Minaya v. Attorney Gen. of the United States

• Decision Date: 02 December 2011
• Docket Number: No. 10-4321,10-4321
• Parties: JOSE MIGUEL MINAYA a/k/a Miguel Minaya JOSE MINAYA, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent
• Court: U.S. Court of Appeals — Third Circuit

JOSE MIGUEL MINAYA a/k/a Miguel Minaya

JOSE MINAYA, Petitioner

v.ATTORNEY GENERAL OF THE UNITED STATES, Respondent

No. 10-4321

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Filed: December 2, 2011

NOT PRECEDENTIAL

On Petition for Review from the Board of Immigration Appeals

BIA-1 No. A 043 847 709

Immigration Judge: The Honorable Eugene Pugliese

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

November 8, 2011

Before: SCIRICA, SMITH, and JORDAN, Circuit Judges

OPINION

SMITH, Circuit Judge.

Petitioner Jose Miguel Minaya seeks review of a determination by the Board of Immigration Appeals (BIA) that his conviction under 18 U.S.C. § 371 forconspiring to commit wire fraud constitutes an aggravated felony under 8 U.S.C. §§ 1101(a)(43)(M)(i) and (U), thereby rendering him ineligible for cancellation of removal. We will deny the petition for review.¹

I.

On March 21, 2005, a federal grand jury for the Southern District of New York returned a one-count indictment against Minaya and four other individuals, charging them with violating 18 U.S.C. § 371 by knowingly conspiring to commit the offense of wire fraud in violation of 18 U.S.C. § 1343, in order to obtain money and property from an unidentified car dealership in Englewood, New Jersey. The indictment alleged several overt acts in furtherance of the conspiracy, including averments that the car dealership sustained losses in excess of $10,000.00 when Minaya or one of his co-defendants used credit cards to pay the balance due on four automobiles they purchased. Minaya pleaded guilty to the charge. The District Court imposed a sentence of five months of imprisonment and five months of home confinement. In addition, the judgment of conviction ordered Minaya to pay restitution in the amount of $97,872.

In June of 2006, Minaya was personally served with a Notice to Appear,charging him with being removable for having committed a crime involving moral turpitude. In response, Minaya filed an application for cancellation of removal. The government asserted that Minaya was ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3) because his federal conviction constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i). Minaya argued that he was convicted of a hybrid offense under Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004), which held that Pennsylvania's criminal offense of "theft by deception" does not constitute an aggravated felony unless it satisfies the criteria of both 8 U.S.C. §§ 1101(a)(43)(G)² and (M)(i).³ Because Minaya's sentence of five months imprisonment did not satisfy the requirement under (a)(43)(G) for one year of imprisonment, Minaya asserted he was not subject to removal as an aggravated felon.

The IJ found Minaya's argument persuasive. The BIA sustained the government's appeal. The BIA concluded that Nugent was inapplicable because Minaya's offense did not "require proof of a theft." It further noted that the guilty plea colloquy on the § 371 conspiracy, as well as the sentencing transcript,established that the loss exceeded the $10,000 monetary threshold for (a)(43)(M)(i). Accordingly, it concluded that Minaya had been convicted of an aggravated felony under § 1101(a)(43)(M)(i), thereby rendering him ineligible for cancellation of removal. It remanded the case to the IJ for further proceedings.

Shortly thereafter, Minaya's federal public defender contacted the federal sentencing court to advise that the automobile dealership targeted by the § 371 conspiracy had not sustained a loss. The letter described the offense, and explained that the four vehicles, which had been purchased using the credit cards, had been recovered. In explaining why no loss had been sustained, the public defender explained

that there was no loss on either the Tahoe and [sic] Corvette, both of which were recovered by the car dealer. Although the car dealer was paid by insurance approximately $33,225 for losses on the Lexus and Mustang, both of which were recovered, and neither of which depreciated in value, the Government and defense agree that there was no cognizable loss suffered by the dealership. Prior to Minaya's fraudulent conduct, the dealership owned the Tahoe and Corvette. After the fraud the dealership recovered both cars and sustained no loss. Thus, when the Lexus and Mustang were seized, the dealership had no ownership interest in either car.

Two weeks later, on June 26, 2008, the District Court, without explanation, amended Minaya's judgment, eliminating any requirement for restitution.

