                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                         July 11, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court

    O TTO F. R IV ER A-B OTTZEC K,

              Petitioner,

     v.                                                    No. 06-9509
                                                        (No. A14 156 746)
    ALBERTO R. GONZA LES,                              (Petition for Review)
    Attorney General,

              Respondent.



                              OR D ER AND JUDGM ENT *


Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.




          Otto F. Rivera-Bottzeck, appearing pro se, seeks judicial review of the

denial of his application for cancellation of removal under 8 U.S.C. § 1229b(a).

W e have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.

          Petitioner is a native and citizen of Guatemala. He was admitted to the

United States in 1964, when he was three years old. He conceded removability,


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
but applied for cancellation of removal. An immigration judge (IJ) found him

ineligible for this discretionary relief because he failed to establish, as required

by § 1229b(a)(3), that he has not been convicted of an aggravated felony.

Specifically, 8 U.S.C. § 1101(a)(43)(M )(i) defines “aggravated felony” to include

an offense that “involves fraud or deceit in which the loss to the victim or victims

exceeds $10,000.” The Board of Immigration Appeals (BIA) issued a short

opinion affirming the IJ’s decision and dismissed the appeal.

M r. Rivera-Bottzeck has never disputed that his conviction for securities fraud

“involves fraud or deceit.” He argues only that the victims of his crime suffered

no monetary loss and therefore the offense does not qualify as an aggravated

felony under § 1101(a)(43)(M )(i). He also appeals the BIA’s denials of his

motions to reconsider and to reopen.

                                   I. Jurisdiction

      W e first address the threshold question whether w e have jurisdiction to

consider petitioner’s appeal. The government asserts that there is no statutory bar

to our jurisdiction because it did not charge M r. Rivera-Bottzeck as removable

based upon an aggravated felony conviction, and instead only relied on that

conviction as a basis to disqualify him from the discretionary relief of

cancellation of removal under § 1229b(a). W e agree that the limitation on

judicial review under 8 U.S.C. § 1252(a)(2)(C), which applies when the alien is

removable based on an aggravated felony, is not applicable in this case. But

                                          -2-
neither party has addressed the limitation on judicial review , pursuant to

§ 1252(a)(2)(B)(i), of decisions regarding cancellation of removal under §1229b.

      In Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1148-49 (10th Cir. 2005),

we considered whether, notwithstanding the limitation on judicial review of

judgments regarding granting of relief under § 1229b, we had jurisdiction to

review non-discretionary agency decisions reached under that section. In that

case the alien sought review of the agency’s determination that she did not meet

the requirement of ten years’ continuous physical presence in the United States

under § 1229b(b)(1)(A). W e concluded that determination was subject to judicial

review because it “turned on the evaluation of non-discretionary criteria,”

reasoning that “[t]his is not a question for which we can say that there is ‘no

algorithm’ on which review can be based, or one that involves a ‘judgment call’

by the agency.” Id. at 1149. W e now determine whether a particular agency

decision under § 1229b is discretionary or non-discretionary on a case-by-case

basis. See Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 (10th Cir. 2005)

(holding that determination whether particular conduct rises to the level of

“extreme cruelty” under § 1229b is discretionary).

      Here, M r. Rivera-Bottzeck claims that the agency erred in its determination

that he is ineligible for cancellation of removal based on his failure to establish he

has not been convicted of an aggravated felony. Specifically, the BIA determined

that he failed to demonstrate that the victims of his crime suffered a loss that was

                                          -3-
not in excess of $10,000. Like the determination in Sabido Valdivia, that decision

also turns on the evaluation of non-discretionary criteria and does not require a

“judgment call” by the IJ. Therefore, we hold that the jurisdictional limitation in

§ 1252(a)(2)(B)(i) does not apply in this case, because M r. Rivera-Bottzeck’s

claims address the agency’s non-discretionary determination regarding the amount

of loss to the victims under § 1101(a)(43)(M)(i).

                             II. Standards of Review

      “W e look to the record for ‘substantial evidence’ supporting the agency’s

decision: Our duty is to guarantee that factual determinations are supported by

reasonable, substantial and probative evidence considering the record as a whole.”

Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006) (quotation and

alteration omitted). “[A]dministrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary. . . .”

