                                          NOT PRECEDENTIAL


 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                             ________

                            No. 12-1005
                            _________


             RAFAEL FRANCISCO MATOS FAMILIA,
                                   Petitioner
                            v.

         ATTORNEY GENERAL OF THE UNITED STATES

                             ________

                 On Petition for Review of an Order
                of the Board of Immigration Appeals
                        (No. A018-695-089)
             Immigration Judge: Honorable Margaret R. Reichenberg
                              _______

              Submitted Under Third Circuit LAR 34.1(a)
                         December 18, 2012

Before: MCKEE, Chief Judge, SLOVITER, and VANASKIE, Circuit Judges

                     (Filed: December 20, 2012)

                               ______

                             OPINION
                              ______




                                 1
SLOVITER, Circuit Judge.


       Rafael Francisco Matos Familia (“Petitioner”) petitions for review of a Board of

Immigration Appeals (“BIA”) order finding him ineligible for cancellation of removal.

The Government has moved to dismiss the petition for lack of jurisdiction. For the

reasons that follow, we deny the Government’s motion, and deny Familia’s petition on

the merits.

                                            I.

       Petitioner, a native and citizen of the Dominican Republic, became a lawful

permanent resident of the United States in 1970. In 2001, the United States District

Court for the Southern District of New York sentenced him to three years of probation

following his guilty plea to conspiracy to commit mail fraud in violation of 18 U.S.C.

§ 371. 1 This conviction stemmed from Petitioner’s role in a scheme in which some New

York City Department of Environmental Protection (“DEP”) employees were paid to

reduce water bills mailed to certain DEP customers.

       In July 2010, the Department of Homeland Security (“DHS”) initiated removal

proceedings against Petitioner, charging him with being removable as an alien convicted

of a crime involving moral turpitude, and as an alien convicted of a controlled substance

offense. 2 See 8 U.S.C. §§ 1182(a)(2)(A)(i)(I) and (II). Petitioner conceded his


1
 Section 371 covers conspiracies to commit offenses against, or to defraud, the United
States.
2
 In 1994, Petitioner pled guilty in New York state court to possession of a controlled
substance.
                                            2
removability and applied for cancellation of removal. Following testimony on the merits

of his application before the immigration judge (“IJ”), DHS moved to admit into

evidence the presentence report from his federal criminal case. Petitioner objected on

timeliness grounds. The IJ overruled the objection and admitted the report; she also gave

Petitioner an opportunity to submit additional evidence of his own. 3

         In June 2011, the IJ issued a written decision denying Petitioner’s application and

ordering his removal from the United States. The IJ concluded that Petitioner was

ineligible for cancellation of removal because his § 371 conviction involved fraud and a

loss to the victim that exceeded $10,000, and therefore qualified as an aggravated felony

under 8 U.S.C. § 1101(a)(43)(M)(i) (“the fraud ground”). In finding that the loss to the

victim exceeded $10,000, the IJ relied on the presentence report, which had calculated the

loss to the DEP attributable to Petitioner to be approximately $28,839.

         Petitioner appealed the IJ’s decision to the BIA, raising the following arguments:

(1) the record did not establish that the loss to the victim exceeded $10,000 and (2) the IJ

wrongly applied the aggravated felony fraud ground alone, rather than considering that

his § 371 conviction constituted a “hybrid” fraud-theft offense under Nugent v. Ashcroft,

367 F.3d 162 (3d Cir. 2004). The BIA rejected both of these arguments on the merits and

dismissed the appeal.

         Petitioner now seeks review of the BIA’s decision. The Government has moved to

dismiss his petition for review for lack of jurisdiction.


3
    Petitioner subsequently submitted two witness statements.

                                               3
                                               II.

       Although we generally lack jurisdiction to review a final order of removal issued

against a petitioner who has been convicted of a crime of moral turpitude or a controlled

substance offense, see 8 U.S.C. § 1252(a)(2)(C), we nonetheless retain jurisdiction to

review any colorable constitutional or legal questions raised in his petition for review.

See 8 U.S.C. § 1252(a)(2)(D); Cruz v. Att’y Gen., 452 F.3d 240, 246-47 (3d Cir. 2006).

