     Case: 18-60428      Document: 00515373636         Page: 1    Date Filed: 04/06/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 18-60428                                FILED
                                  Summary Calendar                           April 6, 2020
                                                                           Lyle W. Cayce
                                                                                Clerk
KOLAWOLE MONDAY ONENESE,

                                                 Petitioner,

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

                                                 Respondent.


                        Petitions for Review of Orders of the
                           Board of Immigration Appeals
                               BIA No. A075 225 213


Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM: *
       Kolawole Monday Onenese, a native and citizen of Nigeria, became a
lawful permanent resident of the United States. However, he was convicted of
conspiracy to commit bank fraud; bank fraud, aiding and abetting (two counts);
and aggravated identity theft, aiding and abetting (two counts) and was
ordered to pay $129,699.11 in restitution.               An immigration judge (IJ)
determined that Onenese was removable on account of an aggravated felony


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 18-60428

conviction, and the Board of Immigration Appeals (BIA) dismissed his appeal
from the IJ’s order.
      Onenese now petitions for review of the BIA’s decision, challenging the
determination that he was convicted of an aggravated felony as defined in
8 U.S.C. § 1101(a)(43)(M)(i) and § 1101(a)(43)(U).       Section 1101(a)(43)(M)
defines an “aggravated felony” as “an offense that—(i) involves fraud or deceit
in which the loss to the victim or victims exceeds $10,000,” and
§ 1101(a)(43)(U) extends the definition of “aggravated felony” to “an attempt
or conspiracy to commit an offense described in this paragraph.”               See
§ 1101(a)(43)(M)(i), (U).   Onenese argues that the agency impermissibly
ignored the amount of loss charged in the indictment and instead chose a
greater amount that was not specifically covered by his convictions.
      The amount of loss under § 1101(a)(43)(M)(i) and § 1101(a)(43)(U) “is a
factual matter to be determined from the record of conviction.” Arguelles-
Olivares v. Mukasey, 526 F.3d 171, 177 (5th Cir. 2008).          The categorical
approach does not apply to the determination of whether losses exceeded
$10,000. See Nijhawan v. Holder, 557 U.S. 29, 40 (1997); Arguelles-Olivares,
526 F.3d at 177-79. When determining the losses of victims, an immigration
court can rely on sentencing-related material. See Nijhawan, 557 U.S. at 42-
43; James v. Gonzales, 464 F.3d 505, 512 (5th Cir. 2006).
      Here, the Amended Judgment in Onenese’s criminal case established
that he was required to pay restitution well in excess of the $10,000 threshold
required under § 1101(a)(43)(M)(i) and § 1101(a)(43)(U) for his bank fraud and
bank fraud conspiracy convictions. In the absence of any proof to the contrary,
the restitution order is clear and convincing evidence of the losses of the
victims. See James, 464 F.3d at 512. Thus, Onenese has failed to show error
in the determination that he was convicted of an aggravated felony under both



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                                 No. 18-60428

§ 1101(a)(43)(M)(i) and § 1101(a)(43)(U). See Arguelles-Olivares, 526 F.3d at
177-79.
      Onenese also petitions for review of the BIA’s denial of his motion to
reopen. Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), he asserts that
the immigration court lacked jurisdiction because his Notice to Appear (NTA)
did not specify the time and place of his removal hearing.
      We have determined that Pereira addressed only the narrow question of
whether an NTA that omits the time or place of the initial hearing triggers the
statutory stop-time rule for cancellation of removal. See Mauricio-Benitez
v. Sessions, 908 F.3d 144, 148 n.1 (5th Cir. 2018), cert. denied, 139 S. Ct. 2767
(2019). Here, Onenese’s NTA was sufficient, as it supplied information about
the nature of the proceedings, explained the legal basis of the proceedings, and
warned about the possibility of in absentia removal. See Pierre-Paul v. Barr,
930 F.3d 684, 690 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 16, 2019)
(No. 19-779). Further, the immigration court cured any defect in the NTA by
notifying Onenese of the times and dates of his hearings. See id. at 690-91.
We need not decide whether In re Bermudez-Cota, 27 I. & N. Dec. 441 (BIA
2018), is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 844, 864-66 (1984), because, in decisions
such as Mauricio-Benitez and Pierre-Paul, we reached essentially the same
conclusion as the BIA regarding the limited reach of Pereira without applying
Chevron deference. See Bustamante-Barrera v. Gonzales, 447 F.3d 388, 394
(5th Cir. 2006). Therefore, Onenese fails to show that the BIA abused its
discretion in denying his motion to reopen. See Ramos-Portillo v. Barr, 919
F.3d 955, 958 (5th Cir. 2019).
      The petitions for review are DENIED.




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