Because the petitioner was not charged, either explicitly or implicitly, with an aggravated felony as defined by Section 101(a)(43)(U), and because subsection U is not a necessarily included offense under Section 101(a)(43)(M), the petitioner therefore was denied her due process rights of notice and an opportunity to be heard when the BIA sua sponte found her removable on the basis of her conviction for an aggravated felony as defined by subsection U. Accordingly, the petition for review is granted and the decision of the BIA is vacated.
Where the BIA supplements the decision of an IJ with its own reasoning, this court reviews the decision of the IJ as supplemented by the BIA. Although this court normally lacks jurisdiction to review final orders of removal under section 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1252(a)(2)(C), this court has jurisdiction to review constitutional claims or questions of law, including whether a specific conviction constitutes an aggravated felony, which this court reviews de novo.
Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), this court defers to the BIA’s determination when its jurisdiction depends on the definition of a phrase used in the INA, a statute that the BIA administers, and when the intent of Congress is unclear and the agency's interpretation is reasonable. However, no such deference is warranted where the challenged BIA decision is unpublished.
This court holds as a matter of first impression that the Government’s charge that an alien is removable on the basis of a conviction for an aggravated felony as defined by INA Section 101(a)(43)(M) does not necessarily include a charge of removability for an aggravated felony as defined by INA
Section 101(a)(43)(U).
Under section 237(a)(2)(A)(iii) of the INA, any alien who is convicted of an aggravated felony at any time after admission is deportable. INA Section 101(a)(43)(M)defines an “aggravated felony” as an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000. Under INA Section 101(a)(43)(U), an “aggravated felony” also includes an attempt or conspiracy to commit any one of the substantive offenses described in Sections 101(a)(43)(A)-(T).
The offense of bank fraud under 18 U.S.C. § 1344 is an offense which the BIA correctly found entailed an ‘attempt’ to obtain a mortgage for $500,000 using the identification of another person.
Under 18 U.S.C. § 1344, “whoever knowingly executes, or attempts to execute, a scheme or artifice . . . to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses” is punishable for bank fraud. However, section 1344 does not include a specific loss amount as an element of federal bank fraud. Thus, the petitioner’s conviction under section 1344 does not align directly with the INA’s definition of a fraud-based aggravated felony under INA Sections 101(a)(43)(M) and (U), which require an actual or intended loss to the victim in excess of $10,000, respectively.
Under Nijhawan v. Holder, 129 S. Ct. 2294 (2009), when determining whether the monetary threshold is met for purposes of the INA, this court looks not to the formal elements of federal bank fraud but instead “to the specific circumstances surrounding an alien’s commission of a fraud and deceit crime on a specific occasion. Thus, whether an alien is removable under INA Section 237(a)(2)(A)(iii) on the basis of his or her conviction for an aggravated felony as defined under subsection M requires a “circumstance-specific” analysis that examines whether the Government has demonstrated by clear and convincing evidence that the circumstances surrounding the specific counts of conviction involve the requisite amount of loss under the INA.
INA Section 101(a)(43)(M) requires an actual loss to the victim or victims in excess of $10,000. Restitution orders, defendants’ admissions of loss, and other evidence may support a finding of actual loss in excess of $10,000.
However, requiring proof of an actual loss for attempts and conspiracies would defeat the very purpose behind INA Section 101(a)(43)(U) and that this court does not require proof of actual loss where the offense of conviction was an anticipatory offense. Therefore, a failed attempt to obtain more than $10,000 is of no consequence under subsection U.
There is no BIA precedent adopting the position that INA Section 101(a)(43)(U) is a necessarily included lesser offense of INA Section 101(a)(43)(M), and, indeed, the relevant case law supports a contrary conclusion.
This court defers to the BIA’s determination in In re Onyido, 22 I. & N. Dec. 552 (B.I.A. 1999) that INA Section 101(a)(43)(U) does not use the word ‘attempt’ to mean conviction of an offense formally denominated as an attempt, but instead means conduct that satisfies a generally accepted definition of an attempted offense.
While the BIA properly relied on In re S-I-K-, 24 I. & N. Dec. 324 (B.I.A. 2007), In re Onyido, 22 I. & N. Dec. 552 (B.I.A. 1999), and Ming Lam Sui v. INS, 250 F.3d 105,(2d Cir. 2001), in support of its statement that INA Sections 101(a)(43)(M) and (U) may be charged and applied together, these cases lend no support to the BIA’s conclusion that a charge solely under subsection M necessarily includes an attempt or conspiracy to commit such an offense under subsection U. This is especially so because, as the BIA recognized in S-I-K-, subsections M and U provide separate definitions of the term “aggravated felony” under Section 101(a)(43), and because the Government usually charges these subsections in combination as a basis for removal under section 237(a)(2)(A)(iii).
