Dexter Rodney v. Atty Gen USA

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MANDATE ISSUED, filed.

Dexter Rodney v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-2043

Document: 003110311497

Page: 1

Date Filed: 10/12/2010

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 09-2043 _____________ DEXTER RODNEY, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent

Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA No. A045-307-175) Immigration Judge: Honorable Walter A. Durling

Submitted Under Third Circuit LAR 34.1(a) September 13, 2010 Before: RENDELL, FISHER and GARTH, Circuit Judges. (Filed: September 14, 2010)

OPINION OF THE COURT

RENDELL, Circuit Judge.
P e titio n e r Dexter Rodney petitions for review of a final order of removal. We will d e n y the petition.

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I. R o d n e y, a native and citizen of Guyana, entered the United States as a lawful p e rm a n e n t resident in February 1996. On February 11, 2004, a jury in the U.S. District C o u rt for the Southern District of New York found Rodney guilty of bank fraud, pursuant to 18 U.S.C. § 1344, and theft of government property, pursuant to 18 U.S.C. § 641, for h is theft of over $30,000 in U.S. Treasury checks, which he subsequently deposited at F le e t Bank. On May 14, 2004, U.S. District Judge Victor Marrero sentenced Rodney p rin c ip a lly to five months' imprisonment and ordered him to pay restitution to Fleet Bank in the amount of $23,450.21. O n July 12, 2007, the Government served Rodney with a Notice to Appear, c h a rg in g that he was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) because he had c o m m itte d an "aggravated felony," as that term is defined by 8 U.S.C. § 1101(a)(43)(M)(i), since he was convicted of bank fraud and "the amount of the funds e x c ee d e d $10,000." On November 6, 2007, an Immigration Judge ordered Rodney re m o v e d . R o d n e y appealed to the Board of Immigration Appeals, arguing that the G o v e rn m e n t could not prove that a loss of $10,000 or more resulted from his bank fraud. On March 6, 2008, the BIA found that Rodney's former counsel was ineffective in failing to challenge the aggravated felony charge, and granted Rodney's motion to remand. On April 1, 2008, Rodney appeared before the IJ and denied the charge of

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re m o v a b ility. To support its claim that Rodney had caused a loss of more than $10,000, th e Government introduced the pre-sentence investigation report ("PSR") from his c rim in a l proceeding, which showed a loss to Fleet Bank of $23,450.21, as well as the c rim in a l judgment, which reflected a restitution order for the same amount. However, the IJ held that this did not constitute sufficient evidence of the amount of loss, because it did n o t indicate how Judge Marrero had calculated the restitution award. The IJ therefore d i sm is s e d the removability charge and terminated the removal proceedings. T h e Government appealed to the BIA. Citing our decision in Nijhawan v. Attorney G e n e ra l, 523 F.3d 387 (3d Cir. 2008), the BIA found that the Government had introduced a d e q u ate evidence of the loss caused by Rodney's conduct and sustained the appeal on J u ly 28, 2008. The BIA noted that the PSR showed that Rodney had deposited stolen c h e c k s totaling $37,080.21 into his Fleet account, and that these checks caused Fleet to s u f f er a loss of $23,450.21. The BIA also noted that Judge Marrero had ordered Rodney to pay $23,450.21 in restitution. Furthermore, the BIA held that the totality of the e v id e n c e, including the criminal complaint, the judgment of conviction, the PSR, and the re stitu tio n order established that the loss was connected to Rodney's bank fraud c o n v ic tio n . The BIA therefore remanded the case to the IJ for proceedings consistent w ith its opinion. On September 16, 2008, Rodney appeared before the IJ and argued that the BIA h a d not addressed his argument that the Government had failed to show that the loss to

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F le e t Bank resulted from his bank fraud, rather than from his theft of government p ro p e rty. He further argued that he had not been given an opportunity to argue that N ijh a w a n was inapplicable to his case. In a ruling issued in October 2008, the IJ declined to permit Rodney to make further arguments because the BIA had already considered N ijh a w a n , and ordered Rodney removed to Guyana. Rodney appealed to the BIA again, ra is in g the same arguments that he had just presented to the IJ. On March 12, 2009, the B IA dismissed Rodney's appeal, citing the reasoning from its previous decision. The B IA also indicated that, even if Rodney had not previously had an adequate opportunity to argue the impact of Nijhawan, "he has now submitted his arguments in this regard to th e Board." App. 4. R o d n e y now seeks review of the BIA's decision. II. R o d n e y challenges the BIA's determination that he caused a loss of more than $ 1 0 ,0 0 0 , which was necessary in order to find that he had been convicted of an a g g ra v a te d felony under 8 U.S.C. § 1101(a)(43)(M)(i). "Whether [a] conviction c o n stitu te s an aggravated felony presents a question of law within our subject matter jurisd iction over which we exercise plenary review. . . . We do not defer to the BIA's d e te rm in a tio n of whether a crime constitutes an aggravated felony." Henry v. Bureau of Im m ig r a tio n & Customs Enforcement, 493 F.3d 303, 306 (3d Cir. 2007) (citations o m itte d ). In applying the $10,000 threshold, we must consider "the specific

