     Case: 14-60803      Document: 00513358344         Page: 1    Date Filed: 01/27/2016




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


                                    No. 14-60803
                                                                                 FILED
                                                                          January 27, 2016
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
RICARDO BONILLA, also known as Richard Amadeo Bonilla,

                                                 Petitioner

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A028 578 497


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Ricardo Bonilla has petitioned for review of the decision of the Board of
Immigration Appeals (BIA) dismissing Bonilla’s appeal from the decision of the
immigration judge (IJ) finding him removable as a result of his guilty plea
conviction of conspiracy to defraud the United States, in violation of 18 U.S.C.
§ 286. The IJ determined that Bonilla’s conviction was an aggravated felony
under 8 U.S.C. § 1101(a)(43)(M)(i). We lack “jurisdiction to review any final


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60803

order of removal against an alien who is removable by reason of having
committed” an aggravated felony, 8 U.S.C. § 1252(a)(2)(C), but we retain
jurisdiction to decide the jurisdictional question of whether the charged crime
is an aggravated felony. James v. Gonzales, 464 F.3d 505, 507 (5th Cir. 2006).
We may review “jurisdictional facts,” and we review de novo the legal issue of
whether an offense constitutes an aggravated felony. Rodriguez v. Holder, 705
F.3d 207, 210 (5th Cir. 2013). We accord substantial deference to the BIA’s
interpretation of the Immigration and Nationality Act and its definitions of
phrases within it. Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005).
      “Any alien who is convicted of an aggravated felony at any time after
admission is deportable.”    8 U.S.C. § 1227(a)(2)(A)(iii).   The definition of
“aggravated felony” includes “an offense that involves fraud or deceit in which
the loss to the victim or victims exceeds $10,000.” § 1101(a)(43)(M)(i); see also
Nijhawan v. Holder, 557 U.S. 29, 38 (2009). Bonilla does not dispute that his
§ 286 conviction involved fraud or deceit. The issue presented is whether the
BIA erred in determining that the offense involved a loss to the victim that was
greater than $10,000.    The amount of loss under § 1101(a)(43)(M)(i) “is a
factual matter to be determined from the record of conviction.” Arguelles-
Olivares v. Mukasey, 526 F.3d 171, 177 (5th Cir. 2008).
      Under § 286, it is a crime to “enter[] into an agreement, combination, or
conspiracy to defraud the United States . . . by obtaining or aiding to obtain
the payment or allowance of any false, fictitious or fraudulent claim.” We must
decide “whether there was clear and convincing evidence that [Bonilla’s] prior
conviction involved an amount of loss greater than $10,000 and whether the
evidence establishing that the conviction involved such a loss was reasonable,
substantial, and probative.” Id. at 178.




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                                  No. 14-60803

      Bonilla asserts that the losses were limited by his plea agreement to
those associated with a single fraudulent tax return, which did not result in an
actual loss to the Government. In support of this position, he notes that he
was not ordered to make restitution. These contentions are without merit.
      The criminal judgment recites that Bonilla was convicted of “Conspiracy
to Defraud the U.S. With Respect to Claims in violation of . . . § 286 as charged
in Count 1 of the Indictment.” The indictment alleged that Bonilla was a
participant in a fraudulent scheme that resulted in the erroneous issuance of
millions of dollars in tax refunds.
      The loss caused by Bonilla’s crime is the total loss from the entire
fraudulent scheme.     See James, 464 F.3d at 511.         The rule in James is
consistent with the BIA’s interpretation of § 1101(a)(43)(M)(i) in this case, to
which we defer. See Omari, 419 F.3d at 306. No inference may be drawn from
the failure of the district court in the criminal case to exercise its discretion
under 18 U.S.C. § 3663(a)(1)(A) to require Bonilla to make restitution. The
administrative record is silent as to that question. Although a restitution order
may constitute evidence of the amount of a victim’s loss, the absence of a
restitution order does not compel the conclusion that no loss was sustained.
See Nijhawan, 557 U.S. at 42-43 (treating restitution order as evidence of loss
amount).
      Because Bonilla’s § 286 conviction was properly regarded by the BIA as
an aggravated felony under § 1101(a)(43)(M)(i), we lack jurisdiction, and the
petition for review is DISMISSED. See James, 464 F.3d at 512.




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