Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-7-2003

Woldiger v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3877




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                Nos. 02-3877 and 02-4333


                                ABRAHAM WOLDIGER,
                                            Petitioner

                                               v.

                    JOHN ASHCROFT, ATTORNEY GENERAL
                     OF THE UNITED STATES OF AMERICA,

                                                    Respondent


           APPEAL FROM THE UNITED STATES IMMIGRATION AND
                     NATURALIZATION SERVICES
                        Agency No. A27-907-634


                                Argued: September 8, 2003


            Before: BARRY, BECKER, and GREENBERG, Circuit Judges


                           (Opinion Filed: October 7, 2003)




James J. Orlow, Esq. (Argued)
Orlow & Orlow
6 th & Chestnut Streets
656 Public Ledger Building
Philadelphia, PA 19106

                                           1
Attorney for Petitioner


Ernesto H. Molina, Esq. (Argued)
David V. Bernal, Esq.
William C. Minick, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

Attorneys for Respondent




                                         OPINION




BARRY, Circuit Judge
                                    I. BACKGROUND

       The parties are familiar with the facts of this case, and, thus, we will provide a

brief summary of those facts at the outset, incorporating additional facts only as necessary

to our discussion of the issues.

       Petitioner Abraham Woldiger, a German citizen, has been a legal permanent

resident of the United States since 1987. His wife and seven children are all United

States citizens. On January 28, 1998, a grand jury in the Eastern District of New York

returned an indictment against Woldiger, charging that he and certain of his business



                                              2
associates, who owned and operated eight low-income housing projects in New York,

New Jersey, Rhode Island and Pennsylvania, misappropriated payments from the U. S.

Department of Housing and Urban Development (HUD) intended for the maintenance

and improvement of the projects. The indictment was comprised of four counts:

conspiracy to misappropriate federal funds, equity skimming, misappropriation of federal

funds, and obstruction of a federal audit.

       On July 5, 2000, Woldiger, pursuant to a plea agreement, pled guilty to Count

Four, obstruction of a federal audit in violation of 18 U.S.C. § 1516. District Judge, now

Chief Judge, Edward R. Korman entered judgment against Woldiger on the obstruction

charge, dismissed the remaining three counts, and sentenced him to ten months

imprisonment and three years supervised release. Relevant to the issues here, the

judgment recited the “total amount of restitution” as “$1.5 million,” and stated that “the

Court adopts the factual findings and guideline application in the presentence report.” In

addition, Woldiger had earlier agreed to pay $900,000 to settle the related civil forfeiture

case against him, United States v. Blackstone Realty Mgmt., No. CV-97-6455

(E.D.N.Y.).

       On December 1, 2000, the Immigration and Naturalization Service (INS) initiated

removal proceedings against Woldiger, charging that he was removable under 8 U.S.C. §

1227(a)(2)(A)(iii) because his conviction constituted an “aggravated felony,” defined by 8

U.S.C. § 1101(a)(43)(M)(I) as an offense that “involves fraud or deceit in which the loss



                                             3
to the victim or victims exceeded $10,000.” On August 15, 2001, an immigration judge

(“IJ”) entered an order of removal, finding that Woldiger’s conviction involved “fraud or

deceit” because the “intent to deceive or defraud the United States” is an element of the

statute under which he was convicted, 18 U.S.C. § 1516, and that the judgment itself

indicated that the crime involved a loss of over $10,000 to the victim (the United States)

because it required him to pay $1.5 million in restitution. The IJ noted that Judge Korman

had submitted a letter stating that Woldiger had not been sentenced under the fraud

guidelines and that Judge Korman did not “expect that [the conviction] would result in

[Woldiger’s] automatic deportation,” but the IJ concluded that Woldiger had nonetheless

been convicted of a crime which satisfied the statutory definition of an aggravated felony.

