Khunsela Prom v. Eric Holder, Jr. , 513 F. App'x 659 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KHUNSELA PROM, ) No. 11-71730
AKA Khunsela Knunela, )
AKA Danny Prom, ) Agency No. A025-294-832
)
Petitioner, ) MEMORANDUM *
)
v. )
)
ERIC H. HOLDER, Jr., Attorney )
General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 4, 2013
Seattle, Washington
Before: FERNANDEZ, W. FLETCHER, and RAWLINSON, Circuit Judges.
Khunsela Prom petitions for review of the Board of Immigration Appeals’
determination that he was removable because he was an aggravated felon.1 We
deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
See 8 U.S.C. § 1227(a)(2)(A)(iii).
The BIA did not err when it determined that Prom was an aggravated felon
because: (a) he conspired to commit a felony involving fraud or deceit when he
joined others in perpetrating a scheme to defraud casinos by cheating at card
games, and (b) the victims lost over $10,000.2 When a modified categorical
analysis3 is used, with a proper consideration of other facts,4 it is apparent that, at
the very least, Prom’s conspiracy to transport the fraudulently obtained funds in
interstate and foreign commerce5 was a crime involving the fraud itself. Moreover,
the order at sentencing that he pay some $19,150 in restitution to one of the casinos
was sufficient to sustain a determination that the victims had lost over $10,000.
Thus, he was removable on that ground alone.6
2
See 8 U.S.C. § 1101(a)(43)(M)(i), (U).
3
See Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 1257, 161
L. Ed. 2d 205 (2005); Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143,
2160, 109 L. Ed. 2d 607 (1990); Young v. Holder, 697 F.3d 976, 983 (9th Cir.
2012) (en banc); Carlos-Blaza v. Holder, 611 F.3d 583, 589 (9th Cir. 2010).
4
See Nijhawan v. Holder, 557 U.S. 29, 38–40, 129 S. Ct. 2294, 2301–02,
174 L. Ed. 2d 22 (2009).
5
See 18 U.S.C. § 2314.
6
The BIA also determined that Prom had committed an aggravated felony
because one object of the conspiracy was to make materially false and fraudulent
statements to federal investigating officers and one conspirator did just that. See
18 U.S.C. § 1001(a)(2). We need not, and do not, consider that separate
determination.
2
Therefore, we must deny the petition.7
Petition DENIED.
7
Because Prom is an aggravated felon, his claim, if any, regarding
cancellation of removal is moot. See 8 U.S.C. § 1229b(a)(3).
3