This court is similarly unpersuaded by the BIA’s reliance on the Federal Rules of Criminal Procedure. While Fed. R. Crim. P. 31(c) does allow a jury to return a guilty verdict for (1) an offense necessarily included in the offense charged; (2) an attempt to commit the offense charged; or (3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right, Congress issued no comparable rule in the INA. Rather, in INA Section 101(a)(43), Congress set forth twenty-one separate categories of offenses that provide a statutory basis for removal as an aggravated felon under Section 237(a)(2)(A)(iii) of the INA. Moreover, in Section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), Congress specified that the alien must be given written notice of, inter alia, the acts or conduct alleged to be in violation of law and the charges against the alien and the statutory provisions alleged to have been violated. Given the statutory scheme as well as the established principle that a removal proceeding is civil, not criminal, in nature, there is no basis for relying on the Federal Rules of Criminal Procedure to conclude that INA Section 101(a)(43)(M) necessarily includes a charge under INA Section 101(a)(43)(U), especially where doing so would relieve the Government of its notice obligations under section 239(a)(1) of the INA.
Statutory construction is a holistic endeavor. In ascertaining the plain meaning of a statute, where a court of appeals’ analysis necessarily begins, this court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.
Because the petitioner’s offense did not cause an actual loss to the bank in excess of $10,000, because INA Section 101(a)(43)(U) is not a necessarily included lesser offense of INA Section 101(a)(43)(M), and because a potential loss cannot satisfy the requirements of INA Section 101(a)(43)(M) alone, this court exercises its jurisdiction and vacate the BIA’s finding that the petitioner is removable as an aggravated felon under section 237(a)(2)(A)(iii), as defined by INA Section 101(a)(43)(M).
This court further concludes that the BIA’s sua sponte invocation of INA Section 101(a)(43)(U) as a basis for finding the petitioner removable as an aggravated felon under Section 237(a)(2)(A)(iii) of the INA violated the petitioner’s due process rights. Under the Fifth Amendment of the United States Constitution, no person shall be deprived of life, liberty, or property without due process of law. It is well-established that a lawful permanent resident is entitled to constitutional due process in removal proceedings. At the core of due process is the right to notice of the nature of the charges and a meaningful opportunity to be heard. This court does not hesitate in holding that the petitioner sustained a due process violation under the facts of this case.
Where the petitioner’s Notice to Appear charged her as removable under INA Section 237(a)(2)(A)(iii) solely on the basis of her conviction for an aggravated felony as defined by INA Section 101(a)(43)(M), the petitioner had no notice and therefore reason to defend against a charge of removability for an aggravated felony as defined by INA Section 101(a)(43)(U) in front of the IJ.
Moreover, where the IJ issued his oral ruling founding the petitioner removable “as charged” on the basis of her conviction for an aggravated felony as defined by INA Section 101(a)(43)(M), the petitioner therefore appealed the IJ’s order of removal under INA Section 101(a)(43)(M), and had no basis for raising a due process challenge in connection with a finding of removability under INA Section 101(a)(43)(U).
This court further holds that the BIA’s sua sponte invocation of the uncharged, disavowed subsection U as a basis for finding the petitioner removable under the INA prejudiced her. Fed. R. Crim. P. 31(c) provides statutory notice to a criminal defendant that on the basis of the offense charged, the defendant may be found guilty of a necessarily included offense or an attempt. No such corresponding statutory notice exists for an alien charged with removability under INA Section 237(a)(2)(A)(iii).
Where the record demonstrates that the petitioner’s lack of any statutory notice, any actual notice, and any opportunity to be heard in connection with a charge under INA Section 101(a)(43)(U) precluded her from making any of the arguments she now raises in response to that charge, this court accordingly holds that the petitioner was denied her “core” due process right of notice and an opportunity to be heard, in violation of the Fifth Amendment.
In sum, this court holds that the petitioner was not removable as an aggravated felon as charged under subsection M, because subsection U is not a necessarily included lesser offense of INA Section 101(a)(43)(M), and that Pierre was deprived of due process of law when the BIA sua sponte invoked uncharged INA Section 101(a)(43)(U) as a basis for finding her removable under INA Section 237(a)(2)(A)(iii). This court therefore grants the petition for review and vacates the order of removal.
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