Chiao Ku v. Attorney General United States
Opinion
*136
Seeking to remain in this country, Chiao Fang Ku petitions for review of a final order of removal issued by the Board of Immigration Appeals ("BIA" or "Board"). The Board determined that Ku had committed an aggravated felony under
In
Nijhawan v. Holder
,
I.
Ku is a native and citizen of Taiwan. She was admitted to the United States in 1997 and gained status as a lawful permanent resident in 2002. In 2014, Ku was charged with a single count of wire fraud, in violation of
These allegations were incorporated by reference into the sole count of the Information, which alleged that, on or about November 7, 2011, Ku,
having devised and intending to devise a scheme and artifice to defraud and to obtain money and property by means of materially false and fraudulent pretenses, representations, and promises, did cause writings, signs, signals, pictures, and sounds to be transmitted by means of wire communications in interstate *137 commerce for the purpose of executing such scheme and artifice, to wit: executing an online payment from M.R.'s Sovereign Bank account, ending in 8497, to the defendant's Chase credit card account, ending in 6567, in the amount of $2,290.53.
(App. 590). The Information further contained forfeiture allegations, which directed that, upon conviction of the sole count of the Information, Ku "forfeit to the United States ... any property, real or personal, that constitutes, or is derived from, proceeds traceable to the commission of the offense, including but not limited to at least $950,000 in United States currency." (App. 591).
Ku pleaded guilty, pursuant to a plea agreement, 1 to the single count of the Information. In her sentencing memorandum, Ku, through counsel, acknowledged that she was "now subject to automatic deportation as a result of her conviction in this case." (App. 740). Ku was ultimately sentenced to a term of 18 months' imprisonment, followed by one year of supervised release. The judgment includes a total loss determination of $954,515.71 and orders restitution in that amount. (App. 582).
After Ku completed her sentence, she was served with a Notice to Appear and placed in removal proceedings. The Notice to Appear charged Ku with being removable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA" or the "Act"),
In order to avoid deportation, Ku sought to re-adjust her status based on her U.S. Citizen husband.
2
The Immigration Judge granted Ku's application for a waiver of inadmissibility under § 212(h)(1)(B) of the Act,
On appeal, the Board affirmed that the Government demonstrated by clear and convincing evidence that Ku was removable as an aggravated felon as defined at § 1101(a)(43)(M)(i) in that her offense involved fraud or deceit in which the loss to the victims exceeded $10,000. In doing so, the Board noted that the Information alleged that Ku stole more than $950,000 in funds belonging to her in-laws, and that this allegation was incorporated by reference into the count to which Ku pleaded guilty. It also observed that the Information also contained a forfeiture allegation stating that, upon conviction, Ku would forfeit over $950,000 in currency. Finally, the Board considered relevant that the Judgment of Conviction found a total loss of over $950,000 and ordered restitution in that amount.
The Board further concluded that Ku's conviction was for a crime involving moral turpitude, making her inadmissible under § 212(a)(2)(A)(i)(I) of the INA,
II.
Although we have jurisdiction to review final orders of removal under
III.
On appeal, Ku challenges all three aspects of the BIA's order. First, she contends that the BIA incorrectly determined that her wire-fraud conviction involved a loss of more than $10,000 by relying on evidence that was not sufficiently tethered to the sole count of conviction. 4 Second, Ku argues that the Board erred in finding that her wire-fraud conviction was for a crime involving moral turpitude because the statute of conviction does not require a showing of intent. Third, Ku asserts that the BIA applied the incorrect legal standard in reversing the IJ's grant of a discretionary waiver of inadmissibility. We reject all three of Ku's challenges and therefore deny the petition for review.
*139 A.
Section 237(a)(2)(A)(iii) of the INA, as amended, provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable."
In
Nijhawan v. Holder,
the Supreme Court addressed the issue of whether the $10,000 threshold of the aggravated felony statute "refers to an element of a fraud statute or to the factual circumstances surrounding commission of the crime on a specific occasion."
Since
Nijhawan
, we have consistently applied the circumstance-specific approach to determine the amount of loss in "aggravated felony" cases.
See, e.g.
,
Kaplun v. Att'y Gen.
