10-927-ag (L); 10-4397-ag (Con)
    Chhabra v. Holder
                                                                                   BIA
                                                                                Hom, IJ
                                                                          A035 450 508
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 10th day of November, two thousand eleven.

    PRESENT:
             JON O. NEWMAN,
             ROBERT A. KATZMANN,
             DENNY CHIN,
                 Circuit Judges.
    _______________________________________

    VIJAY K. CHHABRA,
             Petitioner,

                        v.                                 10-927-ag (L);
                                                           10-4391-ag (Con)
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:                    Thomas E. Moseley, Newark, N.J.

    FOR RESPONDENT:                    Tony West, Assistant Attorney
                                       General; Terri J. Scadron, Assistant
                                       Director; Kathryn L. Deangelis,
                                       Trial Attorney, Office of
                                       Immigration Litigation, United
                                       States Department of Justice,
                                       Washington, DC
    UPON DUE CONSIDERATION of these petitions for review of

Board of Immigration Appeals (“BIA”) decisions, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petitions for review

are DENIED.

    Vijay K. Chhabra (“Chhabra”), a native and citizen of

India, seeks review of a March 9, 2010 decision of the BIA

affirming the August 26, 2008 decision of Immigration Judge

(“IJ”) Sandy K. Hom, which found Chhabra removable as

charged and denied his application for cancellation of

removal.   In re Vijay Kumar Chhabra, No. A035 450 508

(B.I.A. Mar. 9, 2010), aff’g No. A035 450 508 (Immig. Ct.

N.Y. City Aug. 26, 2008).   Chhabra additionally seeks review

of a September 29, 2010 decision of the BIA denying his

motion to reopen.   In re Vijay Kumar Chhabra, No. A035 450

508 (B.I.A. Sept. 29, 2010).   We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Under the circumstances of this case, we review the

IJ’s decision as supplemented by the BIA.     See Yan Chen v.

Gonzales, 

, 271 (2d Cir. 2005).    The applicable

standards of review are well-established.     See Mendez v.

Mukasey, 

, 346-47 (2d Cir. 2008); Kaur v. BIA,

                               2


, 233 (2d Cir. 2005) (per curiam).

I.   Crime Involving Moral Turpitude

     Although federal courts are without jurisdiction to

review a final order of removal against an alien “who is

removable by reason of having committed” a crime involving

moral turpitude, 8 U.S.C. § 1252(a)(2)(C), we retain

jurisdiction to review questions of law, including whether

an underlying conviction constitutes a crime involving moral

turpitude, and review such questions of law de novo.     See

8 U.S.C. § 1252(a)(2)(D); 

.

     The BIA has defined moral turpitude generally to

encompass “conduct that shocks the public conscience as

being inherently base, vile, or depraved, and contrary to

the accepted rules of morality and the duties owed between

persons or to society in general.”     Rodriguez v. Gonzales,

, 63 (2d Cir. 2006) (per curiam) (quoting Hamdan

v. INS, 

, 186 (5th Cir. 1996) (citations

omitted)).   “[C]rimes in which fraud was an ingredient have

always been regarded as involving moral turpitude.”     Jordan

v. De George, 

, 232 (1951).

     Chhabra argues that his conviction is not a crime

involving moral turpitude because intentional fraud is not


                              3
an element of the statute.     The statute, however, does

require willful evasion of income tax, see 26 U.S.C. § 7201,

and willful evasion of income tax includes a specific intent

to defraud.      Costello v. INS, 

, 348 (2d Cir.

1962) (“There can be no ‘wilful’ evasion without a specific

intent to defraud.”), rev’d on other grounds by Costello v.

INS, 

(1964); see also Carty v. Ashcroft, 

, 1085 (9th Cir. 2005) (federal tax statutes with

an “intent to evade” element, and no specific fraud

requirement, have still been interpreted as requiring an

intent to defraud).     Consequently, we find no error in the

agency’s determination that Chhabra was convicted of a crime

of moral turpitude.

