James v. Gonzales
| Citation | 464 F.3d 505 |
| Decision Date | 05 September 2006 |
| Docket Number | No. 04-60445.,04-60445. |
| Parties | Etetim David JAMES, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Brian K. Bates (argued), Quan, Burdette & Perez, Houston, TX, for James.
Bryan Stuart Beier (argued), U.S Dept. of Homeland Sec., Thomas Ward Hussey, Dir., OIL, M. Jocelyn Lopez Wright, Civ. Div., Imm. Lit., U.S. Dept. of Justice, Washington, DC, Kenneth L. Pasquarell, Acting Dir., U.S. INS, San Antonio, TX, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.
Petition for Review of an Order of the Board of Immigration Appeals.
Before GARWOOD, HIGGINBOTHAM and CLEMENT, Circuit Judges.
Petitioner appeals the Board of Immigration Appeals' reversal of an Immigration Judge's decision to terminate removal proceedings, contending that his conviction of aiding and abetting bank fraud was not an aggravated felony because it did not "involve" fraud or deceit and the demonstrated loss did not exceed $10,000. He also contends that the BIA may not enter an order of removal in the first instance, but must remand to the IJ. We dismiss in part and remand in part.
Etetim David James, a citizen and native of Nigeria, was admitted to the United States as a nonimmigrant in January 1986; he obtained lawful permanent resident status in September 1987. In March 2000, James pleaded guilty to one count of aiding and abetting bank fraud,1 involving a transaction with a credit union in the amount of $9,500. The judgment of conviction ordered James to serve a 24-month sentence and to pay restitution in the amount of $129,066.60.
In October 2001, as a result of James's conviction, the Immigration and Naturalization Service2 filed a notice to appear charging James with deportability as an aggravated felon.3 The INS charged that James's prior conviction constituted a crime involving "fraud or deceit," where the loss to the victim(s) exceeded $10,000.4 James contested the applicability of both aggravated felony elements. Alternatively, James asserted that he was eligible for relief from removal.
The IJ determined that James's offense met the first element of § 1101(a)(43)(M)(i), as the statute requires only that the offense involve fraud or deceit, not that the conviction actually include fraud or deceit. However, refusing to consider the amount of restitution, the IJ agreed with James that the INS had failed to demonstrate that the loss to the victims exceeded $10,000, since he pleaded guilty to a single count of only $9,500. Thus, the IJ terminated removal proceedings against James.
The government appealed, arguing, as it had before the IJ, that the restitution amount constituted the proper measure of loss to the victim(s). James reasserted that aiding and abetting bank fraud does not necessarily involve fraud or deceit and contended that the IJ otherwise had ruled correctly. The BIA affirmed the IJ's decision regarding the fraud element of the felony but reversed the IJ's calculation of the loss, using instead the amount of restitution. The BIA ordered James removed to Nigeria.
Pursuant to 8 U.S.C. § 1252(a), James urges our review of the BIA decision. The government moved for dismissal of the appeal for want of jurisdiction.5 We now determine whether we have jurisdiction to entertain James's request for review of the BIA's removal order.
We lack jurisdiction where a petitioner is found deportable for having committed an aggravated felony.6 However, James disputes that his offense qualifies as such; we retain jurisdiction to examine and decide the jurisdictional question, limited to whether the charged crime constitutes an aggravated felony.7 Additionally, James argues that we have independent jurisdiction to address whether the BIA acted ultra vires in ordering removal. We discuss each jurisdictional argument in turn.
We first address whether the BIA erred in ruling that James's prior conviction for aiding and abetting bank fraud constitutes an aggravated felony.
Eight U.S.C. § 1101(a)(43)(M)(i) 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 statute specifically includes convictions based on attempt and conspiracy but does not mention aiding and abetting.8 James argues that since he pleaded guilty to aiding and abetting bank fraud rather than to bank fraud or to attempted bank fraud, his offense does not necessarily involve fraud. Additionally, he argues that the prior offense does not meet the statutory floor of loss to the victim(s)—$10,000. Therefore, he contends that the BIA erred in reversing the IJ's determination that James's offense did not qualify as an aggravated felony.
