                           NOT RECOMMENDED FOR PUBLICATION
                                   File Name: 14a0700n.06

                                                 No. 13-4359

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                                                                             FILED
    __________________________________                  )                   Sep 08, 2014
                                                        )              DEBORAH S. HUNT, Clerk
    JIHAD AHMAD ZAHRA,                                  )
                                                        )
         Petitioner,                                    ) ON APPEAL FROM THE BOARD OF
                                                        ) IMMIGRATION APPEALS
    V.                                                  )
                                                        )             OPINION
    ERIC HOLDER, JR., Attorney General                  )
    of the United States,                               )
                                                        )
      Respondent.                                       )
___________________________________                     )

Before: ROGERS and GRIFFIN, Circuit Judges; VAN TATENHOVE, District Judge.*

         GREGORY F. VAN TATENHOVE, District Judge. Petitioner Jihad Ahmad Zahra

seeks review of a final order of the Board of Immigration Appeals (BIA or Board) dismissing his

appeal of an immigration judge’s removal order. Zahra was ordered removed because he was

convicted of an aggravated felony and because he had falsely represented himself to be a United

States Citizen. Because the BIA correctly dismissed Zahra’s appeal, his petition for review is

hereby DENIED.

                                                        I

         Zahra is both a native and a citizen of Lebanon but has been living in the United States as

a conditional lawful permanent resident since 1995. Zahra’s wife and four children are all

United States Citizens. On September 11, 2008, Zahra pled guilty to making false statements for

*
  The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
the purpose of influencing actions of the Small Business Administration (SBA) in violation of

15 U.S.C. § 645(a). During his sentencing hearing in April of 2009, the Court engaged in a

colloquy with defense counsel about the possible deportation implications of Zahra pleading

guilty. The Court found Zahra guilty of violating 15 U.S.C. § 645 (a), sentenced him to

probation and ordered him to pay $717,750.00 in restitution to a third party, Business Loan

Express (BLX). A week later, the Court issued an Amended Judgment which, in compliance

with the plea agreement, changed the amount of restitution owed to zero.

       In March 2012, the Department of Homeland Security (“DHS”) served Zahra with a

Notice to Appear. DHS alleged that (1) Zahra’s conviction rendered him removable as an alien

who had been convicted of an aggravated felony and that (2) Zahra was also removable because

he had falsely represented himself as a United States Citizen. The immigration judge ordered

Zahra be removed, finding that Zahra’s § 645(a) conviction qualified as an aggravated felony

since the crime involved fraud or deceit and the loss was in excess of $10,000. The judge also

concluded that Zahra had falsely represented himself to be a United States Citizen. Ultimately,

the BIA dismissed Zahra’s appeal. In his appeal, Zahra did not dispute the IJ’s finding that his

offense involved fraud or deceit but only argued that the loss did not exceed $10,000. Zahra

subsequently appealed to this Court, and on April 9, 2013, we granted the government’s

unopposed motion to remand, sending the case back to the BIA to consider the significance of

the statements related to the amount of loss made by the district court during Zahra’s re-

sentencing. Once again the BIA dismissed Zahra’s appeal, concluding that Zahra had caused the

SBA to lose $760,000 and that whether or not the SBA was made whole by BLX had no bearing

on the question of whether the SBA had suffered an actual loss. The BIA’s decision qualifies as

a final agency decision. 8 C.F.R. §1241.1. Zahra now again petitions this Court for review.



                                              -2-
                                               II

       Legal questions regarding the “BIA’s interpretation of statutes and regulations” are

reviewed de novo. Padhiyar v. Holder, 13-3758, 2014 WL 1099103 (6th Cir. Mar. 20, 2014);

Sanusi v. Gonzales, 474 F.3d 341, 345 (6th Cir. 2007); Patel v. Ashcroft, 401 F.3d 400, 407 (6th

Cir. 2005). The question of whether criminal conduct constitutes an aggravated felony for

immigration purposes is a question of law and must be reviewed de novo. Pilla v. Holder, 458 F.

App'x 518, 520 (6th Cir. 2012). “[A]dministrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.”                8 U.S.C.

§ 1252(b)(4)(B). These factual findings are reviewed under the substantial evidence standard,

and the court is to “uphold the Board's findings as long as they are ‘supported by reasonable,

substantial, and probative evidence on the record considered as a whole.’” Sanusi, 474 F.3d at

345 (quoting Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir. 2005) (citations omitted)).

