                                                                             FILED
                           NOT FOR PUBLICATION                               DEC 22 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



NATALIA MARGARITA ZAPICO-                        No. 06-74321
DELGADO, etc.
                                                 Agency No. A091-637-431
             Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, JR., ATTORNEY
GENERAL,

             Respondent.



                     On Petition for Review of an Order of the
                          Board of Immigration Appeals

                     Argued and Submitted November 4, 2010
                            San Francisco, California


Before: THOMAS and IKUTA, Circuit Judges, and SETTLE, ** District Judge.

       We deny the petition for review. In 2009 the United States Supreme Court

decided the case of Nijhawan v. Holder, 129 S. Ct. 2294 (2009), and held that,


       *
            This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.

       **
            The Honorable Benjamin Hale Settle, United States District Judge for
the Western District of Washington, sitting by designation.
when evaluating offenses under 8 U.S.C. § 1101(a)(43)(M)(i), courts should         treat

the references to “victim or victims” and a monetary loss in excess of $10,000 “not

. . . [as] an element of the fraud or deceit crime,” but as “refer[ences] to the

particular circumstances in which an offender committed a (more broadly defined)

fraud or deceit crime on a particular occasion.” Id. at 2297-98. In determining

whether these circumstances were present in a particular case, the Court also

indicated that the decisionmaker would not be limited to reviewing the record of

conviction, but could also consider a restitution order. Id. at 2303. Here,

Nijhawan is controlling. The Board of Immigration Appeals did not err in

affirming the Immigration Judge’s reliance on the order of restitution to find that

Petitioner’s conviction for unlawful use of means of identification, in violation of

18 U.S.C. § 1028(a)(7), constituted an aggravated felony conviction under 8

U.S.C. § 1101(a)(43)(M)(I). Therefore, we lack jurisdiction to review Petitioner’s

final order of removal. 8 U.S.C. § 1252(a)(2)(C).

      DENIED.




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