Dieudlet Jean-Louis v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12082
Non-Argument Calendar
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Agency No. A055-745-117
DIEUDLET JEAN-LOUIS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 9, 2021)
Before MARTIN, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
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Dieudlet Jean-Louis, a native and citizen of Haiti, seeks review of the Board
of Immigration Appeals’ (“BIA”) order, affirming the Immigration Judge’s (“IJ”)
final order of removal. He argues that the BIA erred in determining that his
conviction for access device fraud conspiracy, in violation of 18 U.S.C.
§ 1029(b)(2), qualified as an “aggravated felony,” pursuant to Immigration and
Nationality Act (“INA”) § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). He
argues that the BIA failed to apply a circumstance-specific approach, as required
by Nijhawan v. Holder, 557 U.S. 29 (2009), to determine that his offense resulted
in a loss in excess of $10,000, as required to constitute an “aggravated felony”
under the INA. Specifically, he argues that the BIA erred by relying on the loss
amount that was stated in his restitution order and his plea agreement, but which
was not necessarily tied to his specific count of conviction.
We review whether we have subject matter jurisdiction over a petition for
review de novo. Guzman-Munoz v. U.S. Att’y Gen., 733 F.3d 1311, 1313 (11th
Cir. 2013). We also review de novo the BIA’s legal determinations, Castillo-Arias
v. U.S. Att’y. Gen., 446 F.3d 1190, 1195 (11th Cir. 2006), and whether a prior
conviction qualifies as an aggravated felony, Accardo v. U.S. Att’y Gen., 634 F.3d
1333, 1335 (11th Cir. 2011). We review administrative factual findings under the
substantial-evidence test, viewing the evidence in the light most favorable to, and
drawing all reasonable inferences in favor of, the agency’s decision. Kazemzadeh
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v. U.S. Att’y Gen., 577 F.3d 1341, 1350-51 (11th Cir. 2009). Under this highly
deferential standard, we must affirm the BIA’s decision if it is supported by
substantial evidence on the record considered as a whole. D-Muhumed v. U.S.
Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004).
Our jurisdiction to review orders of removal is limited by the INA, which
provides that “no court shall have jurisdiction to review any final order of removal
against an alien who is removable by reason of having committed a criminal
offense covered in [8 U.S.C. § 1227(a)(2)(A)(iii)].” 8 U.S.C. § 1252(a)(2)(C). We
retain jurisdiction, however, over “constitutional claims or questions of law raised
upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). The question of whether a
petitioner’s conviction constitutes an “aggravated felony” within the meaning of
the INA is a question of law that falls within our jurisdiction. See Balogun v. U.S.
Att’y Gen., 425 F.3d 1356, 1360 (11th Cir. 2005). We also retain jurisdiction to
determine underlying facts that establish our jurisdiction or lack thereof. Garces v.
U.S. Att’y Gen., 611 F.3d 1337, 1343 (11th Cir. 2010). We review the BIA’s
decision as the final judgment, except to the extent that the BIA expressly adopted
the opinion of the IJ. Kazemzadeh, 577 F.3d at 1350.
“Any alien who is convicted of an aggravated felony at any time after
admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). An offense that “involves
fraud or deceit in which the loss to the victim or victims exceeds $10,000” is an
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aggravated felony, as is an attempt or conspiracy to commit such an offense. 8
U.S.C. § 1101(a)(43)(M)(i), (U). To prove that such a noncitizen is removable for
having been convicted of an aggravated felony under § 1101(a)(43)(M)(i) or (U),
the government must present clear and convincing evidence that the loss to the
victim exceeds $10,000. 8 U.S.C. § 1229a(c)(3)(A); see Nijhawan, 557 U.S. at 42.
As to conspiracies to commit fraud offenses under INA § 101(a)(43)(M)(i), 8
U.S.C. § 1101(a)(43)(M)(i), the BIA has decided that it is sufficient for the
government to prove that the potential loss to victims was more than $10,000,
rather than the actual loss. Matter of S-I-K, 24 I. & N. Dec. 324, 327 (BIA 2007).
In Nijhawan, the Supreme Court held that the loss amount for purposes of
determining removability was a factual circumstance surrounding the fraud and not
an element of the fraud itself, thus requiring a circumstance-specific inquiry, rather
than the categorical approach. Nijhawan, 557 U.S. at 36-40. However, it stated
that “the loss must be tied to the specific counts covered by the conviction”
involving fraud and deceit and that, “since the Government must show the amount
of loss by clear and convincing evidence, uncertainties caused by the passage of
time are likely to count in the alien’s favor.” Id. at 42. Ultimately, the Supreme
Court concluded that the IJ properly “relied upon earlier sentencing-related
material,” including a factual stipulation at sentencing and a restitution order,
which both showed that the loss was greater than $10,000, in finding that the loss
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amount was clear and convincing, especially given the lack of conflicting evidence
from the petitioner. Id. at 42-43.