       On M ay 6, 2002, the Board of Immigration Appeals (BIA) affirmed the IJ’s

decision, reiterating the IJ’s reasoning and noting that the judgment in the criminal case

expressly adopted the factual findings of the presentence report (PSR), which “indicates

that the victim of the crime was the Department of Housing and Urban Development

(HUD) . . . and that HUD sustained a loss of $1,800,000.00.” The PSR, however, does

not specify the basis for this finding of total loss amount, but does indicate that “Abraham

Taub and Abraham Woldiger routinely received amounts ranging from $10,000 to

$21,000 monthly,” and “in January 1994, Abraham Woldiger and Abraham Taub each

took $9,000 from [a housing project maintenance account] and, in January 1995, they

each took $7,500 from the same account.”



                                             4
       On M ay 15, 2002, Woldiger filed a petition with this Court for review of the BIA’s

May 6, 2002 order. On July 11, 2002, before a briefing schedule was set, we granted the

INS’s motion to dismiss the petition for lack of appellate jurisdiction on the ground that

obstructing a federal audit is an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(I).

       On August 1, 2002, Woldiger filed a motion before Judge Korman, asking him to

amend the judgment in the criminal case by eliminating the reference to a $1.5 million

restitution obligation. The next day, August 2, 2002, Woldiger filed a motion to reopen

proceedings before the BIA. Woldiger asked that decision on his motion to reopen be

deferred until Judge Korman decided the motion to amend the judgment.

       On September 18, 2002, the BIA denied Woldiger’s motion to reopen, concluding

that his motion pending before Judge Korman did not constitute “new material facts,” and

stating that “post-conviction motions or other forms of collateral attacks, not constituting

direct appeals, do not serve to negate the finality of the convictions or the charge of

removability, unless and until the conviction has been overturned . . . .” Woldiger timely

filed a petition for review of the BIA’s denial with this Court.

       Less than a month later, Judge Korman granted Woldiger’s motion and entered an

amended judgment. The amended judgment disavowed statements in the PSR indicating

that Woldiger was liable for $1.8 million, deleted the $1.5 million that had been imposed

as restitution, and stated that, at the time of sentencing, the Court “made no findings of

actual loss because the offense of conviction did not involve loss.”



                                              5
       Having prevailed in his efforts to amend the judgment in his criminal case,

Woldiger, on October 21, 2002, filed a second motion to reopen proceedings before the

BIA, or, in the alternative, to reconsider its denial of his first motion to reopen. On

November 8, 2002, the BIA denied the motion. As for the motion for reconsideration,

“the respondent has not demonstrated any error in our decision of September 18, 2002, on

the record then before us . . . .” The motion to reopen was denied because “it is an

impermissible multiple motion to reopen. See 8 C.F.R. § 3.2(c)(2) (2002) . . . .” Finally,

the BIA concluded that “respondent has not established that sua sponte reopening or

reconsideration is warranted for any reason.” W oldiger timely filed with this Court a

petition for review. The two petitions have been consolidated for purposes of appeal. Of

course, we cannot reach the merits – or lack thereof – of the petitions unless we have

jurisdiction. As the following discussion will conclude, we have jurisdiction and the

petitions will be denied.




                                     II. DISCUSSION

A. Jurisdiction

       Under 8 U.S.C. § 1252(a)(2)(C), courts of appeals lack jurisdiction to review a

final order of removal predicated on an alien’s conviction of certain listed criminal

offenses, including any “aggravated felony.” We have held, however, consistent with

other courts of appeals to have considered the issue, that we have jurisdiction to



                                              6
determine whether the jurisdictional bar applies. Patel v. Ashcroft, 

, 469 (3d

Cir. 2002); Drakes v. Zimski, 

, 247 (3d Cir. 2001). In this case, the

jurisdictional question is essentially indistinguishable from the key issue on the merits –

whether Woldiger’s conviction for obstruction of a federal audit was indeed an

aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(M )(I). See Patel , 294 F.3d at 469

(“The jurisdiction inquiry is, therefore, a back-door merits inquiry . . . .”).1 If it was, we

lack jurisdiction.

       An aggravated felony is “an offense that . . . involves fraud or deceit in which the

loss to the victim or victims exceeded $10,000.” 8 U.S.C. § 1101(a)(43)(M)(I). Because

Woldiger concedes that the statute under which he was convicted, 18 U.S.C. § 1516,

expressly incorporates fraud or deceit as an element, the question upon which our

jurisdiction hinges is whether, in light of the amended judgment, his offense of conviction

involved a loss to HUD of more than $10,000. We conclude that it did not.

