Alberto Rivas-Marin v. Eric Holder, Jr. , 469 F. App'x 521 ( 2012 )

FILED
NOT FOR PUBLICATION FEB 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALBERTO JOSE RIVAS-MARIN, No. 10-71287
Petitioner, Agency No. A039-804-830
v.
MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2012 **
San Francisco, California
Before: GRABER and TALLMAN, Circuit Judges, and TIMLIN, Senior District
Judge.***
Petitioner Alberto Rivas-Marin (“Rivas-Marin”), a native and citizen of
Nicaragua, petitions for review of a decision of the Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert J. Timlin, Senior United States District Judge
for the Central District of California, sitting by designation.
(“BIA”). The BIA upheld the immigration judge’s (“IJ”) ruling that Rivas-Marin’s
mail fraud conviction under 18 U.S.C. § 1341 constituted an aggravated felony
under 8 U.S.C. § 1101(a)(43)(M)(i), thus requiring his removal to Nicaragua.
Although 8 U.S.C. § 1252(a)(2)(C) prohibits judicial review of orders of
removability resting on an alien’s conviction for an aggravated felony, we still
retain jurisdiction “to determine if jurisdiction exists.” Unuakhaulu v. Gonzales,
416 F.3d 931, 935 (9th Cir. 2005) (internal quotation marks omitted). Thus, we
may determine, as a matter of law, whether Rivas-Marin’s mail fraud conviction is
an aggravated felony under § 1101(a)(43)(M)(i), which defines “aggravated
felony” as a crime involving fraud or deceit causing more than $10,000 in loss to
victims.
The Supreme Court has held that an alien’s mail fraud conviction under §
1341 is an aggravated felony under § 1101(a)(43)(M)(i). Nijhawan v. Holder, 129
S. Ct. 2294, 2303-04 (2009). Alternatively, Rivas-Marin’s many admissions of
fraudulent activity would establish the elements of “fraud or deceit” under a
modified categorical approach. See United States v. Aguila-Montes de Oca, 655
F.3d 915, 936 (9th Cir. 2011) (per curiam).
The IJ used “fundamentally fair procedures” in determining that victims’
losses exceeded $10,000. Nijhawan, 129 S. Ct. at 2302–03. Rivas-Marin was
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ordered to pay $37 million in restitution. He also admitted that his scheme
involved fraudulently inflating the value of several real estate properties by more
than $100,000 each. At the same time, he offered no evidence demonstrating that
losses were less than $10,000. The IJ fairly considered these facts in finding that
Rivas-Marin’s scheme caused losses of over $10,000.
Because we agree with the BIA and the IJ that Rivas-Marin is removable for
having committed an aggravated felony, we dismiss his petition for lack of
jurisdiction. See 8 U.S.C. § 1252(a)(2)(C).
PETITION DISMISSED.
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