Filed: Dec. 16, 2010
Latest Update: Feb. 21, 2020
Summary: 10-0467-ag Varughese v. Holder 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 7 August Term, 2010 8 9 (Argued: November 10, 2010 Decided: November 12, 2010) 10 11 Docket No. 10-0467-ag 12 13 14 VARUGHESE ADACKAMANGAL VARUGHESE, 15 a/k/a Varughese Varughese, 16 17 Petitioner, 18 19 –v.– 20 21 ERIC H. HOLDER, JR., United States 22 Attorney General, 23 24 Respondent. 25 26 27 28 Before: 29 B.D. P ARKER, W ESLEY, Circuit Judges, J ONES, Judge. * 30 31 Petition for review of a fina
Summary: 10-0467-ag Varughese v. Holder 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 7 August Term, 2010 8 9 (Argued: November 10, 2010 Decided: November 12, 2010) 10 11 Docket No. 10-0467-ag 12 13 14 VARUGHESE ADACKAMANGAL VARUGHESE, 15 a/k/a Varughese Varughese, 16 17 Petitioner, 18 19 –v.– 20 21 ERIC H. HOLDER, JR., United States 22 Attorney General, 23 24 Respondent. 25 26 27 28 Before: 29 B.D. P ARKER, W ESLEY, Circuit Judges, J ONES, Judge. * 30 31 Petition for review of a final..
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10-0467-ag
Varughese v. Holder
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5
6
7 August Term, 2010
8
9 (Argued: November 10, 2010 Decided: November 12, 2010)
10
11 Docket No. 10-0467-ag
12
13
14 VARUGHESE ADACKAMANGAL VARUGHESE,
15 a/k/a Varughese Varughese,
16
17 Petitioner,
18
19 –v.–
20
21 ERIC H. HOLDER, JR., United States
22 Attorney General,
23
24 Respondent.
25
26
27
28 Before:
29 B.D. P ARKER, W ESLEY, Circuit Judges, J ONES, Judge. *
30
31 Petition for review of a final order of removal issued
32 by the Board of Immigration Appeals (“BIA” or “Board”), on
33 January 22, 2010, which affirmed the decision of the
34 Immigration Judge (“IJ”) finding petitioner removable as
35 charged. Petitioner contends principally that his removal
36 is improper because his money laundering conviction, in
37 violation of 18 U.S.C. 1956(a)(3)(b), does not constitute an
38 “aggravated felony” under the INA. He also challenges the
*
The Honorable Barbara S. Jones, of the United States District Court
for the Southern District of New York, sitting by designation.
1 Board’s conclusion that he is ineligible for adjustment of
2 status pursuant to INA § 245, 8 U.S.C. § 1255.
3
4 P ETITION D ENIED.
5
6
7
8 T HOMAS E. M OSELEY, Law Offices of Thomas E. Moseley,
9 Newark, NJ, for Petitioner.
10
11 C ARMEL A. M ORGAN, Trial Attorney, Office of
12 Immigration Litigation, Civil Division, (Tony
13 West, Assistant Attorney General, Russell J.
14 E. Verby, Senior Litigation Counsel, on the
15 brief), for Eric H. Holder Jr., United States
16 Attorney General, Respondent.
17
18
19
20 P ER C URIAM: 1
21 Petitioner Varughese Adackamangal Varughese seeks
22 review of a final order of removal issued by the BIA, which
23 affirmed the decision of the IJ finding Varughese removable
24 as charged. In re Varughese, A 036 123 229 (B.I.A. Jan. 22,
25 2010). Specifically, the Board concluded that Varughese’s
26 conviction for money laundering, in violation of 18 U.S.C. §
27 1956(a)(3)(B), constitutes an “aggravated felony,” rendering
28 him removable pursuant to § 101(a)(43)(D) of the Immigration
29 and Nationality Act (“INA”). 8 U.S.C. § 1101(a)(43)(D).
30 Varughese challenges that determination on appeal, along
1
This matter was initially resolved by summary order, but we now
reissue that decision following the grant of the Government’s motion for
publication of the summary order as a precedential opinion.
2
1 with the BIA’s conclusion that he is ineligible for
2 adjustment of status pursuant to INA § 245, 8 U.S.C. § 1255.
3 We deny the petition for review.
4
5 I. Background
6 Varughese, a native and citizen of India, was admitted
7 to the United States on or about April 24, 1981 as a lawful
8 permanent resident. On November 25, 2002, Varughese was
9 arrested pursuant to a “sting” operation and charged in a
10 one-count indictment with money laundering, in violation of
11 18 U.S.C. § 1956(a)(3)(b), which provides that
12 [w]hoever, with the intent to conceal or
13 disguise the nature, location, source,
14 ownership, or control of property believed to be
15 the proceeds of specified unlawful activity . .
