                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 17-3598
                                     _____________

                          SAMBA ERIC KONDEH KAMARA,

                                                       Petitioner

                                             v.

               ATTORNEY GENERAL UNITED STATES OF AMERICA,

                                                  Respondent
                                     _____________

       On Petition for Review of a Decision of the Board of Immigration Appeals
                               (BIA-1: A060-573-150)
                      Immigration Judge: Honorable John B. Carle
                                   ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    July 10, 2018
                                  ______________

           Before: GREENAWAY, JR., RESTREPO, and BIBAS, Circuit Judges.

                            (Opinion Filed: October 30, 2018)
                                    ______________

                                        OPINION*
                                     ______________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
RESTREPO, Circuit Judge.

       Samba Eric Kondeh Kamara is removable pursuant to 8 U.S.C.

§§ 1227(a)(2)(A)(i) and 1227(a)(2)(A)(iii), as an alien who was convicted of a crime

involving moral turpitude and an aggravated felony, respectively. He petitions for review

of a final order of the Board of Immigration Appeals (“BIA”), denying his application for

asylum, withholding of removal, and protection under the Convention Against Torture

(“CAT”) 8 C.F.R. § 208.16. We will deny the petition in part and dismiss it in part.

                                             I.

       As we write solely for the parties, we set forth only the facts necessary for the

discussion that follows. A native and citizen of Sierra Leone, Kamara entered the United

States in April 2009 as a lawful permanent resident. In April 2016, he pled guilty in the

United States District Court for the District of Minnesota to aiding and abetting bank

fraud. As part of his plea, Kamara agreed to make restitution, and the District Court held

Kamara jointly and severally liable for the amount of $18,958.24.1 In August 2016, the

Department of Homeland Security issued a Notice to Appear, charging Kamara as

removable under 8 U.S.C. § 1227(a)(2)(A)(i) (crime involving moral turpitude committed

within five years of admission) and § 1227(a)(2)(A)(iii) (aggravated felony).2



       1
         Kamara participated in a large conspiracy to commit bank fraud, but his role was
limited to one attempt to deposit a counterfeit check in the amount of $468.47 on January
5, 2012 in violation of 18 U.S.C. § 1344 and 8 U.S.C. § 2.
       2
         Under 8 U.S.C. § 1101(a)(43)(M), an aggravated felony includes an offense that
involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.
                                              2
       In October 2016, Kamara filed an application for asylum, withholding of removal,

and protection under CAT, based on a fear that if he returns to Sierra Leone, he will be

harmed or killed because of his late father’s political affiliation and government service

in the 1970s and 1980s. In November 2016, the Immigration Judge (“IJ”) sustained the

aggravated felony charge of removability and scheduled a merits hearing for the CAT

claim. At the hearing, the IJ heard testimony from Kamara, his brother and his sister.

Although he found Kamara credible, the IJ issued a written decision sustaining the

charges of removability, determining that Kamara’s conviction for aiding and abetting

bank fraud constituted both an aggravated felony and a crime involving moral turpitude.

The IJ further determined that because Kamara’s past experiences in Sierra Leone neither

rose to the level of persecution, nor established the likelihood of future harm on account

of his family membership, Kamara had failed to demonstrate entitlement to withholding

of removal or CAT protection.

       Kamara appealed to the BIA, arguing primarily that he had not committed an

aggravated felony because the loss stemming from his bank fraud conviction did not

exceed $10,000. In November 2017, the BIA dismissed Kamara’s appeal, agreeing with

the IJ that Kamara’s aggravated felony rendered him ineligible for asylum, that the IJ did

not err in determining the total financial loss, and that Kamara was not entitled to

withholding of removal or CAT protection. This petition for review followed.



                                             II.
                                             3
       In cases involving certain categories of criminal aliens, including aliens who, like

Kamara, are removable due to an aggravated felony, pursuant to 8 U.S.C.

