Balanta v. Attorney Gen. of U.S.
| Decision Date | 02 February 2021 |
| Docket Number | No. 19-3379,No. 19-1826,19-1826,19-3379 |
| Parties | JULIAN DAVID ZAMORANO BALANTA, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Petition for Review of an Order of the Board of Immigration Appeals
(U.S. Immigration Judge: Honorable John P. Ellington)
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 8, 2021
Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges.
Petitioner Julian David Zamorano Balanta seeks review of decisions by the Board of Immigration Appeals (BIA) finding him removable, denying his applications for withholding of removal and deferral of removal under the Convention Against Torture, and denying his motion to reopen removal proceedings. We will deny the petitions.
Zamorano Balanta, a citizen of Colombia, first entered the United States in 1993 as a lawful permanent resident. In 2013, he was charged with three counts for his participation in a scheme to fraudulently obtain federal tax refunds. Zamorano Balanta pleaded guilty to one of these counts—conspiracy to defraud the United States, in violation of 18 U.S.C. § 286. In the guilty plea agreement, the parties stipulated that the scheme caused the Internal Revenue Service (IRS) a loss of between $2,500,000 and $7,000,000. As a result of the conviction, Zamorano Balanta was sentenced to forty-eight months' imprisonment and ordered to pay $2,500,000 to the IRS in restitution.
In April 2018, the Department of Homeland Security (DHS) commenced removal proceedings against Zamorano Balanta under 8 U.S.C. § 1227(a)(2)(A)(iii), which provides that a noncitizen who has been convicted of an aggravated felony is removable. DHS cited 8 U.S.C. § 1101(a)(43)(M)(i), which defines "aggravated felony" to include offenses involving "fraud or deceit in which the loss to the victim or victims exceeds $10,000," and 8 U.S.C. § 1101(a)(43)(U), which extends the definition of aggravated felony to attempts and conspiracies.
Zamorano Balanta challenged his removal in several ways. First, he moved to terminate the removal proceedings, arguing DHS did not prove he committed an aggravated felony because there was insufficient proof of the amount of loss caused by the conspiracy. But the Immigration Judge found him removable after concluding DHS met its burden of showing his conspiracy caused enough loss to qualify as an aggravated felony. Zamorano Balanta then sought withholding of removal and protection under the Convention Against Torture1 (CAT) based on his fear of persecution and torture by Colombian drug cartels because Zamorano Balanta and his father previously provided information about drug trafficking to the United States government. The Immigration Judge denied both applications for relief, finding that Zamorano Balanta was not eligible for withholding of removal and that he did not meet his burden for relief under CAT.
The BIA affirmed the Immigration Judge's decisions. It found that Zamorano Balanta was removable because DHS met its burden of proving he caused more than $10,000 of loss, based on the parties' stipulation of loss and the restitution order. The BIA also agreed that he was not eligible for withholding of removal because he committed a particularly serious crime by defrauding the United States out of at least $2,500,000. And it affirmed the denial of CAT relief because Zamorano Balanta did not establish he was more likely than not to be tortured, as he has not been tortured in thepast, his father is living in Colombia safely, and Colombia is engaged in efforts to curb corruption.
Zamorano Balanta petitioned for review of the BIA's determination that he is removable because he committed an aggravated felony and its decisions denying relief from removal.
While that petition for review was pending, Zamorano Balanta filed a motion with the BIA to reopen removal proceedings based on new evidence supporting a finding that he is more likely than not to be tortured in Colombia. Specifically, he produced a letter from a Colombian Army officer stating that Zamorano Balanta and his father have provided information against drug trafficking networks "in spite of the security risks" of doing so. In addition to this letter, he produced updated country reports and multiple newspaper articles corroborating corruption and violence by drug trafficking operations in Colombia. The BIA denied the motion to reopen, concluding the new evidence did not materially affect the Immigration Judge's finding that Zamorano Balanta did not prove he was more likely than not to be tortured.
Zamorano Balanta then filed a second petition for review, seeking review of the BIA's denial of his motion to reopen. We consolidated this petition with Zamorano Balanta's prior petition.
Zamorano Balanta contends he is not removable because he was not convicted of an aggravated felony. He also contends the BIA committed error and violated his constitutional rights in denying his applications for withholding of removal and under CAT, as well as by denying his motion to reopen. We conclude Zamorano Balanta was convicted of an aggravated felony. We further conclude that the BIA did not commit error or violate Zamorano Balanta's constitutional rights in denying his applications and his motion to reopen.
