     Case: 14-60213          Document: 00513308615         Page: 1     Date Filed: 12/15/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                       Fifth Circuit

                                                                                      FILED
                                                                                December 15, 2015
                                          No. 14-60213
                                                                                   Lyle W. Cayce
                                                                                        Clerk
HENRY MAMBEOKU CLEMENT, also known as Henry Clement,

                                                     Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

                                                     Respondent


                                     Appeal from the
                               Board of Immigration Appeals
                                  BIA No. A022 749 885


Before JOLLY and JONES, Circuit Judges, and MILLS ∗, District Judge.
PER CURIAM: ∗∗

       Petitioner Henry Mambeoku Clement challenges the decision of the
Board of Immigration Appeal (“BIA”) that upheld an Immigration Judge’s
(“IJ”) determination of removability and denial of his applications for waiver
of inadmissibility and adjustment of status. He also challenges the denial of a
motion for reopening. Finding no error, we AFFIRM.



       ∗
           District Judge of the Northern District of Mississippi, sitting by designation.
       ∗∗
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
    Case: 14-60213    Document: 00513308615     Page: 2   Date Filed: 12/15/2015


                                 No. 14-60213

      Clement, from Nigeria, became a lawful permanent resident in 1985. In
1993, he pled guilty to one count of conspiracy to defraud the United States
through a tax fraud scheme that allegedly cost the government about $1.7
million. He was sentenced, inter alia, to pay restitution of $10,000 because of
his inability to pay the restitution amount stated in the judgment for the
offense, $43,337.    When he applied for citizenship in 2009, the instant
proceedings began with a Department of Homeland Security’s (“DHS”)
response that he was removable as an alien convicted of an aggravated felony.
The IJ concluded that Clement was convicted of an aggravated felony on two
grounds. Under 8 U.S.C § 1101(a)(43)(M)(i), he had been convicted of “fraud
or deceit in which the loss to the victim exceeds $10,000,” and under 8 U.S.C.
§ 1101(a)(43)(U), the crime of conviction constituted “an attempt or conspiracy
to commit an offense described in this paragraph.” The IJ denied Clement a
waiver of inadmissibility because he had not demonstrated that his removal
would result in extreme hardship to his relatives or, in the alternative, as a
matter of discretion; this conclusion rendered him statutorily ineligible for an
adjustment of status. The IJ ordered Clement removed.
      The BIA affirmed, finding that DHS met its burden to establish loss in
excess of $10,000, and added that although not mentioned in the IJ’s opinion,
the conviction documents indicated that the total amount of fraudulent tax
refunds involved in the conspiracy was $1,700,000. Subsequently, the BIA
denied Clement’s motion for reopening, which was premised on a reversal and
remand for further proceedings to determine whether the loss exceeded
$10,000, which the BIA ordered for his codefendant Azuibike Azuogu
(“Azuogu”) in the same crime. Clement timely appealed, challenging these
rulings.




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                                  No. 14-60213

      This court has jurisdiction to determine only whether the offense
specified in removal proceedings was an aggravated felony. James v. Gonzales,
464 F.3d 505, 507 (5th Cir. 2006). This court “accord[s] substantial deference
to the BIA’s interpretation of the INA . . . and definitions of phrases within it.”
Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005) (internal quotation marks
and citation omitted), but the amount of loss is a factual matter determinable
by   clear   and   convincing   evidence    from    the      record   of   conviction.
Arguelles- Olivares v. Mukasey, 526 F.3d 171, 177 (5th Cir. 2008).              When
determining loss, an immigration court can rely on sentencing-related
material, including a restitution order.     Nijhawan v. Holder, 557 U.S. 29,
42- 43, 29 S. Ct. 2294, 2303 (2009).
      We agree that the full restitution amount set forth in the judgment of
conviction, $44,337, provided clear and convincing evidence, in the absence of
any contrary record evidence, to prove the amount of loss to the victim for
purposes of Section 1101(a)(43)(M)(i). Although Clement’s plea agreement,
presentence report and court transcripts are not in the record before us, the
indictment’s conspiracy charge, which alleges fraudulent tax claims involving
approximately $1,700,000 and to which Clement pled guilty, is fully consistent
with the BIA’s decision.     As this court has noted, “Congress defined an
aggravated felony [in this statutory section] in terms of loss to the victim, not
in terms of the amount the defendant ultimately paid.” Martinez v. Mukasey,
508 F.3d 255, 259-60 (5th Cir. 2007) (denying a petition for review where the
petitioner agreed in his plea agreement to liability for more than $10,000 but
was ordered to pay restitution of less than $10,000). The BIA has also stated
that a restitution order alone can be sufficient to establish the amount of loss.




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                                     No. 14-60213

In re Babaisakov, 24 I. & N. Dec. 306, 319-20 (BIA 2007). Clement’s arguments
that further proof was required lack merit. 1
      Clement’s motion to reopen and remand is premised on our finding
insufficient proof that the loss involved exceeded $10,000. Having rejected the
premise, we also reject the contention that the BIA abused its discretion in
failing to reopen and remand in light of the different treatment of Azuogu’s
case. An abuse of discretion may only be found if the decision was “capricious,
irrational, utterly without foundation in the evidence, based on legally
erroneous interpretations of statutes or regulations, or based on unexplained
departures from regulations or established policies.”             Barrios-Cantarero v.
Holder, 772 F.3d 1019, 1021 (5th Cir. 2014) (citations omitted). Azuogu’s case
is factually different because no amount of restitution was stated in his
judgment, and there is no material difference in the BIA’s approach to
determining loss for purposes of § 1101(a)(43)(M)(i).
                                                                PETITION DENIED.




      1
        Because Clement’s petition for review must be denied on this basis, we need not
consider whether the conviction fell within the scope of § 1101(a)(43)(U).

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