BIA HOLDS THAT THE AMOUNT OF FORFEITURE ORDERED IN A CRIMINAL PROCEEDING MAY BE CONSIDERED IN DETERMINING WHETHER A CRIME OF FRAUD OR DECEIT RESULTED IN A LOSS TO A VICTIM OR VICTIMS EXCEEDING $10,000, PER INA §101(a)(43)(M)(i), IF THE AMOUNT SET FORTH IN THE ORDER IS SUFFICIENTLY TETHERED AND TRACEABLE TO THE CONDUCT OF CONVICTION.
On February 3, 2022, the Board of Immigration Appeals (BIA or Board), in a fairly lengthy and convoluted decision, dismissed a respondent’s appeal and denied his motion to remand after the Immigration Judge (IJ) denied both Respondent’s motion to terminate proceedings and his applications for asylum, withholding of removal and CAT relief. Respondent had appealed that decision and moved for remand. The BIA requested supplemental briefs regarding removability from both parties.
Respondent, a lawful permanent resident, was involved in a multi-million dollar conspiracy to defraud cellphone users and pled guilty to conspiracy to commit wire fraud in violation of 18 U.S.C. §§1343 and 1349. DHS placed him into proceedings, charging him with removability per INA §237(a)(2)(A)(iii) as one convicted of an aggravated felony involving fraud or deceit under INA §101(a)(430(M)(i) and lodged an additional charge under the same provision, charging Respondent with having been convicted of an aggravated felony attempt or conspiracy offense under INA §101(a)(43)(U); the Government also submitted an additional factual allegation: that Respondent was ordered to pay forfeiture traceable to his criminal offense in the amount of $346,717.08
Respondent denied all charges and 2 of the factual allegations of the NTA regarding the amount of restitution and/or forfeiture he was ordered to pay traceable to his offense. The IJ found him removable as charged and concluded that his conviction was one for a particularly serious crime that barred him from applying for the above-referenced relief; the IJ also found that Respondent had not met his burden of establishing eligibility for deferral of removal under CAT.
Initially, addressing removability, the Board first noted that DHS has the burden of proving by “clear and convincing evidence” that Respondent is removable as charged as one convicted of an aggravated felony; INA §101(a)(43)(M)(i) defines the specific crime as “as an offense that…involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” As the parties did not dispute that Respondent’s conviction involved fraud or deceit, concluded the decision, “the only remaining issue is whether his conviction resulted in a loss to his victim or victims exceeding $10,000.” Whether the offense is thus an aggravated felony would be reviewed by the BIA under a de novo standard.
To determine if the loss exceeded $10,000, stated the opinion, a “circumstance-specific” approach is applied, requiring the Board to look at the facts and circumstances underlying the conviction. It was further noted that recent case law from the Ninth Circuit Court of Appeals, in whose jurisdiction this matter arises, does not limit the adjudicating body to a specific set of documents, but rather allows it to consider “any admissible evidence” to determine the loss amount. Additionally, the BIA explained, it is well-established that an order of restitution may be relied upon to determine if the loss to the victim was greater than $10,000, as long as that order “is sufficiently tethered to the convicted conduct and shows the actual loss from the offense of conviction.”
The decision next concluded that the amount of forfeiture, like the amount of restitution, may be considered in determining the amount of loss under §101(a)(43)(M)(i), “if the proceeds received are sufficiently tethered and traceable to the conduct of conviction.” As such, DHS could meet its burden of proving a loss of over $10,000 to the victims of an offense involving fraud or deceit by showing that a respondent was subject to criminal forfeiture for such an amount and that the forfeiture was sufficiently related to the conviction. According to both the amended judgment and a letter from a Federal prosecutor, Respondent was ordered to pay a forfeiture amount of $346,717.08, traceable to his criminal conduct in conspiring to defraud cell phone users. Also, found the BIA, other evidence supports the IJ’s conclusion that Respondent’s conviction resulted in a loss to the victims greater than $10,000.
