19-3565 Rodden v. Wilkinson BIA Brennan, IJ A042 782 847

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of February, two thousand twenty-one.

PRESENT: AMALYA L. KEARSE, PIERRE N. LEVAL, SUSAN L. CARNEY, Circuit Judges. _____________________________________

JOHN RODDEN,

Petitioner,

v. 19-3565

ROBERT M. WILKINSON, ACTING UNITED STATES ATTORNEY GENERAL, ∗

Respondent. _____________________________________

FOR PETITIONER: NIALL MACGIOLLABHUÍ, Esq., New York, NY.

FOR RESPONDENT: WILLIAM C. MINICK, Attorney, (Linda S. Wernery, Assistant Director, on the brief) for Ethan P. Davis, Acting

∗ Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Robert M. Wilkinson is automatically substituted for former Acting Attorney General Jeffrey A. Rosen as Respondent. Assistant Attorney General, Civil Division; Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a Board

of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

ADJUDGED, AND DECREED that the petition for review is DENIED.

Petitioner John Rodden, a native and citizen of Ireland, seeks

review of a 2019 decision of the BIA affirming a 2018 decision of

an Immigration Judge (“IJ”) that ordered his removal and found him

ineligible for a waiver of inadmissibility under

(h). In re John Rodden, No. A042 782 847 (B.I.A. Sept. 30,

2019), aff’g No. A042 782 847 (Immig. Ct. N.Y. City Feb. 8, 2018).

We assume the parties’ familiarity with the underlying facts and

procedural history, to which we refer only as necessary to explain

our decision denying the petition.

“[W]e review the decision of the IJ as supplemented by the

BIA.” Wala v. Mukasey,

(2d Cir. 2007). Because

Rodden was ordered removed for a crime involving moral turpitude

(“CIMT”) under

(a)(2)(A)(i)(I), our jurisdiction is

limited to review of constitutional claims and questions of law.

(a)(2)(C), (D).

The Attorney General has discretion under

(h)

to waive certain grounds of inadmissibility. An alien who has

2 been convicted of an aggravated felony after having been admitted

for lawful permanent residence in the United States is ineligible,

however, for such a waiver.

In 2009, Rodden pleaded guilty to conspiracy to commit “any

offense against the United States, or to defraud the United

States,” in violation of

, based on his

participation in a scheme involving filing false corporate tax

returns. Rodden was admitted as a lawful permanent resident in

1993 and does not dispute that he is removable because of his

conviction involving moral turpitude, that is, his conviction

under § 371. See

(a)(2)(A)(i)(I). Accordingly, the

only issue before us is whether his conspiracy conviction is an

“aggravated felony” as defined by the Immigration and

Naturalization Act (“INA”), barring him from applying for a waiver

under

(h).

Whether a conviction is an aggravated felony under the INA is

a question of law, on which we review the agency’s decision de

novo. Pierre v. Holder,

(2d Cir. 2009). For

the reasons discussed below, we conclude that Rodden’s offense of

conviction is a fraud aggravated felony within the meaning of

(a)(43)(M)(i) because first,

categorically involves fraud and deceit, and second, the record

3 contains sufficient evidence that Rodden’s violation of § 371

resulted in a loss in excess of $10,000 as the INA definition of

aggravated felony requires.

I. Fraud and Deceit

A fraud aggravated felony is “an offense that . . . involves

fraud or deceit in which the loss to the victim or victims exceeds

$10,000.”

(a)(43)(M)(i). To determine whether

Rodden’s conviction “involve[s] fraud or deceit[,] . . . we employ

a categorical approach by looking to the statute defining the crime

of conviction, rather than to the specific facts underlying the

crime.” Kawashima v. Holder,

(2012) (internal

quotation marks and alteration omitted). The definition provided

in § 1101(a)(43)(M)(i) is “not limited to offenses that include

fraud or deceit as formal elements . . . . [It also] refers more

broadly to offenses that ‘involv[e]’ fraud or deceit — meaning

offenses with elements that necessarily entail fraudulent or

deceitful conduct.” Id. at 484. When the fraud aggravated felony

provision was enacted, “the term ‘deceit’ meant ‘the act or

practice of deceiving (as by falsification, concealment, or

cheating).’” Id.

Rodden’s statute of conviction,

, provides

that “[i]f two or more persons conspire either to commit any

4 offense against the United States, or to defraud the United States,

or any agency thereof in any manner or for any purpose, and one or

more of such persons do any act to effect the object of the

conspiracy, each shall be fined under this title or imprisoned not

more than five years, or both.” The parties agree that § 371 is

divisible into two clauses: the “offense clause” and the “defraud

clause.” They further agree that Rodden pleaded guilty to an

offense that falls under the defraud clause of § 371. See United

States v. Atilla,

(2d Cir. 2020) (observing that

is divisible and prohibits two kinds of

conspiracies against the United States). “To prove a conspiracy

under the defraud clause, the government must establish (1) that

the defendant entered into an agreement (2) to obstruct a lawful

function of the government (3) by deceitful or dishonest means and

(4) at least one overt act in furtherance of the conspiracy.”

(internal quotation marks and brackets omitted).

