NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 11-1702 _______________

RAFAEL CORPORAN, Petitioner v.

THE ATTORNEY GENERAL OF THE UNITED STATES, Respondent _______________

On Petition for Review of a Final Order of the Board of Immigration Appeals (No. A044-129-887) Immigration Judge: Honorable Kenneth S. Hurwitz _______________

Argued April 16, 2013 _______________

Before: AMBRO, HARDIMAN, and COWEN, Circuit Judges

(Opinion filed: September 12, 2013)

Jack Wallace, Esquire Immigration Law & Litigation Group 2964 Aviation Avenue, Suite 301 Miami, FL 33133

Jessica Zagier Wallace, Esquire (Argued) Carlton Fields 100 Southeast Second Street, Suite 4200 Miami, FL 33131

Counsel for Petitioner Eric H. Holder, Jr. Attorney General Stuart F. Delery Acting Assistant Attorney General Civil Division Thomas B. Fatouros (Argued) Senior Litigation Counsel Janette L. Allen, Esquire Thomas W. Hussey, Esquire Aaron R. Petty, Esquire United States Department of Justice Office of Immigration Litigation Civil Division P.O. Box 878 Ben Franklin Station Washington, DC 20044

Counsel for Respondent

_______________

OPINION OF THE COURT _______________

AMBRO, Circuit Judge

Rafael Corporan petitions for review of an Immigration Judge‟s (“IJ”) order

finding him removable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act

(“INA”),

(a)(2)(A)(iii). We grant in part, deny in part, and remand the

case to the Board of Immigration Appeals (“BIA”).

I.

In 2009, Corporan, a citizen of the Dominican Republic and lawful permanent

resident of the United States, pled guilty to one count of conspiracy in violation of

. He was sentenced to five months‟ imprisonment and ordered to pay

restitution (along with a co-conspirator) of $47,299. Following that conviction, the

2 Department of Homeland Security (“DHS”) charged Corporan as removable as an alien

convicted of an “aggravated felony” defined in INA § 101(a)(43),

(a)(43). Specifically, DHS contended that he committed an offense that

“involve[d] fraud or deceit in which the loss to the victim or victims exceed[ed]

$10,000,”

(a)(43)(M)(i). Corporan filed a motion for termination of the

removal proceedings, arguing that his conviction was a hybrid offense under Nugent v.

Ashcroft,

(3d Cir. 2004). A hybrid offense is an offense described by two

of § 1101(a)(43)‟s definitions, and thus must meet the requirements of both in order to be

an “aggravated felony.” Corporan conceded that his was an offense involving fraud or

deceit under § 1101(a)(43)(M)(i), but he argued that it was also a theft offense under

§ 1101(a)(43)(G), which requires a one-year prison sentence.

The IJ agreed that Corporan‟s was a hybrid offense under Nugent and determined

that he was not removable because his conviction did not include the requisite one-year

prison sentence under § 1101(a)(43)(G). As such, the IJ explained that “[t]he issue of

whether respondent‟s fraud conviction resulted in the loss of more than $10,000[] need

not be resolved.”

On appeal, the BIA overturned the IJ‟s decision, determining that Nugent did not

apply. The BIA held that Corporan was convicted of an offense involving fraud and

deceit with a loss of $10,000 and “[he] is removable.” On remand, the IJ ordered

Corporan removed.

Corporan filed this petition for review, arguing that: (1) his offense was a hybrid

offense under Nugent; and (2) in any event, the BIA erred by concluding that his offense

3 involved a loss of $10,000, as this is a factual finding that must be made by the IJ in the

first instance.

II.1

Corporan‟s first argument is now foreclosed. In Al-Sharif v. United States Citizen

and Immigration Services, ___ F.3d ___, No. 12-2767,

(3d Cir. Aug.

19, 2013) (en banc), we rejected Nugent‟s hybrid theory. Any “offense that „involves

fraud or deceit in which the loss to the victim exceeds $10,000‟ is an aggravated felony

under § 1101(a)(43)(M)(i) regardless of whether it also meets the requirements of some

other subparagraph [of § 1101(a)(43)].” Id. at *4. At the Court‟s request, the parties

filed letter responses to Al-Sharif, and agree that Corporan‟s first allegation of error is not

a viable ground for relief.

As to the loss amount—Corporan‟s second alleged error—the BIA erred by

making a factual determination after the IJ explicitly declined to do so. See

(d)(3)(iv) (“[T]he Board will not engage in factfinding in the course of deciding

appeals. . . . If further factfinding is needed in a particular case, the Board may remand

the proceeding . . . .”). The loss to the victim under § 1101(a)(43)(M)(i) is a

“circumstance-specific” calculation, Kaplun v. Att’y Gen.,

(3d Cir.

1 We lack jurisdiction to review a removal order if the alien was convicted of an aggravated felony,

(a)(2)(C), but have jurisdiction to determine our jurisdiction, that is, to determine whether the petitioner was convicted of an aggravated felony. Stubbs v. Att’y Gen.,

, 253 n.4 (3d Cir. 2006). The Government argues that Corporan failed to exhaust the amount-of-loss issue because he did not raise it to the BIA after the IJ entered the removal order. We disagree. Under Popal v. Gonzales, we have jurisdiction to review an IJ‟s order that is “a mere ministerial act, taken to effectuate the unmistakable judgment of the BIA.”

(3d Cir. 2005). 4 2010), which is determined by fact finding, see Singh v. Att’y Gen.,

(3d Cir. 2012) (considering evidence of loss amount); In re Babaisakov,

(B.I.A. 2007) (same).

Thus, we grant the petition as to the loss amount, vacate the removal order, and

remand to the BIA with instructions to remand to the IJ for a factual finding on this

issue.2

2 Reflecting the unusual posture of this case, our order vacates the final administrative order entered by the IJ. However, as is our practice, we remand to the BIA. See Popal,

n.6. The Government‟s Motion to Dismiss and Motion to Remand are denied as moot. 5