                                                                           FILED
                              NOT FOR PUBLICATION                           MAR 21 2013

                                                                        MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT


KHUNSELA PROM,                           )     No. 11-71730
AKA Khunsela Knunela,                    )
AKA Danny Prom,                          )     Agency No. A025-294-832
                                         )
      Petitioner,                        )     MEMORANDUM *
                                         )
      v.                                 )
                                         )
ERIC H. HOLDER, Jr., Attorney            )
General,                                 )
                                         )
      Respondent.                        )
                                         )

                       On Petition for Review of an Order of the
                           Board of Immigration Appeals

                         Argued and Submitted March 4, 2013
                                 Seattle, Washington

Before:        FERNANDEZ, W. FLETCHER, and RAWLINSON, Circuit Judges.

      Khunsela Prom petitions for review of the Board of Immigration Appeals’

determination that he was removable because he was an aggravated felon.1 We

deny the petition.

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1
          See 8 U.S.C. § 1227(a)(2)(A)(iii).
      The BIA did not err when it determined that Prom was an aggravated felon

because: (a) he conspired to commit a felony involving fraud or deceit when he

joined others in perpetrating a scheme to defraud casinos by cheating at card

games, and (b) the victims lost over $10,000.2 When a modified categorical

analysis3 is used, with a proper consideration of other facts,4 it is apparent that, at

the very least, Prom’s conspiracy to transport the fraudulently obtained funds in

interstate and foreign commerce5 was a crime involving the fraud itself. Moreover,

the order at sentencing that he pay some $19,150 in restitution to one of the casinos

was sufficient to sustain a determination that the victims had lost over $10,000.

Thus, he was removable on that ground alone.6



      2
          See 8 U.S.C. § 1101(a)(43)(M)(i), (U).
      3
       See Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 1257, 161
L. Ed. 2d 205 (2005); Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143,
2160, 109 L. Ed. 2d 607 (1990); Young v. Holder, 697 F.3d 976, 983 (9th Cir.
2012) (en banc); Carlos-Blaza v. Holder, 611 F.3d 583, 589 (9th Cir. 2010).
      4
       See Nijhawan v. Holder, 557 U.S. 29, 38–40, 129 S. Ct. 2294, 2301–02,
174 L. Ed. 2d 22 (2009).
      5
          See 18 U.S.C. § 2314.
      6
       The BIA also determined that Prom had committed an aggravated felony
because one object of the conspiracy was to make materially false and fraudulent
statements to federal investigating officers and one conspirator did just that. See
18 U.S.C. § 1001(a)(2). We need not, and do not, consider that separate
determination.

                                            2
      Therefore, we must deny the petition.7

      Petition DENIED.




      7
       Because Prom is an aggravated felon, his claim, if any, regarding
cancellation of removal is moot. See 8 U.S.C. § 1229b(a)(3).

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