8 U.S.C. § 1252(b)(4)(B).   W e review the agency’s legal determinations de novo.

See Lockett v. INS, 245 F.3d 1126, 1128 (10th Cir. 2001). Because a single

member of the BIA affirmed the IJ’s decision in a brief order, we review the

BIA ’s opinion rather than the decision of the IJ. See U anreroro, 443 F.3d at

1204. W e review the BIA’s denials of petitioner’s motions to reconsider and to

reopen for an abuse of discretion. See Belay-Gebru v. INS, 327 F.3d 998, 1000

n.5 (10th Cir. 2003) (motion to reconsider); Infanzon v. Ashcroft, 386 F.3d 1359,

1362 (10th Cir. 2004) (motion to reopen).

                                         -4-
                     III. Denial of Cancellation of Removal

      M r. Rivera-Bottzeck’s securities fraud conviction stemmed from a

multi-count indictment in Colorado state court, which alleged a scheme by which

he persuaded named victims to invest in his efforts to sell his patented power drill

invention. The trial court dismissed tw o theft counts on his motion for acquittal.

Two securities fraud counts went to the jury. They found him not guilty on one

count, but were unable to reach a verdict on Count Two, which charged that

petitioner violated Colo. Rev. Stat. § 11-51-501(1)(b). That statute provides:

      It is unlawful for any person, in connection with the offer, sale, or
      purchase of any security, directly or indirectly: . . . To make any
      untrue statement of a material fact or to omit to state a material fact
      necessary in order to make the statements made, in the light of the
      circumstances under w hich they are made, not misleading. . . .

On the eve of a retrial on Count Two, M r. Rivera-Bottzeck pleaded guilty and

received a deferred judgment and sentence, one of the conditions of which was

payment of $65,000 in restitution. For various reasons, including his failure to

make regular restitution payments, the trial court revoked the deferred judgment

and sentenced him to eight years in prison. The BIA concluded that petitioner

failed to demonstrate that the victims of his crime suffered no loss or a loss less

than $10,000. Consequently, the BIA held that M r. Rivera-Bottzeck failed to

prove that his securities fraud conviction is not an aggravated felony which

precluded him from eligibility for cancellation of removal.




                                         -5-
                                A. Burden of Proof

      Because M r. Rivera-Bottzeck’s arguments on appeal appear to be based

upon a misunderstanding of his burden of proof in support of his application for

cancellation of removal, we address that issue first. As we noted in the context of

our jurisdictional analysis, the government did not charge M r. Rivera-Bottzeck as

removable based upon conviction of an aggravated felony. Had it done so, it

would have had to establish the existence of such a conviction by clear and

convincing evidence. See Cruz-G arza v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir.

2005) (holding that government had to prove by clear and convincing evidence

that alien’s conviction fell within § 1101(a)(43) in support of removal). Instead,

M r. Rivera-Bottzeck conceded removability and his claims on appeal relate only

to the agency’s determination that he is ineligible for cancellation of removal

under § 1229b(a). Therefore, “the burden shifted to him to show that he was both

statutorily eligible for relief from removal and that the Attorney General should

exercise his discretion to grant that relief.” Schroeck v. Gonzales, 429 F.3d 947,

952 (10th Cir. 2005).

      “If the evidence indicates that one or more of the grounds for mandatory

denial of the application for relief may apply, the alien shall have the burden of

proving by a preponderance of the evidence that such grounds do not apply.”

8 C.F.R. § 1240.8(d). One of the statutory requirements for eligibility for

cancellation of removal is that the alien has not been convicted of an aggravated

                                         -6-
felony. See § 1229b(a)(3). Therefore, in order to qualify for cancellation of

removal under that section, M r. Rivera-Bottzeck had to establish that he has not

been convicted of an aggravated felony.

       He raises tw o legal challenges to the BIA’s determination that he failed to

establish that the loss to his victims was not greater than $10,000.