The IJ, interpreting the word "involve" expansively, found that aiding and abetting bank fraud constitutes a crime that involves fraud or deceit under § 1101(a)(43)(M)(i).9 We "`accord[] substantial deference to the BIA's interpretation of the INA' itself and definitions of phrases within it,"10 and, then, conduct a de novo review of "whether the particular statute that the prior conviction is under falls within the relevant INA definition."11 "Involves" requires that the offense "necessarily entails the `involved' behavior."12 We recognize that "[w]hether an offense `involves' fraud is a broader question than whether it constitutes fraud."13 "Fraud" and "deceit" retain their commonly understood legal meanings.14
In determining whether an offense qualifies as an aggravated felony under the INA, we employ a categorical approach and look "at the statute under which the alien was convicted rather than at the particular underlying facts."15 Thus, we ask whether the offense of aiding and abetting bank fraud necessarily entails, or has as at least one element, fraud or deceit.16
Turning first to the statute at issue, § 2 provides:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal;
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.17
"To be convicted of aiding and abetting, the defendant must have (1) associated with a criminal venture, (2) participated in the venture, and (3) sought by action to make the venture successful."18 "Association means that the defendant shared in the criminal intent of the principal."19 "Participation means that the defendant engaged in some affirmative conduct designed to aid the venture."20 Thus, James's conviction under § 2 and § 1344 necessarily entailed the criminal intent to see bank fraud committed, some affirmative conduct designed to aid the bank fraud, and his seeking, by his own action, to make the bank fraud successful.
Section 1344 criminalizes as bank fraud:
knowingly execut[ing], or attempt[ing] to execute, a scheme or artifice —
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises.
The plain language of § 1344, therefore, provides that a violation of either subsection necessarily entails fraud or deceit.21
James argues that the exclusion of aiding and abetting offenses from the statutory framework "compels the conclusion that convictions under 18 U.S.C. § 2 are not included in the aggravated felony definition."22 James also contends that as the aiding and abetting offense does not have as one of its elements fraud or deceit, it cannot constitute an aggravated felony under the INA. James further argues that aiding and abetting bank fraud requires only the requisite criminal intent, a desire to see the bank fraud succeed, and some affirmative conduct designed to aid the venture, conduct that may not necessarily entail fraud or deceit.23 Therefore, James avers that the categorical approach results in the conclusion that James was not convicted of a crime involving fraud or deceit because, on the statute's face, it remains unknown if he engaged in fraudulent or deceitful conduct. We are not persuaded.
All of James's contentions are susceptible to the same flaw: "Significantly, `the aiding and abetting statute, 18 U.S.C. § 2, does not define a separate crime,' but rather provides another means of convicting someone of the underlying offense."24 Thus, the IJ did not err in ruling that aiding and abetting bank fraud involves fraud or deceit because § 1344, the underlying offense, necessarily involves fraud.
Second, James argues that, by looking beyond the count to which he pleaded guilty, the BIA erred in overturning the IJ's determination that the amount of loss to the victims was less than $10,000.25 Since aiding and abetting bank fraud does not itself define a monetary threshold, we look beyond the statute26 to the record of conviction.27 Accordingly, the IJ reasoned that since the count to which James pleaded guilty involved fraudulently causing a wire transfer in the amount of $9,500, the crime did not constitute an aggravated felony requiring the loss to exceed $10,000.28
The BIA vacated the IJ's order after concluding that the amount of restitution James owed—based on conduct included in the indictment,29 PSR,30 and judgment of conviction31 — constituted the proper amount to use in determining the amount of loss to the victims.32 Citing Khalayleh v. INS,33 the BIA reasoned that the amount of loss should be calculated based on "the total loss from an entire fraudulent scheme," and the restitution amount "relates directly to the losses suffered by various financial institutions resulting from [James's] fraudulent check writing scheme."34
In Khalayleh, the alien was indicted on four...
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