II.   Aggravated Felony

      Chhabra also argues that he is eligible for

cancellation of removal because his tax evasion conviction

did not constitute an aggravated felony.     The agency found

that Chhabra committed an aggravated felony under INA

§ 101(a)(43)(M)(ii), 8 U.S.C. § 1101 (a)(43)(M)(ii), because

he was convicted of an offense described in 26 U.S.C. § 7201

in which the revenue loss to the government exceeded

$10,000.   

jurisdiction to review whether an


                                 4
alien is statutorily eligible for relief, see Sepulveda v.

Gonzales, 

, 62-63 (2d Cir. 2005), and whether a

conviction constitutes an aggravated felony.    See Vargas-

Sarmiento v. U.S. Dep’t of Justice, 

, 164 (2d

Cir. 2006).   We also have jurisdiction to review the

agency’s fact-finding used to determine whether a particular

conviction constitutes an aggravated felony.    See Ljutica v.

Holder, 

, 125-26 (2d Cir. 2009) (reviewing

agency fact-finding as to whether a conviction resulted in a

loss greater than $10,000 to ascertain whether the

conviction constituted an aggravated felony).

    For the purpose of determining whether an amount of

loss in a conviction exceeds $10,000 as required under INA

§ 101(a)(43)(M), 8 U.S.C. § 1101(43)(M)(I), we consider the

specific circumstances surrounding the commission of the

crime, rather than taking a categorical or modified

categorical approach.   See Nijhawan v. Holder, 

, 2302 (2009).   Chhabra pled guilty to tax evasion in

violation of 26 U.S.C. § 7201, but he challenges the

agency’s determination that the revenue loss associated with

this conviction exceeded $10,000 since his plea did not

specify any tax deficiency amount.

    This argument lacks merit.    The charge against Chhabra,
                              5
the plea colloquy, and the guilty plea itself all clearly

indicate that the amount of revenue loss to the United

States government exceeded $42,000.    Thus, when looking at

the specific circumstances surrounding the commission of

Chhabra’s crime, the record shows that he admitted, and pled

guilty, to tax evasion with a revenue loss to the United

States which exceeded $10,000.    Consequently, the agency did

not err in finding that Chhabra’s conviction constituted an

aggravated felony under INA § 101(a)(43)(M)(ii), 8 U.S.C. §

(a)(43)(M)(ii), and pretermitting his application for

cancellation of removal.

    Next, Chhabra argues that Nijhawan, 

,

and Carchuri-Rosendo v. Holder, 

(2010),

which were issued after he filed his appeal with the BIA,

changed the way the amount of loss involved should be

calculated and that, as a result, the agency incorrectly

calculated the loss.   In Carachuri-Rosendo, the Supreme

Court indicated, in dicta, while discussing the holding of

Nijhawan, that once an alien has been convicted, the

circumstance specific approach should then be employed to

calculate the amount of loss suffered by the victim.     130 S.

Ct. at 2586 n.11 (2010).   This Court held in Puello v. BCIS,

(2d Cir. 2007), that conviction occurs when
                              6
judgment is entered.    Attempting to combine the holdings of

these cases, Chhabra contends that the agency failed to

employ a circumstance specific approach at the time judgment

was entered because, at that point, he had already paid his

tax deficiency and there was no outstanding tax revenue

loss.

    This argument also fails.       Chhabra misinterprets

Carachuri-Rosendo, which simply indicates that there must

first be a conviction for fraud or tax evasion before an

inquiry can be made into the amount of loss involved in that

conviction, not that the payment of restitution or of the

tax deficiency should be considered when determining the

amount of loss.     See 

n.11; 

(when considering an

aggravated felony under INA § 101(a)(43)M)(I), holding that

the “amount of actual loss . . . is irrelevant - all that

matters is the intended loss”).      After Chhabra pled guilty

to violating 26 U.S.C. § 7201, the agency looked at the

specific circumstances of his conviction to determine that

the loss exceeded $10,000.    Consequently, Chhabra’s argument

that the agency erred in its calculation is without merit,

and the BIA did not abuse its discretion in denying his

motion to reopen.     See 

.

                                7
    For the foregoing reasons, the petitions for review are

DENIED.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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