                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                   June 7, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                TENTH CIRCUIT



 IFEANYI GODWIN OKOBI,

               Petitioner,                              No. 12-9555
          v.                                        (Petition for Review)
 ERIC H. HOLDER, JR., United States
 Attorney General,

               Respondent.


                             ORDER AND JUDGMENT *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.



      Petitioner Ifeanyi Godwin Okobi, a citizen of Nigeria, filed a petition for

review of a Final Administrative Removal Order (FARO) issued by the

Department of Homeland Security (DHS). We have jurisdiction under 8 U.S.C.

§ 1252(a)(1) and deny the petition.




      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.    BACKGROUND

      In August 2005 Petitioner was lawfully admitted to the United States as a

nonimmigrant visitor. Without the permission of the government, he stayed in the

United States beyond the expiration of his visa in February 2006. In January

2010 he pleaded guilty to conspiracy to commit bank fraud and possession of

stolen mail in federal court in California. He was sentenced to 40 months’

imprisonment and ordered to pay restitution in the amount of $598,387.55.

      On April 17, 2012, the government issued Petitioner a notice to appear in

immigration court. Shortly thereafter, however, the government determined that

Petitioner was subject to expedited removal under 8 U.S.C. § 1228(b) because he

was not lawfully admitted for permanent residency and was deportable for having

committed an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien

who is convicted of an aggravated felony at any time after admission is

deportable.”); id. § 1101(a)(43)(M)(i), (U) (Aggravated felony includes an

attempt or conspiracy to commit an offense involving “fraud or deceit in which

the loss to the victim or victims exceeds $10,000.”). It canceled the notice to

appear, and on April 20 it issued a Notice of Intent to Issue a Final

Administrative Removal Order (the Notice). The Notice advised Petitioner of the

procedural safeguards available to him.

      The deportation officer checked boxes on the Notice indicating that

Petitioner had refused to acknowledge receiving it but wished to contest his

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deportability. Petitioner did not, however, respond to the Notice, and on May 7,

2012, the government served him with the FARO. It stated that the government

had determined that he was ineligible for discretionary relief from the Secretary

of Homeland Security and that the record had established “by clear, convincing,

and unequivocal evidence” that he was deportable as an alien convicted of an

aggravated felony. R. at 5. The FARO ordered Petitioner’s deportation to

Nigeria.

      Petitioner argues that the government violated his due-process rights

because (1) it failed to comply with the procedural protections afforded under

8 U.S.C. § 1228(b), as interpreted by the accompanying regulations; (2)

Petitioner’s deportability as an aggravated felon was not established by clear and

convincing evidence in the record; (3) Petitioner was eligible for adjustment of

status because he was married to a United States citizen; and (4) the government

improperly canceled the Notice and commenced the FARO process against him.

II.   DISCUSSION

      Our jurisdiction under § 1228(b) does not include review of certain

discretionary decisions, but we may review “constitutional claims or questions of

law.” 8 U.S.C. § 1252(a)(2)(B), (D). Our review of such matters is de novo. See

N-A-M v. Holder, 587 F.3d 1052, 1055 (10th Cir. 2009).

      Petitioner first argues that the government violated his right to due process

by failing to follow its own regulations regarding the issuance of a FARO. But

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the Notice and the FARO themselves show compliance with those procedural

requirements that applied to him, and Petitioner has not offered any evidence of

noncompliance or shown prejudice. See Berrum-Garcia v. Comfort, 390 F.3d

1158, 1165 (10th Cir. 2004) (Petitioner must show prejudice to prevail on due-

process challenge.).

      Second, Petitioner argues that his deportability was not established by clear

and convincing evidence in the record because (1) the government improperly

relied on the “unattested” conviction documents in the administrative record, and

(2) the restitution order, which the government relied on to show a loss of more

than $10,000, was based on only a finding by a preponderance of the evidence.

Aplt. Br. at 25. But Petitioner does not argue that the information in the

conviction documents is inaccurate, so any lack of authentication did not

prejudice him. Also, in the absence of conflicting evidence the government may

rely on restitution orders to determine the loss to victims by clear and convincing

evidence, and Petitioner does not point to any evidence that the amount in the

restitution order is inaccurate. See Nijhawan v. Holder, 557 U.S. 29, 42–43

(2009) (There was “nothing unfair” about the immigration judge’s relying on

“earlier sentencing-related material,” including a restitution order, to find clear

and convincing evidence of a loss to victims of more than $10,000, “[i]n the

absence of any conflicting evidence.”); cf. Singh v. Att’y Gen. of U.S., 677 F.3d

503, 515 (3d Cir. 2012) (Restitution orders “may be helpful to the loss inquiry,

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but [are] not definitive” if there is “sufficient conflicting evidence to justify

looking past the restitution order.” (internal quotation marks omitted)).

       Third, Petitioner argues that the government violated his due-process rights

by commencing FARO proceedings against him because he was eligible for

adjustment of status in an immigration court based on the U.S. citizenship of his

wife. But he has supplied no evidence that he had a wife who was a U.S. citizen.

       Finally, Petitioner challenges the government’s decision to cancel the

notice to appear and initiate FARO proceedings. But a DHS officer may “cancel

such notice prior to jurisdiction vesting with the immigration judge,” if the

“officer is satisfied that” the “notice to appear was improvidently issued.”

8 C.F.R. § 239.2(a)(6). And Petitioner has failed to show that there was any legal

bar to a finding of improvidence in this case.

III.   CONCLUSION

       The Petition for Review is DENIED.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




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