                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 14-1024
                                    ___________

     AMAR K. BALKARAN, AKA Amar Kumar Balkaran, AKA Amar Balkaran

                                  Amar K. Balkaran,
                                               Petitioner

                                          v.

        ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                   Respondent

                     ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            (Agency No. A096-539-788)
                   Immigration Judge: Honorable Dorothy Harbeck
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 14, 2014

            Before: FISHER, VANASKIE and ALDISERT, Circuit Judges

                            (Opinion filed: May 20, 2014)
                                   ___________

                                     OPINION
                                    ___________

PER CURIAM

      Pro se petitioner Amar Balkaran seeks review of a final order of removal issued by

the Board of Immigration Appeals (BIA). For the reasons detailed below, we will
dismiss the petition for review in part and deny it in part.

       Balkaran is a citizen of Guyana. He entered the United States in 1996, and later

became a lawful permanent resident. However, he was subsequently convicted of several

criminal offenses — most importantly, conspiracy to defraud the United States in

violation of 18 U.S.C. § 371. Based on this conviction, the Department of Homeland

Security charged him with being removable as an alien who had been convicted of an

aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), and a crime involving moral

turpitude, see § 1227(a)(2)(A)(i). Balkaran, through counsel, conceded removability.

Further, while he had initially applied for asylum, withholding of removal, and deferral of

removal under the Convention Against Torture (CAT), at the hearing before the

Immigration Judge (IJ), he stipulated that he was not eligible for asylum or withholding

of removal, and thus pursued only the CAT claim. Balkaran alleged that in Guyana, due

to his homosexuality, he had been expelled from school, beaten, arrested, and sexually

assaulted, and that he feared that he would be tortured if he returned.

       The IJ denied Balkaran’s application. The IJ concluded, first, that Balkaran had

not testified credibly about his experiences in Guyana. Further, the IJ ruled that the

country-conditions evidence that Balkaran provided did not establish that it was more

likely than not that he would be tortured in Guyana. Balkaran then appealed to the BIA,

which dismissed his appeal. The BIA observed that while Balkaran (now proceeding pro

se) attempted to argue that he was entitled to withholding of removal, he was bound by

his prior counsel’s admission that he was not eligible for that relief. The BIA next upheld
                                              2
the IJ’s adverse-credibility determination. Finally, the BIA agreed with the IJ that

Balkaran had failed to show that he was entitled to CAT relief, holding that “mere

speculation about the potential dangers that may await an alien in the country of removal

will not support a claim under the CAT.” Balkaran then filed a timely petition for review

in this Court.

       The contours of our jurisdiction over this case depend on the correctness of the

BIA’s conclusion that Balkaran’s federal offense qualifies as an aggravated felony.

Balkaran does not challenge this aspect of the BIA’s opinion, see Br. at 8 (“petitioner’s

conviction satisfied the relevant definition of aggravated felony”), but because we have

an independent obligation to examine our jurisdiction, see Shehu v. Att’y Gen., 482 F.3d

652, 655 (3d Cir. 2007), we must address this issue notwithstanding Balkaran’s

concession.

       The BIA ruled that Balkaran’s offense was an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(M)(i), which includes within that category “an offense that involves fraud

or deceit in which the loss to the victim or victims exceeds $10,000.” We agree with the

BIA’s determination. The statute under which Balkaran was convicted, 18 U.S.C. § 371,

is a divisible statute, so we may use the modified categorical approach. See generally

United States v. Marrero, 743 F.3d 389, 396 (3d Cir. 2014). That approach permits us to

consider the criminal judgment, see Singh v. Att’y Gen., 677 F.3d 503, 512 (3d Cir.

2012), which reveals that Balkaran was convicted under the part of § 371 that

criminalizes conspiracy “to defraud the United States.” This offense involves fraud or
                                             3
deceit. See Nijhawan v. Att’y Gen., 523 F.3d 387, 390-91 (3d Cir. 2008), aff’d sub nom.

Nijhawan v. Holder, 557 U.S. 29 (2009). Further, the criminal judgment states that the

loss caused by the fraud was nearly $1.5 million, which is sufficient to establish the

requisite loss amount. See id. at 395. Thus, the crime qualifies as an aggravated felony,

see Kellermann v. Holder, 592 F.3d 700, 707 (6th Cir. 2010) (so holding), and our

jurisdiction is consequently limited to review of constitutional claims and questions of

law, see 8 U.S.C. § 1252(a)(2)(C), (D).