       Woldiger argues that the amended judgment entirely eliminated the basis for the

IJ’s and BIA’s conclusion that his obstruction conviction involved the requisite loss.

Indeed, Judge Korman’s statement in the amended judgment that “[a]t the time of

   1
    We reject the government’s argument that, under the doctrine of issue or claim
preclusion, our May 15, 2002 order dismissing Woldiger’s first petition for review for
lack of jurisdiction precludes reconsideration of the aggravated felony issue. At the time
we issued that order, Judge Korman had not entered the amended judgment deleting
Woldiger’s $1.5 million restitution obligation. See In re Continental Airlines, 

, 233 (3d Cir. 2002) (claim preclusion bars reconsideration of the “very same claim”
decided in prior judgment, while issue preclusion bars “successive litigation of an issue of
fact or law actually litigated and resolved” in a prior proceeding (emphasis added)).

                                               7
sentence I made no findings of actual loss because the offense of conviction did not

involve loss” strongly suggests that Woldiger’s offense of conviction did not involve a

loss of more than $10,000, even if the other charged offenses which reflected the scheme

as a whole did (i.e. conspiracy, equity skimming, and misappropriation of federal funds).

The amended judgment also declined to adopt those portions of the PSR which found

restitution to be mandatory in Woldiger’s case, another way of stating that his offense of

conviction did not involve a pecuniary loss to an identifiable victim.

       In response, the government argues that, even after the amended judgment, we can

conclude that Woldiger’s offense of conviction involved a loss of more than $10,000,

specifically pointing to the indictment and to the Statement of Reasons in the amended

judgment. First, the government contends that Judge Korman, in the amended judgment,

continued to adopt the factual findings in the PSR that the total loss to the government

from the HUD scheme was $1.8 million, and that in each of seven years Woldiger

personally received misdirected HUD monies which totaled well in excess of $10,000.

Second, the government contends that the obstruction count expressly incorporated the

earlier allegations in the indictment that the Blackstone projects received in excess of

$10,000 each year from 1990 through 1997 and that Woldiger received $19,000 dollars

from a HUD project account. Finally, in a footnote, the government notes that even if the

amended judgment eliminated the original reference to a $1.5 million restitution

obligation, it still refers to Woldiger’s $900,000 payment in settlement of the civil



                                              8
forfeiture action as “restitution.”

       We must determine whether any or all of this may be considered when making the

aggravated felony determination. This Court, most other courts of appeals, and the BIA

itself have limited the evidence which may be considered in determining whether an

alien’s conviction is one of the listed removable offenses by applying the “categorical

approach” promulgated by the Supreme Court in Taylor v. United States, 

(1990). See Francis v. Reno, 

, 171-72 (3d Cir. 2001) (determining whether

misdemeanor conviction for vehicle homicide was aggravated felony); see also, e.g.,

Chang v. INS, 

, 1189 (9th Cir. 2002); Kuhall v. Reno, 

, 103 (2d

Cir. 2001); Emile v. INS, 

, 187 (1st Cir. 2001); Hernandez-Mancilla v. INS,

, 1005 (7th Cir. 2001); United States v. Zavala-Sustaita, 

, 603

(5th Cir. 2001); United States v. Reyes-Castro, 

, 379 (10th Cir. 1993); United

States v. Rodriguez, 

, 140-41 (8th Cir. 1992). While at least one court has

noted that “[o]ne could well argue that the Board [is] not obligated to apply Taylor in

construing the INA,” it nonetheless concluded that the BIA’s own citation “without

quibble” of Taylor’s categorical approach in several cases has established it as the

operative analysis for determining whether a prior conviction is a removable offense.

.

        The Supreme Court held in Taylor that in determining whether a defendant’s prior

conviction constitutes a “violent felony” for the purposes of the sentencing enhancements



                                             9
of the Armed Career Criminal Act (ACCA), courts must employ a “categorical

approach,” which “requires the trial court to look only to the fact of conviction and the

statutory definition of the prior offense” rather than examining the facts of the crime

underlying the conviction. 