,
We consider the loss to the victims in this case-as evidenced by the Information, *140 Judgment, and Restitution Order-to be sufficiently tethered to the count of conviction such that Ku's conviction was an aggravated felony. Paragraphs 1 through 10 of the Information allege that Ku stole more than $950,000 in funds belonging to her in-laws, and these paragraphs were incorporated by reference into the count to which Ku pleaded guilty. Furthermore, the forfeiture allegation contained in the Information states that, upon conviction, Ku would forfeit the "proceeds traceable to the commission of the offense, including but not limited to at least $950,000 in United States currency." (App. 591). Finally, the Judgment of Conviction indicates a loss of $954,515.71 and orders restitution in that amount. Each of these documents is reviewable under the circumstance-specific approach laid out by the Supreme Court in Nijhawan . Together, they provide clear and convincing evidence that Ku's offense involved a loss of over $10,000. Nonetheless, we briefly addresses Ku's arguments to the contrary, all of which lack merit.
1.
First, Ku contends that the circumstance-specific approach described in Nijhawan does not apply in her case because the single count of the Information made clear that it was for the specified amount of $2,290.53. She urges us to read Nijhawan to have kept intact the modified categorical approach for cases in which the charging document contains a clear indication of the loss amount. Under the modified categorical approach, she contends, the Board was correct in reviewing the Information but, because the count of conviction contains a loss amount of $2,290.53, the Board should have stopped there.
Contrary to Ku's assertion,
Nijhawan
does not stand for the proposition that, when the count of conviction contains a loss amount, immigration officials must look no further. The Supreme Court explicitly rejected the use of the modified categorical approach in determining whether a prior conviction is an aggravated felony under § 1101(a)(43)(M)(i).
Nijhawan
,
Nothing in
Nijhawan
suggests that the circumstance-specific approach applies in some cases but not others, or that the documents reviewable under that approach vary from case to case. Furthermore, we have consistently interpreted
Nijhawan
as allowing an IJ, in determining the loss amount, to look beyond the charging document to sentencing-related materials.
See
Kaplun
,
2.
Second, Ku contends that, because her conviction was for "a single act of a *141 $2,290.53 on-line transfer," the losses she caused through other acts and transactions are not sufficiently "tethered" to the count of conviction for purposes of the aggravated felony statute. (Petitioner's Br. at 27). In doing so, Ku asks us to read the Information as charging her in Count One with a "scheme and artifice to defraud" her in-laws of $2,290.53, and not as charging her with one instance of wire fraud that was part of a broader "scheme and artifice to defraud" her in-laws of over $950,000. However, such an interpretation is inconsistent with the language of the Information. In Count One, the Government "re-alleges and incorporates by reference" the first eight paragraphs, which allege that, over five years, Ku defrauded her in-laws of more than $950,000 by transferring funds from their accounts to her own accounts, withdrawing funds as cash, making payments to credit card companies for charges she incurred, and writing and cashing checks payable to herself. (App. 588-90). The explicit incorporation of those paragraphs into the count to which Ku pleaded guilty supports an interpretation of the count itself as describing Ku's "scheme and artifice to defraud" her in-laws of more than $950,000.
We are similarly unpersuaded by Ku's contention that, because Paragraphs 1 through 8 of the Information describe conduct that does not necessarily amount to wire fraud, such conduct cannot count toward the total loss resulting from her conviction. It is incontrovertible that the "scheme and artifice to defraud" charged in Count One of the Information encompassed the whole course of Ku's unlawful conduct, including the one incident in which Ku committed wire fraud in the amount of $2,390.53, and which resulted in a total loss of over $950,000. In short, because Ku pleaded guilty to committing wire fraud as part of a scheme to defraud her in-laws of more than $950,000, the total loss amount is, to use our language from Fan Wang , "undeniably tethered" to her wire fraud conviction.
3.
Finally, Ku contends that the single-count Information to which she pleaded guilty is part of the "justice package" worked out between her and the Government and urges the Court to defer to that agreement. (Petitioner's Br. at 35). In doing so, Ku relies on our opinion in
Alaka v. Attorney General
,
In
Alaka
-which we decided prior to
Nijhawan
5
-we held that the IJ erred by considering the amount of intended loss for all of the charges against the petitioner rather than the single count for which she was convicted.