                                                A

       For the first time, Zahra argues that his conviction under 15 U.S.C. § 645(a) is not a

crime of fraud or deceit. This Court may only consider Zahra’s argument if he has “exhausted

all administrative remedies available to [him] as of right.” 8 U.S.C.A. § 1252. “The purpose of

Section 1252(d)(1)'s exhaustion requirement is (1) to ensure that ... the agency responsible for

construing and applying the immigration laws and implementing regulations, has had a full

opportunity to consider a petitioner's claims; (2) to avoid premature interference with the

agency's processes; and (3) to allow the BIA to compile a record which is adequate for judicial

review.” Bi Xia Qu v. Holder, 618 F.3d 602, 609 (6th Cir. 2010) (quoting Ramani v. Ashcroft,

378 F.3d 554, 558 (6th Cir. 2004)). “[T]his requirement is jurisdictional, and thus where a

petitioner has failed to exhaust his administrative remedies, ‘a federal court is without



                                               -3-
jurisdiction to consider his petition for review.’” Hassan v. Gonzales, 403 F.3d 429, 432 (6th

Cir. 2005) (quoting Perkovic v. INS, 33 F.3d 615, 619 (6th Cir. 1994)).

       Concerning the first issue on appeal, Zahra did not contest the IJ’s “fraud or deceit”

finding in his first appeal of the IJ’s decision to the BIA. The BIA explicitly acknowledged that

he had not raised this issue in its first ruling, stating “the respondent does not dispute that his

offense involved fraud or deceit, he argues that the Immigration Judge erred in concluding his

offense resulted in a loss over $10,000 to the SBA.” [A.R. 108 (BIA Decision 2012).] Nor did

Zahra contest this issue in his second appeal brief to the BIA. Zahra also did not contest this

issue in his April 25, 2013 Motion to Terminate. “It is proper for an appellate court to consider

waived all issues not raised in an appellant’s briefs, even if the issue has been raised in the notice

of appeal.” Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir. 2004). As in Ramani, Zahra’s

arguments relating to fraud and deceit were not properly presented to the BIA. To now consider

those arguments would undermine the purposes of the exhaustion requirement in § 1252(d)(1).

In the context of an immigration appeal, federal courts do not have jurisdiction to consider a

petitioner’s claims unless administrative remedies have been exhausted, which includes requiring

the alien to preserve each claim by presenting it first to the BIA. Id. at 559; Perkovic, 33 F.3d at

619; Pilla, 458 Fed. Appx. At 522 (determining that court lacked jurisdiction to review

arguments not previously presented to the Board); Hassan, 403 F.3d at 432 (stating that federal

courts only have jurisdiction to review final orders of removal if the alien has first exhausted all

administrative remedies); Harchenko v. INS, 22 Fed. Appx. 540, 543 (6th Cir. 2001) (refusing to

consider petitioner’s arguments that were not previously presented to and decided by the IJ and

BIA because such arguments “are precluded as unexhausted issues, which this court has no

jurisdiction to review”); Dokic v. INS, 899 F.2d 530, 532 (6th Cir. 1990) (considering



                                                 -4-
unreviewable any claims not previously presented to the BIA because petitioners must first

exhaust their administrative remedies before obtaining judicial review by this court).

       Simply put, the record reflects that Zahra failed to contest the IJ’s finding concerning

fraud or deceit in his appeal to the BIA. Hence Zahra did not exhaust his administrative

remedies on this claim and it is not subject to review.

                                                 B

       Zahra was convicted of knowingly and willfully making material false statements for the

purpose of influencing the action of the SBA in connection with the issuance of a SBA-

guaranteed loan. The statute criminalizing this conduct provides that:

       Whoever makes any statement knowing it to be false, or whoever willfully
       overvalues any security, for the purpose of obtaining for himself or for any
       applicant any loan, or extension thereof by renewal, deferment of action, or
       otherwise, or the acceptance, release, or substitution of security therefor, or for the
       purpose of influencing in any way the action of the Administration, or for the
       purpose of obtaining money, property, or anything of value, under this chapter,
       shall be punished by a fine of not more than $5,000 or by imprisonment for not
       more than two years, or both.

15 U.S.C. § 645(a). Whether Zahra’s conviction under this statute qualifies as an aggravated

felony, pursuant to 8 U.S.C. § 1101(a)(43)(M)(i), is the question currently before us. An

aggravated felony is defined as 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).       Determining whether

Zahra’s crime so qualifies requires two distinct inquiries. First, does the offense involve fraud or

deceit? As explained supra, this argument was not fully exhausted before the BIA, and this

Court may not consider it. Second, does the loss exceed $10,000? It is to this question that we

now turn.

