In re Onyido
| Decision Date | 04 March 1999 |
| Docket Number | Interim Decision No. 3379.,File A29 891 590. |
| Citation | 22 I&N Dec. 552 |
| Parties | In re Basil Uzoma ONYIDO, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated August 8, 1997, the Immigration Judge found the respondent deportable as charged under section 241(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), denied his motion to terminate proceedings, and ordered that he be deported to Nigeria. The respondent has appealed. The appeal will be dismissed. The respondent's motion to remand will be denied.1 The request for oral argument before the Board is denied. See 8 C.F.R. § 3.1(e) (1998).
The respondent entered the United States on June 14, 1986, as a nonimmigrant visitor. On January 20, 1993, the respondent's status was adjusted to that of a lawful permanent resident alien. On September 20, 1995, the respondent was convicted pursuant to his plea of guilty in the Superior Court of Hamilton County, Indiana, of the offense of submitting a false claim with intent to defraud the Indiana Farmers Mutual Insurance Company, in violation of section 35-43-5-4(10) of the Indiana Code. The offense is a Class D felony for which the respondent received the maximum penalty of 3 years' confinement.
The offense arose out of a "slip and fall" in an Indiana convenience store on February 2, 1993, after which the respondent submitted a false medical bill to the insurance company in support of his claim. The respondent initially sought $60,000 from the insurance company, but agreed to settle for $15,000. He was arrested by law enforcement officers posing as insurance company employees when he arrived at a meeting to sign a release and collect the $15,000. Following his conviction, the respondent was charged on December 27, 1996, with deportability under section 241(a)(2)(A)(iii) of the Act, as an aggravated felon. The Order To Show Cause and Notice of Hearing (Form I-221) specifies that the respondent was convicted of an aggravated felony as defined in section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1994 & Supp. II 1996), "to wit: an offense that involves fraud or deceit in which the loss or potential loss to the victim or victims exceeds $10,000." At the deportation hearing, the Immigration Judge concluded that the respondent was deportable as an aggravated felon under sections 101(a)(43)(M)(i) and (U) of the Act.
On appeal, the respondent contends that his conviction is not for an aggravated felony, as defined under either section 101(a)(43)(M)(i) or (U) of the Act because the insurance company did not suffer a loss in excess of $10,000. He also contends that his conviction is not final because an appeal is pending.
Section 101(a)(43)(M)(i) of the Act provides that the term "aggravated felony" includes an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." Section 101(a)(43)(U) of the Act provides that the term "aggravated felony" also includes "an attempt or conspiracy to commit an offense described in [section 101(a)(43)]."
We agree with the Immigration Judge that the respondent is deportable as an aggravated felon because he was convicted of an offense involving an attempt to defraud $15,000 from the insurance company.2 We find that under the Indiana statute in question an attempt to defraud is included within the offense of which the respondent was convicted. The statute under which the respondent was convicted provides that "a person who knowingly and with intent to defraud, makes, utters, presents, or causes to be presented to an insurer, a claim statement that contains false, incomplete, or misleading information concerning the claim . . . commits fraud, a Class D Felony." Ind. Code Ann. § 35-43-5-4(10) (West 1995) (see Appendix A). The Indiana statute does not require proof that the insurer incurred a loss. It encompasses both successful frauds and unsuccessful attempts to defraud an insurance company.
Where a criminal charge of attempted fraud is alleged under Indiana law, the State need only prove that a substantial step toward the commission of the fraud occurred, along with the requisite intent to defraud. Houston v. State, 528 N.E.2d 818 (Ind. Ct. App. 1988). The record of conviction reflects that the respondent had initiated the paperwork necessary to complete the fraud and was arrested after he arrived at a meeting to collect the $15,000. Like the defendant in Houston v. State, supra, the respondent in this case had not completed the transaction required to obtain the proceeds of his crime when he was arrested while trying to flee from the undercover police officers. The Indiana court in Houston v. State, supra, ruled that the substantial step of presenting a stolen credit card belonging to someone else for payment of a watch was a sufficient substantial step to support a conviction for attempted fraud even though the defendant did not actually sign the credit card charge slip or receive the watch when the store security officer took possession of the credit card as stolen.
