determination.
Without holding a hearing, the immigration judge issued a written decision sustaining the charge of removability, denying the motion to terminate and application for cancellation of removal, and ordering Abakporo removed to Nigeria, after noting that he had considered the entire record and all of the evidence. In so ruling, the immigration judge noted the Department of Homeland Security's burden and found that the restitution order indicated a $36, 521.02 loss to successor Chase Bank, which was corroborated by the sentencing transcript, and which was based on conduct that Abakporo was charged for and convicted of.
Abakporo appealed to the Board of Immigration Appeals. The Board dismissed Abakporo's appeal, finding no error in the immigration judge's conclusion that the loss associated with his convictions was more than $10, 000 and, thus, that he had been convicted of an aggravated felony. The Board explained that the Department of Homeland Security need only prove that the potential loss to a victim was more than $10, 000, and was not required to show instead, as Abakporo had contended, that the actual loss exceeded that amount. Nonetheless, the Board concluded, the district court found at sentencing an excess of $36, 000 in actual loss to Chase Bank, and the immigration judge had not erred by considering the sentencing material Abakporo submitted in making its loss determination. In addition, the Board concluded that the restitution ordered to Chase Bank was tied to the conduct Abakporo was convicted of and was distinct from the other restitution amounts, which were notated as tied to relevant conduct. Finally, the Board explained that any difficulty the district court had in calculating the loss amount did not obviate the district court's loss findings as reflected in the sentencing transcript and restitution order.
Abakporo then filed a pro se petition for review in our Court, which we dismissed sua sponte as untimely. Abakporo filed a motion to reopen and reconsider with the Board, arguing that his counsel had prevented him from timely filing an appeal with our Court by failing to inform him of the Board's decision dismissing his appeal, failed to argue that the immigration judge erred by not holding a hearing before ordering his removal, and failed to file replies to the government's response to his motion to terminate. He further argued that his counsel was ineffective for failing to inform the immigration judge or the Board that he was eligible for a waiver of inadmissibility or that his wife had filed an I-130 petition for an alien relative on his behalf. He also challenged the Board's dismissal of his appeal, arguing again that the Department of Homeland Security had failed to present any evidence on the loss amount issue and that the Board should have remanded and ordered the immigration judge to hold a hearing instead of addressing the issue of potential loss. Abakporo later filed an addendum to his motion, asserting that an I-130 petition filed by his wife had been approved, with the dates of the petition indicating it had been filed after the immigration judge's order and approved after the filing of his motion to reconsider and reopen.
The Board denied the motion but reissued its earlier decision dismissing Abakporo's appeal. The Board found no error in its prior decision that warranted reconsideration and concluded that Abakporo's motion to reopen did not establish prima facia eligibility for adjustment of status because he did not attach either an application for adjustment of status or for a waiver of inadmissibility, which he was required to submit simultaneously since his aggravated felony conviction rendered him inadmissible. In addition, the Board found that Abakporo had not demonstrated prima facie eligibility for a waiver of inadmissibility because he had not alleged that his wife or two children would suffer extreme hardship if he were removed.
As to his ineffective assistance claims, the Board first found that counsel was not ineffective for failing to pursue a waiver of inadmissibility since, at the time of his removal proceedings, Abakporo was not the beneficiary of an approved visa petition and, since he could not seek a standalone waiver of inadmissibility, he was ineligible for adjustment of status with or without a waiver. Further, the Board concluded that counsel was not ineffective for failing either to request a hearing or object to the lack of one because, as the issues regarding Abakporo's removal rested on purely legal grounds, the immigration judge was not required to hold a hearing. And, the Board found, because the immigration judge properly found...
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