Conteh v. Gonzales
| Decision Date | 22 August 2006 |
| Docket Number | No. 05-1282.,05-1282. |
| Citation | 461 F.3d 45 |
| Parties | John CONTEH, Petitioner, v. Alberto GONZALES, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Maunica Sthanki, with whom Theodore N. Cox was on brief, for petitioner.
Margot Nadel, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Peter D. Keisler, Assistant Attorney General, and Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.
Before SELYA, Circuit Judge, HUG,* Senior Circuit Judge, and HOWARD, Circuit Judge.
This case requires us to answer, for the first time, the question of how to determine whether an alien has been convicted of an aggravated felony for purposes of the Immigration & Nationality Act (INA). Following what it termed a "modified categorical approach," the Board of Immigration Appeals (BIA) concluded, based on an array of materials, that the petitioner's conviction for conspiracy to commit bank fraud was a conviction for an aggravated felony. See 8 U.S.C. § 1101(a)(43). Accordingly it ordered removal. See id. § 1227(a)(2)(A)(iii). Although the BIA may have strayed too far afield in examining materials relevant to this determination, we agree, based exclusively on properly consulted materials, that the petitioner's conspiracy conviction qualifies as a conviction for an aggravated felony. The petitioner was, therefore, removable.
This conclusion does not end our odyssey, as the petitioner's armamentarium includes two other claims of error. Both of these claims are unavailing. First, we lack jurisdiction to entertain his fact-based challenge to the BIA's denial of his cross-application for withholding of removal. Second, the BIA's denial of the petitioner's motion to reopen or remand — a motion aimed at allowing him to pursue a waiver of inadmissibility and a concomitant adjustment of status — is unimpugnable. When all is said and done, we deny the petition for review in part and dismiss it in part for want of jurisdiction.
The petitioner, John Conteh, is a native of Sierra Leone. He arrived in the United States as a non-immigrant visitor on January 5, 1995, and seasonably sought asylum. On July 9, 1997, the Immigration and Naturalization Service (INS) approved his application.1
Approximately one year later, a federal grand jury in the Southern District of New York indicted the petitioner on four counts stemming from his alleged involvement in a bank-fraud scheme. Count 1 of the indictment alleged that the petitioner "willfully ... and knowingly ... conspired ... to commit crimes against the United States" in violation of a generic conspiracy statute, 18 U.S.C. § 371 (). Specifically, this count charged the petitioner with participating in "a scheme and artifice to defraud a financial institution ... by means of false and fraudulent pretenses." See id. § 1344. It further charged that the petitioner "did make, utter, and possess a counterfeited security of an organization ... with intent to deceive another person." See id. § 513(a). Finally, it recounted a series of overt acts in furtherance of the charged conspiracy, including the deposit of a counterfeit check in the amount of $25,200 into an account at Dime Savings Bank; the subsequent withdrawal of $22,600 and $1,000 from that account; the deposit of a second counterfeit check, this one in the amount of $29,239.06, into an account at Chase Bank; and the subsequent withdrawal of a total of $9,000 from that account.
Counts 2 and 3 charged the petitioner with violating 18 U.S.C. §§ 1344 and 513(a), respectively, in connection with the transactions involving the Chase account. Count 4 (which is of no relevance here) alleged that the petitioner knowingly made false statements to a federal agent during an investigation into the fraud. See id. § 1001(a).
A jury found the petitioner guilty on counts 1 and 4 but not guilty on counts 2 and 3. The presentence investigation report (PSI Report) concluded, inter alia, that the petitioner's participation in the conspiracy "caused an attempted loss of $54,439.06." At the disposition hearing, the district court refined this calculation; it found the petitioner responsible for actual losses of $9,000 sustained by Chase and $25,200 sustained by First Vermont Bank and Trust (the drawee of the counterfeit check deposited into the Dime Savings account). The court imposed an incarcerative term of a year and a day and ordered the petitioner to make restitution in the amount of $34,200 (the court's calculation of the victims' actual loss). Judgment issued on July 24, 2000. The Second Circuit thereafter affirmed the conviction and sentence. United States v. Conteh, 2 Fed. Appx. 202 (2d Cir.2001).
