Giuseppe Giudice v. Attorney General United States ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 19-1869
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GIUSEPPE GIUDICE, aka Joe Giudice,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition For Review of an Order of the Board of Immigration Appeals
(Agency No. A031-105-490)
Immigration Judge: John P. Ellington
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 21, 2019
______________
Before: CHAGARES, MATEY, and FUENTES, Circuit Judges
(Opinion filed: April 29, 2020)
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OPINION
______________

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge.
Petitioner, Giuseppe Giudice, also known as Joe Giudice, seeks review of an order
of the Board of Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”)
decision denying his motion to terminate removal proceedings. For the reasons that follow,
we will deny the petition for review.
I.
Giudice is a citizen of Italy who was admitted to the United States as a lawful
permanent resident in 1971. After his admission, Giudice married a United States citizen
and raised four children in the United States. Giudice and his wife engaged in multiple
schemes to obtain fraudulent mortgages and made fraudulent representations in bankruptcy
proceedings. Among these schemes, in December 2006 and February 2007, Giudice
fraudulently obtained two home equity lines of credit from Wachovia Bank. For his
crimes, Giudice pled guilty to conspiracy to commit mail and wire fraud in violation of 18
U.S.C. § 1349, three counts of bankruptcy fraud under 18 U.S.C. §§ 2, 152, and willful
failure to file a federal tax return in violation of 26 U.S.C. § 7203.
In accordance with his plea agreement, Giudice stipulated “the loss resulting from
[his] conduct was more than $400,000 but less than $1,000,000.”1 The presentence
investigation report stated “[i]n the mail and wire fraud conspiracy, the actual loss on the
two charged off Wachovia loans . . . totals $414,588.90” and that “Wells Fargo Bank
(formerly Wachovia) incurred actual losses totaling $414,588.90.”2 Ultimately, Giudice
1
A.R. 501.
2
A.R. 604, 606.
2
was sentenced to 41 months’ imprisonment, ordered to pay a fine of $10,000, and ordered
to make restitution in the amount of $414,588.90.3 While Giudice was serving his sentence,
the Department of Homeland Security (“DHS”) initiated removal proceedings.
DHS initially charged Giudice with inadmissibility under the Immigration and
Nationality Act (“INA”) Section 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an
alien convicted of a crime involving moral turpitude, and INA Section 212(a)(2)(B), 8
U.S.C. § 1182(a)(2)(B), as an alien convicted of two or more offenses for which the
aggregate sentences of confinement were five years or more. Giudice then contested the
basis of his removal proceedings arguing that he could not be charged with inadmissibility
because he was not an arriving alien under the Act. Accepting Giudice’s argument, DHS
withdrew the inadmissibility charges under INA Section 212(a)(2), 8 U.S.C. § 1182(a)(2),
and instead charged him as removable under INA Section 237(a)(2)(A)(ii), 8 U.S.C. §
1227(a)(2)(A)(ii), as an alien who, after admission, had been convicted of two or more
crimes involving moral turpitude not arising out of a single scheme of criminal misconduct;
and under INA Section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who,
after admission, had been convicted of an aggravated felony. Giudice contested the charges
of removability and, in the alternative, sought relief from removal in the form of
cancellation of removal under 8 U.S.C. § 1229b(a).
Rejecting Giudice’s arguments, the IJ sustained both removability charges under
INA Sections 237(a)(2)(A)(ii) and (iii), ordered Giudice’s application for cancellation of
3
A.R. 472, 477, 478.
3
removal pretermitted, and ordered that Giudice be removed to Italy. Giudice appealed to
the BIA. The BIA dismissed the appeal concluding that Giudice was removable as
charged. Giudice now petitions this Court for review.
II.4
Giudice argues that: (A) he was not convicted of an aggravated felony offense as
defined by 8 U.S.C. § 1101(a)(43)(M)(i), because there was no loss to a victim exceeding
$10,000; (B) his original Notice to Appear was legally invalid and his amended charges
were defective because Giudice had been paroled and not admitted into the United States;
and (C) removal proceedings should be terminated for lack of jurisdiction in light of
Pereira v. Sessions.5 We address each argument in turn.
A.
DHS charged Giudice with deportability based on his conviction for an aggravated
felony as defined by § 1101(a)(43)(M)(i). Under § 1101(a)(43)(M)(i), an aggravated
4
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). Although we have jurisdiction
to review final orders of removal under 8 U.S.C. § 1252(a), “no court shall have jurisdiction
to review any final order of removal against an alien who is removable by reason of having
committed [an aggravated felony].” 8 U.S.C. § 1252(a)(2)(C). “We do, however, have
jurisdiction to examine ‘constitutional claims or questions of law.’” Fan Wang v. Att’y
Gen., 898 F.3d 341, 343 (3d Cir. 2018) (quoting Catwell v. Att’y Gen., 623 F.3d 199, 205
(3d Cir. 2010)). Therefore, we have authority to take up purely legal questions, applying
plenary review. Id.5
138 S. Ct. 2105 (2018). Petitioner also argues that one of his offenses, willfully failing
to file a federal tax return, in violation of 26 U.S.C. § 7203, is not a crime of moral
turpitude. However, we need not reach this issue. As the BIA stated, “in the event that
[Giudice’s] conviction under 26 U.S.C. § 7203 is not one for a crime involving moral
turpitude, the Immigration Judge’s unchallenged findings that his offenses under 18 U.S.C.
