                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-16-2003

Munroe v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-1471




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Recommended Citation
"Munroe v. Atty Gen USA" (2003). 2003 Decisions. Paper 11.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/11


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                          PRECEDENTIAL

                               Filed December 16, 2003

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                    No. 03-1471


            AUBREY MALCOLM MUNROE,
                                     Appellant
                         v.
  JOHN ASHCROFT, AS ATTORNEY GENERAL OF THE
 UNITED STATES; JAMES ZIGLAR, AS COMMISSIONER
  OF THE IMMIGRATION & NATURALIZATION SERVICE;
ANDREA J. QUARANTILLO, DISTRICT DIRECTOR OF THE
 IMMIGRATION & NATURALIZATION SERVICE; LORELEI
 VALVERDE, ACTING ASSISTANT DISTRICT DIRECTOR-
            DETENTION AND REMOVAL

              ON APPEAL FROM THE
         UNITED STATES DISTRICT COURT
   FOR THE EASTERN DISTRICT OF PENNSYLVANIA
              (Dist. Court No. 02-cv-02256)
    District Court Judge: Hon. Mary A. McLaughlin

            Argued: September 15, 2003
 Before: ALITO, AMBRO and CHERTOFF, Circuit Judges

         (Opinion Filed: December 16, 2003)
                   PETER E. TORRES (argued)
                   P.O. Box 1613
                   New York, N.Y. 10159-1613
                   Counsel for Appellant
                               2


                        PATRICK L. MEEHAN
                        LAURIE MAGID
                        VIRGINIA A. GIBSON
                        SUSAN R. BECKER (Argued)
                        615 Chestnut Street, Suite 1250
                        Philadelphia, PA 19106
                        Counsel for Appellees


                OPINION OF THE COURT

ALITO, Circuit Judge:
  This is an appeal from the District Court’s order denying
Aubrey Malcolm Munroe’s petition for a writ of habeas
corpus. Monroe’s petition challenged a decision of the
Board of Immigration Appeals that he is deportable as an
aggravated felon due to his conviction in state court in New
Jersey for a fraud offense. In order to qualify as an
aggravated felony conviction, this offense had to involve a
loss to a victim or victims that exceeded $10,000. Monroe
argues that the New Jersey conviction does not qualify
because the sentencing judge eventually reduced the
amount of restitution that he was required to pay from
$11,522 to $9,999. Because the critical fact for present
purposes is the amount of loss, not the amount of
restitution, we affirm.

                              I.
   Munroe, a citizen and native of Guyana, was admitted to
the United States as a lawful permanent resident in 1980.
In 1995, Munroe was charged in two indictments returned
in the Superior Court, Hudson County, New Jersey. The
first indictment (No. 1228-07-95) charged Munroe with one
count of theft by deception, in violation of N.J.S.A. 2C: 20-
4, and alleged that Munroe had unlawfully obtained $1,000
from the First Fidelity Bank in Union City, New Jersey, in
August 1994, by depositing bad checks and then
withdrawing $1,000 from his account. The second
indictment (2227-12-95) charged Munroe with two
additional counts of violating the same statute. One count
                             3