                       B. Legality of the Restitution O rder

       M r. Rivera-Bottzeck first argues that the BIA erred in relying on the

amount of the $65,000 restitution order, as the basis for concluding there was

evidence of loss to the victims exceeding $10,000, because he challenged the

legality of that order. He asserts that under Colorado law an order must be based

on actual damages, that there were no actual damages as a result of his offense,

and therefore the restitution order is illegal. He characterizes his agreement to

pay restitution as buying back the investors’ claims to any profit from the sale of

his invention, rather than compensation for their losses. Therefore, he maintains

that the BIA should have evaluated the legality of the restitution order, and

having failed to do so, that this court should make that determination in this

appeal. In the absence of such a determination, M r. Rivera-Bottzeck contends

that the BIA could not rely on the restitution order, the validity of which he

challenges. 1

1
       For this proposition M r. Rivera-Bottzeck relies on an unpublished decision
of this court, St. John v. Ashcroft, No. 01-5179, 43 F. App’x 281 (10th Cir. 2002)
                                                                      (continued...)

                                          -7-
      W e disagree. “O nce the conviction becomes final, it provides a valid basis

for deportation unless it is overturned in a post-conviction proceeding.” Trench v.

INS, 783 F.2d 181, 184 (10th Cir. 1986) (quotation omitted). W e hold that

M r. Rivera-Bottzeck cannot collaterally attack the validity of the state court

restitution order in these removal proceedings. See id. (holding that BIA was not

authorized to evaluate the validity of petitioner’s state court convictions); Vargas

v. Dep’t of Homeland Sec., 451 F.3d 1105, 1107 (10th Cir. 2006) (holding that

this court had no authority to address the petitioner’s challenge to the validity of

his guilty plea in state court, regardless of w hether it had merit).

                       C. “M odified Categorical Approach”

      M r. Rivera-Bottzeck’s second argument is that the BIA erred by failing to

apply the so-called “modified categorical approach” to determining whether he

was convicted of an aggravated felony. Under that approach, which is borrowed

from criminal sentencing law, a court first compares the definition of an

aggravated felony in the Immigration and Nationality Act (INA) with the

elements of the crime of conviction. See Vargas, 451 F.3d at 1108-09 (referring

to the “categorical approach”). At this stage, courts “‘look[] only to the statutory

definitions of the prior offenses, and not to the particular facts underlying those

convictions.” Id. at 1108 (quoting Taylor v. United States, 495 U.S. 575, 600

1
 (...continued)
(unpublished). Under 10th Cir. R. 32.1, unpublished decisions of this court are
not precedential.

                                           -8-
(1990)) (alteration in original). But if the elements of the crime of conviction

reach “a broad range of conduct, some of which would constitute an aggravated

felony and some of which would not, courts resolve the ambiguity by consulting

reliable judicial records.” Id. at 1109 (quotations omitted). In the context of a

guilty plea, the judicial records that may be reviewed include “‘the terms of the

charging document, the terms of a plea agreement or transcript of colloquy

between judge and defendant in which the factual basis for the plea was

confirmed by the defendant, or [some] comparable judicial record of this

information.’” Id. at 1108 (quoting Shepard v. United States, 544 U.S. 13, 26

(2005)). Some courts refer to this second step review of the record of conviction

as a modified categorical approach. See Gonzales v. Duenas-Alvarez, ___ U.S.

___, 127 S.Ct. 815, 819 (2007).

      The Supreme Court recently observed that the circuit courts have uniformly

applied this approach in determining whether an alien’s conviction falls within

the scope of an offense listed in the IN A, such that the alien is subject to removal.

Id. at 818. In Vargas, we applied the approach in holding that it was appropriate

for the BIA to review a charging document, in order to determine whether the

petitioner was removable on the basis of being convicted of an aggravated felony

under a different subsection of § 1101(a)(43). 451 F.3d at 1109. But we declined

to decide whether the constraints of Taylor and Shepard necessarily apply in

resolving that question. Id. at 1108. W e have not yet had an occasion to address

                                          -9-
whether the modified categorical approach applies in the context presented in this

case, where the agency found petitioner ineligible for cancellation of removal

based on his failure to establish he has not been convicted of an aggravated

felony.

      W e need not decide that issue, however, because M r. Rivera-Bottzeck fails

to identify any aspect of the BIA’s decision in this case that deviated from the

modified categorical approach. W e have construed his pro se appeal briefs

liberally. See Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003)

(construing pro se appellate brief liberally). His initial argument is that the BIA

failed to consider that the elements of Count Tw o do not require a showing of loss

to the victims. But a categorical match between the INA definition of an

aggravated felony and the statute of conviction is not a requirement for finding

that the conviction was an aggravated felony. W hen the statutory elements of the

offense of conviction cover both conduct that would, and conduct that would not,

constitute an aggravated felony, the lack of a categorical match simply triggers

the next step in the analysis. See Vargas, 451 F.3d at 1109.