A claim is colorable if it is not “immaterial and made solely for the purpose of obtaining

jurisdiction” or “wholly insubstantial and frivolous.” Pareja v. Att’y Gen., 615 F.3d 180,

186 (3d Cir. 2010) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 513 n.10 (2006)). In

this case, Petitioner reiterates the two arguments he presented to the BIA in support of his

claim that the agency erred in deeming his federal conviction to be an aggravated felony.

The Government does not dispute that these arguments present legal questions. Because

we do not believe that they were made solely for the purpose of obtaining jurisdiction or

are wholly insubstantial and frivolous, we deny the Government’s motion and exercise

jurisdiction over the petition for review. 4

                                               III.

       An alien applying for cancellation of removal bears the burden of showing that he

satisfies the eligibility requirements. 8 U.S.C. § 1229a(c)(4)(A)(i). “If the evidence

indicates that one or more of the grounds for mandatory denial of the application for


4
 We exercise plenary review over Petitioner’s claim that his federal conviction does not
constitute an aggravated felony. See Thomas v. Att’y Gen., 625 F.3d 134, 141 (3d Cir.
2010).

                                                4
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). Petitioner thus bore the

burden of demonstrating that his §371 conviction was not an aggravated felony. See 8

U.S.C. §1229b(a)(3). 5

       We first address Petitioner’s claim that his §371 conviction does not constitute a

fraud aggravated felony because the loss to the victim was under $10,000. In evaluating

the evidence of loss for purposes of § 1101(a)(43)(M)(i), “we must use a circumstance-

specific approach . . . wherein the loss must be tethered to the actual offense of

conviction, not acquitted or dismissed counts or general conduct.” Singh v. Att’y Gen.,

677 F.3d 503, 508 (3d Cir. 2012) (internal citations and quotation marks omitted).

Petitioner argues that the $28,839 loss figure that the IJ and BIA relied on “is not clearly

tethered to the conduct to which [he] pleaded guilty,” but rather “relates to other ‘general

conduct.” Pet’r’s Br. at 16 (quoting Alaka v. Att’y Gen., 456 F.3d 88, 108 (3d Cir.

2006)). We disagree.

       The Information issued against Petitioner alleged that from 1996 to 1998 he

conspired with others “to devise a scheme . . . to defraud the City and DEP of money due

and owing for water charges and assessments on properties located in New York City.”

App. at 29. It alleged that four overt acts, “among others,” were committed in


5
 Petitioner suggests that he did not bear the burden because, “[a]s of the date of the
merits hearing . . . , the evidence of record clearly did not indicate that any mandatory bar
applied to [his] application for relief.” Pet’r’s Br. at 13. Given that the IJ subsequently
admitted the presentence report and that Petitioner does not argue on appeal that this was
error, the state of the evidence at the merits hearing is of no moment.

                                              5
furtherance of the conspiracy; they related to the fraudulent reduction of charges on one

water bill account belonging to “C.L.” and another belonging to “F.G.” 6 App. at 29.

Petitioner’s presentence report added that these reductions cost the City $4,248. In

calculating the total loss attributable to Petitioner, however, the presentence report

included reductions to two additional accounts maintained by F.G., as well as a further

reduction to C.L.’s account. The report concluded that “[t]he amount of actual loss to the

DEP, which has been attributed to [Petitioner], is approximately $28,839.” App. at 49.

       Petitioner argues that only the loss from the two accounts referenced in the

Information is tethered to his offense of conviction, but he is incorrect. Petitioner pled

guilty to participating in a conspiracy. The Information did not limit the conspiracy to

the particular overt acts it alleged. Cf. Doe v. Att’y Gen., 659 F.3d 266, 276 (“[The

Defendant] did not plead guilty to a single discrete act of accepting a $6,447 transfer. He

admitted to aiding and abetting the entire scheme.”). The reductions totaling $28,839 fell

within the timeframe and scope of the scheme to defraud the DEP. Petitioner did not

object to the findings of fact in the presentence report, and the sentencing judge adopted

them. In light of Petitioner’s failure to contest the financial figures in the report, he did

not bear his burden of showing that the loss attributable to his participation in the




6
  Although the presentence report provided the full names of these two individuals, we
refer to them by their initials only.