alleged that Munroe had unlawfully obtained $10,500 from
the Bank of New York in Union City, and the other count
alleged that Munroe had unlawfully obtained $1270 from
that bank. In August 1999, Munroe pled guilty in the
Superior Court, Hudson County, New Jersey, to two counts
of violating N.J.S.A. 2C: 20-4. He was sentenced to two
concurrent terms of five years’ probation and was ordered
to pay restitution in the amount of $1,022 on the first
indictment and $10,500 on the second.
  Following this conviction, the Immigration and
Naturalization Service issued a Notice to Appear in Removal
Proceedings, charging that Munroe was subject to removal
on the ground that he had been convicted of two crimes
that involved moral turpitude and that did not arise from a
single scheme of misconduct. The Notice was later amended
to include the charge that Munroe was removable as an
aggravated felon pursuant to 8 U.S.C. § 1101(a)(2)(A)(iii),
based on his conviction for a crime involving fraud or deceit
in which the loss to the victim exceeded $10,000. See 8
U.S.C. § 1101(a)(43)(M)(i).
  An Immigration Judge ordered Munroe removed to
Guyana, holding that he had been convicted of two crimes
of moral turpitude and that the conviction under the Bank
of New York indictment met the statutory definition of an
aggravated felony. The BIA affirmed.
  In the meantime, Munroe and the Hudson County
Prosecutor’s Office jointly moved the Superior Court to
reduce the total amount of restitution required to $9,999,
and this motion was granted. It is apparent from the
motion and is not disputed here that the motion was not
based on a redetermination of the amount of loss caused by
the crimes but was intended to alter the effect of the
conviction for immigration purposes.
  Munroe moved for reconsideration by the BIA, but the
Board refused. The Board stated that Munroe had pled
guilty to a fraud offense involving a loss of more than
$10,000 and that it was therefore “irrelevant that
[Munroe’s] ordered restitution was later reduced.” Munroe
then filed a petition for a writ of habeas corpus, but the
District Court agreed with the Board’s reasoning, and this
appeal followed.
                             4


                             II.
   Under 8 U.S.C. § 1227(a)(2)(A)(iii), “[a]ny alien who is
convicted of an aggravated felony at any time after
admission is deportable.” The term “aggravated felony” is
now defined by statute to include “an offense that . . .
involves fraud or deceit in which the loss to the victim or
victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). There
is no dispute in the present case that Munroe’s conviction
under the Bank of New York indictment for fraud by
deception was for an offense involving “fraud or deceit,” and
therefore that conviction qualifies as an aggravated felony
conviction if the amount of “loss to the victim” exceeded
$10,000.
  We agree with the BIA and the District Court that the
amount of loss involved in that conviction was greater than
$10,000. The indictment alleged that the loss exceeded this
amount, and Munroe does not claim that, when he pled
guilty, he admitted to only a lesser loss. Nor is there any
suggestion that the Superior Court ever found that the
amount of the loss was less than $10,000. As noted, the
Superior Court initially required Munroe to pay more than
$10,000 in restitution, and it is abundantly clear that the
Court later reduced the restitution to $9,999 for the
purpose of altering the consequences of the conviction for
immigration law purposes, not because of a recalculation of
the amount of the loss. Accordingly, the reduction in the
amount of restitution was, as the BIA held, “irrelevant” for
present purposes.
   The amount of restitution ordered as a result of a
conviction may be helpful to a court’s inquiry into the
amount of loss to the victim if the plea agreement or the
indictment is unclear as to the loss suffered. But when the
amount of restitution ordered is not based on a finding as
to the amount of the loss but is instead intended solely to
affect the defendant’s immigration status, the amount of
restitution is not controlling.
  Munroe argues that, in determining the amount of the
loss involved in his state-court conviction, we are bound by
the terms of the state-court judgment and that the
reduction in the amount of restitution changed the terms of
                               5


that judgment. What we have said already, however, is
sufficient to dispose of this argument. Even assuming for
the sake of argument that an Immigration Judge or the BIA
is bound by the terms of a state- court judgment that has
been altered for the sole purpose of alleviating the
immigration law consequences of the conviction, that rule
would not help Munroe. Here, as noted, the amendment of
the judgment simply changed the amount of restitution; it
did not involve a state-court finding as to the amount of
loss.
   Moreover, although we need not reach the question, we
note that there is authority for the proposition that “[w]hen
a court vacates an otherwise final and valid conviction on
equitable grounds merely to avoid the immigration-law
consequences of the conviction, it usurps Congress’s
plenary power to set the terms and conditions of American
citizenship and the executive’s discretion to administer the
immigration laws.” Renteria-Gonzalez v. INS, 322 F.3d 804,
812 (5th Cir. 2003) (citation omitted).

                             III.
   For the reasons set out above, the District Court’s denial
of Munroe’s petition for writ of habeas corpus relief is
affirmed.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
