                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 24 2012

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




                             FOR THE NINTH CIRCUIT



ALBERTO JOSE RIVAS-MARIN,                        No. 10-71287

              Petitioner,                        Agency No. A039-804-830

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,

              Respondent.



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

                            Submitted February 15, 2012 **
                              San Francisco, California

Before: GRABER and TALLMAN, Circuit Judges, and TIMLIN, Senior District
Judge.***

       Petitioner Alberto Rivas-Marin (“Rivas-Marin”), a native and citizen of

Nicaragua, petitions for review of a decision of the Board of Immigration Appeals


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Robert J. Timlin, Senior United States District Judge
for the Central District of California, sitting by designation.
(“BIA”). The BIA upheld the immigration judge’s (“IJ”) ruling that Rivas-Marin’s

mail fraud conviction under 18 U.S.C. § 1341 constituted an aggravated felony

under 8 U.S.C. § 1101(a)(43)(M)(i), thus requiring his removal to Nicaragua.

      Although 8 U.S.C. § 1252(a)(2)(C) prohibits judicial review of orders of

removability resting on an alien’s conviction for an aggravated felony, we still

retain jurisdiction “to determine if jurisdiction exists.” Unuakhaulu v. Gonzales,

416 F.3d 931, 935 (9th Cir. 2005) (internal quotation marks omitted). Thus, we

may determine, as a matter of law, whether Rivas-Marin’s mail fraud conviction is

an aggravated felony under § 1101(a)(43)(M)(i), which defines “aggravated

felony” as a crime involving fraud or deceit causing more than $10,000 in loss to

victims.

      The Supreme Court has held that an alien’s mail fraud conviction under §

1341 is an aggravated felony under § 1101(a)(43)(M)(i). Nijhawan v. Holder, 129

S. Ct. 2294, 2303-04 (2009). Alternatively, Rivas-Marin’s many admissions of

fraudulent activity would establish the elements of “fraud or deceit” under a

modified categorical approach. See United States v. Aguila-Montes de Oca, 655

F.3d 915, 936 (9th Cir. 2011) (per curiam).

      The IJ used “fundamentally fair procedures” in determining that victims’

losses exceeded $10,000. Nijhawan, 129 S. Ct. at 2302–03. Rivas-Marin was


                                          2
ordered to pay $37 million in restitution. He also admitted that his scheme

involved fraudulently inflating the value of several real estate properties by more

than $100,000 each. At the same time, he offered no evidence demonstrating that

losses were less than $10,000. The IJ fairly considered these facts in finding that

Rivas-Marin’s scheme caused losses of over $10,000.

      Because we agree with the BIA and the IJ that Rivas-Marin is removable for

having committed an aggravated felony, we dismiss his petition for lack of

jurisdiction. See 8 U.S.C. § 1252(a)(2)(C).

      PETITION DISMISSED.




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