16 . conducts or attempts to conduct a financial
17 transaction involving property represented to be
18 the proceeds of specified unlawful activity, or
19 property used to conduct or facilitate specified
20 unlawful activity, shall be fined under this
21 title or imprisoned for not more than 20 years,
22 or both.
23
24 On October 7, 2005, pursuant to a cooperation
25 agreement, Varughese pled guilty to the charged offense.
26 During the plea hearing, Varughese testified that he issued
27 money orders through his check-cashing business to men that
28 he believed to be connected with drug dealers. He further
3
1 testified that he did so in exchange for extra commissions,
2 and admitted specifically to three transactions involving
3 $30,000, $50,000, and $100,000, respectively. On July 16,
4 2008, the United States District Court for the Eastern
5 District of New York (Trager, J.) sentenced Varughese to
6 time served, along with three years of supervised release.
7 On March 30, 2009, Varughese was served with a Notice
8 to Appear, charging him with removability pursuant to 8
9 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an
10 “aggravated felony.” Specifically, INA § 101(a)(43)(D), 8
11 U.S.C. § 1101(a)(43)(D) provides that an “aggravated felony”
12 includes “an offense described in [18 U.S.C. § 1956]
13 (relating to monetary instruments) if the amount of the
14 funds exceeded $10,000.” § 1101(a)(43)(D).
15 On several occasions in 2009, Varughese appeared before
16 the IJ and contested his removability. Specifically,
17 Varughese argued that: (1) he was not convicted of
18 laundering “funds exceed[ing] $10,000,” because the statute
19 under which he was convicted uses the term “proceeds” and
20 not “funds”; (2) even if the term “proceeds” is equated to
21 “funds,” the Supreme Court has interpreted the term
22 “proceeds” in another context to mean “profits,” and,
4
1 because this was a sting operation, no real profits were
2 obtained; and (3) the legislative history of § 1956
3 indicates that the term “funds” actually refers to the
4 amount of the fine imposed, and not the amount of money
5 laundered.
6 On September 3, 2009, the IJ issued a written decision
7 finding Varughese removable as charged. The IJ concluded
8 that, because the money laundering statute under which
9 Varughese pled guilty is silent as to monetary amount, it
10 was appropriate to consider statements made by Varughese
11 during his plea colloquy to determine the amount of funds
12 implicated in the offense of conviction. In so doing, the
13 IJ found “clear evidence” that Varughese’s offense involved
14 amounts far exceeding the $10,000 threshold set forth in the
15 INA. Furthermore, the IJ rejected Varughese’s contention
16 that the statute’s use of the word “funds” actually refers
17 to the amount of the fine imposed, instead of the amount of
18 money laundered. Accordingly, the IJ concluded that
19 Varughese was removable as charged, and ordered him removed
20 to India.
21 On January 22, 2010, the BIA dismissed Varughese’s
22 appeal. The BIA adopted, and expounded upon, the reasoning
5
1 of the IJ. Specifically, the BIA explained that, pursuant
2 to the Supreme Court’s decision in Nijhawan v. Holder, ---
3 U.S. ---, 129 S. Ct. 2294 (2009), the IJ properly relied
4 upon the statements made by Varughese during his plea
5 colloquy to conclude that the amount of funds involved in
6 his crime exceeded $10,000.
7 Varughese now seeks review in this Court. For the
8 reasons that follow, Varughese’s arguments are without
9 merit. His petition is therefore denied and his appeal
10 dismissed.
11 II. Discussion
12 Where, as here, the BIA has adopted the IJ’s reasoning
13 and offered additional commentary, our Court reviews the
14 decision of the IJ as supplemented by the Board.
15 Gertsenshteyn v. U.S. Dep’t of Justice,
544 F.3d 137, 142
16 (2d Cir. 2008). “While the BIA’s interpretation of
17 immigration statutes is generally entitled to Chevron
18 deference, interpretations in non-precedential unpublished
19 BIA decisions, as in the instant case, are not so entitled.”
20 Dobrova v. Holder,
607 F.3d 297, 300 (2d Cir. 2010). We
21 need not, and do not, resolve whether such unpublished
22 decisions are entitled to Skidmore deference, because our de
6
1 novo review reveals that the determination below was
2 correct.