       In determining whether losses exceed $10,000, the court is to apply a “circumstance-

specific approach” and is to consider the details surrounding the commission of the fraud or

                                                 -5-
deceit crime on a specific occasion.      Nijhawan v. Holder, 557 U.S. 29, 40 (2009).          The

circumstance-specific approach requires courts to go beyond the categorical and modified-

categorical approaches and permits courts to consider “sentencing-related material[s].”

Nijhawan, 557 U.S. at 42. Because deportation proceedings are civil in nature, the Government

must present clear and convincing evidence to show that the loss exceeded $10,000. Nijhawan,

557 U.S. at 42.

       Zahra argues that he did not cause a loss to any victim in excess of $10,000, and that the

IJ and the BIA ignored the district court’s “clear findings” that there was no loss owing to

Zahra’s fraud or deceit. Instead, he argues that the IJ partook in an impermissible, open-ended

inquiry. Zahra maintains that the District Court found that the offense resulted in a total loss of

zero. The IJ and the BIA both looked extensively at the criminal proceedings and determined

that the loss resulting from Zahra’s crime exceeded $10,000. We agree.

       On September 11, 2008, Zahra stipulated that he had applied for a $760,000 SBA-

guaranteed loan and that he had misrepresented his own financial information in attempting to

get the loan. The plea agreement further provides:

       The parties agree and stipulate that the monetary loss incurred by the Small
       Business Administration as a result of this fraud has been recouped through
       payment from Business Loan Express, which does not seek restitution from this
       Defendant. Thus, no restitution will be required under this plea agreement.

[A.R. 337 (Plea Agreement) (emphasis added)]. The parties also agreed to the sentencing

guideline range “as set forth” in the worksheets attached to the plea agreement.            Those

worksheets include a finding that, pursuant to USSG 2B1.1(b)(1)(H), the appropriate loss

amount attributable to Zahn’s conduct was more than $400,000.

       At the plea hearing, defense counsel entered into a dialogue with the court regarding his

concerns about Zahra’s possible deportation:

                                                -6-
               THE COURT: Well, he’s not concerned about the custody term. He's
               concerned about the potential of deportation.

               Ms. SOUTHERN: I understand that.

               Mr. SCHARG: There’s two criteria for aggravated felony. If he’s
               determined to be an aggravated felon, then he would be deported, and the
               two parts are, one, that he’s sentenced to more than one year.

               THE COURT: Yes.

               MR. SCHARG: Second is that the amount of the loss is $10,000 or more.
               We have gone to an immigration lawyer, who is a top lawyer in -- whose
               name is George Mann, immigration lawyer. He did some research and
               indicated that as long as the amount of the loss for purpose -- that we can,
               we can, we can say that the -- for purposes of guidelines that the amount
               of loss was 350,000, but that’s only for calculating the guidelines and that
               the amount of the loss is less than 10,000, we can enter the plea, and that's
               where we have been negotiating around.

               THE COURT: Well, wait a second. I can’t get involved in that. You
               are going to have to work this out yourself…

[A.R. 307-308 (Plea Hearing)]. Later in the proceeding, Mr. Scharg made a further request that,

at the time of sentencing the court incorporate the following findings into its judgment:

       …the loss as referred to in calculating the guidelines as referred to in the plea agreement
       was a loss only for purposes of the sentencing guidelines, and furthermore, we are going
       to ask this Court to find in its judgment that Mr. Zahra’s conduct did of course cause
       societal harm resulting from the proliferation of fraudulent documents, but not a
       monetary loss from fraud or deceit.

[A.R. 317-318 (Plea Hearing)]. The court, apparently perplexed, asked the Government if they

would object to those findings. The Government explained that they were “not going to object if

the Court makes those findings with the caveat that the loss that was actually incurred was

already paid back by BLX, Business Loans Express, and so there is no restitution here.”

[A.R. 317-318 (Plea Hearing) (emphasis added)].

       At the sentencing hearing on April 16, 2009, defense counsel again brought up the

deportation issue and the following conversation ensued:

                                                -7-
              THE COURT: That’s another consideration I should have mentioned. If I
              sentence you to a custodial term of any kind, there is the possibility that
              you will be deported, and given your family circumstance, the Court does
              not think that deportation is in order. So to maximize your opportunity to
              defend against the possibility of deportation, that's an additional
              consideration in placing you on probation.

              MR. SCHARG: But my understanding, Judge, is that with restitution –
              it’s a two-part, it’s a two-part issue -- is that, that restitution could also
              create the issue of classifying this as an aggravated felony unless the
              restitution is less than $10,000 and the value of the loss is less than
              $10,000.

              THE COURT: Well, I can’t say the value of the loss is less than
              $10,000, Mr. Scharg, and I can’t say the restitution is less than $10,000. I
              don’t know how I can do that because the loss was $717,750, and it's
              joint and several with two other persons.

