Introduction

On October 17, 2018, the United States Court of Appeals for the Third Circuit filed an interesting unpublished decision in Morillo v. Attorney General of the United States, No. 18-1839 (3d Cir. 2018) [PDF version]. The case dealt with how to consider whether an alien was convicted of an aggravated felony under section 101(a)(43)(M)(i), which covers an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000…” (Emphasis added.) In this article, we will briefly examine the Third Circuit’s unpublished decision.

Before continuing, it is important to note that unpublished decisions are non-precedential. This means that, while they may be instructive, they are not binding on immigration decisions, federal trial court decisions, or future appellate panels.

For more information about section 101(a)(43)(M)(i), please see our full article on Nijhawan v. Holder, 557 U.S. 29 (2009) [see article].

Factual and Procedural History

The petitioner, Kevin Ricardo Molina Molina, is a citizen of the Dominican Republic. He entered the United States at the age of six in 1993.

In December of 2015, Molina was convicted of possession of a forged instrument and bribery in violation of New York law. Based on this conviction, Molina was placed in removal proceedings. The initial charges were that he had been convicted of two or more crimes of moral turpitude and that his conviction was for an immigration aggravated felony under section 101(a)(43)(R) (“an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year.” Emphasis added.) One year later, the Department of Homeland Security (DHS) lodged an additional charge against Molina, alleging that he had also been convicted in violation of 18 U.S.C. 500, which the DHS stated was an aggravated felony under section 101(a)(43)(M)(i).

In removal proceedings, the immigration judge sustained the charges and determined that Molina would be ineligible for most forms of relief due to having been convicted of at least one aggravated felony. The immigration judge considered Molina’s application for withholding of removal after determining that his convictions were not “particularly serious crimes” precluding eligibility for such relief, but the judge ultimately determined that Molina did not meet his burden of showing that it was more likely than not that he would be persecuted on a protected ground in the Dominican Republic.

On appeal, the Board affirmed the immigration judge’s determination that Molina’s conviction under 18 U.S.C. 500 was an aggravated felony under section 101(a)(43)(M)(i). The Board also affirmed the immigration judge’s conclusion that Molina did not sustain his burden of establishing eligibility for withholding of removal.

Molina filed a timely petition for review with the Third Circuit. He only contested the conclusion of the BIA that his conviction in violation of 18 U.S.C. 500 was an aggravated felony under section 101(a)(43)(M)(i).

Scope of Review

The Third Circuit explained that the scope of its review was limited to the sole issue raised in Molina’s brief, citing to its published decision in Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004) [PDF version]. The Government argued that the Third Circuit need not even reach that issue because even if Molina’s conviction was not an aggravated felony under section 101(a)(43)(i), he would still be removable on the bases that he had been convicted of two or more crimes involving moral turpitude and that he had been convicted of aggravated felony bribery under section 101(a)(43)(R). However, the Third Circuit rejected this method of disposing of the case because the Board had only reached the question of whether the respondent had been convicted of an aggravated felony described in section 101(a)(43)(M)(i), citing to its precedent in Konan v. Att’y Gen., 432 F.3d 497, 501 (3d Cir. 2005) [PDF version], wherein it observed that “It is a bedrock principle of administrative law that judicial review of an agency’s decision is limited to the rationale that the agency provides.” It also cited to Myrie v. Attorney General of the United States, 855 F.3d 509, 515 (3d Cir. 2017) [PDF version], in which it held that where the BIA relies on only some of the immigration judge’s grounds for denying relief, the Court relies only upon those grounds relied upon by the BIA.

Third Circuit Affirms Conclusion that Conviction Was Aggravated Felony Under 101(a)(43)(M)(i)

Molina did not contest that his conviction under 18 U.S.C. 500 involved fraud or deceit, the first prong of section 101(a)(43)(M)(i). Instead, he restricted his challenge to the determination that his fraud or deceit offense involved a loss to the victim(s) of at least $10,000. Both parties in the case agreed that the Third Circuit should employ he “circumstance-specific approach” for determining the loss to the victim(s), which was set forth by the Supreme Court of the United States in Nijhawan v. Holder, 557 U.S. 29, 34, 40 (2009) [PDF version]. In Nijhwan, the Supreme Court made clear that the amount of loss must be tethered to the conviction. Id. at 42. We discuss the important Nijhawan decision in more detail in a separate full article on site [see article].

Molina conceded he had stipulated that the loss suffered due to his conviction was between $120,000 and $200,000. However, he argued that the stipulated amount “contains relevant and general conduct from the un-convicted counts of [his] indictment.” Thus, he argued that the Government did not sustain its burden of establishing that at least $10,000 of loss to the victim was directly tethered to Count Five of the indictment — here 18 U.S.C. 500. In response, the Government argued that, under the Mandatory Victims Restitution Act of 1996, codified at 18 U.S.C. 3663A(a)(1) & (2), (c)(1)(B), a court is only able to order restitution if it “finds that ‘an identifiable victim or victims has suffered a physical injury or pecuniary loss’ as a ‘direct[] and proximate[] result of the offense…”

The Third Circuit sided with the Government. It explained that the Order of Restitution stated that Molina “shall pay restitution in the total amount of $93,621.43, to be distributed to the victims of the offense charged in Count Five on a pro rata basis.” (Emphasis added.) From this language, the Third Circuit panel inferred that the sentencing court had found that this amount was attributable to Molina’s conviction in violation of 18 U.S.C. 500. It added that in Nijhawan the Supreme Court affirmed the decision of the immigration court to consider the defendant’s own stipulation in determining the amount of loss to the victims. Nijhawan, 557 U.S. at 42-43. The Third Circuit suggested that Molina’s argument was that the sentencing court had made an error; however, it stated this issue could not be challenged in immigration proceedings, which was the only proceeding under review by the Third Circuit.

For the foregoing reasons, the Third Circuit denied Molina’s petition for review.

Conclusion

An alien facing criminal charges should consult with an experienced immigration attorney for guidance on the potential consequences of different outcomes on his or her immigration status. Additionally, the individual should ensure that his or her criminal defense attorney is aware of the overall immigration situation.

In removal proceedings, it is important for an alien to consult with an experienced immigration attorney. While the petitioner in the instant case was ultimately found removable for a conviction described in section 101(a)(43)(M)(i), the case also highlights that there are, in many instances, avenues for challenging the amount of loss in the 101(a)(43)(M)(i) context.

To learn more about the issues discussed in this article, please see our website’s growing collection of articles on criminal aliens [see category], removal and deportation defense [see category], and immigration appeals [see category].