                                               6
conspiracy was less than $10,000. 7 The BIA property found Petitioner’s §371 connection

to be a fraud aggravated felony.

       We now turn to Petitioner’s second argument. Petitioner contends that his § 371

conviction is not an aggravated felony because it qualifies as a “hybrid” fraud-theft

offense under Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004), but does not, as Nugent

requires, satisfy the criteria for both the fraud and theft aggravated felony grounds. See

id. at 179. In particular, Petitioner’s conviction does not meet the one-year sentence

requirement for the aggravated felony of theft. See 8 U.S.C. § 1101(a)(43)(G).

Petitioner’s argument fails, however, because § 371 conspiracy to commit mail fraud

does not constitute a theft offense, and so is not a fraud-theft “hybrid.”

       To determine whether a conviction constitutes a “theft offense” under §

1101(a)(43)(G), we employ the categorical approach: “[W]e look to the offense of

conviction, not to the particular facts of the underlying criminal conduct.” Ilchuk v. Att’y

Gen., 434 F.3d 618, 622 n.2 (3d Cir. 2006). An offense qualities as a “theft offense” if it

requires “a taking of property or an exercise of control over property without consent.”

Bobb v. Att’y Gen., 458 F.3d 213, 224 (3d Cir. 2006) (citing Nugent, 367 F.3d at 174).

The elements of conspiracy to commit mail fraud are “(1) an agreement to commit [§

1341 mail fraud]; (2) the defendants intentionally joining in the agreement; (3) one of the

conspirators committing an overt act; and (4) an overt act in furtherance of the

7
  Petitioner argues that the absence of a restitution order undermines a finding of loss
over $10,000. A restitution order “may be helpful to the loss inquiry, but is not
definitive.” Singh, 677 F.3d at 515 (quotation omitted). Because the District Court
declined to order restitution simply because it had already been paid by others, we do not
regard its decision to be determinative of the actual loss.
                                              7
conspiracy.” United States v. Rigas, 605 F.3d 194, 206 n.9 (3d Cir. 2010) (en banc).

Because these elements do not require proof of any taking, conspiracy to commit mail

fraud does not meet the definition of a “theft offense.” 8 Accordingly, Petitioner’s § 371

conviction cannot be treated as a fraud-theft hybrid under Nugent. It is therefore

irrelevant that he received a sentence of less than one year of imprisonment. 9

       In light of the above, the BIA did not err in upholding the IJ’s determination that

Petitioner’s § 371 conviction constituted a fraud aggravated felony. We will accordingly

deny the petition for review.




8
  Petitioner’s actual conduct is irrelevant to the categorical inquiry. We depart from the
categorical approach and employ the modified categorical approach only “[w]here a
statute of conviction contains disjunctive elements, some of which are sufficient for
conviction of the federal offense and others of which are not.” Jean-Louis v. Att'y Gen.,
582 F.3d 462, 466 (3d Cir. 2009). As none of the elements of §371 conspiracy to commit
mail fraud are sufficient to constitute a “theft offense,” we cannot depart from the
categorical approach here.
9
  The BIA incorrectly analyzed whether the substantive offense of § 1341 mail fraud is a
theft offense, rather than Petitioner’s actual offense of conviction (§ 371 conspiracy to
commit mail fraud). The BIA’s analysis is nonetheless relevant, because if mail fraud is
a theft offense, Petitioner’s conviction is arguably a hybrid of fraud and theft-conspiracy.
See 8 U.S.C. § 1101(a)(43)(U) (including attempts and conspiracies among aggravated
felony grounds). We agree with the BIA, however, that mail fraud is not a theft offense
either, because it does not require a taking without consent. See United States v. Pharis,
298 F.3d 228, 233-34 (3d Cir. 2002) (elements of § 1341 mail fraud are “(1) a scheme to
defraud; (2) use of the mails to further that scheme; and (3) fraudulent intent”). Cf.
Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008) (holding that bank fraud under 18
U.S.C. § 1344 is not “theft offense” because “neither of the two prongs of § 1344, by its
terms, requires property being obtained without . . . consent”).

                                             8
