12-846-ag
Ingleton v. Holder

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 9th day of July, two thousand thirteen.

PRESENT: CHESTER J. STRAUB,
         REENA RAGGI,
         PETER W. HALL,
                    Circuit Judges.

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PETER ANTONIO INGLETON,
                   Petitioner,
               v.                                                                       No. 12-846-ag

ERIC H. HOLDER, Jr., United States Attorney General,
                       Respondent.
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APPEARING FOR PETITIONER:                                  RACHEL PECKER (Betsy Ginsberg, Esq., Ryan
                                                           Brewer, Law Student, on the brief), Law Student,
                                                           Kathryn O. Greenberg Immigration Justice Clinic,
                                                           Benjamin N. Cardozo School of Law, New York,
                                                           New York.

APPEARING FOR RESPONDENT:                                  JASON WISECUP (Stuart F. Delery, Luis E.
                                                           Perez, on the brief), Office of Immigration
                                                           Litigation, Civil Division, United States
                                                           Department of Justice, Washington, D.C.
       Petition for review of a Board of Immigration Appeals order.

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the petition for review of the order issued on February 9, 2012, is

DISMISSED IN PART and DENIED IN PART.

       Peter Antonio Ingleton, a citizen of the United Kingdom, petitions for review of a

Board of Immigration Appeals (“BIA”) order affirming the order of an immigration judge

(“IJ”) finding him removable from the United States under the Immigration and Nationality

Act (“INA”). See 8 U.S.C. § 1101 et seq. Ingleton challenges (1) the determination that his

New York conviction for insurance fraud, see N.Y. Penal Law § 176.25, constitutes an

aggravated felony under the INA, see 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii); and (2) the

denial of his motion for remand to seek a waiver of removal under INA § 212(h), see id.

§ 1182(h). We assume the parties’ familiarity with the facts and record of prior proceedings,

which we reference only as necessary to explain our decision to dismiss in part and deny in

part the petition for review.

1.     Aggravated Felony

       Under 8 U.S.C. § 1227(a)(2)(A)(iii), “[a]ny alien who is convicted of an aggravated

felony at any time after admission is deportable.” We have jurisdiction to review de novo

“whether a specific conviction constitutes an aggravated felony.” Pierre v. Holder, 588 F.3d

767, 772 (2d Cir. 2009).




                                             2
       Generally, we have applied “either a categorical or a modified categorical approach

to determine whether a specific crime” qualifies as an aggravated felony under the INA.

Akinsade v. Holder, 678 F.3d 138, 143–44 (2d Cir. 2012) (internal quotation marks omitted).

Under the categorical approach, we look “only to the elements of the offense of conviction

and not to the factual circumstances of the crime.” Id. at 144 (internal quotation marks

omitted). “By contrast, where a statute is divisible, such that some categories of proscribed

conduct render an alien removable and some do not, application of a modified categorical

approach is appropriate.” Id. (internal quotation marks omitted); see United States v.

Beardsley, 691 F.3d 252, 268 (2d Cir. 2012) (stating that statute is divisible where “predicate

and non-predicate offenses” are “listed in separate subsections or a disjunctive list”). Under

the modified categorical approach, we may refer to the “record of conviction,” including the

indictment, to ascertain “whether a petitioner’s conviction was under the branch of the statute

that proscribes removable offenses.” Akinsade v. Holder, 678 F.3d at 144 (internal quotation

marks omitted). Where a conviction is based on a guilty plea, we may “rely only upon facts

to which a defendant necessarily pleaded in order to determine the type of conduct that

represented the basis of an alien’s conviction.” Id. (internal quotation marks omitted).

       New York Penal Law § 176.25 states that a “person is guilty of insurance fraud in the

second degree when he commits a fraudulent insurance act and thereby wrongfully takes,

obtains or withholds, or attempts to wrongfully take, obtain or withhold property with a value

in excess of fifty thousand dollars.” We assume, as Ingleton argues, that this statute is

                                              3
divisible, and we thus proceed under the modified categorical approach. See id. at 145

(assuming statute’s divisibility).