; see also United States v. Jones, 

, 691-94 (3d Cir. 2003); United States v. Richardson, 

, 124-28 (3d.

Cir. 2002). The Court held, however, that “in a narrow range of cases,” where the

elements of the statute under which the defendant was convicted encompassed non-

violent as well as violent felonies, the trial court may consider the charging document or

jury instructions, but only to determine whether the jury must have found the elements of

a “violent felony” in order to convict the defendant. 

Along these lines, other

courts of appeals have considered charging documents, jury instructions, plea agreements,

and plea hearing transcripts to determine if a defendant’s prior conviction qualifies as a

“violent felony” under the ACCA. See, e.g., United States v. Palmer, 

, 59 (2d

Cir. 1995) (charging instrument and plea hearing transcript); United States v. Cook, 

, 509-10 (4th Cir. 1994) (charging instrument and jury instructions); United

States v. Mathis, 

, 409-10 (D.C. Cir. 1992) (indictment and jury

instructions); United States v. Kaplansky, 

, 324-25 (6th Cir. 1994) (charging

papers, jury instructions, and plea agreements).

       Aside from the dictates of precedent, the reasons stated by the Court in Taylor for

mandating the categorical approach (i.e., the ACCA’s use of the phrase “previous



                                             10
convictions” rather than “previous acts,” the practical difficulties and potential unfairness

of making factual findings on a contested evidentiary record, and potential due process

concerns, 

) also apply to the determination of whether an alien’s

conviction is an aggravated felony. See Kuhall v. Reno, 

, 103 (2d Cir. 2001)

(applying Taylor’s categorical approach because “INA § 237(a)(2)(C) refers to ‘[a]ny

alien who is . . . convicted’ of – not any alien who has committed” an aggravated felony,

and because “such an approach . . . enjoys the virtues of practicality and evenhanded

application, since examining the transcript of the plea colloquy (or the trial) to determine

the actual facts of the crime could prove burdensome and produce arbitrary results”).

       Applying Taylor’s categorical approach to Woldiger’s conviction for obstructing a

federal audit, it is a close question as to whether there is sufficient evidence, in light of

the amended judgment, to conclude that his offense of conviction resulted in a loss of

more than $10,000. We emphasize offense of conviction because the indictment, the

PSR, and W oldiger’s settlement of the civil forfeiture action for $900,000 leave little

doubt that the entire scheme perpetrated by Woldiger and his co-defendants caused a loss

to HUD well in excess of $10,000. The tricky question is exactly what loss, if any, is

attributable to the crime to which Woldiger pled guilty – obstruction of HUD’s audit – as

opposed to the loss attributable to the three charged offenses that were ultimately

dismissed, i.e. the conspiracy, the equity skimming, and the misappropriation counts. In

making this determination, we keep in mind Judge Korman’s explicit statement in the



                                              11
amended judgment that he made no findings concerning loss, and that loss was not a

factor in determining Woldiger’s criminal sentence.2

       For starters, the government’s reliance on the losses charged in the background

section of the indictment is misplaced. While Taylor itself contemplates that a court may

consider a charging instrument, it may only be considered for the purpose of determining

whether the finder of fact must have found the facts alleged in the indictment in order to

convict the defendant. Here, while the indictment alleges, for example, that Woldiger

personally received $19,000 from a project account, proof of this was not required before

Judge Korman could accept W oldiger’s guilty plea to obstructing a federal audit.3 This

conclusion distinguishes this case from the case relied upon by the government,

Khalayleh v. INS, 

, 980 (10th Cir. 2002), in which the Tenth Circuit held

that the defendant’s guilty plea to a single count of check fraud not only referred to the

$9,308 check cited in that count of the indictment, but to “a scheme to defraud that

encompassed a number of checks” and, therefore, his conviction constituted an


   2
     One could argue that the crime of obstructing a federal audit is not one that causes a
loss to the victim of a fraud, but is instead the independent act of concealing a loss that
results from the fraud. We are not aware of any federal case where there has been a
conviction solely on a charge of obstructing an audit in which a defendant was required to
pay restitution, or in which the court made a finding of loss (though convictions for
obstructing an audit or investigation without a corollary conviction for actual fraud seem
to be few and far between).
   3
     The government also cites the statement in paragraph four of the indictment that the
Blackstone projects received $52 million in federal funds from 1990 through 1997. But
there is no allegation that this caused any particular loss, let alone a loss that had to have
been found for Woldiger to be convicted on Count Four.