In due course, the INS initiated proceedings against the petitioner, alleging that he had been convicted of an aggravated felony and, therefore, was subject to removal. See 8 U.S.C. § 1101(a)(43)(M)(i) (); id. § 1101(a)(43)(U) (); see also id. § 1227(a)(2)(A)(iii) (). The petitioner admitted the INS's factual allegations,2 but denied that grounds for his removal existed. He also cross-applied for withholding of removal, see id. § 1231(b)(3)(A), and protection under the Convention Against Torture (CAT), see 8 C.F.R. §§ 208.16-208.18.
The initial round of immigration hearings came to naught; those hearings culminated in a remand for an entirely new proceeding before a different immigration judge (IJ) and, therefore, are not material to the issues before us. Consequently, we eschew a blow-by-blow account, save to note that along the way the petitioner waived his CAT claim.
On remand, the petitioner claimed that the conspiracy offense did not amount to an aggravated felony because the record of conviction failed to establish the requisite amount of victim loss. He premised this argument on the notion that only those losses admitted by him or found by the jury in the criminal proceeding could be applied toward the $10,000 loss threshold. The IJ disagreed and held that the petitioner had committed an aggravated felony. Moving to the next issue, the IJ found that the petitioner had failed to demonstrate a clear probability of future persecution in his native land and, thus, had not established an entitlement to withholding of removal. See id. § 208.16(b)(2). Accordingly, the IJ ordered the petitioner removed to Sierra Leone.
The petitioner appealed. In his brief to the BIA, he suggested for the first time that his wife, who was then in the process of becoming an American citizen, had filed a visa petition on his behalf and that, therefore, he might be eligible for a waiver of inadmissibility and a discretionary adjustment of status. See 8 U.S.C. §§ 1182(h)(1)(B), 1255(a). The petitioner did not submit an application for either the waiver or the adjustment, see 8 C.F.R. § 1003.2(c)(1); did not allege that his wife would be subject to extreme hardship if the removal order was executed against him, see 8 U.S.C. § 1182(h)(1)(B); and failed to proffer evidence that an immigrant visa was immediately available to him, see id. § 1255(a).
The BIA affirmed the removal order. Applying what it cryptically termed a "modified categorical approach," it held that the indictment, judgment, and PSI Report, in combination with the petitioner's testimony at the removal hearing, conclusively established that the conspiracy offense constituted an aggravated felony. The BIA also affirmed the IJ's denial of withholding of removal, citing evidence of changed country conditions as well as a dearth of evidence of likely future persecution based on the petitioner's political opinions. Finally, the BIA treated the petitioner's solicitation of a waiver of inadmissibility and an adjustment of status as a motion to reopen and denied it because of his failure to make a prima facie showing of eligibility for either form of relief. This timely petition for review followed.
In this venue, the petitioner argues that the BIA erred in (i) holding that his conspiracy conviction qualifies as a conviction for an aggravated felony; (ii) determining that he did not satisfy the criteria for withholding of removal; and (iii) refusing to reopen his case for further perscrutation of his waiver of inadmissibility and adjustment of status claims. We discuss his contentions in that order.
The petitioner's principal plaint is that the BIA erred in characterizing his conspiracy offense as an aggravated felony. The BIA's determination that a given violation of a state or federal criminal statute constitutes an aggravated felony presents a pure question of law and, accordingly, engenders de novo review. See Aguiar v. Gonzáles, 438 F.3d 86, 88 (1st Cir.2006); see also Urena-Ramirez v. Ashcroft, 341 F.3d 51, 53-54 (1st Cir.2003).
1. The Statutory Framework and the Categorical Approach. The INA provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). The Act gives substance to the term "aggravated felony" by setting out a list of enumerated offenses that come within its scope. See id. § 1101(a)(43). This compendium includes "an[y]...
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