07-1187-ag
R agbir v. H older

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12 th day of August, two thousand ten.

PRESENT:         ROBERT D. SACK,
                 REENA RAGGI,
                 GERARD E. LYNCH,
                                 Circuit Judges.
------------------------------------------------------------
RAVIDATH RAGBIR,
                                 Petitioner,

                         v.                                            No. 07-1187-ag

ERIC HOLDER, U.S. ATTORNEY GENERAL,
                                 Respondent.
------------------------------------------------------------

APPEARING FOR PETITIONER:                         ADA AÑON and JULIE MAO, Legal Interns
                                                  (Alina Das, on the brief), Washington Square
                                                  Legal Services, Inc., New York, New York.

FOR RESPONDENT:                                   Tony West, Assistant Attorney General, Terri J.
                                                  Scadron, Assistant Director, Manuel A. Palau,
                                                  Trial Attorney, Office of Immigration Litigation,
                                                  Civil Division, United States Department of
                                                  Justice, Washington, D.C.
       UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

Appeals (“BIA” or “Board”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

       Petitioner Ravidath Ragbir, a native and citizen of Trinidad and Tobago, seeks review

of a March 14, 2007 order of the BIA affirming the August 4, 2006 decision of the

Immigration Judge (“IJ”) finding him removable as an aggravated felon pursuant to

subsections M and U of section 101(a)(43) of the Immigration and Nationality Act (“INA”),

8 U.S.C. §§ 1101(a)(43)(M), (U). See In re Ravidath Lawrence Ragbir, No. A044 248 862

(B.I.A. Mar. 14, 2007), aff’g No. A044 248 862 (Immig. Ct. N.Y. City Aug. 4, 2006); see

also 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at

any time after admission is deportable.”).

       Although federal courts generally lack jurisdiction to review final agency orders of

removal based on an alien’s conviction of an aggravated felony, see Vargas-Sarmiento v.

U.S. Dep’t of Justice, 448 F.3d 159, 164 (2d Cir. 2006), we retain jurisdiction to review

constitutional claims or questions of law, including whether a specific conviction constitutes

an aggravated felony, which we review de novo, see 8 U.S.C. § 1252(a)(2)(D); Almeida v.

Holder, 588 F.3d 778, 783 (2d Cir. 2009). Where, as here, the BIA issues an opinion, that

opinion becomes the basis for our review. See Dong Gao v. BIA, 482 F.3d 122, 125 (2d Cir.

2007). We review the IJ’s reasoning only to the limited extent it was adopted by the BIA.1


       1
         Contrary to the government’s argument, this is not a case where the BIA adopted the
IJ’s reasoning and offered additional commentary. Cf. Mahmood v. Holder, 570 F.3d 466,

                                              2
See generally Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006) (discussing BIA’s

various “techniques in affirming IJ decisions” and corresponding scopes of appellate review).

In applying these standards, we assume the parties’ familiarity with the facts and record of

prior proceedings, which we reference only as necessary to explain our decision.

       1.     The Aggravated Felony Determination

       Ragbir was convicted, following a jury trial, of six counts of wire fraud and one count

of conspiracy to commit wire fraud, see 18 U.S.C. §§ 1343, 371, arising from a scheme to

defraud the Household Finance Corporation (“HFC”), an Illinois-based lending institution,

by procuring fraudulent loans. Ragbir does not challenge the fact of his conviction. Rather,

he contends that the government failed to demonstrate by clear and convincing evidence that

his crimes caused losses of more than $10,000, as required to render him an aggravated felon

under 8 U.S.C. § 1101(a)(43)(M), (U) (classifying as aggravated felony any offense that

“involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” or any

attempt or conspiracy to commit such an offense).2          Ragbir challenges the agency’s




469 (2d Cir. 2009). Rather, the BIA issued an independent opinion, relying on the IJ’s
reasoning only briefly in support of its conclusion that the IJ properly admitted into evidence
a facsimile of the superseding indictment.
       2
         Ragbir’s argument that the government was required to demonstrate the loss amount
by “clear, unequivocal, and convincing” evidence, Pet’r’s Br. at 22 (emphasis in original)
(quoting Berenyi v. Dist. Dir., 385 U.S. 630, 636 (1967)), is foreclosed by a 1996 amendment
to the INA that eliminated the word “unequivocal” from the applicable standard, see 8 U.S.C.
§ 1229a(c)(3); 8 C.F.R. § 1240.8(a); Nijhawan v. Holder, 129 S. Ct. 2294, 2303 (2009)
(recognizing application of clear and convincing evidence standard); Pierre v. Holder, 588
F.3d 767, 773 (2d Cir. 2009) (same).

                                              3
determination of this amount on the grounds that (1) the IJ improperly admitted into evidence

an uncertified facsimile of the superseding indictment on which Ragbir was tried, which

charged a fraudulent scheme exceeding $400,000; and (2) even if the indictment was

properly admitted, the evidence adduced by the government was insufficient to carry its

burden. Neither argument is persuasive.

               a.      The Admissibility Challenge

       In challenging the admission of the indictment facsimile, Ragbir relies on 8 U.S.C. §

1229a(c)(3)(C) and related caselaw holding that an electronic record of conviction must be

certified before it “shall be admissible as evidence to prove a criminal conviction.” 8 U.S.C.

