     10-2990-ag
     Rosario-Bencosme v. Holder

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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 7th day of June, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judge,
10                JED S. RAKOFF,
11                              District Judge.*
12
13       - - - - - - - - - - - - - - - - - - - -X
14       EUCLIDES RAFAEL ROSARIO-BENCOSME,
15                Petitioner,
16
17                    -v.-                                               10-2990-ag
18
19       ERIC H. HOLDER, JR., United States
20       Attorney General,
21                Respondent.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR PETITIONER:                 AMANDA E. GRAY (David K. S. Kim,
25                                       Jules E. Coven, Kerry W. Bretz, on
26                                       the brief), Bretz & Coven, LLP, New
27                                       York, N.Y.


                *
               The Honorable Jed S. Rakoff, of the United States
         District Court for the Southern District of New York,
         sitting by designation.
 1   FOR RESPONDENT:        ANDREW C. BRINKMAN, Trial Attorney,
 2                          (Tony West, Assistant Attorney
 3                          General, Ernesto H. Molina, Jr.,
 4                          Assistant Director, on the brief),
 5                          United States Department of Justice,
 6                          Civil Division, Office of
 7                          Immigration Litigation, Washington,
 8                          D.C.
 9
10
11        UPON DUE CONSIDERATION of this petition for review of a
12   Board of Immigration Appeals decision, IT IS HEREBY ORDERED,
13   ADJUDGED AND DECREED that the petition for review is
14   DISMISSED.
15
16        Euclides Rafael Rosario-Bencosme, a native and citizen
17   of the Dominican Republic, petitions for review of a June
18   25, 2010 order of the Board of Immigration Appeals (“BIA”),
19   affirming a decision of an immigration judge finding him
20   removable as an aggravated felon pursuant to subsections M
21   and U of section 101(a)(43) of the Immigration and
22   Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(M), (U).
23   We assume the parties’ familiarity with the underlying
24   facts, the procedural history, and the issues presented for
25   review.
26
27        Although we lack jurisdiction to review final agency
28   orders of removal based on an alien’s conviction of an
29   aggravated felony, “we are permitted to review questions of
30   law,” including whether a specific conviction constitutes an
31   aggravated felony. Blake v. Gonzales, 481 F.3d 152, 155-56
32   (2d Cir. 2007) (internal quotation marks omitted). We
33   review de novo questions of law. Id. at 156.
34
35        Rosario-Bencosme pleaded guilty to conspiracy to
36   defraud the United States “by acquiring, possessing, using,
37   and redeeming approximately $5,600,000 worth of [United
38   States Department of Agriculture] food stamp coupons in a
39   manner contrary to [law].” J.A. at 100-01. Rosario-
40   Bencosme was ordered to pay $5,600,000 in restitution.
41
42        Under the INA, “an offense that . . . involves fraud or
43   deceit in which the loss to the victim . . . exceeds
44   $10,000" constitutes an aggravated felony. 8 U.S.C.
45   § 1101(M)(i). There is “nothing unfair” about the BIA’s
46   determination that the government satisfied its burden of
47   demonstrating the requisite loss by clear and convincing

                                  2
 1   evidence when it presented the criminal information and
 2   restitution order, and Rosario-Bencosme did not present any
 3   conflicting evidence. Nijhawan v. Holder, 129 S. Ct. 2294,
 4   2303 (2009).
 5
 6        Finding no merit in Rosario-Bencosme’s remaining
 7   arguments, we hereby DISMISS the petition for review.
 8
 9
10                              FOR THE COURT:
11                              CATHERINE O’HAGAN WOLFE, CLERK
12




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