Natalia Margarita Zapico- Delgado, etc. v. Eric H. Holder, Jr., Attorney General

This disposition is not appropriate for publication and is not*
precedent except as provided by 9th Cir. R. 36-3.
The Honorable Benjamin Hale Settle, United States District Judge for**
the Western District of Washington, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATALIA MARGARITA ZAPICO-
DELGADO, etc.
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY
GENERAL,
Respondent.
No. 06-74321
Agency No. A091-637-431
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 4, 2010
San Francisco, California
Before: THOMAS and IKUTA, Circuit Judges, and SETTLE, District Judge.**
We deny the petition for review. In 2009 the United States Supreme Court
decided the case of Nijhawan v. Holder, 129 S. Ct. 2294 (2009), and held that,
FILED
DEC 22 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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when evaluating offenses under 8 U.S.C. § 1101(a)(43)(M)(i), courts should treat
the references to “victim or victims” and a monetary loss in excess of $10,000 “not
. . . [as] an element of the fraud or deceit crime,” but as “refer[ences] to the
particular circumstances in which an offender committed a (more broadly defined)
fraud or deceit crime on a particular occasion.” Id. at 2297-98. In determining
whether these circumstances were present in a particular case, the Court also
indicated that the decisionmaker would not be limited to reviewing the record of
conviction, but could also consider a restitution order. Id. at 2303. Here,
Nijhawan is controlling. The Board of Immigration Appeals did not err in
affirming the Immigration Judge’s reliance on the order of restitution to find that
Petitioner’s conviction for unlawful use of means of identification, in violation of
18 U.S.C. § 1028(a)(7), constituted an aggravated felony conviction under 8
U.S.C. § 1101(a)(43)(M)(I). Therefore, we lack jurisdiction to review Petitioner’s
final order of removal. 8 U.S.C. § 1252(a)(2)(C).
DENIED.

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