§ 1227(a)(2)(A)(iii), Congress has instructed that “no court shall have jurisdiction to

review any final order of removal. 8 U.S.C. § 1252(a)(2)(C). We do, however, have

jurisdiction to examine “constitutional claims or questions of law.” Catwell v. Att’y Gen.,

623 F.3d 199, 205 (3d Cir. 2010) (citing Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir.

2008) (en banc) (quoting §1252(a)(2)(D)). When, as in this case, “the BIA issues a

separate opinion . . . we review the BIA’s disposition and look to the IJ’s ruling only

insofar as the BIA defers to it.” Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010)

(citing Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006).

                                             A.

       The first issue Kamara raises in this appeal is whether his conviction qualifies as

an aggravated felony. As this is “a purely legal question, and one that governs our own

jurisdiction,” we have authority to review, using the de novo standard. Valansi v.

Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002) (citing Lopez-Elias v. Reno, 209 F.3d 788,

791 (5th Cir. 2000).

       For purposes of § 101(a)(43)(M)(i) of the Immigration and Nationality Act, an

aggravated felony includes crimes “involv[ing] fraud or deceit in which the loss to the

victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). As the parties do not

dispute that the offense categorically involved fraud, the only dispute is on the second

prong: whether the amount of loss to the victim exceeded $10,000. We use a
                                             4
“circumstance-specific” approach, Singh v. Att’y Gen., 677 F.3d 503, 512 (3d Cir. 2012)

(quoting Nijhawan v. Holder, 577 U.S. 29, 36 (2009) and Kaplun v. Att’y Gen, 602 F.3d

260, 265 (3d Cir. 2010)), to determine “if the government has proved by clear and

convincing evidence that his offense involved an actual loss to a victim . . . that exceeds

$10,000,” id. at 512. Our review includes not only those documents that may be

considered in a modified categorical approach (the indictment, plea agreement, and

judgment), but may also include the presentence investigation report (“PSR”), see Kaplun

v. Att’y Gen., 602 F.3d at 266, and any “sentencing-related material,” Nijhawan v.

Holder, 557 U.S. at 42.

       Kamara argues that because his role in the conspiracy was limited to depositing a

counterfeit check in the amount of $468.47, the BIA erred in its calculation of the amount

of loss. We disagree. The record shows that the IJ was presented with clear and

convincing evidence that Kamara was convicted of a crime with a loss exceeding

$10,000. The judgment of conviction as well as the PSR and the order of restitution

attribute a loss to Kamara and his accomplices in the amount of $18,958.24. Although

the plea agreement was not entered into the administrative record, its absence is not fatal

to a circumstance-specific analysis, despite Kamara’s argument to the contrary. Our

Court has previously noted that “[t]he amount of restitution ordered as a result of a

conviction may be helpful to a court’s inquiry into the amount of loss to the victim if the

plea agreement or the indictment is unclear as to the loss suffered.” Munroe v. Ashcroft,

353 F.3d 225, 227 (3d Cir. 2003). Together, this “sentencing-related material,”
                                             5
Nijhawan, 557 U.S. at 42, led the IJ and the BIA to conclude that despite the reference in

the indictment to the singular check in the amount of $468.47, the PSR and restitution

order support the conclusion that the crime he aided and abetted, and for which he was

convicted, involved financial losses to the victims in excess of $10,000. Like the

Supreme Court in Nijhawan, “[w]e can find nothing unfair about the immigration judge’s

having here relied upon earlier sentencing-related material.” Id. Accordingly, we will

deny the petition in part.

                                              B.

       Next we examine whether we have jurisdiction to consider Kamara’s second

argument on appeal: that the BIA erred in finding that he had not suffered past

persecution nor would suffer future persecution as a result of his late father’s political

activities. Discretionary or factual determinations fall outside of our jurisdiction in

petitions for review. Rachak v. Att’y Gen., 734 F.3d 214, 217 (3d Cir. 2013). Here,

Kamara’s claim challenges the factual determinations and findings of the IJ, which the

BIA adopted in its review. Because such a challenge does not fall within the ambit of our

statutorily defined jurisdiction under 8 U.S.C. §§ 1252(a)(2)(C) and (D), we lack

jurisdiction to review the merits of this petition for review. Accordingly, we will dismiss

in part for lack of jurisdiction.

                                             III.

       For the foregoing reasons, we will deny the petition in part and dismiss in part.


                                              6
