Filed: Nov. 23, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 09-13722 NOVEMBER 23, 2010 Non-Argument Calendar JOHN LEY _ CLERK Agency No. A075-932-717 ADEKOYEJO ADEOYE, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (November 23, 2010) Before EDMONDSON, BLACK, and PRYOR, Circuit Judges. PER CURIAM: Petitioner Adekoyejo Adeoye, a native and citize
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 09-13722 NOVEMBER 23, 2010 Non-Argument Calendar JOHN LEY _ CLERK Agency No. A075-932-717 ADEKOYEJO ADEOYE, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (November 23, 2010) Before EDMONDSON, BLACK, and PRYOR, Circuit Judges. PER CURIAM: Petitioner Adekoyejo Adeoye, a native and citizen..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-13722
NOVEMBER 23, 2010
Non-Argument Calendar
JOHN LEY
________________________ CLERK
Agency No. A075-932-717
ADEKOYEJO ADEOYE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 23, 2010)
Before EDMONDSON, BLACK, and PRYOR, Circuit Judges.
PER CURIAM:
Petitioner Adekoyejo Adeoye, a native and citizen of the United Kingdom
proceeding pro se, petitions for review of the final order by the Board of
Immigration Appeals (“BIA”) concluding that Petitioner was removable for having
been convicted of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii) and
that he was ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h). No
reversible error has been shown; we deny the petition.
Petitioner, who had lawful permanent resident status, was convicted of
conspiracy to commit bank fraud, 18 U.S.C. § 1344. According to the criminal
information, Petitioner attempted to cash two improperly obtained checks, totaling
$408,000; but his efforts were unsuccessful. His offense resulted in no actual
monetary loss to the bank. The BIA concluded that the conviction qualified as an
aggravated felony under 8 U.S.C. § 1101(a)(43)(U) (“subsection (U)),” as it related
to 8 U.S.C. § 1101(a)(43)(M) (“subsection (M)”), because the conviction involved
an attempt to deprive the victim of more than $10,000. The BIA determined that a
conviction under subsection (U) required proof of only potential, and not actual,
losses.
2
We first address the government’s motion to dismiss the appeal, in part, for
lack of jurisdiction. While we lack jurisdiction over final removal orders against
aliens who are removable for committing certain criminal offenses, we do have
jurisdiction over questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D). And
whether a petitioner’s conviction constitutes an aggravated felony -- the issue
Petitioner raises in this appeal -- is a question of law that falls within our
jurisdiction. Balogun v. U.S. Attorney Gen., 425 F.3d 1356, 1360 (11th Cir.
2005). So we deny the government’s motion.
On appeal, Petitioner argues that his conviction does not constitute an
aggravated felony because he was convicted of substantive bank fraud (not
conspiracy or attempt), which required an actual loss under subsection (M). He
also contends that, even if his conviction did constitute an attempt under subsection
(U), an actual loss still was required.
We review the BIA’s interpretation of a statute de novo, but we defer to the
BIA’s interpretation “if it is reasonable and does not contradict the clear intent of
Congress.” Jaggernauth v. U.S. Attorney Gen., 432 F.3d 1346, 1350 (11th Cir.
2005). The BIA’s determination that an alien is removable must be supported by
“clear, unequivocal, and convincing evidence that the facts alleged as grounds for
3
deportation are true.” See Woodby v. INS, 87 S. Ct. 483, 488 (1966); 8 U.S.C. §
1229a(c)(3)(A).
Subsections (M) and (U) define the term “aggravated felony” to include:
(M) an offense that
(i) involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000; . . . [and]
(U) an attempt or conspiracy to commit an offense described in
this paragraph.
8 U.S.C. § 1101(a)(43)(M), (U).1
We conclude that the BIA committed no error in determining that
Petitioner’s conviction constituted an aggravated felony. Petitioner notes correctly
that he was not convicted of conspiracy pursuant to 18 U.S.C. § 371; but his
conviction still qualified as an “attempt or conspiracy” for purposes of subsection
(U). The judgment indicated that Petitioner was adjudged guilty of conspiracy to
commit bank fraud, in violation of section 1344. The information to which he
pleaded guilty charged him with “knowingly and intentionally conspir[ing] to
execute a scheme and artifice to defraud a financial institution.” And the statute of
conviction encompassed both bank fraud and “attempts to execute” bank fraud.