§§ 2, 152, 1349 are turpitudinous and do not arise out of a single scheme of misconduct
are dispositive of [Giudice’s] removability under section 237(a)(2)(A)(ii) of the Act.” A.R.
10. On this basis, we decline to address Petitioner’s argument as to § 7203.
4
felony is defined as “an offense that . . . involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000.” Giudice argues that he was not convicted of an
aggravated felony under § 1101(a)(43)(M)(i) because there was no loss to a victim
exceeding $10,000.
Specifically, Giudice claims that Wachovia did not sustain any loss because the loan
debt owed was written off in a settlement agreement between Wells Fargo, as successor to
Wachovia, and the New Jersey State Attorney General, due to Wachovia’s “misleading or
exploitative” lending practices.6 Based on that agreement’s loan forgiveness, Giudice
argues that there was no loss to Wachovia caused by Giudice and that, even if there was a
loss, Wells Fargo cannot be considered a “victim.” These arguments have no merit.
To determine whether the Government has shown by clear and convincing evidence
that an alien’s offense involved a loss to a victim exceeding $10,000, courts must use a
“circumstance-specific” approach.7 Critically, immigration courts must use
“fundamentally fair procedures, including procedures that give an alien a fair opportunity
to dispute a Government claim that a prior conviction involved a fraud with the relevant
loss to victims.”8 However, under the circumstance-specific approach, an IJ is not bound
by the evidentiary limitations imposed in criminal proceedings.9 “For example, whereas
the modified-categorical approach is limited to the record of conviction (e.g., indictment,
6
Petitioner Br. 7.
7
Nijhawan v. Holder, 557 U.S. 29, 36, 38-39 (2009).
8
Singh v. Att’y Gen., 677 F.3d 503, 512 (3d Cir. 2012) (quoting Nijhawan, 557 U.S. at 41).
9
Nijhawan, 557 U.S. at 42.
5
plea agreement, criminal judgment, etc) and judicial findings of fact . . . the circumstance-
specific approach may consider sentencing-related material.”10
In this case, both the IJ and the BIA found clear and convincing evidence that the
loss to Wachovia was greater than $10,000.11 The BIA’s summary of the record reveals
the strength of that evidence:
In his plea agreement, [Giudice] stipulated that “the loss resulting from” his
mail and wire fraud offenses “was more than $400,000 but less than
$1,000,000” . . . . During his plea colloquy, [Giudice] acknowledged that he
had made these stipulations . . . . A pre-sentence report prepared after the
plea agreement reflects that his mail and wire fraud offenses resulted in . . .
a total of $414,588.90 in “actual losses” to [Wachovia] . . . . Finally, in the
judgment the sentencing court ordered [Giudice] to “make restitution in the
amount of $414,588.90,” stating that the “amount ordered represents the
total amount due to the victim for this loss.”12
10
Singh, 677 F.3d at 512 (internal citations omitted).
11
Giudice argues that the BIA engaged in impermissible appellate fact-finding when it
referenced sentencing related materials in affirming the IJ’s finding of loss. We disagree.
The BIA made no new factual finding of loss. Instead, the BIA came to the same
conclusion as the IJ regarding the amount of loss to Wachovia. The BIA is entitled to
review the record in such circumstances and we have approved of such a review in similar
cases. See Chiao Fang Ku v. Att’y Gen. United States of Am., 912 F.3d 133, 139 (3d Cir.
2019) (“[W]e determined that the Board did not go beyond the bounds of proper review by
examining the record—including the sole count of the superseding information, the plea
colloquy, the presentence investigation report, the ‘total loss’ specified in the judgment,
and the restitution order—to determine whether the petitioner’s prior conviction was an
‘aggravated felony.’”).
12
A.R. 5-6.
6
Giudice does not quibble with the amount of money obtained through his mail and wire
fraud offenses. Instead, he argues that because his loans were later forgiven, there was no
loss. We are not persuaded.
Loss to a victim occurs at the time the defendant gains control of the fraudulently
obtained property.13 Repayment does not “negate a loss that actually occurred.”14 In
keeping with that logic, it is irrelevant that Wells Fargo, as successor to Wachovia, later
forgave the loans issued as part of an unrelated settlement agreement. A loss occurred
when Giudice obtained funds from Wachovia through his fraudulent mortgage
applications. Thus, a loss, greater than $10,000, occurred in the present case.
