     10-0467-ag
     Varughese v. Holder



 1                         UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5
 6
 7                               August Term, 2010
 8
 9   (Argued: November 10, 2010                 Decided: November 12, 2010)
10
11                             Docket No. 10-0467-ag
12
13
14                    VARUGHESE ADACKAMANGAL VARUGHESE,
15                       a/k/a Varughese Varughese,
16
17                                                                   Petitioner,
18
19                                       –v.–
20
21                    ERIC H. HOLDER, JR., United States
22                             Attorney General,
23
24                                                                   Respondent.
25
26
27
28   Before:
29         B.D. P ARKER, W ESLEY, Circuit Judges, J ONES, Judge. *
30
31        Petition for review of a final order of removal issued
32   by the Board of Immigration Appeals (“BIA” or “Board”), on
33   January 22, 2010, which affirmed the decision of the
34   Immigration Judge (“IJ”) finding petitioner removable as
35   charged. Petitioner contends principally that his removal
36   is improper because his money laundering conviction, in
37   violation of 18 U.S.C. 1956(a)(3)(b), does not constitute an
38   “aggravated felony” under the INA. He also challenges the


           *
             The Honorable Barbara S. Jones, of the United States District Court
     for the Southern District of New York, sitting by designation.
 1   Board’s conclusion that he is ineligible for adjustment of
 2   status pursuant to INA § 245, 8 U.S.C. § 1255.
 3
 4             P ETITION D ENIED.
 5
 6
 7
 8                 T HOMAS E. M OSELEY, Law Offices of Thomas E. Moseley,
 9                        Newark, NJ, for Petitioner.
10
11                 C ARMEL A. M ORGAN, Trial Attorney, Office of
12                        Immigration Litigation, Civil Division, (Tony
13                        West, Assistant Attorney General, Russell J.
14                        E. Verby, Senior Litigation Counsel, on the
15                        brief), for Eric H. Holder Jr., United States
16                        Attorney General, Respondent.
17
18
19
20   P ER C URIAM: 1

21         Petitioner Varughese Adackamangal Varughese seeks

22   review of a final order of removal issued by the BIA, which

23   affirmed the decision of the IJ finding Varughese removable

24   as charged.        In re Varughese, A 036 123 229 (B.I.A. Jan. 22,

25   2010).       Specifically, the Board concluded that Varughese’s

26   conviction for money laundering, in violation of 18 U.S.C. §

27   1956(a)(3)(B), constitutes an “aggravated felony,” rendering

28   him removable pursuant to § 101(a)(43)(D) of the Immigration

29   and Nationality Act (“INA”).           8 U.S.C. § 1101(a)(43)(D).

30   Varughese challenges that determination on appeal, along


           1
             This matter was initially resolved by summary order, but we now
     reissue that decision following the grant of the Government’s motion for
     publication of the summary order as a precedential opinion.

                                           2
 1   with the BIA’s conclusion that he is ineligible for

 2   adjustment of status pursuant to INA § 245, 8 U.S.C. § 1255.

 3   We deny the petition for review.

 4

 5                           I. Background

 6       Varughese, a native and citizen of India, was admitted

 7   to the United States on or about April 24, 1981 as a lawful

 8   permanent resident.   On November 25, 2002, Varughese was

 9   arrested pursuant to a “sting” operation and charged in a

10   one-count indictment with money laundering, in violation of

11   18 U.S.C. § 1956(a)(3)(b), which provides that

12        [w]hoever, with the intent to conceal or
13        disguise the nature, location, source,
14        ownership, or control of property believed to be
15        the proceeds of specified unlawful activity . .
16        . conducts or attempts to conduct a financial
17        transaction involving property represented to be
18        the proceeds of specified unlawful activity, or
19        property used to conduct or facilitate specified
20        unlawful activity, shall be fined under this
21        title or imprisoned for not more than 20 years,
22        or both.
23
24       On October 7, 2005, pursuant to a cooperation

25   agreement, Varughese pled guilty to the charged offense.

26   During the plea hearing, Varughese testified that he issued

27   money orders through his check-cashing business to men that

28   he believed to be connected with drug dealers.   He further


                                   3
 1   testified that he did so in exchange for extra commissions,

 2   and admitted specifically to three transactions involving

 3   $30,000, $50,000, and $100,000, respectively.   On July 16,

 4   2008, the United States District Court for the Eastern

 5   District of New York (Trager, J.) sentenced Varughese to

 6   time served, along with three years of supervised release.