      At that next step, M r. Rivera-Bottzeck contends that the BIA should have

determined that the victims of his offense did not suffer any actual losses, yet he

points to no evidence in the record of conviction to support that conclusion.

Relying on the $65,000 restitution order, the BIA determined that there was

evidence indicating that the victims of petitioner’s offense suffered losses in

                                         -10-
excess of $10,000. It was permissible for the BIA to consider the amount of

restitution with respect to the question of the amount of loss to the victims. See

Khalayleh v. INS, 287 F.3d 978, 980 (10th Cir. 2002) (considering restitution for

amount of “actual loss” in plea agreement in determining whether petitioner was

removable based on conviction of an aggravated felony); Ferreira v. Ashcroft,

390 F.3d 1091, 1098 (9th Cir. 2004) (holding that IJ properly looked to $22,000

restitution order in plea agreement in determining amount of loss to the victims).

But it was petitioner’s burden to produce evidence that Count Two was not an

aggravated felony. See 8 C.F.R. § 1240.8(d). He simply did not do so. Under

the modified categorical approach the BIA could not rely solely on his factual

assertions, unsupported by the record, regarding the basis for the restitution.

      Nonetheless, M r. Rivera-Bottzeck argues that under the modified

categorical approach, the record must establish that the jury was required to find

all the elements of the offense defined in the INA. He specifically points to the

state court’s instruction to the jury to disregard evidence of loss. 2 For this

proposition he cites a Ninth Circuit case: Li v. Ashcroft, 389 F.3d 892 (9th Cir.

2004). “The decisions of the Ninth Circuit are not binding on this circuit.” FDIC

v. Daily, 973 F.2d 1525, 1532 (10th Cir. 1992). In any event, the Li case is



2
       The state court instructed the jury, before they deliberated on the two
securities fraud counts, “I ruled a long time ago whether [the victims] make a
great deal of money in this case or w hether they lose everything they invested is
not relevant to the charges before you.” Admin. R. at 475.

                                          -11-
factually dissimilar from this case because it involved a jury verdict, rather than a

guilty plea. The jury did not reach a verdict on Count Two; petitioner’s

conviction on that count instead rested on his guilty plea. Therefore, jury

instructions and findings are not part of the record of conviction of his guilty plea

that the BIA could have relied upon under the modified categorical approach. 3

      Although petitioner asserted that the $65,000 restitution order was not

based on actual loss to his victims, the B IA concluded that he failed to support

that contention with any evidence. W e hold that the BIA did not apply an

incorrect legal standard in concluding that M r. Rivera-Bottzeck failed to

demonstrate that the victims of his crime did not suffer a loss in excess of

$10,000.

                            IV. M otion to Reconsider 4

      “A motion to reconsider shall state the reasons for the motion by specifying

the errors of fact or law in the prior Board decision and shall be supported by



3
       Petitioner also appears to contend that the modified categorical approach
allowed the BIA to “delve into the legitimacy of the restitution order for purposes
of aggravated felony analysis.” Pet. Br. at 3(b). W e have already rejected
petitioner’s argument that he could collaterally challenge the validity of the
restitution order in the removal proceedings. W hile the modified categorical
approach permits the BIA to examine the record of conviction, it does not allow
the BIA to assess the validity of the conviction.
4
      M r. Rivera-Bottzeck filed an objection to the administrative record, which
mistakenly characterized his motion to reconsider as a motion to reopen. The
government conceded the error. W e take judicial notice that petitioner’s
January 27, 2006, filing was a motion to reconsider.

