Fuentes v. Lynch

• Decision Date: 10 June 2015
• Docket Number: No. 11–73131.,11–73131.
• Parties: Maria Arce FUENTES, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

788 F.3d 1177

Maria Arce FUENTES, Petitioner

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 11–73131.

United States Court of Appeals, Ninth Circuit.

Submitted March 3, 2015.^*

Filed June 10, 2015.

David B. Landry, San Diego, CA, for Petitioner.

Gregory M. Kelch, Trial Attorney, Linda S. Wernery, Assistant Director, Stuart F. Delery, Acting Assistant Attorney General, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A092–969–907.

Before: HARRY PREGERSON, FERDINAND F. FERNANDEZ, and JACQUELINE H. NGUYEN, Circuit Judges.

OPINION

PER CURIAM:

Maria Arce Fuentes challenges the Board of Immigration Appeals' (“BIA”) finding that she was removable on the ground that she was convicted of an aggravated felony. Arce's conviction for conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) qualifies as an aggravated felony “if the amount of the funds exceeded $10,000.” 8 U.S.C. § 1101(a)(43)(D). Following the Supreme Court's reasoning in Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), we conclude that the BIA correctly found that the $10,000 monetary threshold in 8 U.S.C. § 1101(a)(43)(D) refers to the “specific circumstances” of a money laundering offense as opposed to an element of a generic crime. Thus, the BIA was not limited to the categorical approach of examining the language of the statute of conviction, and instead properly relied on the presentence report (“PSR”) to determine whether the $10,000 threshold amount was met. We deny the petition for review.

I

Arce, a native and citizen of Mexico, became a lawful permanent resident on December 1, 1990. In 2006, Arce was indicted in the United States District Court for the District of Puerto Rico. Count one charged Arce and 15 other defendants with conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). Arce and her co-conspirators allegedly recruited others in a scheme to wire proceeds of drug sales through Western Union locations throughout San Juan.

The wire transfers were in amounts less than $10,000 to avoid transaction reporting requirements. Count one of the indictment incorporated by reference the remaining 74 substantive counts of money laundering in violation of 18 U.S.C. § 1956(a). Particularly relevant here are counts 17 through 21 of the indictment, which allege that Arce, “together with other individuals, known and unknown to the Grand Jury,” conducted five wire transfers totaling approximately $25,000.

In 2007, pursuant to a plea agreement, Arce pled guilty to count one of the indictment, the conspiracy charge, in exchange for dismissal of the remaining counts against her by the government. Citing the plea agreement, the PSR states that the parties “agreed that an eight (8) level increase [in offense level] is warranted ... since the defendant laundered more than $70,000.”

Based on this conviction, the government initiated removal proceedings on August 14, 2008, alleging removability under 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of a controlled substance offense, and 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony, as defined in 8 U.S.C. §§ 1101(a)(43)(D) and (a)(43)(U). Before the immigration judge (“IJ”), Arce conceded the controlled substance offense conviction, but contested the aggravated felony conviction on the ground that there was no evidence that she laundered funds in excess of $10,000.

After examining the indictment and the judgment of conviction, the IJ concluded that Arce conspired to launder money totaling more than $10,000, and had therefore been convicted of an aggravated felony. In turn, the IJ found her statutorily ineligible for cancellation of removal. The BIA affirmed. Citing Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), the BIA found that the $10,000 monetary threshold was a specific circumstance of a money laundering offense. Relying on the indictment, the judgment indicating that Arce pled guilty to count one, and the PSR, the BIA concluded that Arce was involved in conspiring to launder more than $70,000, and was therefore an aggravated felon. The BIA also affirmed the IJ's determination that Arce was ineligible for cancellation of removal. This appeal followed.

II

We lack jurisdiction to review a final order of removal against an alien who is removable based on an aggravated felony conviction. Barragan–Lopez v. Holder, 705 F.3d 1112, 1114 (9th Cir.2013) (citing 8 U.S.C. § 1252(a)(2)(C) ). However, we “retain jurisdiction to determine whether a particular offense constitutes an aggravated felony.” Id. We review such “purely legal questions ... de novo. ” Rendon v. Mukasey, 520 F.3d 967, 971 (9th Cir.2008). “Our review is confined to the BIA's decision except to the extent the BIA incorporated the IJ's decision.” Li v. Holder, 656 F.3d 898, 900–01 (9th Cir.2011), overruled on other grounds, Abdisalan v. Holder, 774 F.3d 517 (9th Cir.2014) (en banc).