                                              12
aggravated felony rendering the defendant removable. A guilty plea to obstruction of an

audit is not, of course, the equivalent of a guilty plea to the fraud itself. There is no

evidence in this record that W oldiger pled guilty to more than a barebones obstruction.

       The government’s reliance on the factual findings in the PSR arguably presents a

more difficult question, but is similarly unavailing under the categorical approach. While

the PSR unquestionably recites a number of facts which show that the loss to the

government from Woldiger’s scheme with his co-defendants was greater than $10,000,

and the amended judgment conclusorily “adopts” many of those facts, it is impossible to

tell from the PSR what loss, if any, is attributable to the only crime to which Woldiger

pled guilty. Moreover, as noted earlier, Judge Korman expressly stated in the amended

judgment that the offense did not involve loss, and specifically refused to adopt the PSR’s

suggestion that restitution was mandatory. In short, none of the loss findings detailed in

the PSR were tried in court, admitted by Woldiger, or even the subject of findings by the

District Court, rendering any finding of loss insufficiently reliable under the categorical

approach. Cf. United States v. Franklin, 

, 1172 (9th Cir. 2000) (PSR

insufficient under categorical inquiry in ACCA case because did not allow sentencing

court to “know[] what a jury actually found or what [the defendant] actually admitted in a

plea”); United States v. Brandon, 

, 194 (4th Cir. 2001) (“[L]ooking to the

presentence report to determine the amount of cocaine . . . might well exceed the inquiry

authorized by the Supreme Court in Taylor.”); United States v. Bull, 

, 1223



                                              13
(10th Cir. 1999) (“in determining that the conviction was a violent felony [for sentencing

enhancement] the district court . . . erroneously relied on the presentence report”).

       One Ninth Circuit case held that the BIA may consider the uncontested factual

findings in a PSR in determining whether an alien’s conviction is an aggravated felony.

See Abreu-Reyes, 

, 1032 (9th Cir. 2002). Abreu-Reyes, however, failed to

even mention Taylor, let alone determine whether consideration of the PSR was

permissible under the categorical approach. Abreu-Reyes was also distinguished in a

subsequent Ninth Circuit case, Chang v. INS, 

, 1192 (9th Cir. 2002). In

Chang, the Ninth Circuit held that the BIA could not rely on the PSR’s factual findings

that the total loss caused by the defendant’s bank fraud was greater than $10,000 where

such findings were expressly contradicted by the plea agreement’s express provision that

the loss amount for purposes of the defendant’s guilty plea was $605.30. 

While Woldiger’s plea agreement is not part of the record before us, the PSR’s loss

findings, if limited to the offense of conviction, could similarly contradict Judge

Korman’s statement in the amended judgment that that offense “did not involve loss.”

       Finally, we reject the government’s contention that the reference in the amended

judgment to Woldiger’s agreement to pay $900,000 in settlement of his civil forfeiture

case as “restitution” will carry the day. The settlement agreement does not indicate what

losses to the government were attributable to the obstruction conviction, what losses were

caused by the scheme generally or what part of the $900,000 was attributable to each.



                                             14
       In sum, nothing proffered by the government as establishing that Woldiger’s

offense of conviction involved a $10,000 loss satisfies the limited inquiry allowed by

Taylor. That conviction, therefore, is not for an aggravated felony as defined by 8 U.S.C.

§ 1101(a)(43)(M)(I), and we have jurisdiction over his consolidated petitions for review.