              MR. SCHARG: In the Rule 11 Agreement the government has taken the
              position that there is no restitution, there is no restitution.

              THE COURT: Is that true?

              MS. SOUTHERN:            NO, Your Honor. The Rule 11 Agreement
              contemplates that there would be no restitution only to the Small Business
              Administration because BLX paid the Small Business Administration. We
              never stood in the position of BLX or –

              THE COURT: What’s the name of the company?

              MS. SOUTHERN: Business Loan Express.

              THE COURT: Business Loan Express. That’s the victim in the case. No,
              I can’t do that, Mr. Scharg. You will have to fight that out with the
              authorities. I don't want to go any further than that.

[A.R. 293-296 (Sentencing Hearing) (emphasis added)]. On April 16, the court’s judgment

ordered Zahra to pay $717,750.00 in restitution to BLX. A week later, on April 23, the court

held a re-sentencing hearing to clarify issues related to restitution. The Government explained

that it was not requesting restitution be made to BLX because BLX was in bankruptcy and did




                                               -8-
not intend to seek compensation from Zahra. Finally, at the conclusion of the re-hearing, Mr.

Scharg entered into the following colloquy with the judge:

                MR. SCHARG: Judge, would you look at Page 17 of the plea?

                THE COURT: Yeah.

                MR. SCHARG: Page 17 of the plea hearing.

                THE CLERK: Of the plea hearing transcript?

                MR. SCHARG: Yes, that’s from September 11th and we are asking you to
                put additional language in that judgment that was agreed to by the
                Government at that time.

                THE COURT: The loss referred to in calculating the guidelines as
                referred to in the Plea Agreement was a loss only for the purpose of
                the guidelines. Mr. Zahra’s conduct did, of course, cause societal
                harm resulting from proliferation of fraudulent documents but not a
                monetary loss from fraud or deceit.

                Okay. That’s it.

                Mr. SCHARG: Thank you, Judge.

                MS. SOUTHERN: Thank you, Your Honor.

[A.R. 492 (Re-Sentencing Transcript) (emphasis added)]. Following the hearing, the court

issued an Amended Judgment which, in compliance with the plea agreement and in accordance

with representations made during the re-sentencing hearing, changed the amount of restitution

owed to zero.

       Zahra now claims that the district court Judge intended that the amount of loss be zero.

Contrary to the position of the Petitioner, this is far from “clear.” Only on one occasion did the

Judge indicate that Mr. Zahra’s conduct did not result in a real, monetary loss. The ambiguity

surrounding this comment is why, upon the request of the Government, this Court previously




                                               -9-
remanded this case to the BIA. Following the remand, the BIA reviewed the record again and

affirmed its earlier decision.

       That decision is correct. First, we consider the many statements made by the district

court judge regarding the monetary loss in this case. The judge made it clear on numerous

occasions that he would not involve himself in trying to craft a judgment to sidestep the

deportation rules related to what qualifies as an aggravated felony. When first approached about

fashioning sentencing language in such a way as to get around the $10,000 loss requirement the

Judge remarked, “well, wait a second. I can’t get involved in that. You are going to have to

work this out yourself. ” [A.R. 308 (Plea Hearing)]. Later in that same hearing, the Judge again

rebuffed defense counsel’s effort to paint the loss below $10,000: “[w]ell, I can’t say the value

of the loss is less than $10,000… because the loss was $717,750.”            [A.R. 317-318 (Plea

Hearing)]. Finally, at the re-sentencing hearing Mr. Scharg asked the Judge to incorporate the

“additional language in that judgment that was agreed to by the Government” at the time of the

plea hearing, referring to the language previously rejected by the Judge.         [A.R. 492 (Re-

Sentencing Transcript)]. The court read the controversial paragraph into the record but it cannot

be read in isolation and cannot be construed as a “finding” of the court.

       For a number of reasons the Judge’s final comments cannot be construed as a definitive

statement on the amount of loss. First, as the language was at the time of the plea hearing, and as

“agreed to by the Government,” there was a caveat that an actual loss was incurred but that no

restitution was due. Second, as has been shown, this final paragraph directly contradicts all other

clear statements of the district court. Third, the Amended Judgment did not reflect this language

or any other change indicating the loss amount was less than $10,000. To the contrary, the

district court judge said the “amended judgment will be entered the same as the former one



                                                -10-
except there will be no restitution ordered.” [A.R. 490 (Re-sentencing hearing)]. Zahra’s claim

that there was no monetary loss because he did not have to pay restitution is unpersuasive. The

court’s decision not to order restitution is not necessarily connected to the amount of loss

incurred. Nijhawan makes clear that “a restitution order must be assessed in the context of

‘conflicting evidence.’” Singh v. Attorney Gen. of U.S., 677 F.3d 503, 515 (3d Cir. 2012)

(quoting Nijhawan, 557 U.S. at 42). The Third Circuit has “taken the position that a restitution

order ‘may be helpful’ to the loss inquiry, but is not definitive.” Singh, 677 F.3d at 515 (citing

Munroe v. Ashcroft, 353 F.3d 225, 227 (3d Cir. 2003)). Because of BLX’s bankruptcy, the

amount of restitution owed in this case is a wholly separate inquiry from the loss amount.

