In re F-R-A-
| Decision Date | 03 February 2022 |
| Docket Number | 4037 |
| Parties | Matter of F-R-A-, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
The amount of forfeiture ordered in a criminal proceeding may be considered in determining whether a crime of fraud or deceit resulted in a loss to a victim or victims exceeding $10, 000 pursuant to section 101(a)(43)(M)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2018), if the amount set forth in the order is sufficiently tethered and traceable to the conduct of conviction.
FOR RESPONDENT: Enedina G. Kassamanian, Esquire, Henderson Nevada
In a decision dated June 12, 2020, an Immigration Judge denied the respondent's motion to terminate his removal proceedings. The Immigration Judge also denied the respondent's application for asylum and withholding of removal under sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(1)(A) and 1231(b)(3)(A) (2018), and for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N GAOF.Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture"). The respondent has appealed from this decision and has filed a motion to remand. Upon our request, both parties submitted supplemental briefing on the respondent's removability. The appeal will be dismissed and the motion to remand will be denied.
The respondent is a native and citizen of Ghana who entered the United States in 1992 and adjusted to lawful permanent resident status in 2013. At some point, the respondent became involved in a multi-million dollar conspiracy to defraud cell phone users. According to the superseding criminal indictment in the record, the respondent owned a company that provided specialized digital content for a fee to cell phone users via text message. The respondent was approached by owners of a mobile aggregator company, who devised a plan to unknowingly and automatically subscribe cell phone users to receive content from the respondent's company, which, in turn, charged these users a monthly premium fee through their mobile carrier. The cell phone users never consented or agreed to the auto-subscription or resulting fee. The individuals at the mobile aggregator, and the respondent, then obtained that fraudulent fee from the mobile carrier, which mistakenly believed that the cell phone users had authorized the purchase of this respondent's content. Based on this scheme, the respondent pled guilty in 2017 to conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 and § 1343 (2012).[1]
The Department of Homeland Security ("DHS") placed him in removal proceedings, charging him with removability under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2018), as a respondent convicted of an aggravated felony involving fraud or deceit under section 101(a)(43)(M)(i) of the Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2018).[2] The DHS lodged an additional charge of removability under the same provision, charging the respondent with having been convicted of an aggravated felony attempt or conspiracy under section 101(a)(43)(U) of the Act. The DHS also submitted an additional factual allegation: that the respondent was ordered to pay forfeiture traceable to his criminal offense in the amount of $346, 717.08.
The respondent denied all charges and two of the factual allegations concerning the amount of restitution and/or forfeiture he was ordered to pay traceable to his offense. He applied for asylum, withholding of removal, and protection under the Convention Against Torture.
The Immigration Judge found the respondent removable as charged and concluded that his conviction is one for a particularly serious crime that bars him from applying for asylum and withholding of removal under the Act and the Convention Against Torture. The Immigration Judge also concluded that the respondent had not met his burden to establish eligibility for deferral of removal under the Convention Against Torture.
The DHS has the burden of proving by "clear and convincing evidence" that is "reasonable, substantial, and probative," section 240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A) (2018), that the respondent is removable as charged as "[an] alien who is convicted of an aggravated felony," section 237(a)(2)(A)(iii) of the Act. Section 101(a)(43)(M)(i) of the Act defines an aggravated felony as "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10, 000."
The parties do not dispute that the respondent's conviction involved fraud or deceit. Therefore, the only remaining issue is whether his conviction resulted in a loss to his victim or victims exceeding $10, 000. We review whether the respondent's offense constitutes an aggravated felony under a de novo standard. See 8 C.F.R. § 1003.1(d)(3)(ii) (2021).
To determine if the loss to the respondent's victims exceeded $10, 000, we apply the "circumstance-specific approach." Nijhawan v. Holder, 557 U.S. 29, 38-39 (2009). This approach requires us to "look to the facts and circumstances underlying an offender's conviction." Id. at 34. Under recent case law from the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises, we are not limited to reviewing a specific set of documents under a circumstance-specific approach; rather, we "are generally free to consider any admissible evidence" to determine the loss amount. Orellana v. Mayorkas, 6 F.4th 1034, 1041 (9th Cir. 2021). However, in doing so we must focus narrowly on loss amounts that are tethered to the counts of conviction. Nijhawan, 557 U.S. at 42; see also Orellana, 6 F.4th at 1043.
It is well established that an order of restitution may be relied upon to determine if the loss to the victim was greater than $10, 000, as long as that order is sufficiently tethered to the convicted conduct and shows the actual loss from the offense of conviction. See Nijhawan, 557 U.S. at 42-43 (); see also Fan Wang v. Att'y Gen. of U.S., 898 F.3d 341, 349-50 (3d Cir. 2018) (). The respondent argues that, unlike an order of restitution, we cannot rely on an order of forfeiture to determine whether a convicted offense involved a loss to the victims exceeding $10, 000.
For the following reasons, we conclude that the amount of forfeiture, like the amount of restitution, may be considered to determine the amount of loss to the victims under section 101(a)(43)(M)(i) if the proceeds received are sufficiently tethered and traceable to the conduct of conviction. Forfeiture is a punitive tool used by the Government in sentencing to "separat[e] a criminal from his ill-gotten gains." Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629 (1989). In practice, "an order of forfeiture may not feel much different from an order of restitution, because both orders contemplate cash payments in similar amounts." United States v. Torres, 703 F.3d 194, 203 (2d Cir. 2012). However, restitution is meant to compensate victims for harm suffered, while forfeiture is a punishment to the defendant, meant to take away the proceeds received from the criminal actions. See id. Restitution and forfeiture may be ordered "in the same or similar amounts" because "restitution is calculated based on the victim's loss, while forfeiture is based on the offender's gain." United States v. McGinty, 610 F.3d 1242, 1247 (10th Cir. 2010) (citation omitted). Thus, if the loss the victims experienced is equal to the proceeds the offender gained, then the amount ordered for forfeiture will be similar to the amount of restitution ordered.
Only property closely tied to the criminal conduct and tainted by the crime can be subject to forfeiture. See United States v. Thompson, 990 F.3d 680, 687 (9th Cir. 2021). This concept is embodied in the Federal statutes governing forfeiture, requiring in every instance the tainted property be identified as being related to the criminal actions and then removed from the defendant. See 18 U.S.C. § 982 (2018); 21 U.S.C. § 853 (2018); see also 18 U.S.C. § 981 (2018) ().
Additionally, in conspiracy convictions, only the proceeds personally acquired by an individual conspirator may be subject to forfeiture-there is no joint and several liability. See Honeycutt v. United States, 137 S.Ct. 1626, 1632 (2017) (determining that forfeiture is only limited to tainted property and therefore "does not countenance joint and several liability, which, by its nature, would require forfeiture of untainted property"). Therefore, in application, only specific proceeds received by the defendant can be subject to forfeiture, rather than the amount that was received by the entire criminal enterprise.
We therefore conclude that the DHS can meet its burden of demonstrating a loss in excess...
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