We disagree with the respondent's contention that section 101(a)(43)(U) of the Act requires that the victim suffer an actual loss which exceeds $10,000. By its very nature, an attempt involves an unsuccessful effort to commit a crime. Wayne R. LaFave et al., Criminal Law § 6.2 (2d ed. 1986). Here, the offense for which the respondent was convicted involved an attempt to obtain $15,000 from the insurance company through fraud and deceit. The respondent's actions support a conviction for attempted fraud which is a lesser included offense within a conviction for fraud under Indiana law. Houston v. State, supra. The fact that the respondent failed to obtain the money is of no consequence under section 101(a)(43)(U) of the Act, which prescribes deportability as an aggravated felon for aliens convicted of an attempt or conspiracy to commit an offense described in section 101(a)(43) of the Act. In view of this conclusion we need not address at this time the Immigration Judge's additional finding that the respondent is also deportable as an aggravated felon under section 101(a)(43)(M)(i), as an alien convicted of a fraud or deceit in which the loss to the victim exceeds $10,000.
With regard to the respondent's contention that his conviction is not final, we agree with the Immigration Judge that the conviction is final. The respondent was convicted upon his plea of guilty on September 20, 1995, and has no right of direct appeal from his guilty plea under Indiana law. Tumulty v. State, 666 N.E.2d 394 (Ind. 1996); Weyls v. State, 362 N.E.2d 481 (Ind. 1977). Instead, he may only seek relief under Indiana Post-Conviction Rule PC 1. On December 6, 1996, the respondent submitted a late appeal from his conviction, along with other motions, claiming that the trial court lacked jurisdiction, and thus, his conviction was not yet final. However, we note that on January 17, 1997, the clerk's office for Hamilton County, Indiana, referred to all these filings as part of the respondent's April 15, 1996, Petition for Post-Conviction Relief. The deadline for appealing criminal convictions in Indiana is 30 days, and upon expiration of the filing period, a defendant waives his right for direct appeal under Indiana Criminal Rule 11. Clark v. State, 506 N.E. 2d 810 (Ind. 1987).
The availability of post-conviction motions or other forms of collateral attack does not affect the finality of a criminal conviction for immigration purposes, unless and until the conviction has been overturned pursuant to such a motion. Okabe v. INS, 671 F.2d 863 (5th Cir. 1982). We therefore conclude that the respondent's conviction is final, regardless of any impact that new section 101(a)(48) may have on the notion of "finality" as it evolved before enactment of a definition of "conviction." See Matter of Chairez, 21 I&N Dec. 44 (BIA 1995); Matter of Polanco, 20 I&N Dec. 894 (BIA 1994).
Finally, in the respondent's motion, he raises the issue of ineffective assistance of counsel. However, he has failed to comply with the requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). We also find the respondent's constitutional arguments to be without merit. See Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997). Accordingly, the motion will be denied.
Upon consideration, therefore, we find no error in the Immigration Judge's determination that the respondent is deportable on account of his conviction for an aggravated felony. Furthermore, the respondent has not complied with the requirements for showing that he was denied the effective assistance of counsel. Accordingly, the appeal will be dismissed and the motion denied.
Board Member Anthony C. Moscato did not participate in the decision in this case.
1. On January 26, 1998, the respondent filed a motion to reopen and reconsider with the Immigration Judge. The...
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Onyido v. Holder, 13-60544
...of the Board of Immigration Appeals (BIA) denying his motion to sua sponte reopen and reconsider his 1999 deportation. See In re Onyido, 22 I. & N. Dec. 552 (BIA 1999). This was the second such motion Onyido filed in 2013, almost 14 years after he was deported. The BIA denied the motion as ......