       Count 35 of the indictment, to which Ingleton pleaded guilty, charges that he violated

§ 176.25 by committing “a fraudulent insurance act, namely, a false claim on [a] Liberty

Mutual automobile insurance policy.” Indict. 26, Certified Admin. Record (“CAR”) 195.

Neither the indictment nor any other record evidence establishes whether Liberty Mutual

paid Ingleton’s false claim. Thus, it is unclear whether Ingleton violated the statute by

(1) wrongfully taking or obtaining property with a value in excess of fifty thousand dollars

from Liberty Mutual or (2) attempting wrongfully to take or obtain such property.1 No

matter. Whether Ingleton was convicted of a substantive or attempted crime under § 176.25,

his offense is an aggravated felony under the INA. See 8 U.S.C. § 1101(a)(43)(M)(i)

(identifying offense involving “fraud or deceit in which the loss to the victim or victims

exceeds $10,000” as an aggravated felony); id. § 1101(a)(43)(U) (making it aggravated

felony to attempt to commit offense under subsection (M)(i)); see also Pierre v. Holder, 588

F.3d at 773, 775 (stating that subsections (M)(i) and (U) provide separate definitions of

aggravated felony and, respectively, require actual or intended loss to victim in excess of

$10,000).


       1
        By filing a false insurance claim, Ingleton would not have withheld or attempted to
withhold property in violation of N.Y. Penal Law § 176.25. See Webster’s 3d New Int’l
Dictionary 2627 (1986) (defining “withhold” as “to desist or refrain from granting, giving,
or allowing”). Accordingly, we need not decide here whether a conviction for such conduct
constitutes an aggravated felony under the INA.

                                             4
       In urging otherwise, Ingleton argues that the BIA denied him due process by

sua sponte invoking § 1101(a)(43)(U).        “Parties claiming denial of due process in

immigration cases must, in order to prevail, allege some cognizable prejudice fairly

attributable to the challenged process.” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d

Cir. 2008) (internal quotation marks omitted). Here, even if Ingleton is correct about the

BIA’s invocation of § 1101(a)(43)(U), he fails to show how that action “prejudiced the

outcome of his case,” because “[n]one of the additional procedural protections he demands”

could have altered the conclusion that his conviction is an aggravated felony under either

§ 1101(a)(43)(M)(i) or (U). Id.

       This case is, therefore, distinguishable from Pierre v. Holder, 588 F.3d 767 (2d Cir.

2009), in which we concluded that a petitioner was prejudiced by the BIA’s sua sponte

invocation of § 1101(a)(43)(U) in violation of her due process rights. See id. at 776–77.

Because petitioner in that case was convicted of bank fraud under a federal statute without

a monetary threshold, see id. at 773 (citing 18 U.S.C. § 1344), it was conceivable that her

conviction did not satisfy the $10,000 intended-loss threshold, see id. (stating that, under

Nijhawan v. Holder, 557 U.S. 29, 40 (2009), specific circumstances of crime must be

evaluated to ascertain whether monetary threshold is met). Petitioner thus was prejudiced

by her inability to argue to the IJ and BIA that her crime did not constitute an aggravated

felony under § 1101(a)(43)(U). See id. at 777. Here, Ingleton does not, and cannot, argue

that his conviction under N.Y. Penal Law § 176.25, which has a $50,000 monetary threshold,

                                             5
fails to satisfy § 1101(a)(43)(U)’s $10,000 intended-loss threshold. Nor does he offer any

basis for concluding that § 1101(a)(43)(U) is otherwise inapplicable in this case. We

therefore identify no prejudice to Ingleton arising from the BIA’s sua sponte invocation of

that statutory provision. See Garcia-Villeda v. Mukasey, 531 F.3d at 149 (“Our role is to

provide relief to claimants who have suffered actual harm.” (alterations and internal

quotation marks omitted)).2

       Accordingly, we conclude that the BIA did not err in determining that Ingleton was

convicted of an aggravated felony and that he is, therefore, removable under the INA. It

follows that we lack jurisdiction over Ingleton’s petition insofar as it challenges that

determination. See Oouch v. U.S. Dept. of Homeland Sec., 633 F.3d 119, 126 (2d. Cir.

