Fabian Muyaba v. William Barr, U. S. Atty Gen ( 2020 )

Case: 18-60598 Document: 00515300321 Page: 1 Date Filed: 02/06/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60598 February 6, 2020
Lyle W. Cayce
Clerk
FABIAN KABWE MUYABA, also known as Fabian Muyaba,
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A099 287 065
Before KING, COSTA, and HO, Circuit Judges.
PER CURIAM:*
Fabian Kabwe Muyaba is a citizen of Zimbabwe admitted into the United
States on a B-1 immigration visa in 2001. He became a lawful permanent
resident in 2006. In 2009, he was convicted of conspiracy and six counts of
aiding and assisting in the preparation of false tax returns in a scheme that
began in 2004 and ended in 2008. According to the indictment, Muyaba was
personally responsible for fraudulently claimed business losses and tax credits
totaling $112,227. The district court found the scheme resulted in a loss to the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-60598 Document: 00515300321 Page: 2 Date Filed: 02/06/2020
No. 18-60598
IRS of $2,661,060. Muyaba objected to being held accountable for the loss
attributable to the whole scheme, instead claiming that he was responsible
only for a loss of “approximately $86,000.” The district court sentenced him to
120 months in prison and two years of supervised release and ordered
cooperation with the IRS in collecting outstanding taxes. The Fifth Circuit
affirmed Muyaba’s sentence. United States v. Mudekunye, 646 F.3d 281, 291
(5th Cir. 2011).
In 2017, Immigration and Customs Enforcement (ICE) took custody of
Muyaba and served him with a Notice to Appear (NTA) for removal
proceedings. ICE notified him in the NTA that he was an alien convicted of an
aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). The definition of
aggravated felony includes “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);
In the alternative, the immigration judge made a finding that Muyaba was
removable because the six counts of aiding and abetting tax fraud each
qualified as a crime of moral turpitude.
The immigration judge recognized Muyaba was personally liable for
$112,227 in fraudulent business losses and tax credits and that the scheme
defrauded the IRS of $2,903,842. The immigration judge made a factual
finding that Muyaba was convicted of an offense involving fraud in which the
loss exceeded $10,000. That finding meant the fraud was an aggravated felony
and he was eligible for deportation. The Board of Immigration Appeals denied
the appeal.
Muyaba presents four arguments in this appeal. We find each meritless.
Our court recently rejected Muyaba’s first argument in Pierre-Paul v.
Barr, 930 F.3d 684 (5th Cir. 2019). The Supreme Court issued a narrow
holding in Pereira v. Sessions that an NTA without the time or place of removal
proceedings is not “a notice to appear under section 1229(a).” 138 S. Ct. 2105,
2
Case: 18-60598 Document: 00515300321 Page: 3 Date Filed: 02/06/2020
No. 18-60598
2110 (2018). In Pierre-Paul, we held that the immigration judge may cure a
defective NTA “by subsequently sending a notice of hearing that include[s] the
time and date of the hearing.” Id. at 689. We further held that even if an NTA
could not be cured in that manner, the defect “is not jurisdictional.” Id.
Like in Pierre-Paul, Muyaba seeks to invalidate jurisdiction by claiming
his NTA lacked the specific time and date. See id. at 690. By including the
curing information in subsequent NTAs, the court cured that potential defect.
See id. at 693.
Muyaba’s second argument attempts to rebut his eligibility for removal
for having committed an aggravated felony. He claims he was responsible for
only $86,000 in actual losses. But even assuming he is right, that amount is
still over the $10,000 minimum for his offense to qualify as an aggravated
felony. 8 U.S.C. § 1101(a)(43)(M)(i); see also Nijhawan v. Holder, 557 U.S. 29,
38–39 (2009) (describing the crimes that fit into subsection (M)(i)).
Muyaba’s third claim, that he did not commit at least two crimes of moral
turpitude, also fails. His multiple offenses are distinct crimes for purposes of
this statute. Animashaun v. INS, 990 F.2d 234, 237–38 (5th Cir. 1993).
Finally, Muyaba argues the BIA erred in failing to remand the
proceedings to allow him to try to adjust his status and apply for a waiver of
inadmissibility. He failed to meet the statutory prerequisites for adjustment
of status and so is not eligible to apply for a waiver. See Cabral v. Holder, 632
F.3d 886, 891 (5th Cir. 2011). As such, the BIA did not abuse its discretion in
denying remand.
We affirm.
3