     Case: 15-60045      Document: 00513499465         Page: 1    Date Filed: 05/10/2016




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

                                    No. 15-60045
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                             May 10, 2016
                                                                              Lyle W. Cayce
FIAZ AFZAL,                                                                        Clerk


                                                 Petitioner

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A059 307 191


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Fiaz Afzal has petitioned for review of the decision of the Board of
Immigration Appeals (BIA) dismissing his appeal from the decision of the
immigration judge (IJ) finding him removable as a result of his convictions for
18 counts of Medicaid fraud, in violation of LA. REV. STAT. ANN. § 14.70.1. The
IJ determined that Afzal’s conviction was an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(M)(i).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-60045

      We lack “jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed” an aggravated felony,
8 U.S.C. § 1252(a)(2)(C), but we retain jurisdiction to decide the jurisdictional
question of whether the charged crime is an aggravated felony, which we
review de novo. Rodriguez v. Holder, 705 F.3d 207, 210 (5th Cir. 2013). “Any
alien who is convicted of an aggravated felony at any time after admission is
deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The definition of “aggravated felony”
includes “an offense that involves fraud or deceit in which the loss to the victim
or victims exceeds $10,000.” § 1101(a)(43)(M)(i); see also Nijhawan v. Holder,
557 U.S. 29, 38 (2009).     Afzal does not dispute that his fraud conviction
involved fraud or deceit. The issue presented is whether the BIA erred in
determining that the offense involved a loss to the victim that was greater than
$10,000.
      The amount of loss under § 1101(a)(43)(M)(i) “is a factual matter to be
determined from the record of conviction.” Arguelles-Olivares v. Mukasey, 526
F.3d 171, 177 (5th Cir. 2008). We must decide “whether there was clear and
convincing evidence that [Afzal’s] prior conviction involved an amount of loss
greater than $10,000 and whether the evidence establishing that the
conviction involved such a loss was reasonable, substantial, and probative.” Id.
at 178.
      The BIA did not err by concluding that the restitution amount of $96,000
set forth in the state court’s restitution order 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 § 1101(a)(43)(M)(i). See 557 U.S. at 42-43;
James v. Gonzales, 464 F.3d 505, 510-11 & n. 31 (5th Cir. 2006). Thus, the BIA
properly determined that Afzal was removable as an aggravated felon.




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                                  No. 15-60045

      With respect to Afzal’s argument that the IJ erred by denying his motion
to continue, the denial of a continuance in a case involving the jurisdiction-
stripping provision of § 1252(a)(2)(C) “does not present a constitutional claim
or issue of law that this court has jurisdiction to consider.” Ogunfuye v. Holder,
610 F.3d 303, 307 (5th Cir. 2010). To the extent Afzal has raised a due process
claim, see Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006), he has not
established that he suffered substantial prejudice. See Anwar v. I.N.S., 116
F.3d 140, 144 (5th Cir. 1997).
      Finally, because the BIA correctly determined that Afzal was removable
based on his aggravated felony conviction, he was ineligible for the
discretionary relief of cancellation of removal. See 8 U.S.C. § 1229b(a)(3). Afzal
does not challenge the BIA’s determination that his fraud conviction was a
crime involving moral turpitude rendering him ineligible for adjustment of
status under 8 U.S.C. § 1255(a)(2) and 8 U.S.C. § 1182(a)(2)(A)(i)(I), and
therefore he has abandoned that issue. See Soadjede v. Ashcroft, 324 F.3d 830,
833 (5th Cir. 2003). Because we have determined that Afzal was removable as
an aggravated felon, we do not address the issue whether he was also
removable under § 1227(a)(2)(A)(ii) for committing two or more crimes
involving moral turpitude. We likewise do not the address the expungement
documents first furnished by Afzal on appeal. See Ramchandani v. Gonzales,
434 F.3d 337, 341 n.1 (5th Cir. 2005). In any event, a vacated conviction
remains valid for immigration purposes and meets the definition of conviction
under § 1101(a)(48)(A). See Renteria-Gonzalez v. I.N.S., 322 F.3d 804, 814 (5th
Cir. 2002).
      Because Afzal’s fraud conviction was properly regarded by the BIA as an
aggravated felony under § 1101(a)(43)(M)(i), we lack jurisdiction, and the
petition for review is DISMISSED. See James, 464 F.3d at 512.



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