§1229a(c)(3)(C); see also Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1196 (9th Cir. 2006).

The cited authority is inapposite as the superseding indictment was not offered to prove the

fact of Ragbir’s conviction, which Ragbir conceded. Rather, the government offered the

document as some evidence that the resulting losses exceeded $10,000. Cf. Dulal-Whiteway

v. U.S. Dep’t of Homeland Sec., 501 F.3d 116, 129 n.9 (2d Cir. 2007) (suggesting that “proof

of criminal conviction” referenced in 8 U.S.C. § 1229a(c)(3)(B) means proof of “the

existence of the conviction, not the factual basis underlying the conviction”), abrogated on

other grounds by Nijhawan v. Holder, 129 S. Ct. 2294 (2009).

       Evidence is generally admissible in removal proceedings provided that it does not

violate the alien’s right to due process, a standard satisfied “if the evidence is probative and

its use is fundamentally fair, fairness in this context being closely related to the reliability and

trustworthiness of the evidence.” Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008)

                                                 4
(internal quotation marks omitted); see also 8 U.S.C. § 1229a(c)(3)(A) (“No decision on

deportability shall be valid unless it is based upon reasonable, substantial, and probative

evidence.”).    Here, the proffered indictment facsimile was probative, though not

determinative, of loss amount,3 and we detect no unfairness in the IJ’s determination that the

document – which matched the crimes of conviction, bore the stamp of the court clerk, and

was produced following the IJ’s instruction that the government obtain a copy from the clerk

of the district court – was what it purported to be. We note further that Ragbir’s counsel did

not challenge the accuracy of the information contained in the document; indeed, he stated

that “it appears legitimate.” J.A. at 125; see Zerrei v. Gonzales, 471 F.3d 342, 346 (2d Cir.

2006) (rejecting challenge to admissibility of document where, inter alia, petitioner did not

challenge accuracy of information contained therein).

       Accordingly, we identify no legal error in the IJ’s admission of the facsimile

indictment.

               b.    The Sufficiency Challenge

       In finding by clear and convincing evidence that Ragbir was convicted of a fraud

causing losses exceeding $10,000, the agency relied on (1) the superseding indictment, which

charged Ragbir with fraudulent wire communications involving amounts totaling more than

$480,000; and (2) a judgment of conviction requiring Ragbir to pay $350,001 in restitution,


       3
        While intended loss does not necessarily equate to actual loss, in this case, when the
amount charged in the indictment is considered together with the ordered restitution of
$350,001, the totality of the evidence supports a clear and convincing finding of a loss from
the crimes of conviction exceeding $10,000. See infra Part 1.b.

                                              5
described as “the total amount due to the victim for this loss.” Judgment at 5. Ragbir argues

that these documents were insufficient as a matter of law to prove the requisite loss amount

because restitution orders can, and here likely did, include losses arising from uncharged,

related conduct. We disagree.

       While restitution in a fraud case can include compensation for uncharged conduct

closely related to the scheme, see 18 U.S.C. § 3663(a)(2); United States v. Kones, 77 F.3d

66, 70 (3d Cir. 1996),4 and while the Presentence Investigation Report (“PSR”) references

uncharged conduct, Ragbir points to nothing in the record that precluded the agency, as a

matter of law, from making a clear and convincing finding that the $350,001 restitution order

included more than $10,000 attributable to the crimes of conviction.5


       4
         Because Ragbir was convicted of fraud in the District of New Jersey, we cite Third
Circuit authority in determining the potential scope of the restitution order at issue.
       5
         Although the BIA did not rely on the PSR, that document could be read to indicate
that all of the restitution ordered reflected loss from the crimes of conviction. Under the
heading “Loss Amounts,” the PSR states: “The total amount of fraudulent loans is
$831,788.01, reflecting the $426,048.03 loss pertaining to the indicted fraudulent loans, and
the additional $405,739.98 in loans admitted by Ragbir.” PSR ¶ 33 (emphasis added). Under
the heading “Restitution,” the PSR states that restitution “in the amount of $426,048.03 is
outstanding,” providing a figure precisely matching losses caused solely by the indicted
loans. Id. ¶ 108. Similarly, the judgment of conviction states that by stipulation of the
government, “full restitution determined by probation ([$]426,083.03) was not ordered,”
another apparent reference, albeit with a typographical error, to losses attributable to indicted
conduct. Judgment at 6. Even if, as Ragbir suggests, the ultimate restitution amount was
discounted to reflect payments recouped by the victim, Ragbir points to no evidence – and
advances no theory – that supports his urged inference that the indicted loans were repaid
nearly in full while the uncharged loans inflicted essentially unmitigated losses.
        We reject as without merit Ragbir’s suggestion that the restitution order’s
identification of Household Investigations, rather than HFC, as the “payee” of the restitution
amount demonstrates an absence of proof that HFC suffered losses. Judgment at 5. Indeed,

                                               6
       This case is thus readily distinguishable from those relied upon by Ragbir in which

the record clearly demonstrated that the crimes of conviction did not cause losses in excess

of $10,000. See, e.g., Alaka v. Attorney Gen. of the United States, 456 F.3d 88 (3d Cir.