 7       On March 30, 2009, Varughese was served with a Notice

 8   to Appear, charging him with removability pursuant to 8

 9   U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an

10   “aggravated felony.”   Specifically, INA § 101(a)(43)(D), 8

11   U.S.C. § 1101(a)(43)(D) provides that an “aggravated felony”

12   includes “an offense described in [18 U.S.C. § 1956]

13   (relating to monetary instruments) if the amount of the

14   funds exceeded $10,000.”   § 1101(a)(43)(D).

15       On several occasions in 2009, Varughese appeared before

16   the IJ and contested his removability.   Specifically,

17   Varughese argued that: (1) he was not convicted of

18   laundering “funds exceed[ing] $10,000,” because the statute

19   under which he was convicted uses the term “proceeds” and

20   not “funds”; (2) even if the term “proceeds” is equated to

21   “funds,” the Supreme Court has interpreted the term

22   “proceeds” in another context to mean “profits,” and,



                                   4
 1   because this was a sting operation, no real profits were

 2   obtained; and (3) the legislative history of § 1956

 3   indicates that the term “funds” actually refers to the

 4   amount of the fine imposed, and not the amount of money

 5   laundered.

 6          On September 3, 2009, the IJ issued a written decision

 7   finding Varughese removable as charged.     The IJ concluded

 8   that, because the money laundering statute under which

 9   Varughese pled guilty is silent as to monetary amount, it

10   was appropriate to consider statements made by Varughese

11   during his plea colloquy to determine the amount of funds

12   implicated in the offense of conviction.     In so doing, the

13   IJ found “clear evidence” that Varughese’s offense involved

14   amounts far exceeding the $10,000 threshold set forth in the

15   INA.    Furthermore, the IJ rejected Varughese’s contention

16   that the statute’s use of the word “funds” actually refers

17   to the amount of the fine imposed, instead of the amount of

18   money laundered.     Accordingly, the IJ concluded that

19   Varughese was removable as charged, and ordered him removed

20   to India.

21          On January 22, 2010, the BIA dismissed Varughese’s

22   appeal.     The BIA adopted, and expounded upon, the reasoning



                                     5
 1   of the IJ.   Specifically, the BIA explained that, pursuant

 2   to the Supreme Court’s decision in Nijhawan v. Holder, ---

 3   U.S. ---, 129 S. Ct. 2294 (2009), the IJ properly relied

 4   upon the statements made by Varughese during his plea

 5   colloquy to conclude that the amount of funds involved in

 6   his crime exceeded $10,000.

 7       Varughese now seeks review in this Court.   For the

 8   reasons that follow, Varughese’s arguments are without

 9   merit.   His petition is therefore denied and his appeal

10   dismissed.

11                           II. Discussion

12       Where, as here, the BIA has adopted the IJ’s reasoning

13   and offered additional commentary, our Court reviews the

14   decision of the IJ as supplemented by the Board.

15   Gertsenshteyn v. U.S. Dep’t of Justice, 544 F.3d 137, 142

16   (2d Cir. 2008).   “While the BIA’s interpretation of

17   immigration statutes is generally entitled to Chevron

18   deference, interpretations in non-precedential unpublished

19   BIA decisions, as in the instant case, are not so entitled.”

20   Dobrova v. Holder, 607 F.3d 297, 300 (2d Cir. 2010).     We

21   need not, and do not, resolve whether such unpublished

22   decisions are entitled to Skidmore deference, because our de


                                   6
 1   novo review reveals that the determination below was

 2   correct.