3 At the outset, we reject Varughese’s contention that
4 INA § 101(a)(43)(D), which defines an “aggravated felony” as
5 a money laundering offense in which “the amount of the funds
6 exceeded $10,000," 8 U.S.C. § 1101(a)(43)(D), captures only
7 those violations of criminal statutes that use the specific
8 word “funds.” It is irrelevant that Varughese was convicted
9 under a subsection of the money laundering statute that does
10 not actually use the word “funds,” because the phrase “the
11 amount of the funds exceeded $10,000” in the INA simply
12 “refers to the particular circumstances in which an offender
13 committed a . . . crime on a particular occasion.” Nijhawan
14 v. Holder, 129 S. Ct. at 2298. Simply put, it refers to the
15 amount of money laundered. 2 See Chowdhury v. INS,
249 F.3d
16 970, 974 (9th Cir. 2001). That determination is properly
17 made pursuant to a “circumstance-specific” approach, and not
18 a “categorical” one.
Nijhawan, 129 S. Ct. at 2300. Because
19 Varughese admitted to laundering well in excess of $10,000
20 on multiple occasions during his plea colloquy, the record
2
We are unpersuaded by Varughese’s contention that the term “amount of
the funds,” as it is used in the money laundering statute, refers to the
amount of the fine imposed.
7
1 of conviction sufficiently establishes that the
2 circumstances of his money laundering conviction involved
3 funds in excess of $10,000. Id. at 2303 (defendant’s
4 stipulation at sentencing constitutes proper basis to assess
5 circumstance-specific fact).
6 Varughese next urges that, even assuming the “amount of
7 the funds” inquiry is circumstance-specific, the amounts
8 that he admitted laundering during his plea colloquy are not
9 sufficiently “tethered” to his conviction in order to
10 establish his removability. See
id. (observing that “the
11 loss must be tied to the specific counts covered by the
12 conviction”) (internal quotation marks omitted). In
13 substance, Varughese argues that because no amount is cited
14 in the indictment to which he pled guilty, the statements he
15 made during his plea colloquy are not sufficiently related
16 to his conviction to establish that his conviction was an
17 “aggravated felony.”
18 We are unpersuaded. Varughese was charged in a one-
19 count indictment alleging multiple “financial transactions”
20 over the course of several months in 2001 and 2002. A. 155.
21 Varughese confirmed during the sentencing hearing that he
22 was involved in multiple instances of money laundering
8
1 between “November 2001 and January 2002.” A. 205.
2 Accordingly, his admissions to laundering funds in excess of
3 $10,000 are sufficiently related to the count for which he
4 was convicted. 3
5 Finally, we reject Varughese’s contention that he is
6 eligible for adjustment of status pursuant to INA § 245.
7 Adjustment of status is a discretionary benefit affordable
8 to an alien who, among other things, is “eligible to receive
9 an immigrant visa and is admissible to the United States for
10 permanent residence.” INA § 245, 8 U.S.C. § 1255(a).
11 Because Varughese’s money laundering conviction renders him
12 ineligible for admissibility to the United States, he is
13 similarly ineligible for adjustment of status. INA §
14 212(a)(2)(I)(i), 8 U.S.C. § 1182(a)(2)(I)(i) (“Any alien who
15 . . . has engaged, is engaging, or seeks to enter the United
16 States to engage, in an offense described in section 1956 or
17 1957 of Title 18 (relating to laundering of monetary
18 instruments) is inadmissible” to the United States.).
3
Varughese also contends that the money laundering statute’s use of the
term “proceeds” must mean “profits,” in light of the Supreme Court’s decision
in United States v. Santos, 553 U.S. 507 (2008), and that his conviction is
therefore infirm because there can be no true “profits” realized in a sting
operation. Not only is this argument baseless — the specific subsection under
which Varughese was convicted expressly contemplates sting operations — but it
is also irrelevant. The soundness of Varughese’s underlying conviction is not
before us, for “[c]ollateral attacks are not available in a . . . petition
challenging the BIA’s removal decision.” Lanferman v. BIA, 576 F.3d 84, 88
(2d Cir. 2009).
9
1 Moreover, because Varughese’s money laundering conviction
2 constitutes an “aggravated felony,” the Attorney General was
3 without discretion to afford him a waiver of
4 inadmissibility. INA § 212(h), 8 U.S.C. § 1182(h).
5
6 III. Conclusion
7 For the foregoing reasons, the petition for review is
8 D ENIED. Having completed our review, any stay of removal
9 previously granted in this petition is V ACATED, and any
10 pending motion for a stay of removal is D ISMISSED as moot.
10