Giudice also argues that Wells Fargo was not a “victim” because Wachovia engaged
in misleading or exploitative lending practices. We are not aware of, and neither party
cites, any authority creating a “bad victim” exemption under § 1101(a)(43)(M)(i).15
13
See Singh, 677 F.3d at 518 (stating “[i]f a bank gives a person a loan under false
pretenses, then no matter how soon afterwards it detects the fraud, whether one minute or
one year, an actual loss results because the person obtains possession of the loan at the
direct deprivation of the bank. It doesn’t matter how fleetingly the person obtains control.
If the person’s offense deprives the defrauded party of property, an actual loss occurs to an
actual victim under subparagraph (M)(i)”).
14
Id.15
In support of his argument Petitioner cites United States v. Litos, in which the Court
declined to consider a bank that acted recklessly, by approving mortgage applications
without verifying the solvency of would-be borrowers, to be a victim under the Mandatory
Victim Restitution Act of 1996. 847 F.3d 906, 908-09 (7th Cir. 2017). In that case, the
Court was concerned with allocating financial recompense to an entity that was equally at
fault for the wrongdoing at issue. Id. Such concerns are different than those in the
immigration context, where an IJ considers the actions of one party and is not tasked with
awarding restitution for any misconduct.
7
Furthermore, we see no reason to interpret the statute to exclude entities like Wachovia,
who are both the victim of a crime and the alleged perpetrator of an unrelated wrong.
Wachovia became a victim of Giudice’s fraud as soon as Giudice obtained money from
Wachovia based on his fraudulent conduct. Whether Wachovia also engaged in unrelated
illegal conduct is irrelevant to the present analysis and we consider Wells Fargo, as
successor to Wachovia, to be a victim under § 1101(a)(43)(M)(i).
For these reasons, we conclude that Giudice’s mail and wire fraud offenses caused
a loss to a victim greater than $10,000 and that, therefore, he was convicted of an
aggravated felony under § 1101(a)(43)(M)(i).
B.
Next, Giudice raises two procedural arguments. First, he argues that the original
Notice to Appear was invalid because it charged him as an applicant for admission instead
of as a lawful permanent resident. The Government states that Giudice failed to exhaust
this argument before the BIA while Giudice claims that he raised the issue below. Giudice,
however, conflates two similar, but distinct, procedural arguments. Before the BIA,
Giudice argued that the proceedings should be terminated because a paroled alien cannot
be charged as deportable whereas, in his opening brief before this Court, Giudice argues
that his Notice to Appear was invalid because it charged him as an applicant for admission.
8
We conclude that these are separate inquiries and therefore we have no jurisdiction to
review the present claim, which was not exhausted below.16
Second, Giudice argues that even if amendment of the original Notice to Appear
were possible, the amended charges were defective because admission was a necessary
legal element and Giudice had been paroled and not admitted into the United States.
Although this second argument was raised before the BIA, Giudice failed to raise this issue
with the IJ. Specifically, Giudice argued to the IJ that he could not be charged as an arriving
alien, a position that caused DHS to reexamine Giudice’s record and, ultimately, to charge
him as an alien who had “been admitted to the United States” under the deportability
grounds of 8 U.S.C. § 1227.17 After DHS’s amended charge was made, Giudice proceeded
before the IJ without objection.18 Based on this record, the BIA concluded that Giudice
“had a full and fair opportunity to raise this issue below” and because “he is raising it for
the first time on appeal, [the BIA] will not address it.”19 We conclude that the BIA did not
err in declining to address this issue raised for the first time on appeal and we similarly
decline to address it now.20
16
See 8 U.S.C. § 1252(d)(1) (requiring exhaustion of administrative remedies); Castro v.
Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012) (“A petitioner’s failure to exhaust an issue by
presenting it to the BIA deprives us of jurisdiction to consider that issue.”).
17
A.R. 357.
18
A.R. 176-90.
19
A.R. 11.
20
See Prabhudial v. Holder, 780 F.3d 553, 554 (2d Cir. 2015) (holding that “the BIA may
apply the doctrine of waiver to refuse to consider an argument that was not raised before
an IJ”).
9
C.
Finally, Giudice argues that the BIA should have terminated his removal
proceedings pursuant to Pereira v. Sessions,21 because his Notice to Appear did not contain
the date or time of his initial hearing. This omission, he argues, deprived the IJ of
jurisdiction over the removal proceedings. We recently spoke on this issue in Nkomo v.
Attorney General,22 in which we held that the absence of a designated date and time for an
initial hearing in a Notice to Appear does not deprive an IJ of jurisdiction to conduct
removal proceedings. We see no reason to revisit that holding today.
III.
For the foregoing reasons, we will deny the petition for review.
21
138 S. Ct. 2105 (2018).
22
930 F.3d 129 (3d Cir. 2019); see also Guadalupe v. Att’y Gen., 951 F.3d 161, 163, n.6
(3d Cir. 2020) (noting that Nkomo held that Pereira does not implicate the IJ’s authority to
adjudicate).
10