         10-0467-ag
         Varughese v. Holder


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of                                      Appeals
 2       for the Second Circuit, held at the Daniel Patrick                                      Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                                      City of
 4       New York, on the 12 th day of November, two thousand                                    and ten.
 5
 6       PRESENT: BARRINGTON D. PARKER,
 7                RICHARD C. WESLEY,
 8                         Circuit Judges,
 9                BARBARA S. JONES,
10                         District Judge. *
11
12
13
14       VARUGHESE ADACKAMANGAL VARUGHESE,
15       a/k/a Varughese Varughese,
16
17                                       Petitioner,
18
19                       -v.-                                                   10-0467-ag
20
21       ERIC H. HOLDER, JR., United States
22       Attorney General,
23
24                                       Respondent. **
25
26


                 *
                 The Honorable Barbara S. Jones, of the United States District Court
         for the Southern District of New York, sitting by designation.

                 **
                  The Clerk of the Court is directed to amend the official caption in
         this matter to conform with that of this order.
 1   FOR PETITIONER:    THOMAS E. MOSELEY, Law Offices of Thomas
 2                      E. Moseley, Newark, NJ.
 3
 4   FOR RESPONDENT:    CARMEL A. MORGAN, Trial Attorney, Office
 5                      of Immigration Litigation, Civil
 6                      Division, (Tony West, Assistant Attorney
 7                      General, Russell J. E. Verby, Senior
 8                      Litigation Counsel, on the brief), for
 9                      Eric H. Holder Jr., United States
10                      Attorney General, Washington, D.C.
11
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14   AND DECREED that the petition for review is DENIED.

15       Petitioner Varughese Adackamangal Varughese seeks

16   review of a final order of removal issued by the Board of

17   Immigration Appeals (“BIA”, or “Board”), which affirmed the

18   decision of the Immigration Judge (“IJ”) finding Varughese

19   removable as charged.     In re Varughese, A 036 123 229

20   (B.I.A. Jan. 22, 2010).     Specifically, the Board concluded

21   that Varughese’s conviction for money laundering, in

22   violation of 18 U.S.C. § 1956(a)(3)(B), constitutes an

23   “aggravated felony,” rendering him removable pursuant to §

24   101(a)(43)(D) of the Immigration and Nationality Act

25   (“INA”).   8 U.S.C. § 1101(a)(43)(D).    Varughese challenges

26   that determination on appeal, along with the BIA’s

27   conclusion that he is ineligible for adjustment of status

28   pursuant to INA § 245, 8 U.S.C. § 1255.     We assume the


                                     2
1    parties’ familiarity with the underlying facts, the

2    procedural history, and the issues presented for review.

3        Where, as here, the BIA has adopted the IJ’s reasoning

4    and offered additional commentary, our Court reviews the

5    decision of the IJ as supplemented by the Board.

6    Gertsenshteyn v. U.S. Dep’t of Justice, 544 F.3d 137, 142

7    (2d Cir. 2008).   “While the BIA’s interpretation of

8    immigration statutes is generally entitled to Chevron

9    deference, interpretations in non-precedential unpublished

10   BIA decisions, as in the instant case, are not so entitled.”

11   Dobrova v. Holder, 607 F.3d 297, 300 (2d Cir. 2010).     We

12   need not, and do not, resolve whether such unpublished

13   decisions are entitled to Skidmore deference, because our de

14   novo review reveals that the determination below was

15   correct.

16       At the outset, we reject Varughese’s contention that

17   INA § 101(a)(43)(D), which defines an “aggravated felony” as

18   a money laundering offense in which “the amount of the funds

19   exceeded $10,000," 8 U.S.C. § 1101(a)(43)(D), includes only

20   violations of criminal statutes that use the specific word

21   “funds.”   It is irrelevant that Varughese was convicted

22   under a subsection of the money laundering statute that does


                                   3
1    not actually use the word “funds,” because the phrase “the

2    amount of the funds exceeded $10,000” in the INA simply

3    “refers to the particular circumstances in which an offender

4    committed a [] crime on a particular occasion.”     Nijhawan v.

5    Holder, 129 S. Ct. 2294, 2298 (2009).     Simply put, it refers

6    to the amount of money   laundered.    See Chowdhury v. INS,

7    249 F.3d 970, 974 (9th Cir. 2001).     That determination is

8    properly made pursuant to a “circumstance-specific,” and not

9    a “categorical” approach.     Nijhawan, 129 S. Ct. at 2300.

10   Because Varughese admitted to laundering well in excess of

11   $10,000 on multiple occasions during his plea colloquy, the

12   record of conviction sufficiently establishes that the

13   circumstances of his money laundering conviction involved

14   funds in excess of $10,000.     Id. at 2303 (defendant’s

15   stipulation at sentencing proper basis to assess

16   circumstance-specific fact).

17       Varughese also contends that, even assuming the “amount

18   of the funds” inquiry is circumstance-specific, the amounts

19   that he admitted laundering during his plea colloquy are not

20   sufficiently “tethered” to his conviction in order to

21   establish his removability.     See id. (observing that “the

22   loss must be tied to the specific counts covered by the


                                     4
1    conviction”) (internal quotation marks omitted).     In

2    substance, he urges that because no amount is cited in the

3    indictment to which he pled guilty, the statements he made

4    during his plea colloquy are not adequately related to his

5    conviction to establish that his conviction was an

6    “aggravated felony.”    We are unpersuaded.   Varughese was

7    charged in a one-count indictment alleging multiple

8    “financial transactions” over the course of several months

9    in 2001 and 2002.   J.A. 155.   Varughese confirmed during the

10   sentencing hearing that he was allocuting to multiple

11   instances of money laundering between “November 2001 and

12   January 2002.”   J.A. 205.   Accordingly, his admissions to

13   laundering funds in excess of $10,000 are sufficiently

14   related to the count for which he was convicted.

15       Finally, we reject Varughese’s contention that he is

16   eligible for adjustment of status pursuant to INA § 245.

17   Adjustment of status is a discretionary benefit affordable

18   to an alien who, among other things, is “eligible to receive

19   an immigrant visa and is admissible to the United States for

20   permanent residence.”    INA § 245, 8 U.S.C. § 1255(a).

21   Because Varughese’s money laundering conviction renders him

22   ineligible for admissibility to the United States, he is



                                     5
1    similarly ineligible for adjustment of status.     INA §

2    212(a)(2)(I)(i), 8 U.S.C. § 1182(a)(2)(I)(i) (“Any alien who

3    . . . has engaged, is engaging, or seeks to enter the United

4    States to engage, in an offense described in section 1956 or

5    1957 of Title 18 (relating to laundering of monetary

6    instruments) is inadmissible” to the United States.).

7    Moreover, because Varughese’s money laundering conviction

8    constitutes an “aggravated felony,” the Attorney General was

9    without discretion to afford him a waiver of

10   inadmissibility.   INA § 212(h), 8 U.S.C. § 1182(h).

11       We have considered all of Varughese’s remaining

12   arguments and find them to be without merit.     For the

13   foregoing reasons, the petition for review is DENIED.

14   Having completed our review, any stay of removal previously

15   granted in this petition is VACATED, and any pending motion

16   for a stay of removal is DISMISSED as moot.

17
18                               FOR THE COURT:
19                               Catherine O’Hagan Wolfe, Clerk
20
21




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