Anastasia Y. Zmeeva v. ERIC H. HOLDER, JR., Attorney General

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2294
ANASTASIA Y. ZMEEVA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Department of Homeland
Security.
Submitted: April 30, 2012 Decided: May 15, 2012
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
Michael F. Leban, LEBAN & ASSOCIATES, P.C., Virginia Beach,
Virginia, for Petitioner. Stuart F. Delery, Acting Assistant
Attorney General, Mary Jane Candaux, Assistant Director, David
H. Wetmore, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Anastasia Y. Zmeeva, a native and citizen of Russia,
petitions for review of a final administrative removal order
issued by the Department of Homeland Security, finding she is
removable because she was not lawfully admitted for permanent
residence and she was convicted of an aggravated felony. Zmeeva
claims that her conviction was not an aggravated felony. We
dismiss the petition for review.
Under 8 U.S.C. § 1252(a)(2)(C) (2006), this court
lacks jurisdiction to review any final order of removal against
an alien who is removable for having committed an aggravated
felony. However, the court retains jurisdiction to ascertain
whether in fact the petitioner is an alien and has been
convicted of a relevant offense. Ramtulla v. Ashcroft, 301 F.3d
202, 203 (4th Cir. 2002). Once the court confirms these two
factual determinations, then, under 8 U.S.C. § 1252(a)(2)(C),
(D), it can only consider constitutional claims or questions of
law. See Mbea v. Gonzales, 482 F.3d 276, 278 n.1 (4th Cir.
2007). The court reviews legal issues, including the question
of whether a particular offense is an aggravated felony, de
novo. Id. at 279. Under 8 U.S.C. §§ 1101(a)(43)(m), (u)
(2006), an aggravated felony includes a conspiracy to commit
fraud in which the loss to the victim exceeds $10,000.

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Because Zmeeva was convicted of a statute that
criminalizes conduct that does and does not involve a fraud
offense in which the loss to the victim exceeds $10,000, this
court must apply a “modified categorical approach.” Soliman v.
Gonzales, 419 F.3d 276, 285 (4th Cir. 2005). Under this
approach, the court must determine whether a defendant’s
specific conduct qualifies as an aggravated felony by looking
“to the terms of the charging document” and, if necessary in a
nonjury case, to “the terms of a plea agreement,” the
“transcript of colloquy between judge and defendant,” or “some
comparable judicial record” revealing the “factual basis for the
plea.” Shepard v. United States, 544 U.S. 13, 26 (2005). An
order of restitution and a stipulation as to the amount of loss
are also proper references. Nijhawan v. Holder, 557 U.S. 29,
__, 129 S. Ct. 2294, 2303 (2009).
We have reviewed the record and conclude that the
evidence supports the finding that Zmeeva’s conviction was for
an aggravated felony. She acknowledged that one of the objects
of the conspiracy was to commit a fraud upon the United States
Navy. In addition, she was ordered to pay restitution to the
victim in the amount of $36,514.52.
Because Zmeeva was convicted of an aggravated felony
and she does not raise a constitutional claim or a question of
law, we dismiss the petition for review for lack of

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jurisdiction. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
PETITION DISMISSED

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