We begin with Zamorano Balanta's contention that he is not removable because he was not convicted of an aggravated felony. We have jurisdiction to review the BIA's determination that a petitioner committed an aggravated felony because this is a legal question. Grijalva Martinez v. Att'y Gen., 978 F.3d 860, 864 n.2 (3d Cir. 2020).
An alien who has been convicted of an "aggravated felony" is removable. 8 U.S.C. § 1227(a)(2)(A)(iii). An "aggravated felony" includes a conspiracy to commit "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), (U). DHS bears the burden of proving by clear and convincing evidence that the crime resulted in the amount of loss required for removability. See Woodby v. INS, 385 U.S. 276, 285-86 (1966).
Zamorano Balanta contends DHS has not proven that the conspiracy he was convicted of was an aggravated felony because it failed to prove, by clear and convincing evidence, that the conspiracy caused a loss greater than $10,000. He argues the BIA erred in relying on the restitution order and the presentence investigation report to determine the conspiracy caused a loss greater than $10,000 because the loss amounts in these documents are based on the agreement of the parties and dismissed counts, not the actual loss from the offense of conviction.
But the BIA appropriately considered the restitution order and the presentence investigation report in determining the amount of loss caused by Zamorano Balanta's offense. First, it is appropriate for the BIA "in determining the loss amount, to look beyond the charging document to sentencing-related materials." Chiao Fang Ku v. Att'y Gen., 912 F.3d 133, 140 (3d Cir. 2019) (citation omitted). The BIA may not, however, consider the loss caused by dismissed charges, Alaka v. Att'y Gen., 456 F.3d 88, 108-09 (3d Cir. 2006), overruled on other grounds by Bastardo-Vale v. Att'y Gen., 934 F.3d 255 (3d Cir. 2019), or conclude the amount of loss based solely on a stipulation where there is conflicting evidence about the actual loss, Singh v. Att'y Gen., 677 F.3d 503, 515 (3d Cir.2012). The BIA did neither here. It did not consider dismissed charges because the restitution order and the presentence investigation report together indicate there was at least $2,500,000 in losses caused to the IRS by only the conspiracy that led to the conviction—a five-year conspiracy involving hundreds of false tax returns. And it did not rely solely on the stipulation of the parties in the face of contrary evidence because Zamorano Balanta does not point to any evidence that the actual loss was less than the amount required for the crime to qualify as an aggravated felony. Accordingly, the BIA appropriately concluded DHS established by clear and convincing evidence that Zamorano Balanta's conspiracy caused more than $10,000 in monetary loss.
We next turn to Zamorano Balanta's contention that the BIA erred in determining he committed a particularly serious crime and is thus ineligible for withholding of removal. Because Zamorano Balanta is removable for having committed an aggravated felony, we only have jurisdiction to review the BIA's denial of withholding of removal for legal and constitutional claims. Grijalva Martinez, 978 F.3d at 869 n.10. Our jurisdiction extends to "claims that the Board misapplied its precedents." Nkomo v. Att'y Gen., 930 F.3d 129, 135 (3d Cir. 2019), cert. denied sub nom. Nkomo v. Barr, 140 S. Ct. 2740 (2020). But our jurisdiction does not extend to contentions "that an Immigration Judge or the BIA incorrectly weighed evidence, failed to consider evidence or improperly weighed equitable factors." Jarbough v. Att'y Gen., 483 F.3d 184, 189 (3d Cir. 2007).
Zamorano Balanta's challenge to the BIA's denial of withholding of removal is fundamentally a challenge to the BIA's weighing of the evidence. He contends the BIAerred in concluding that he committed a particularly serious crime because it failed to consider that his role in the conspiracy was minor and it relied on insufficient evidence to conclude the amount of monetary loss caused by the crime. We lack jurisdiction to consider these factual arguments.
Zamorano Balanta's only legal contention here, that the BIA misapplied its precedents, lacks merit. He contends that the BIA misapplied its precedents by considering dismissed charges in determining the amount of the monetary loss caused by the conspiracy. See In re Carballe, 19 I. & N. Dec. 357, 360 (BIA 1986) (...
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