Alaka
,
Here, in stark contrast to the petitioner in Alaka , the record before us contains no plea agreement, and certainly not one which explicitly spells out the loss amount to which Ku pleaded guilty. Instead, Ku urges us to find that, based on the fact that the Government could have charged her with a much longer list of crimes but did not, the loss amount as indicated in Count One was part of an explicit bargain between her and the Government. However, this argument is based on pure conjecture. Absent a clear and unmistakable indication of loss in a written plea agreement, we are left with only the Information, Judgment, and Restitution Order to determine the loss attributable to Ku's conviction. As explained above, these documents, taken together, provide clear and convincing evidence that the loss amount attributable to Ku's wire fraud conviction exceeded $10,000, and Ku has provided no plea agreement or any other document to the contrary. 6
Ku's argument that this Court should respect the "justice package" between her and the Government also touches on the Supreme Court's landmark holdings in
Padilla v. Kentucky
,
*143 740). This statement, while not conclusive, certainly undermines any assertion that the "justice package" referred to by Ku was designed to avoid an aggravated felony conviction. Indeed, absent any other evidence in the record to the contrary, the sentencing memorandum supports a finding that, at the time of her guilty plea, Ku understood that she was pleading guilty to an aggravated felony.
B.
Having concluded that the Board did not err in finding that Ku was convicted of an aggravated felony, we turn to the question of whether Ku's conviction constituted a "crime involving moral turpitude" under the INA. Ku argues that wire fraud is not a "crime involving moral turpitude" under
The statute provides that a person is guilty of wire fraud if, "having devised or intending to devise any scheme or artifice to defraud," that person "transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice."
Seeking to persuade us to revisit these tenets, Ku asks us to read the statutory terms "having devised" and "intending to devise" as disjunctive means of committing wire fraud, the latter containing the
mens rea
of intent, and the former eschewing any
mens rea
at all. But the language of the statute does not lend itself to such an interpretation. The specific intent requirement is contained in the latter part of the statute-"for the purpose of executing [a] scheme or artifice [to defraud]"-and must be proved regardless of whether the person made the transmission after "having devised" or while "intending to devise" the scheme to defraud.
Ku's statutory interpretation argument holds no weight. Accordingly, we see no need to revisit the long-held tenet that fraud crimes-including wire fraud-are crimes involving moral turpitude under the INA.
C.
Finally, Ku asks us to find that the Board committed error in its reversal of the IJ's finding that she was eligible for a discretionary waiver of inadmissibility *144 based on the hardship her deportation would cause her U.S. citizen children. However, we lack jurisdiction over the Board's decision on this point.
The INA provides that an alien is inadmissible to the United States if she has been convicted of a crime involving moral turpitude.
We may, however, review "constitutional claims or questions of law raised upon a petition for review ...."
Id
. at § 1252(a)(2)(D). Our jurisdiction in that respect is "narrowly circumscribed" in that it is limited to "colorable claims or questions of law."
Cospito v. Att'y Gen.
,
Ku argues that we have jurisdiction to consider her petition for review on the waiver issue because it presents a question of law, namely whether the Board applied the proper legal standard in making the discretionary determination. But Ku's argument boils down to her contention that the Board failed to consider certain equities relevant to the hardship determination. As we have consistently held, "arguments such as that an Immigration Judge or the BIA incorrectly weighed evidence, failed to consider evidence or improperly weighed equitable factors are not questions of law under § 1252(a)(2)(D)."
Jarbough v. Att'y Gen.
,
IV.
For the foregoing reasons, we will deny in part and dismiss in part Ku's petition for review, and we will deny as moot the Government's motion to remand.
The plea agreement is not part of the administrative record before us, nor was it in the record before the IJ or BIA.
Ku's present husband is not the man to whom she was previously married and whose parents are the elderly in-laws she defrauded.
We have taken a broad view of what constitutes a "final order of removal" under § 1252.
Higgs v. Att'y Gen.
,
We note that Ku does not challenge-and did not challenge before the IJ or the Board-that her wire fraud conviction "involves fraud or deceit" under
Because Alaka was decided prior to the Supreme Court's decision in Nijhawan , its application of the modified categorical approach to the aggravated-felony analysis does not affect our decision. However, to the extent that Alaka stands for the proposition that an IJ may not consider dismissed charges when calculating the loss attributable to the conviction, it remains good law.
The sentencing court in
Alaka
calculated the total loss amount based on the "common scheme or plan," which, it considered, included both the count of conviction and the dismissed counts, and we considered the IJ's reliance on that calculation to be in error in light of the plea agreement.
Reference
- Full Case Name
- CHIAO FANG KU, AKA Chiao Fang Ronan, AKA Anna Ronan, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent
- Cited By
- 34 cases
- Status
- Published