11-4342-ag
Sampathkumar v. Holder

                                  UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
25th day of July, two thousand fourteen.

PRESENT:
            JOSÉ A. CABRANES,
            SUSAN L. CARNEY,
            CHRISTOPHER F. DRONEY,
                         Circuit Judges.
_____________________________________

PADMASHRI SAMPATHKUMAR,

               Petitioner,

                             v.                                              No. 11-4342-ag

ERIC H. HOLDER, JR., United States Attorney General,

           Respondent.
_____________________________________

FOR PETITIONER:                                      THOMAS E. MOSELEY, Law Offices of
                                                     Thomas E. Moseley, Newark, NJ.

FOR RESPONDENT:                                      RACHEL L. BROWNING (Stuart Delery,
                                                     Assistant Attorney General, Blair O’Connor,
                                                     Assistant Director, on the brief), Trial Attorney,
                                                     Office of Immigration Litigation, Civil
                                                     Division, United States Department of Justice,
                                                     Washington, DC.
        UPON DUE CONSIDERATION of this petition for review of a decision of the Board
of Immigration Appeals (“BIA”), it is ORDERED, ADJUDGED, AND DECREED that the
petition for review is DENIED in part and GRANTED in part.

        Padmashri Sampathkumar, a native and citizen of India, seeks review of a July 22, 2013
decision of the BIA, supplementing its October 17, 2011 decision and affirming the May 12, 2011
decision of an Immigration Judge (“IJ”), which denied her motion to terminate proceedings and
applications for adjustment of status and a waiver of inadmissibility. In re Padmashri Sampathkumar,
No. A073 622 263 (B.I.A. July 22, 2013), aff’g No. A073 622 263 (Immig. Ct. Hartford May 12,
2011). We assume the parties’ familiarity with the underlying facts and procedural history in this
case.

                                           DISCUSSION

        Under the circumstances of this case, we have reviewed the IJ’s decision as modified and
supplemented by the BIA’s decisions. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
Cir. 2005).

                                   I. Aggravated Felony Finding

         We generally lack jurisdiction to review the final order of removal of an alien who, like
Sampathkumar, was found removable by reason of having been convicted of an aggravated felony.
See 8 U.S.C. § 1252(a)(2)(C). However, we may review Sampathkumar’s challenges to the
classification of her conviction under 18 U.S.C. § 1014 as an aggravated felony in order to determine
our jurisdiction. See id. § 1252(a)(2)(D); James v. Mukasey, 522 F.3d 250, 253 (2d Cir. 2008).

                                   A. “Involves Fraud or Deceit”

        Under § 101(a)(43)(M)(i) of the Immigration and Nationality Act, the term “aggravated
felony” is defined to include an “offense that involves fraud or deceit.” 8 U.S.C. § 1101(a)(43)(M)(i)
(emphasis supplied). To determine whether 18 U.S.C. § 1014 is such an offense, we apply the so-
called “categorical approach,” looking solely to the criminal statute and focusing on the minimum
conduct for which there is a “realistic probability” that a conviction will result. See Kawashima v.
Holder, 132 S. Ct. 1166, 1172 (2012) (applying categorical approach in analyzing subsection (M)(i));
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (applying “realistic probability” test). The
elements need not explicitly include the words fraud or deceit, but must “necessarily entail
fraudulent or deceitful conduct.” Kawashima, 132 S. Ct. at 1172. At the time subsection (M)(i) was
enacted, “deceit” was defined as “the act or practice of deceiving (as by falsification, concealment, or
cheating).” Webster’s Third New International Dictionary 584 (1993).


                                                   2
        After review, we conclude that § 1014,1 under which Sampathkumar was convicted, involved
deceit. Sampathkumar relies heavily on Kawashima, which held that the statute at issue there, 26
U.S.C. § 7206, contained the elements that “necessarily entail[ed]” deceitful conduct: a falsity, that
was material, and knowingly and willfully made. Kawashima, 132 S. Ct. at 1172-73. Nearly all of
these elements are satisfied here: to sustain a conviction for violating § 1014, the government must
demonstrate that a defendant acted with the knowledge that the information was false and with the
purpose of influencing the action of the institution. To be sure, materiality is not an element of the
offense punished by § 1014. United States v. Wells, 519 U.S. 482, 484 (1997). But the specific intent
required by the statute—that is, the intent to influence the bank—approaches a materiality
requirement. As the Supreme Court explained in Wells:

            [A] statement made “for the purpose of influencing” a bank will not usually be about
            something a banker would regard as trivial, and it will be relatively rare that the
            Government will be able to prove that a false statement was made with the
            subjective intent of influencing a decision unless it could first prove that the
            statement has the natural tendency to influence the decision. Hence the literal
            reading of the statute will not normally take the scope of § 1014 beyond the limit
            that a materiality requirement would impose.

Id. at 499 (alteration, citation, and internal quotation marks omitted). In other words, there is not a
“realistic probability” that a false statement sufficient for conviction under § 1014 would be trivial,
notwithstanding the lack of a materiality requirement. With regard to any elements mentioned in
Kawashima still lacking here, the Supreme Court did not hold that all those elements must be present
for subsection (M)(i) to apply. Accordingly, we conclude that § 1014 states an offense that involves
deceit.