On remand before the IJ, Minaya argued that his conviction no longer qualified as an aggravated felony because the amended judgment, which eliminated the restitution obligation, reflected that no loss had been sustained. Heasserted that under the Supreme Court's intervening decision in Nijhawan v. Holder, 129 S. Ct. 2294 (2009), an actual loss was required for a conviction to qualify as an aggravated felony under § 1101(a)(43)(M)(i). The IJ rejected Minaya's argument. He noted that (a)(43)(U) makes attempts or conspiracies to engage in one of the listed substantive offenses in (a)(43) an aggravated felony.⁴ Because Minaya had been convicted of a § 371 conspiracy, which "does not require that the crime actually have been completed and brought to full fruition," the IJ reasoned that no actual loss is required. Nonetheless, he found that there "was a loss in this case because the crime proceeded far enough . . . that the dealership for a brief period of time was deprived of the cars that it had and those cars were taken from the lot and then only subsequently recovered. So one could certainly view this as there having been a loss." Alternatively, the IJ concluded that the law "just requires an intended loss."

Minaya filed a timely notice of appeal with the BIA. The BIA dismissed Minaya's second appeal. Minaya filed a timely petition for review.

II.

Minaya bears the burden of establishing his eligibility for relief in the form of cancellation of removal. 8 U.S.C. § 1229a(c)(4)(A)(i); see Jean-Louis v. Attorney Gen., 582 F.3d 462, 464 n.2 (3d Cir. 2009). He contends that he iseligible for cancellation of removal because his conviction must be viewed through the lens of Nugent, which would mean that he must satisfy the criteria of both §§ 1101(a)(43)(G) and (M)(i). Because his conviction did not result in a year of imprisonment as required by (a)(43)(G), his conviction would not constitute an aggravated felony. Alternatively, if Minaya's conviction is not a hybrid offense, he challenges the determination that for purposes of § 1101(a)(43)(M)(i) the monetary threshold of a $10,000 loss has been met.

A.

In Nugent, the petitioner was served with a notice to appear charging him with being removable on the basis that his Pennsylvania conviction for "theft by deception" qualified as an aggravated felony under § 1101(a)(43)(G). 367 F.3d at 163-64. Nugent argued that his conviction did not constitute a "theft offense" under (a)(43)(G) because it was an offense involving fraud and deceit under (a)(43)(M)(i). Because his offense failed to involve more than the $10,000 loss required by (a)(43)(M)(i), Nugent submitted that he was not removable as an aggravated felon. Id. at 169.

The court's analysis began with the formal categorical approach, comparing the elements of the state law offense to the terms of the federal statute. Because (a)(43)(G)'s phrase "theft offense" was undefined, the court considered whether the common law provided a sufficient definition to use for comparison purposes.The court noted that the common law did not use the term theft, but instead defined the crime of larceny. It concluded that Nugent's offense, which involved writing checks for funds he knew were nonexistent, would not constitute the common law offense of larceny because the property had to be tangible and capable of being taken and carried away. Id. at 171. Because the common law did not answer whether Nugent's state law offense was a "theft offense" under (a)(43)(G), id. at 172, the court considered more contemporary definitions to "determine whether either or both of these 'aggravated offense' provisions applie[d] to offenses under Pennsylvania's theft by deception statute." Id. at 173.

After examining the decisions of several of our sister courts of appeals, the court agreed "that it was Congress' intent for a 'theft offense' to include more than what was considered larceny at common law[.]" Id. The court noted that the Seventh Circuit's definition of theft - "a taking of property or an exercise of control over property without consent" - had been adopted by the Ninth Circuit and relied upon by this court in an unpublished decision. Id. at 174 (citations omitted). The Nugent panel implicitly adopted this definition,⁵ stating that "given this broad definition, Nugent's bad check transaction for which he was convicted under the Pennsylvania theft by deception status was a 'theft offense'" under(a)(43)(G). Id.

The Nugent court proceeded, however, to address Nugent's argument that his offense was an offense involving fraud or deceit under (M). It rejected the "either or" arguments of the parties and held that "Congress' intent was for both G and M(i) to apply to an 'offense' involving 'theft' and 'fraud or deceit,' and thus the requirements of both provisions must be fulfilled for such an offense to qualify as an aggravated felony for purposes of the INA." Id. at 176. The court reasoned that

[i]t is beyond cavil that the particular or subclass Pennsylvania statute under which Nugent was convicted falls within the purview of "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(G). The sole question for decision is whether Pennsylvania's theft by deception statute, which is subsumed in Section 1101(a)(43)(G) as a particular "theft offense," also comes within the universal (or class) nature of "an

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