                                         -12-
pertinent authority.” 8 C.F.R. § 1003.2(b)(1). In his motion to reconsider,

M r. Rivera-Bottzeck repeated the contentions he had made in his appeal to the

BIA regarding an absence of loss to his victims. He cited only one case–a

decision from outside this circuit which is no longer good law. He also attached

three exhibits, two of w hich were already in the record. The third exhibit is a

transcript of the hearing during which he entered his guilty plea. The BIA found

that the transcript was not new or previously unavailable evidence, and therefore

declined to consider it. It also stated that it could not look behind petitioner’s

conviction to determine the legality of the restitution order, directing him to

address his arguments to the state court. It explained that the statutory

requirement of loss to the victims in § 1101(a)(43)(M )(i) need not be an element

of the offense of conviction. Finally, the BIA reiterated that the IJ properly relied

on the amount of restitution in finding loss to the victims in excess of $10,000.

      Petitioner’s arguments on appeal with respect to the BIA’s denial of his

motion to reconsider are no different than his arguments in support of reversal of

the BIA’s underlying decision. W e have already addressed the merits of these

arguments. W e hold that the BIA did not abuse its discretion in denying

M r. Rivera-Bottzeck’s motion to reconsider.

                                V. M otion to Reopen

      M r. Rivera-Bottzeck filed a motion to reopen alleging claims of ineffective

assistance of counsel. Specifically, he argued that his counsel abandoned him

                                          -13-
after the hearing before the IJ, in breach of their fee agreement, and as a result he

was forced to file his post-hearing brief pro se, with inadequate access to

immigration-related legal materials at the state prison where he was incarcerated.

The BIA denied the motion on two grounds. First, it concluded that the evidence

of ineffective assistance he submitted was previously available under 8 C.F.R.

§ 1003.2(c). Second, the BIA held that he failed to establish prejudice because

the motion did not include evidence demonstrating that he was not convicted of

an aggravated felony.

      W e hold that the BIA did not abuse its discretion in denying

M r Rivera-Bottzeck’s motion to reopen because he failed to establish any

prejudice. Petitioner argues only that it is clear he was denied an opportunity to

fairly present his claims after being abandoned by his counsel and forced to

proceed on his ow n w ithout adequate legal materials.

      Because deportation proceedings are civil in nature, a claim of
      ineffective assistance of counsel in a deportation proceeding may be
      based only on the Fifth A mendment guarantee of due process. As a
      result, an alien must show that his counsel’s ineffective assistance so
      prejudiced him that the proceeding was fundamentally unfair.

Akinwunmi v. INS, 194 F.3d 1340, 1341 n.2 (10th Cir. 1999) (per curiam)

(citations omitted). As the BIA noted, with his motion to reopen he still did not

present any evidence that he had not been convicted of an aggravated felony. Nor

does he indicate on appeal how the outcome of his removal hearing would have

been different if his counsel had prepared the post-hearing brief or if he had

                                         -14-
access to additional legal materials. Thus, his lack of counsel and legal materials

in that effort did not implicate the fundamental fairness of the proceeding.

      M r. Rivera-Bottzeck’s final argument is that the BIA failed to address, in

its denial of his motion to reopen, his claim that he was deprived of adequate

legal materials, resulting in a denial of his constitutional right of access to the

courts. He asks for remand to the BIA to allow it to consider that claim. W e

conclude that remand is not necessary. In his motion petitioner characterized his

arguments as “claims of ineffective assistance of counsel,” Admin. R. at 45, and

he described his lack of access to legal materials as a consequence of his

counsel’s ineffective assistance. W e conclude that the BIA sufficiently

considered and addressed his claims of ineffective assistance of counsel in their

entirety. Its conclusion that he failed to show prejudice applies equally to his

argument regarding lack of access to legal materials. See Lewis v. Casey,

518 U.S. 343, 353 (1996) (holding prisoner must “demonstrate that a nonfrivolous

legal claim had been frustrated or was being impeded”) (footnote omitted). 5

Therefore, the BIA’s failure to explicitly discuss that aspect of his claim was not

a failure to exercise its discretion or an abuse of discretion.

      W e hold that the BIA did not abuse its discretion in denying

M r. Rivera-Bottzeck’s motion to reopen.



5
     W e do not decide here the parameters of a prisoner’s due process right to
adequate legal materials for use in a removal proceeding.

                                          -15-
      The petition for review is DENIED. Petitioner’s motion to proceed without

prepaym ent of costs or fees is G RANTED.



                                                 Entered for the Court



                                                 M ichael R. M urphy
                                                 Circuit Judge




                                      -16-