 3         At the outset, we reject Varughese’s contention that

 4   INA § 101(a)(43)(D), which defines an “aggravated felony” as

 5   a money laundering offense in which “the amount of the funds

 6   exceeded $10,000," 8 U.S.C. § 1101(a)(43)(D), captures only

 7   those violations of criminal statutes that use the specific

 8   word “funds.”      It is irrelevant that Varughese was convicted

 9   under a subsection of the money laundering statute that does

10   not actually use the word “funds,” because the phrase “the

11   amount of the funds exceeded $10,000” in the INA simply

12   “refers to the particular circumstances in which an offender

13   committed a . . . crime on a particular occasion.”                  Nijhawan

14   v. Holder, 129 S. Ct. at 2298.            Simply put, it refers to the

15   amount of money laundered. 2         See Chowdhury v. INS, 249 F.3d

16   970, 974 (9th Cir. 2001).          That determination is properly

17   made pursuant to a “circumstance-specific” approach, and not

18   a “categorical” one.          Nijhawan, 129 S. Ct. at 2300.          Because

19   Varughese admitted to laundering well in excess of $10,000

20   on multiple occasions during his plea colloquy, the record


           2
             We are unpersuaded by Varughese’s contention that the term “amount of
     the funds,” as it is used in the money laundering statute, refers to the
     amount of the fine imposed.

                                           7
 1   of conviction sufficiently establishes that the

 2   circumstances of his money laundering conviction involved

 3   funds in excess of $10,000.    Id. at 2303 (defendant’s

 4   stipulation at sentencing constitutes proper basis to assess

 5   circumstance-specific fact).

 6       Varughese next urges that, even assuming the “amount of

 7   the funds” inquiry is circumstance-specific, the amounts

 8   that he admitted laundering during his plea colloquy are not

 9   sufficiently “tethered” to his conviction in order to

10   establish his removability.    See id. (observing that “the

11   loss must be tied to the specific counts covered by the

12   conviction”) (internal quotation marks omitted).    In

13   substance, Varughese argues that because no amount is cited

14   in the indictment to which he pled guilty, the statements he

15   made during his plea colloquy are not sufficiently related

16   to his conviction to establish that his conviction was an

17   “aggravated felony.”

18       We are unpersuaded.   Varughese was charged in a one-

19   count indictment alleging multiple “financial transactions”

20   over the course of several months in 2001 and 2002.       A. 155.

21   Varughese confirmed during the sentencing hearing that he

22   was involved in multiple instances of money laundering


                                    8
 1   between “November 2001 and January 2002.”              A. 205.

 2   Accordingly, his admissions to laundering funds in excess of

 3   $10,000 are sufficiently related to the count for which he

 4   was convicted. 3

 5         Finally, we reject Varughese’s contention that he is

 6   eligible for adjustment of status pursuant to INA § 245.

 7   Adjustment of status is a discretionary benefit affordable

 8   to an alien who, among other things, is “eligible to receive

 9   an immigrant visa and is admissible to the United States for

10   permanent residence.”        INA § 245, 8 U.S.C. § 1255(a).

11   Because Varughese’s money laundering conviction renders him

12   ineligible for admissibility to the United States, he is

13   similarly ineligible for adjustment of status.                INA §

14   212(a)(2)(I)(i), 8 U.S.C. § 1182(a)(2)(I)(i) (“Any alien who

15   . . . has engaged, is engaging, or seeks to enter the United

16   States to engage, in an offense described in section 1956 or

17   1957 of Title 18 (relating to laundering of monetary

18   instruments) is inadmissible” to the United States.).

           3
             Varughese also contends that the money laundering statute’s use of the
     term “proceeds” must mean “profits,” in light of the Supreme Court’s decision
     in United States v. Santos, 553 U.S. 507 (2008), and that his conviction is
     therefore infirm because there can be no true “profits” realized in a sting
     operation. Not only is this argument baseless — the specific subsection under
     which Varughese was convicted expressly contemplates sting operations — but it
     is also irrelevant. The soundness of Varughese’s underlying conviction is not
     before us, for “[c]ollateral attacks are not available in a . . . petition
     challenging the BIA’s removal decision.” Lanferman v. BIA, 576 F.3d 84, 88
     (2d Cir. 2009).

                                           9
 1   Moreover, because Varughese’s money laundering conviction

 2   constitutes an “aggravated felony,” the Attorney General was

 3   without discretion to afford him a waiver of

 4   inadmissibility.     INA § 212(h), 8 U.S.C. § 1182(h).

 5

 6                            III. Conclusion

 7         For the foregoing reasons, the petition for review is

 8   D ENIED.   Having completed our review, any stay of removal

 9   previously granted in this petition is V ACATED, and any

10   pending motion for a stay of removal is D ISMISSED as moot.




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