       Turning to the substance of the case, we observe that Balkaran’s brief consists

largely of lengthy and unattributed reproductions of decisions by various courts of

appeals that have little relevance to his case. Cf. Fed. R. App. P. 28(a)(8)(A) (requiring

briefs to contain “citations to the authorities”). For instance, Balkaran spends seven

pages of his brief copying, nearly verbatim, passages from Carcamo-Flores v. I.N.S., 805

F.2d 60 (2d Cir. 1986), that discuss, among other things, the standards governing

withholding of removal. This discussion, however, skirts the key issue here. Before the

IJ, Balkaran’s attorney stipulated that Balkaran was ineligible for withholding of

removal, and the BIA concluded that Balkaran was bound by that stipulation. Balkaran

has made no effort to challenge this aspect of the BIA’s decision, and we discern no

error. See Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 438 (8th Cir. 2008) (denying

petition for review in similar circumstances); see also Hoodho v. Holder, 558 F.3d 184,

191 (2d Cir. 2009) (“Facts admitted by a party are judicial admissions that bind that party

throughout the litigation.” (quotation marks, alternations omitted)). Thus, to the extent
                                             4
that Balkaran seeks review of the BIA’s refusal to consider his withholding-of-removal

claim on the merits, we will deny his petition.

       Further, as noted above, the BIA concluded that Balkaran was not credible.

Balkaran has not contested that ruling in any way. Therefore, he has waived any

argument regarding the BIA’s credibility determination. See Khan v. Att’y Gen., 691

F.3d 488, 495 n.4 (3d Cir. 2012).

       Balkaran does argue, albeit without providing any meaningful discussion, that the

BIA erred in denying his CAT claim. The BIA concluded that Balkaran’s CAT claim

failed because “mere speculation about the potential dangers that may await an alien in

the country of removal will not support a claim under the CAT.” This is a factual

decision — that is, that Balkaran failed to establish that the torture he feared was more

likely than not to occur — that we lack jurisdiction to review. See Roye v. Att’y Gen.,

693 F.3d 333, 343 n.12 (3d Cir. 2012); Kaplun v. Att’y Gen., 602 F.3d 260, 271 (3d Cir.

2010). Accordingly, we will dismiss the petition for review to the extent that it

challenges this aspect of the BIA’s decision.

       Balkaran also seems to argue (this time borrowing heavily from Huynh v. Holder,

321 F. App’x 649 (9th Cir. 2009)) that a conviction under § 371 does not qualify as a

crime involving moral turpitude. That issue, however, at least insofar as Balkaran raises

it to challenge the agency’s removability determination,1 is not properly before us:


1
 It is true that our jurisdiction to review a final order of the BIA is restricted when an
alien is removable by virtue of a conviction for moral turpitude, Alaka v. Att’y Gen., 456
                                                5
because Balkaran did not challenge that ruling (or his attorney’s concession underlying it)

before the BIA, we lack jurisdiction to review it, see § 1252(d)(1), and we will dismiss

the petition for review to the extent that it presses this claim.

        Finally, Balkaran argues (in a claim that is directly contradicted by his criminal

judgment) that “there is no evidentiary basis to conclude that respondent pleaded to an

offense involving a crime listed in the title or section 18 U.S.C. § 371.” However, he also

failed to raise this issue before the BIA; we therefore lack jurisdiction to consider it, see

Lin v. Att’y Gen., 543 F.3d 114, 120-21 & n.6 (3d Cir. 2008), and will dismiss the

petition for review in this respect.

        Accordingly, we will dismiss Balkaran’s petition for review in part and deny it in

part.




F.3d 88, 94 (3d Cir. 2006), and, as noted above, we retain jurisdiction to consider our
own jurisdiction. However, given our conclusion that Balkaran’s conviction qualifies as
an aggravated felony, we need not reach this issue. See INS v. Bagamasbad, 429 U.S.
24, 25 (1976) (“As a general rule courts and agencies are not required to make findings
on issues the decision of which is unnecessary to the results they reach.”).
                                             6
