Barikyan v. Barr
Opinion of the Court
*144Petitioner Aleksandr Eduardovich Barikyan, a native and citizen of Russia, petitions for review of a 2017 order of the Board of Immigration (the "BIA") affirming a 2016 decision of an Immigration Judge (the "IJ") ordering his removal. Barikyan entered the United States on a temporary visa in December 1996, and became a lawful permanent resident in December 2008. In February 2016, Barikyan was convicted, pursuant to a guilty plea, of conspiracy to commit money laundering in violation of
Based on this conviction, the Department of Homeland Security ("DHS") charged Barikyan as an aggravated felon under
Barikyan timely petitioned this Court for review. On appeal, he argues (i) that his conviction for conspiracy to commit money laundering under § 1956(h) is not an aggravated felony under
I.
We review the IJ's decision as supplemented by the BIA. See Wala v. Mukasey,
II.
Barikyan argues that conspiracy to commit money laundering pursuant to
"Statutory analysis necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there. In conducting such an analysis, we review the statutory text, considering the ordinary or natural meaning of the *145words chosen by Congress, as well as the placement and purpose of those words in the statutory scheme." Cruz-Miguel v. Holder,
Section 1101(a)(43)(D) defines an aggravated felony to include "an offense described in section 1956 of Title 18 (relating to money laundering of monetary instruments) ... if the amount of the funds exceeded $10,000." Subsection (h) of § 1956 criminalizes conspiracy to commit money laundering. See
Barikyan argues that the only subsection under which he could have been properly charged is § 1101(a)(43)(U), which provides that "an attempt or conspiracy to commit an offense described in this paragraph" is an aggravated felony, because reading § 1101(a)(43)(D) to include conspiracy to commit money laundering as an aggravated felony would render § 1101(a)(43)(U) superfluous. True, § 1101(a)(43)(U) may have no bearing on conspiracies to commit money laundering, because they are also covered by § 1101(a)(43)(D) ; but § 1101(a)(43)(U) nevertheless retains vitality and effect. For example, § 1101(a)(43)(A) defines "murder, rape, or sexual abuse of a minor" as an aggravated felony, and it is only by virtue of § 1101(a)(43)(U) that conspiracies to murder, rape, or sexually abuse a minor are also defined as aggravated felonies (and thus removable offenses).
Barikyan argues that this case is controlled by Matter of Richardson,
Lastly, Barikyan argues that the word "offense" in § 1101(a)(43)(D) refers only to substantive offenses, not to conspiracy. He relies on § 1956(h), which states that "[a]ny person who conspires to commit any offense defined in [ § 1956 ] is subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy." Because "offense" in this provision refers to substantive offenses set forth elsewhere in § 1956, Barikyan argues that "offense" in § 1101(a)(43)(D) must also refer only to substantive offenses. But the contrived meaning of "offense" in a single sentence in § 1956 should not be imported into the definition of "offense" in § 1101(a)(43)(D). An "offense" is defined as a "violation of the law," see Black's Law Dictionary (10th ed. 2014), and can reference substantive and conspiracy offenses alike. Section 1956(h) does not limit the meaning of "offense" in § 1101(a)(43)(D).
Accordingly, under the plain language of § 1101(a)(43)(D), conspiracy to commit money laundering under § 1956(h) is an aggravated felony, and Barikyan is removable under that provision.
*146III.
Conspiracy to commit money laundering is an aggravated felony only "if the amount of the funds exceeded $10,000." § 1101(a)(43)(D). Barikyan argues that the IJ and the BIA incorrectly concluded that the Government demonstrated by clear and convincing evidence that he laundered more than $10,000.
Barikyan seeks a remand on the ground that the BIA improperly applied the clear error standard of review to the IJ's amount-of-funds determination, which he argues is a legal conclusion that the BIA should review de novo. See
The parties do not dispute that the "circumstance-specific" approach applies to the amount-of-funds determination, and therefore that the IJ and BIA were permitted to review Barikyan's record of conviction for evidence of the amount of money that he laundered. See Varughese,
Alternatively, Barikyan argues that the BIA failed to require proof by clear and convincing evidence. To grant the petition on this basis, we "must find that any rational trier of fact would be compelled to conclude that the proof did not rise to the level of clear and convincing evidence." Francis v. Gonzales,
Barikyan has not challenged the reliability of the $120,000 forfeiture order (which the agency was permitted to rely on under the circumstance-specific approach); nor has he pointed to any evidence that conflicts with the order. Instead, he argues that the forfeiture order cannot be relied upon as a measure of the funds that were actually laundered, because the criminal forfeiture statute sometimes requires forfeiture of legitimate funds. See
*147Barikyan points out that a forfeiture order need only be supported by a preponderance of the evidence, and argues that the IJ and BIA improperly relied on the amount-of-funds determination in the forfeiture order to satisfy the clear and convincing evidence standard required for removal. The BIA considered this argument in Matter of Babaisakov,
Applying those considerations, we conclude that the IJ did not err in finding that the forfeiture order constituted clear and convincing evidence that Barikyan laundered more than $10,000. Barikyan advances no reason to undermine this finding: he failed to contest the forfeiture order in the criminal proceedings or show that there was an error in those proceedings; and the order required forfeiture of an amount that far exceeded $10,000. Accordingly, the IJ's reliance on the forfeiture order was appropriate, and the IJ did not commit clear error in finding that the Government had established that Barikyan laundered more than $10,000 by clear and convincing evidence.
*****
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot.
An amount-of-funds determination might require the court to resolve a question of law if, for example, the petitioner argued that some funds were not "laundered," as that term is defined under the law. No such argument is made in this petition.
For this reason, our recent decision in Alom v. Whitaker,
Barikyan conceded in his sentencing submission that he was "responsible for a loss amount of $1,453,251." Joint App'x 274. While not relied on by the IJ, this concession reinforces the agency's conclusion that Barikyan laundered more than $10,000. Nijhawan v. Holder,
Reference
- Full Case Name
- Aleksandr Eduardovich BARIKYAN v. William BARR, United States Attorney General
- Cited By
- 6 cases
- Status
- Published