Rodden argues that conspiracy to defraud the United States

under § 371 is not a categorical match to

(a)(43)(M)(i) because § 371 can be violated merely “by

dishonest means,” which he contends can be something less than

deceit. In light of the Supreme Court’s decision in Kawashima v.

Holder,

(2012), however, this argument fails. In

5 Kawashima, the Court ruled that fraud and deceit need not be formal

elements of an offense for the offense to “involve” fraud under

the INA definition of aggravated felony.

at 483–84. We agree

with the BIA that the Black’s Law Dictionary definition of

“dishonest” comports with the Court’s broad reading in Kawashima

of fraud and deceit under § 371: it provides that a person is

“dishonest” when he displays “a lack of integrity or probity . .

. and therefore [a] tend[ency] to cheat people,” and that a

“dishonest” action is one “not involving straightforward dealing;

discreditable; underhanded; fraudulent.” Dishonest, Black’s Law

Dictionary (11th ed. 2019), available through Westlaw.

Accordingly, we conclude that the crime described in the defraud

clause of § 371 and to which Rodden pleaded guilty categorically

involves fraudulent and deceitful conduct.

II. Loss to Victim Exceeding $10,000

In addition to involving fraud or deceit, a fraud offense is

an aggravated felony under the INA only if the loss to the victim

exceeds $10,000. We are satisfied that the record in Rodden’s

case establishes that the loss to the victim — the United States

— caused by Rodden’s crime exceeded $10,000.

As the applicant for relief from removal, Rodden had the

burden to establish his eligibility for a waiver. See 8 U.S.C.

6 § 1229a(c)(4)(A)(i). Because there was evidence that implicated

a mandatory bar — an aggravated felony conviction — to the relief

he sought, the burden fell to him to prove by a preponderance that

the bar did not apply.

(d) (“If the evidence

indicates that one or more of the grounds for mandatory denial of

the application for relief may apply, the alien shall have the

burden of proving by a preponderance of the evidence that such

grounds do not apply.”).

The “[$10,000] monetary threshold applies to the specific

circumstances surrounding an offender’s commission of a fraud and

deceit crime on a specific occasion.” Nijhawan v. Holder,

(2009). “[T]he loss must be tied to the specific

counts covered by the conviction.”

(internal quotation

marks omitted).

Here, to establish the extent of the victim’s loss, the agency

relied on Rodden’s criminal judgment, which imposes on him a

restitution obligation of $12,729. The criminal information and

related judgment, read together, establish that Rodden pleaded

guilty to one count of conspiracy to defraud the United States,

and that the offense conduct ended in September 1999. Of

significance here, the information charged no other crime.

Rodden argues on appeal, as he did before the Immigration

7 Judge, that his plea transcript reflects that the restitution order

covers conduct beyond that of the sole count of conviction.

Rodden urges that the plea transcript reveals that he was “required

to make restitution for the tax losses caused by the conspiracy

from 1997 through 2002” and points out in contrast that his § 371

offense conduct was ruled to have ended in 1999. A.R. at 277,

301. Suggesting that the amount of the restitution order might

reflect some loss in addition to that caused by this offense

conduct, he observes that a sentencing court can order “restitution

beyond the offense of conviction when the defendant agrees to such

in a plea agreement.” United States v. Silkowski,

,

688–89 (2d Cir. 1994) (internal quotation marks and citation

omitted).

We find Rodden’s suggestion unpersuasive. The record

contains no indication other than the Magistrate Judge’s statement

during the plea hearing that Rodden would be “required to make

restitution for the losses caused by the conspiracy from 1997 to

2002,” A.R. 277, that any part of the restitution order is “based

on acquitted or dismissed counts or general conduct” or conduct

that continued beyond 1999. Nijhawan,

. Rodden’s

criminal information contains no other counts, and no other conduct

of Rodden’s was discussed at the hearing. Therefore, we conclude

8 that Rodden failed to establish by a preponderance of the evidence

that the restitution amount imposed did not directly result from

his sole count of conviction.

Even assuming Rodden’s plea agreement did include an

agreement to pay some restitution based on conduct occurring after

the period specified in his offense of conviction, Rodden would

still not have carried his burden unless the amount of that

restitution (based on something other than the conduct of

conviction) equaled at least $2,729. Rodden was required to show

that his offense of conviction did not cost the government more

than $10,000. Unless at least $2,729 of the restitution was for

something other than Rodden’s conduct of conviction, the

restitution order of $12,729 strongly supports the inference that

the government’s loss from Rodden’s criminal conduct exceeded

$10,000. Rodden has not introduced the plea agreement, or any

other evidence, that shows that the amount of loss attributable to

his conduct of conviction was less than $10,000. Therefore, we see

no basis for concluding that Rodden’s conviction did not cause a

loss of more than $10,000 to the government; certainly Rodden has

not shown otherwise.

Given the record before us, we conclude

that the restitution amount reliably establishes the loss amount

for purposes of

(a)(43)(M)(i). Rodden has therefore

9 been convicted of a fraud aggravated felony under the INA and is

ineligible for a waiver of inadmissibility under

(h).

We have considered all of Rodden’s arguments and find in them

no basis for reversal. For the foregoing reasons, the petition for

review is hereby DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

10