Filed: Mar. 18, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 3-18-2009 Iecho v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 08-1520 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Iecho v. Atty Gen USA" (2009). 2009 Decisions. Paper 1729. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1729 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 3-18-2009 Iecho v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 08-1520 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Iecho v. Atty Gen USA" (2009). 2009 Decisions. Paper 1729. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1729 This decision is brought to you for free and open access by the Opinions of ..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-18-2009
Iecho v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1520
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Iecho v. Atty Gen USA" (2009). 2009 Decisions. Paper 1729.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1729
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1520
___________
ODICHO NARSA IECHO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A40-124-164)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 28, 2009
Before: MCKEE, NYGAARD, and ROTH, Circuit Judges
(Opinion filed: March 18, 2009)
___________
OPINION
___________
PER CURIAM
Odicho Narsa Iecho, a native of Syria, was admitted to the United States as a
lawful permanent resident in 1986. In September 2006, Iecho was charged as removable
as an aggravated felon and for having committed two crimes involving moral turpitude.
The IJ dismissed the aggravated felony charge and granted cancellation of removal. The
government appealed. In April 2007, the BIA concluded that Iecho was an aggravated
felon and sustained the appeal. It reinstated the removal proceedings and remanded the
proceedings to the IJ. The IJ then denied Iecho’s request for withholding of removal but
granted relief under the Convention Against Torture. The BIA vacated the IJ’s decision
and ordered Iecho removed. Iecho then filed a timely petition for review.
Iecho argues that he has not been convicted of an aggravated felony. In August
2005, Iecho pleaded guilty to one count of trafficking in unauthorized access devices
(stolen credit card numbers). Two counts of possessing fifteen or more unauthorized
access devices were dismissed. In his plea agreement, Iecho agreed that the appropriate
loss amount for each of the 557 stolen credit cards involved was $100 for a total of
$55,700.
We have jurisdiction to consider whether Iecho is an aggravated felon and exercise
plenary review over the BIA’s conclusion. Garcia v. Attorney General,
462 F.3d 287,
290-91 (3d Cir. 2006). The term “aggravated felony” includes an offense that “involves
fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U.S.C. §
1101(a)(43)(M)(i). Because this subsection specifies a mandatory loss amount, we may
depart from the usual categorical approach and look at the indictment, plea, verdict, and
sentence. Alaka v. Attorney General,
456 F.3d 88, 105-06 (3d Cir. 2006).
In Alaka, the petitioner pleaded guilty to one count of bank fraud which involved a
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loss of $4,000. The sentencing court included the loss amount from two dismissed
charges to find the intended loss to be $47,969. We determined that the loss tied to the
dismissed charges was improperly considered in the analysis of whether Alaka’s
conviction was an aggravated felony.
Id. at 105. Iecho, relying upon the following
statement from Alaka, argues that the loss amount for sentencing purposes should not be
used as the loss amount for the purposes of 8 U.S.C. § 1101(a)(43)(M)(i).
Allowing the loss calculated for sentencing purposes to supersede the amount
designated in the plea agreement ‘would divorce the $10,000 loss requirement
from the conviction requirement, [citing 8 U.S.C. § 1227(a)(2)(A)(iii) ], because
relevant conduct for sentencing purposes need not be admitted, charged in the
indictment, or proven to a jury.’
Alaka, 456 F.3d at 108 (citation omitted). Here, however, Iecho admitted in the plea
agreement that $55,700 was the loss involved. In Alaka, we stated that the plea
agreement controlled the analysis. “In other words, because it is the plea agreement that
establishes the offense for which the defendant will be convicted, it is to that agreement,
and not the indictment or the sentence, that we look in determining the intended loss.”
Id.
at 107. Here, the plea agreement establishes that the loss was over the $10,000
requirement. Thus, we agree with the BIA that Iecho is an aggravated felon.
Because Iecho is an aggravated felon, our review of the BIA’s denial of relief
under the CAT is limited to constitutional claims or questions of law. 8 U.S.C. §
1252(a)(2)(C). While he argues that the BIA erred as a matter of law in denying relief
under the CAT, Iecho does not raise any constitutional claims or questions of law with
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respect to that issue. His arguments challenging the BIA’s acceptance of the
government’s first appeal are without merit.
For the above reasons, we will deny the petition for review.
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