2006); Knutsen v. Gonzales, 429 F.3d 733 (7th Cir. 2005). In Knutsen, a defendant charged

with two counts of bank fraud alleging losses of $7,350 and $12,930.96, respectively,

pleaded guilty to the first count in exchange for dismissal of the second. 429 F.3d at 735.

The court concluded that defendant’s stipulation that “total loss from the offense of

conviction and relevant conduct exceeded $20,000” was insufficient to meet the $10,000 loss

threshold because he “unmistakably pled guilty only to Count One.” Id. at 739-40 (emphasis

in original) (internal quotation marks omitted). Similarly, the petitioner in Alaka pleaded

guilty to a single count of bank fraud causing a loss of $4,716 in exchange for dismissal of

related counts tied to additional losses of more than $40,000. 456 F.3d at 92. The Third

Circuit held that it was error for the IJ to consider losses arising from dismissed charges in

determining the loss amount. Id. at 106-07.

       Here, by contrast, Ragbir was convicted of all charges against him pursuant to a

superseding indictment charging a fraudulent scheme totaling more than $480,000.6 To be

sure, the jury was not required to find any particular loss amount, but we detect no error in


Ragbir does not argue that “the victim” referenced in the restitution order could plausibly be
anyone other than HFC, id., and the order’s identification of a different payee, presumably
authorized to accept payment on behalf of HFC or its parent corporation, does not somehow
break the connection between the indictment and judgment of conviction.
       6
        The only charge on which Ragbir was not convicted was Count Eight, which charged
his co-defendant with illegal use of a social security number but did not allege resulting
losses.

                                              7
the agency’s conclusion that, taken together, the indictment, judgment of conviction, and

restitution order of $350,001 “for this loss” constituted clear and convincing evidence of

losses greater than $10,000. See Black’s Law Dictionary 636 (9th ed. 2009) (defining clear

and convincing evidence as “[e]vidence indicating that the thing to be proved is highly

probable or reasonably certain”); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

315, 329 & n.7 (2d Cir. 2006) (holding that under 8 U.S.C. § 1252(a)(2)(D) we lack

jurisdiction to review agency fact-finding unless the “findings are themselves based on

constitutional or legal error”).

       2.     The Alleged Procedural Defect

       Ragbir submits that he was not afforded a fair opportunity to contest the loss amount

consistent with the standards articulated in Nijhawan v. Holder, 129 S. Ct. at 2303.

Nijhawan clarified that (1) the agency must explore the specific circumstances underlying

a charged fraud offense in determining whether the INA’s $10,000 loss threshold has been

satisfied, and (2) in undertaking this review, an IJ may look to evidence beyond the record

of conviction, including to sentencing-related materials, provided an alien is given a fair

opportunity to dispute the pertinent claim and provided the clear and convincing standard is

met. Id. at 2302-03; accord Lanferman v. BIA, 576 F.3d 84, 89 n.3 (2d Cir. 2009). In so

holding, the Supreme Court abrogated this court’s precedent limiting agency review in this

context to records of conviction. See Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501

F.3d at 128-34. Contrary to Ragbir’s argument, however, nothing in Nijhawan requires the

agency to consider any particular document, nor does the record here support the argument



                                             8
that the BIA denied Ragbir a fair opportunity to challenge the government’s case or to

introduce relevant evidence. On June 7, 2006, the IJ expressly granted Ragbir, who was

represented by counsel, permission to obtain sentencing and related transcripts if he so

wished. Despite repeated adjournments, Ragbir failed to obtain such transcripts or to

introduce other evidence in opposition to the government’s loss calculations.

       Further, as noted, Ragbir points to no evidence indicating that no more than $10,000

of the ordered $350,001 restitution amount was attributable to the crimes of conviction. In

the absence of any indication that the agency’s determination of loss exceeding $10,000 was

not adequately supported by the record, we decline to remand for further proceedings. See

Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005) (“[W]e are not

required to remand where there is no realistic possibility that, absent the errors, the IJ or BIA

would have reached a different conclusion.”); cf. Tian-Yong Chen v. INS, 359 F.3d 121, 127

(2d Cir. 2004) (noting that remand may be appropriate “where the agency’s determination

is based on an inaccurate perception of the record, omitting potentially significant facts”).

       3.     Conclusion

       In sum, we conclude that the BIA properly determined that Ragbir was convicted of

an aggravated felony rendering him removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

       For the foregoing reasons, the petition for review is DENIED. As we have completed

our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.

                                     FOR THE COURT:
                                     CATHERINE O’HAGAN WOLFE, Clerk of Court




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