Rodden v. Wilkinson ( 2021 )

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 8 U.S.C.
§ 1182(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, 511 F.3d 102, 105 (2d Cir. 2007). Because
Rodden was ordered removed for a crime involving moral turpitude
(“CIMT”) under 8 U.S.C. § 1182(a)(2)(A)(i)(I), our jurisdiction is
limited to review of constitutional claims and questions of law.
8 U.S.C. § 1252(a)(2)(C), (D).
The Attorney General has discretion under 8 U.S.C. § 1182(h)
to waive certain grounds of inadmissibility. An alien who has
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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. Id.In 2009, Rodden pleaded guilty to conspiracy to commit “any
offense against the United States, or to defraud the United
States,” in violation of 18 U.S.C. § 371, 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 8 U.S.C. § 1182(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 8 U.S.C. § 1182(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, 588 F.3d 767, 772 (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 8
U.S.C. § 1101(a)(43)(M)(i) because first, 18 U.S.C. § 371categorically involves fraud and deceit, and second, the record
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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.” 8 U.S.C. § 1101(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, 565 U.S. 478, 483 (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, 18 U.S.C. § 371, provides
that “[i]f two or more persons conspire either to commit any
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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, 966 F.3d 118, 130 (2d Cir. 2020) (observing that
18 U.S.C. § 371 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.” Id.
at 130 (internal quotation marks and brackets omitted).
Rodden argues that conspiracy to defraud the United States
under § 371 is not a categorical match to 8 U.S.C.
§ 1101(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, 565 U.S. 478 (2012), however, this argument fails. In
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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. Id. 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.
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§ 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. 8 C.F.R. § 1240.8(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, 557
U.S. 29, 36, 40 (2009). “[T]he loss must be tied to the specific
counts covered by the conviction.” Id. at 42 (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
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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, 32 F.3d 682,
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, 557 U.S. at 42. Rodden’s
criminal information contains no other counts, and no other conduct
of Rodden’s was discussed at the hearing. Therefore, we conclude
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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. Id. Given the record before us, we conclude
that the restitution amount reliably establishes the loss amount
for purposes of 8 U.S.C. § 1101(a)(43)(M)(i). Rodden has therefore
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been convicted of a fraud aggravated felony under the INA and is
ineligible for a waiver of inadmissibility under 8 U.S.C.
§ 1182(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
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