Respondent, however, argued that the Board could not consider the forfeiture amount as an indication of the loss to his victims because the forfeiture order incorrectly listed legitimate funds, including money he was given as advance payments during a time in which he claimed he believed the scheme was legal; Respondent also contended that he invested some of his own money into his company, which was wrongly included in the forfeiture calculation. However, during the sentencing hearing, the prosecutor argued Respondent should be ordered to pay $600,000 in forfeiture, as the amount he actually received. Respondent’s defense attorney countered that the amount traceable to his criminal actions was $346,000 minus $150,000 that went to a coconspirator. As such, stated the BIA, Respondent’s own counsel asserted that the correct forfeiture amount “which reflects the tainted money gained by the respondent” was $236,000. Thus, even his own lawyer agreed that Respondent received at least $236,000 in fraudulent payments from his victims, “an amount well in excess of $10,000.” Because the IJ’s findings were not clearly erroneous, the opinion agreed that the DHS had met its burden of proving the $10,000 loss requirement of §101(a)(43)(M)(i).
Further, Respondent claimed that the Board could not rely on the forfeiture amount because the victims of his crimes were never identified. However, the decision pointed out, §101(a)(43)(M)(i) merely requires a “loss to the victim or victims,” i.e., their exact identities need not be known. Respondent failed to cite “any authority establishing that victim identification is an element of section 101(a)(43)(M)(i).” DHS had met its burden by clear and convincing evidence. The BIA also agreed that Respondent’s conviction under §§1343 and 1349 constituted an aggravated felony per INA §101(a)(43)(U). DHS had established that Respondent was convicted of generic conspiracy per §101(a)(43)(U) because of his conviction for Federal conspiracy under §1349. Further noted the opinion, “there is no dispute that the offense underlying this conspiracy involved ‘fraud or deceit’ within the meaning of” §101(a)(43)(M)(i). Lastly, it is clear from the record that the potential loss to the victims exceeded $10,000. The IJ’s holding that Respondent was removable as charged was affirmed.
Next, in discussing Respondent’s applications for relief and protection from removal, the Board stated its agreement with the IJ that the instant conviction for conspiracy to commit wire fraud “constitutes a particularly serious crime barring asylum and withholding of removal under the Act” and CAT. However, because Respondent was not sentenced to an aggregate term of imprisonment of at least 5 years, his aggravated felony conviction was not automatically one for a particularly serious crime for purposes of withholding of removal. Yet the nature of the conviction involved attempting or conspiring to obtain money or property through fraud, which brought it “within the ambit of a particularly serious crime.” As a result, the BIA could consider “all reliable information” in determining whether Respondent’s crime was particularly serious.
It was next noted that the IJ had considered Respondent’s intentional involvement in the criminal enterprise, the amount he received from the scheme, and the length of his sentence to imprisonment. Considering the totality of these circumstances, the Board voiced its agreement with the IJ that Respondent had been convicted of a particularly serious crime.
On appeal, Respondent claimed that he believed the business was legitimate at first, but he had pled guilty to willfully and knowingly conspiring to defraud others. This plea, concluded the BIA, was sufficient to constitute an admission “that he knew he was defrauding his victims”; it remained unpersuaded that he was unaware of the illegality of the venture. Again, Respondent argued that the seriousness of the crime was diminished because specific victims could not be identified but the decision found that “a crime need not have an identifiable victim to be particularly serious.” Also, it noted, the judge at Respondent’s sentencing hearing “emphasized” that his actions had harmed 10 or more real people.
Similarly, the Board found unavailing the argument that Respondent’s conviction was not serious because he was not been involved in the scheme for as long as his coconspirators; regardless, he had obtained $346,717.08 unlawfully from a scam. As the opinion, considering the nature and seriousness of the crime and the scope of the harm caused, agreed with the IJ that this conviction was for a particularly serious crime, Respondent was held to be ineligible for asylum, withholding of removal, and under CAT.
Regarding the CAT claim, Respondent, a native and citizen of Ghana, had testified that Ghanian police has questioned his brother regarding his anti-government manifesto and his monetary assets and extorted his brother for money. However, he did not contest the IJ’s conclusion that he did not experience past torture in Ghana. The BIA also discerned no clear error in the IJ’s finding that Respondent could avoid torture by relocating within Ghana. Additionally, the decision agreed with the IJ that, even if Respondent was returned home and harmed there, “the harm he would likely suffer would not amount to torture.” Because the evidence did not support the claim that it is more likely than not that Respondent would be tortured in Ghana with the acquiescence of an official or an individual acting in an official capacity, the IJ correctly found that Respondent did not meet his burden for establishing eligibility for CAT protection.
The remaining due process and ineffective assistance of counsel issues raised on appeal by Respondent were dismissed or found unavailing by the Board. The motion for remand was denied and the appeal dismissed. Matter of F-R-A- 28 I&N Dec. 460 (BIA 2022).
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