We have held that an IJ is not entitled to rely solely on a restitution order to
establish the loss amount for an aggravated felony if the restitution order includes
additional conduct not included in the plea, when so demonstrated by the
petitioner. Obasohan v. U.S. Att’y Gen., 479 F.3d 785, 789-91 (11th Cir. 2007),
abrogated by Nijhawan, 557 U.S. at 29. In Obasohan, we held that a “restitution
order was insufficient as a matter of law” at the immigration hearing, both because
it referenced conduct not charged, proven, or admitted prior to sentencing and
because the standard at sentencing was a lower “preponderance of the evidence”
standard. Id. at 791. The government, however, admitted to the fact that the
restitution order was based on other acts than the offense of conviction. Id. at 789-
90.
Although we retain jurisdiction to determine whether Jean-Louis’s offense
qualifies as an aggravated felony, we ultimately do not have jurisdiction to
consider his petition for review because the BIA correctly concluded that his
offense qualifies as an aggravated felony. The record shows that Jean-Louis was
convicted of an access device fraud conspiracy—an offense involving fraud or
deceit—and the restitution order and stipulation contained in his plea agreement
together confirm that his offense conduct resulted in victim loss exceeding
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$10,000. Furthermore, the amount of restitution was tied to his specific offense of
conviction. Thus, because Jean-Louis was convicted of an aggravated felony
within the meaning of the INA, we lack jurisdiction over his final order of
removal.
PETITION DENIED.
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MARTIN, Circuit Judge, concurring:
I write separately to note why I prefer not to use the term “alien,” which the
panel opinion quotes three times. Justice Kavanaugh has equated the term
“noncitizen” with the statutory term “alien.” Nasrallah v. Barr, 590 U.S. __, 140 S.
Ct. 1683, 1689 n.2 (2020); see also United States v. Estrada, 969 F.3d 1245, 1253
n.3 (11th Cir. 2020). “Alien” is increasingly recognized as an “archaic and
dehumanizing” term. Maria Sacchetti, ICE, CBP to Stop Using ‘Illegal Alien’ and
‘Assimilation’ Under New Biden Administration Order, Wash. Post (Apr. 19,
2021), https://www.washingtonpost.com/immigration/illegal-alien-
assimilation/2021/04/19/9a2f878e-9ebc-11eb-b7a8-014b14aeb9e4_story.html.
To the extent the term “noncitizen” does not, in every instance, serve as a
perfect replacement for the term “alien,” that concern is not present in this case. I
see no need to use a term that “has become pejorative” where a non-pejorative
term works perfectly well. Library of Congress, Library of Congress to Cancel the
Subject Heading “Illegal Aliens” at 1 (2016),
https://www.loc.gov/catdir/cpso/illegal-aliens-decision.pdf.
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BRANCH, Circuit Judge, concurring:
In her separate concurrence, Judge Martin takes issue with the fact that the
majority uses the statutory term “alien,” rather than her preferred term
“noncitizen.”1 However, the term “alien” is the term chosen by Congress in the
text of the Immigration and Nationality Act (“INA”), and as it is not our role to
“fix” the text of the INA, we should not stray into legislative draftsmanship. See
Harris v. Garner, 216 F.3d 970, 976 (11th Cir. 2000) (en banc) (“[T]he role of the
judicial branch is to apply statutory language, not to rewrite it.”); see Nat’l Broiler
Mktg. Ass’n v. United States, 436 U.S. 816, 827 (1978) (“[A] statute is not an
empty vessel into which this Court is free to pour a vintage that we think better
suits present-day tastes.” (quotation omitted)). Further, as Justice Alito cautioned
in his dissent in Moncrieffe v. Holder, “‘[a]lien’ is the term used in the relevant
provisions of the [INA], and this term does not encompass all noncitizens.” 569
U.S. 184, 210 n.1 (2013) (Alito, J., dissenting). For these reasons, I write
separately.
1 I recognize that, on occasion, the Supreme Court has used the term “noncitizen” rather
than “alien” in its general discussion of our country’s immigration laws. However, more recently,
Supreme Court precedent has confirmed that the term “alien” remains appropriate. See Garland
v. Dai, 141 S. Ct. 1669, 1680 (2021).
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