Finally, all other evidence demonstrates that defense counsel’s insistence that the court recite this

statement was nothing more than an effort to circumvent the district court’s clear intentions.

This is not the first time that an arbiter has so concluded.

       The IJ concluded that the Judge’s statement was ambiguous as he “was merely repeating

what Mr. Scharg had said at the plea hearing” and ultimately found that “the government’s

position throughout the plea and sentencing hearings, and the hearing transcripts overwhelmingly

and unequivocally demonstrate that [Zahra’s] actions caused a monetary loss to the SBA.” [A.R.

265-267 (IJ Decision)]. The BIA affirmed the IJ’s decision, finding that Zahra had stipulated to

the loss and that the Judge’s language in the sentencing hearing could not negate the fact that

Zahra had so stipulated. The BIA further pointed out that, even if it concluded that the SBA did

not suffer a loss, BLX would have borne that loss. The BIA came to a similar conclusion when

it reviewed the case again, in response to this Court’s remand order, concluding that the Judge’s

statement at the re-sentencing hearing did not amount to a finding that no loss occurred.

Specifically, the BIA found that the Judge’s statement was a “recitation” of the language



                                                 -11-
requested by the parties and was made “with the understanding that the SBA was reimbursed by

BLX, and was not finding that there was no loss to anyone.” [A.R. 6 (BIA Decision 2013)]. The

BIA concluded that “[t]he fact that BLX did not seek restitution due to its own financial situation

does not negate the fact that the SBA incurred a loss in the amount of the loan due to the

respondent’s actions.” [Id.]

       The record plainly shows that a loss occurred. Nothing in the plea agreement suggests

that the SBA did not suffer a monetary loss. This point was made by the IJ and the BIA. Quite

to the contrary, the plea agreement contains both a stipulation that provides a “monetary loss

[was] incurred by the Small Business Administration as a result of this fraud” and a stipulated

finding, for purposes of calculating the sentencing guidelines, that the loss exceeded $400,000.

[A.R. 336 (Plea Agreement)]. The Government also spoke to defense counsel’s requested

finding about restitution and loss at the plea hearing and explained that because “the loss that

was actually incurred was already paid back by BLX” there would be no restitution. [A.R.

317-318 (Plea Hearing) (emphasis added)]. Zahra’s plea agreement’s reference to a “monetary

loss incurred” is strong evidence that there was an actual monetary loss resulting from Zahra’s

fraud. Even if one concluded that the SBA had not suffered a monetary loss, there is no way

around accepting that it would be borne instead by BLX.

       In light of the strong evidence presented, it is clear that Zahra’s 15 U.S.C. § 645(a)

conviction caused an actual loss in excess of $10,000 and qualifies as an aggravated felony as

defined by 8 U.S.C. § 1101(a)(43)(M)(i). His removal must be upheld.

                                                C

       Finally, Zahra argues that the IJ erred by concluding that his statement that he was a U.S.

Citizen was for a “purpose or benefit” so as to establish removability under Section 237(a)(3)(D)



                                               -12-
of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(3)(D). The Government

concedes that DHS presented “no evidence or argument” as to the purpose or benefit of Zahra’s

misrepresentation. Consequently, if we had determined that Zahra had not committed an

“aggravated felony,” then the issue regarding Zahra’s false claim to U.S. Citizenship would have

been remanded to the BIA. See also Hassan v. Holder, 604 F.3d 915, 918 (6th Cir. 2010).

Because of our contrary holding, the question is moot.

                                               III

       Zahra waived his arguments about whether his conviction under 15 U.S.C. § 645(a) is a

crime of fraud or deceit, it has been shown by clear and convincing evidence that the resulting

monetary loss was in excess of $10,000 and the Government conceded that they presented no

evidence as to the purpose or benefit of Zahra’s alleged false claim to U.S. Citizenship. Zahra is

an aggravated felon pursuant to 8 U.S.C. § 1101(a)(43)(M)(i) and his petition for review is

DENIED.




                                               -13-