2011). That portion of his petition thus is dismissed.




       2
          Moreover, in Pierre, the government “expressly disavowed any reliance on
subsection U as a basis for finding [petitioner] removable,” and thus petitioner “had no
reason to defend against such a charge in front of the IJ.” 588 F.3d at 776. By contrast,
although the government never charged Ingleton as removable under § 1101(a)(43)(U),
before the IJ, it explained its position that Ingleton was removable under both subsections
(M)(i) and (U) of § 1101(a)(43), stating: “[N]o matter how you look at it, Your Honor, . . .
it’s an aggravated felony, either for attempt or . . . for committing fraud with a loss in excess
of $10,000 and the consequences that flow from an aggravated felony would be the same”
under either subsection. Hr’g Tr. 51:4–9, CAR 112.

                                               6
2.     Waiver of Removal

       Ingleton argues that the BIA erroneously denied him the opportunity to seek a waiver

of removal under INA § 212(h). See 8 U.S.C. § 1182(h). Because Ingleton raised his

§ 212(h) claim for the first time on appeal to the BIA, the BIA construed that claim as a

motion to remand. See 8 C.F.R. § 1003.1(d)(3)(iv). We have jurisdiction to review the

BIA’s denial of a motion to remand for abuse of discretion. See Cao v. U.S. Dep’t of Justice,

421 F.3d 149, 157 (2d Cir. 2005). We identify no such abuse here.

       The Attorney General has discretion to award a § 212(h) waiver, inter alia, for

“extreme hardship” to a U.S. citizen spouse or child caused by an alien’s deportation.

8 U.S.C. § 1182(h)(1)(B). Such relief, however, is “exceptional” and “[e]xtreme hardship

in the context of a § 212(h) waiver has been construed quite narrowly.” United States v.

Fernandez-Antonia, 278 F.3d 150, 161 (2d Cir. 2002) (internal quotation marks omitted).

Because “[m]ost, if not all, deportations involve some type of family hardship,” to secure a

§ 212(h) waiver, a petitioner must show hardship beyond the emotional or financial

tribulations that typically result from separation of a family. Id.

       “The BIA has broad discretion to deny a motion to remand grounded on new

evidence.” Cao v. U.S. Dep’t of Justice, 421 F.3d at 156 (internal quotation marks omitted).

Permissible reasons to deny such a motion include the movant’s failure to make out a prima

facie case for the relief sought. See id. In support of his request for a § 212(h) waiver,

Ingleton points out that he has been a resident in the United States for 20 years, that he has

                                              7
been married to a U.S. citizen for 10 years, and that he has a son who is a U.S. citizen. These

facts, standing alone, do not indicate extreme hardship.              See United States v.

Fernandez-Antonia, 278 F.3d at 161. Insofar as Ingleton argues that the IJ denied him the

opportunity fully to develop the record of family hardship, nothing prevented him from

submitting additional evidence either to the BIA or this court to demonstrate that further

record development would have made a stronger claim of extreme hardship. Indeed, it was

his burden to do so. See Cao v. U.S. Dep’t of Justice, 421 F.3d at 157–58. Thus, because

Ingleton has failed to adduce facts indicating that an “uncommon or extraordinary familial

difficulty” will result from his removal, United States v. Fernandez-Antonia, 278 F.3d at 161,

we conclude that the BIA did not abuse its discretion in denying his motion to remand.3

Ingleton’s petition is, therefore, denied to the extent it challenges the BIA’s denial of his

motion.

       We have considered Ingleton’s remaining arguments and conclude that they are

without merit. The petition for review of the BIA’s order is DISMISSED IN PART and

DENIED IN PART.

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




       3
         In light of this holding, we need not address Ingleton’s claims that the BIA erred in
concluding that he (1) waived his opportunity to seek § 212(h) relief before the IJ; (2) was
barred from seeking § 212(h) relief because he was convicted of an aggravated felony; and
(3) did not set forth a basis for an adjustment of status.

                                              8