1
Petitioner argues that it is unclear under which subsection the BIA found him
removable. That the BIA concluded Petitioner’s conviction qualified as an aggravated felony as
defined in subsection (U), not (M), is clear from its order. But because subsection (U)
encompassed “an attempt or conspiracy to commit” an offense listed in section 1101(a)(43), the
BIA necessarily discussed the offense in conjunction with subsection (M), which described the
underlying offense.
4
See 18 U.S.C. § 1344. Therefore, because Petitioner’s crime was described as a
conspiracy, and he was convicted under a statute that included attempt, the BIA
reasonably concluded that the conviction constituted “an attempt or conspiracy to
commit an offense” under subsection (U).
That an intended loss suffices for purposes of an attempted-fraud offense is
plain from reading subsections (M) and (U) together. The phrase “attempt or
conspiracy to commit” in subsection (U) modifies the entire description of the
other offenses listed in that section. So, subsection (U), read in conjunction with
subsection (M), refers to “an attempt or conspiracy to commit an offense” that, if
successful, would “involve[] fraud or deceit in which the loss to the victim or
victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M), (U). A contrary conclusion
would mean, as in this case, that an unsuccessful attempt to commit fraud in excess
of $10,000 would never constitute an aggravated felony so long as there was no
actual loss. This reading would render subsection (U) meaningless when fraud is
the underlying offense, violating the well-established principle of avoiding
statutory interpretations that render portions of the statute meaningless. See Huff
v. DeKalb County, 516 F.3d 1273, 1280 (11th Cir. 2008) (explaining that statutes
should be read as a “consistent whole”).2
2
This reading of the statute also comports with the BIA’s interpretation that subsection
(U) requires only an intended loss. See In re: Onyido, 22 I. & N. Dec. 552, 554-55 (1999)
5
Here, the information showed that Petitioner attempted to cash checks well
in excess of the requisite $10,000. And contrary to Petitioner’s argument, the BIA
was not barred from considering the information in determining whether the loss
amount exceeded $10,000. See Nijhawan v. Holder, 129 S. Ct. 2294, 2298 (2009)
(concluding that the $10,000 amount in subsection (M) refers not to a statutory
element of the underlying crime of fraud or deceit, but instead, “to the particular
circumstances in which an offender committed a (more broadly defined) fraud or
deceit crime on a particular occasion”). Where there is a guilty plea, as in this
case, the BIA is not limited to considering the written plea documents and the plea
colloquy in determining the amount of loss under subsection (M).
Id. at 2302-03.
Because Petitioner’s conviction constituted an attempt or conspiracy to
commit an offense involving fraud that had an intended loss exceeding $10,000,
the BIA did not err in concluding that the conviction constituted an aggravated
felony under subsection (U). Petitioner’s argument that he is eligible for a waiver
of inadmissibility hinges on his argument that he was not convicted of an
(subsection (U) does not require an actual loss exceeding $10,000 because a conviction for
attempt naturally “involves an unsuccessful effort to commit a crime”). And we must defer to
the BIA’s interpretation as long as it is reasonable and does not contradict Congress’s clear
intent. Jaggernauth, 432 F.3d at 1350.
6
aggravated felony. Because Petitioner was convicted of an aggravated felony, he is
precluded from receiving a waiver of inadmissibility. See 8 U.S.C. § 1182(h).3
PETITION DENIED, MOTION DENIED.
3
The BIA also determined that Petitioner was removable because his conviction
constituted a crime of moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(i). On appeal, Petitioner does
not contest this determination. A conviction for a crime of moral turpitude does not
automatically preclude a waiver of inadmissibility; but Petitioner’s conviction for an aggravated
felony does.
7