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c irc u m s ta n c es surrounding an offender's commission of a fraud and deceit crime on a s p e c if ic occasion." Nijhawan v. Holder, 129 S. Ct. 2294, 2302 (2009). We exercise ju ris d ic tio n under 8 U.S.C. § 1252(a)(2)(D) to review "questions of law," including the q u e s tio n of whether a conviction constitutes an aggravated felony. Henry, 493 F.3d at 3 0 6 .1 W e agree with the BIA that the Government adequately proved that Rodney's bank f ra u d constituted an "aggravated felony." According to the PSR, Rodney deposited at le a st 47 fraudulently obtained checks at Fleet Bank, and "[t]he combined value of the c h e c k s totaled $37,080.21." App. 362. Two of these checks, which together were worth $ 1 3 ,6 3 0 , never cleared, which meant that "the victim of this offense, Fleet Bank, suffered lo s s e s of $23,450.21." Id. Rodney did not challenge the content of the PSR at his s e n te n c in g before Judge Marrero, who then ordered him to pay restitution to Fleet Bank in the amount of $23,450.21. App. 394. This evidence is sufficient to establish that R o d n ey caused an actual loss to Fleet Bank of more than $10,000, that he was therefore c o n v icte d of an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(D), and that he is there fo re removable under 8 U.S.C. § 1227(a)(2)(A)(iii). A lth o u g h Rodney vigorously resists this straightforward conclusion, none of his a rg u m e n ts have merit. First, he points to an inconsistency in the PSR, which describes

For this reason, we will deny the Government's motion to dismiss the petition for lack of jurisdiction. 5

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th e number of fraudulently checks he deposited as both 47 and 49. However, Rodney did n o t challenge this finding before Judge Marrero, and this inconsistency does not u n d e rm in e the evidence that Rodney caused losses in excess of $10,000. Second, he a rg u e s that a restitution order alone is not necessarily sufficient evidence of the amount of lo ss . Although that may be true, the combination of the PSR and the restitution order in this case, especially in the absence of any contrary evidence pointing to a smaller loss, are s u f f ic ie n t to support the finding that Rodney caused a loss of $23,450.21. Nijhawan, 129 S . Ct. at 2903. Third, he argues that he did not plead guilty, did not admit the accuracy of th e PSR, and did not otherwise admit that he had caused a loss in excess of $10,000. However, he cites no authority for the proposition that such admissions are necessary to th e finding as to the loss amount. Fourth, Rodney argues that there is no evidence that the pecuniary loss caused by h is crimes resulted from his bank fraud, rather than his theft of government property. This contention is also without merit. The loss to Fleet Bank unquestionably resulted f ro m his bank fraud--i.e., his "scheme . . . to defraud a financial institution; or . . . to o b ta in any of the moneys . . . [of] a financial institution, by means of false or fraudulent p re te n se s," 18 U.S.C. § 1344. Although his additional criminal actions in stealing the U .S . Treasury checks, in violation of 18 U.S.C. § 641, may have enabled him to p e rp e tra te this fraud on the bank, the BIA was not required to dissect the causal chain as in tric a te ly as Rodney would like. Moreover, the only sensible interpretation of Judge

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Date Filed: 10/12/2010

M a rre ro 's restitution order is that Fleet Bank was the victim of Rodney's bank fraud, s in c e restitution is used to compensate the "victim" of a crime, see 18 U.S.C. § 3664, and th e bank could not have been a "victim" of Rodney's theft of government property. F in a lly, Rodney argues that the BIA denied him due process by relying on our d e c is io n in Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. 2008), without giving h im notice and an explicit invitation to present argument regarding the impact of that ca se. We can find no authority, and Rodney cites none, for the proposition that the BIA h a s a constitutional obligation to inform aliens of every legal authority on which it plans to rely. Moreover, in this case, Rodney had at least two opportunities to present a rg u m e n ts to the BIA regarding the impact of Nijhawan: both in response to the G o v e rn m e n t's brief prior to the BIA's July 2008 decision, and in his third appearance b e f o re the BIA, after the IJ's October 2008 decision. We have considered Rodney's remaining arguments and find them to be without m e rit. I I I. F o r the reasons set forth above, we will deny the petition for review.

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