III

The term “aggravated felony” is defined in the Immigration and Nationality Act (“INA”) to include a money laundering offense “described in section 1956 of Title 18... or section 1957 of that title ... if the amount of the funds exceeded $10,000,” 8 U.S.C. § 1101(a)(43)(D), or a “conspiracy to commit [that] offense,” id. § 1101(a)(43)(U). The INA's monetary threshold amount refers to the specific circumstances in which a money laundering offense was committed, rather than a required element of the offense. This conclusion is dictated by the Supreme Court's decision in Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). There, the Court considered similar language in the same subparagraph of the INA, which states that an aggravated felony includes “an offense that ... involves fraud or deceit in which the loss to the victim ... exceeds $10,000.” Id. at 33–40, 129 S.Ct. 2294 (discussing 8 U.S.C. § 1101(a)(43)(M)(i) ). The Court approved a “circumstance-specific,” fact-based approach that looks to the facts underlying the conviction, rather than a “generic” or “categorical” approach, to determine whether the alien was convicted of an offense involving loss to the victim exceeding $10,000. Id. The Court reasoned that the reference to a $10,000 threshold must refer to a circumstance, rather than an element of an offense, because the words “in which” suggest a reference to circumstances of the offense, no “widely applicable federal fraud statute ... contains a relevant monetary loss threshold,” and, at the time of the enactment of the relevant section of the INA, only eight states had fraud or deceit statutes with a $10,000 loss threshold. Id. at 38–40, 129 S.Ct. 2294. The Court stated, “We do not believe Congress would have intended [the definition of a crime involving fraud or deceit] to apply in so limited and so haphazard a manner.” Id. at 40, 129 S.Ct. 2294.

Similarly, here, we hold that the INA's $10,000 threshold for money laundering offenses refers to a specific circumstance.¹ The statute of conviction, 18 U.S.C. § 1956, makes no reference to a $10,000 threshold, except in the context of a requirement for “extraterritorial jurisdiction.” Id. § 1956(f). Thus, if the INA's reference to a $10,000 threshold described an element of a money laundering offense, then the INA's entire reference to 18 U.S.C. § 1956 as constituting an aggravated felony would be nonsensical, because 18 U.S.C. § 1956 contains no monetary threshold as an element. See Nijhawan, 557 U.S. at 37, 40, 129 S.Ct. 2294.

We recognize that 18 U.S.C. § 1957, which appears in the same clause as § 1956, refers to engaging “in a monetary transaction in criminally derived property of a value greater than $10,000.” Even so, a conclusion that the $10,000 threshold for money laundering offenses refers to an element of a generic offense, based solely on the threshold contained in § 1957, would essentially read the INA's reference to § 1956 out of the statute, thereby running afoul of the rule that “a statute should not be construed so as to render any provision of that statute meaningless or superfluous.” See Beck v. Prupis, 529 U.S. 494, 506, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000). We thus conclude that the BIA correctly relied on the Supreme Court's reasoning in Nijhawan to find that the $10,000 threshold amount is a specific circumstance of the offense of conspiracy to commit money laundering.

IV

We now turn to whether the BIA correctly applied the circumstance-specific approach to find that Arce is an aggravated felon.

In Nijhawan, the Supreme Court rejected the argument that an IJ should be limited to the set of documents permissible in conducting the “modified categorical approach.” 557 U.S. at 41, 129 S.Ct. 2294. Instead, the Court held that the procedures for determining whether the threshold amount has been met should be “fundamentally fair,” and should “give an alien a fair opportunity to dispute a Government claim” regarding the relevant factual basis of a conviction. Id. The Government must also meet a “clear and convincing” standard in proving the specific circumstances of the offense. Id. at 42, 129 S.Ct. 2294. The Court allowed the immigration court's use of “earlier sentencing-related material” including “Petitioner's own stipulation” and a restitution order to determine the loss amount by clear and convincing evidence. Id. at 42–43, 129 S.Ct. 2294 (noting also that the alien presented no conflicting evidence suggesting the loss amount was less than $10,000); see also Kawashima v. Holder, 615 F.3d 1043, 1056 (9th Cir.2010) (noting that the “BIA is not limited to only those documents which a court applying the modified categorical approach may review,” and remanding to the BIA so that it could determine, in the first instance, what evidence it may consider under the Nijhawan standard).

Here, the BIA erred in relying on the indictment and...