       B.     The BIA’s Denial of Woldiger’s Motions to Reopen and for
              Reconsideration

       The strict statutory and regulatory limitations on motions to reopen before the BIA

govern our inquiry. 8 U.S.C. § 1229a(c)(6) provides that an alien may file one motion to

reopen deportation proceedings, which, unless it concerns certain asylum applications,

must be filed within 90 days of the entry of a final administrative order of removal. The

applicable regulation reiterates these limitations. See 8 C.F.R. § 1003.2(c)(2). Motions

for reconsideration are similarly subject to strict limitations and “must be filed with the

Board within 30 days after the mailing of the Board decision . . . [and a] party may only

file one motion to reconsider any given decision.” 8 C.F.R. § 1003.2(b)(2). The “Board

may at any time reopen or reconsider on its own motion any case in which it had rendered

a decision. . . . The decision to grant or deny a motion to reopen or reconsider is within

the discretion of the Board . . . [and] [t]he Board has discretion to deny a motion to

reopen even if the party moving has made out a prima facie case for relief.” 8 C.F.R. §

1003.2(a). We review the decision of the BIA for abuse of discretion. Sevoian v.

Ashcroft, 

, 170 (3d Cir. 2002).

       Under these statutes and regulations, the BIA did not abuse its discretion when it

                                             15
denied Woldiger’s first motion to reopen. Woldiger had only moved to amend the

judgment in his criminal case a day earlier and, not surprisingly, Judge Korman had not

yet acted on it. Moreover, a month before that, we had dismissed the very first petition

for review for lack of jurisdiction. To require the BIA to grant a motion to reopen every

time a convicted alien makes a post-trial motion or other collateral attack challenging his

conviction or sentence would, among other things, encourage frivolous motions designed

only to delay an alien’s inevitable removal.

       Similarly, the BIA did not abuse its discretion in denying Woldiger’s second

motion to reopen, or, in the alternative, reconsidering the denial of his first motion, and it

did not abuse its discretion in applying the procedural bar on successive motions to

reopen. First, with reference to the request for reconsideration, the BIA correctly held

that its denial of Wolidger’s first motion to reopen was proper on the record then before

it. The BIA has held, and courts of appeals have recognized, that under the regulatory

language, a motion for reconsideration cannot be based on new evidence, such as the

amended judgment here, but only upon new arguments concerning the existing record.

See Iturribarria v. INS, 

, 895 (9th Cir. 2003) (“Under the plain language of

[the former similar regulation] a motion to reconsider challenges determinations of law

and fact made by the BIA . . . using the same record evidence used in making its prior

decision.”); Matter of Cerna, 20 I.&N. Dec. 399 (BIA 1991) (same).

       The BIA’s conclusion that Woldiger’s second motion to reopen was barred by the



                                               16
one-motion limitation is equally unassailable. Both 8 U.S.C. § 1229a(c)(6) and 8 C.F.R.

§ 1003.2(c)(2) expressly limit aliens to one motion to reopen removal proceedings, which

must be filed within 90 days of the BIA’s final order.4

       Finally, presumably in recognition of the fact that he is between the proverbial

rock and a hard place, Woldiger argues that the BIA abused its discretion in refusing to

reopen the proceedings sua sponte, even if his second motion to reopen was barred by the

numerical limitation. We have held, however, that we do not have jurisdiction to review

the BIA’s discretionary refusal to reopen a case sua sponte. Calle-Vujiles v. Ashcroft,

, 474 (3d Cir. 2003). While we recognized that “there is a strong

presumption that Congress intends judicial review of administrative action,” we also

observed that “review is not available in those rare circumstances where the relevant

statute is so drafted that a court would have no meaningful standard against which to

judge the agency’s exercise of discretion.” 

C.F.R. § 1003.2(a) grants the

BIA precisely such unfettered discretion over whether to grant a sua sponte reopening, its

refusal to exercise this authority is unreviewable. 

see also In re J- J-, 21 I.&N.

Dec. 976 (BIA 1997) (“the power to reopen on our own motion is not meant to be used as

a general cur for filing defects or to otherwise circumvent the regulations, where

enforcing them might result in hardship.”).



   4
   The only established exception to the bar seems to be in cases where the first motion
was the result of deception or fraud by the alien’s counsel or purported counsel, see
Varela v. INS, 

(9th Cir. 2000), which is not the case here.

                                              17
The petitions for review will be denied.




                                           /s/ Maryanne Trump Barry

                                           Circuit Judge




                                     18