                                                    B. Loss Amount

        Sampathkumar also challenges the BIA’s finding that the loss resulting from her crime
exceeded $10,000. Although Sampathkumar did not first raise this issue before the BIA, we deem
her arguments reviewable inasmuch as the challenged findings were made by the BIA, not by the IJ,
and ordinarily any challenge to the BIA’s findings or analysis can appropriately be raised for the first

1   This statute provides, in pertinent part:
            Whoever knowingly makes any false statement or report, or willfully overvalues any land, property, or
            security, for the purpose of influencing in any way the action of . . . any institution the accounts of
            which are insured by the Federal Deposit Insurance Corporation . . . upon any application, advance,
            discount, purchase, purchase agreement, repurchase agreement, commitment, loan, or insurance
            agreement . . . shall be fined not more than $1,000,000 or imprisoned not more than [thirty] years, or
            both.
18 U.S.C. § 1014.
                                                              3
time in a petition for review. See, e.g., Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 296-97 (2d Cir. 2006)
(holding that if the BIA addresses issues not raised by a petitioner, those issues are considered
exhausted and may be reviewed); Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir. 1993) (“[T]he BIA
addressed the [purportedly unexhausted] issue in that appeal, apparently excusing Waldron’s failure
to raise the issue previously.”).

        In place of the categorical approach, the Supreme Court has prescribed a “circumstance-
specific” approach to ascertain whether subsection (M)(i)’s monetary threshold has been met.
Nijhawan v. Holder, 557 U.S. 29, 40 (2009). An IJ may therefore consult a plea colloquy and findings
at sentencing to determine the loss amount. Id. at 40-43 (upholding agency’s reliance on sentencing
materials including alien’s stipulation).

         However, because a loss amount is not a statutory element satisfied by a guilty plea to the
statute, see id., it is a factual finding that must first be made by the IJ. We therefore conclude that the
BIA engaged in impermissible fact finding by finding, in the first instance, that the loss requirement
had been met. See 8 C.F.R. § 1003.1(d)(3)(iv) (limiting the BIA’s fact finding to taking administrative
notice of commonly known facts); Padmore v. Holder, 609 F.3d 62, 68 (2d Cir. 2010). That error was
not harmless because the IJ never revisited that finding on remand. Remand is therefore
appropriate so that the IJ may make the necessary factual findings to determine removability.2

                                      II. Eligibility for Adjustment of Status

        Even if Sampathkumar was convicted of an aggravated felony, she may still be eligible for
adjustment of status. An inadmissible alien is ineligible for adjustment of status. See 8 U.S.C.
§ 1255(a). An aggravated felony, by itself, is not grounds for inadmissibility and therefore does not
bar adjustment, unless the aggravated felony constitutes a crime involving moral turpitude


          2 For the purposes of remand, it bears noting that the BIA erroneously relied on the loss amount stipulated by

the parties at the plea colloquy. The BIA has instructed IJs to assess loss findings “with an eye to what losses are
covered and to the burden of proof employed,” and limits reliance on a defendant’s admission of loss amount to those
losses “arising from the conduct in the particular charges or criminal counts covered by the conviction.” In re Babaisakov, 24 I.
& N. Dec. 306, 319-20 (BIA 2007) (emphasis supplied). Other Circuits have agreed that the loss must be tethered to the
count of conviction, unless the conviction is for a scheme, rather than one single offense. See Alaka v. Att’y Gen. of the
U.S., 456 F.3d 88, 106 (3d Cir. 2006); Knutsen v. Gonzales, 429 F.3d 733, 736-37 (7th Cir. 2005); Khalayleh v. INS, 287 F.3d
978, 980 (10th Cir. 2002); Chang v. INS, 307 F.3d 1185, 1190 (9th Cir. 2002), abrogated on other grounds by Nijhawan v. Holder,
557 U.S. 29 (2009).
          Here, Sampathkumar was convicted of only one count, which charged her with providing documents with false
financial information to First Merit Bank. However, in stipulating to the loss amount for sentencing purposes,
Sampathkumar included losses to numerous other banks she allegedly defrauded. Because the stipulated amount
included losses stemming from conduct outside the scope of the count of conviction, the agency erred in failing to parse
or identify with specificity the amount relating to First Merit Bank. See Knutsen, 429 F.3d at 736-37.
                                                               4
(“CIMT”).3 See 8 U.S.C. § 1182(a)(2)(A)(i)(I). To remove this bar to adjustment, an applicant must
obtain a § 212(h) waiver.

        Throughout its numerous decisions, the BIA and the IJ assumed that a waiver was needed
without first deciding that § 1014 is a CIMT and therefore requires the waiver. They denied
Sampathkumar’s adjustment application when they found her ineligible for the waiver without
further discussion. We therefore decline to reach the parties’ arguments regarding waiver eligibility,
and instead remand for the agency to make the threshold determination of whether a waiver is
needed.4

                                              III. Citizenship Claim

         An applicant for naturalization shall take an oath in a public ceremony before the Attorney
General or a court “in order to be and before being admitted to citizenship.” 8 U.S.C. § 1448; see
also 8 C.F.R. § 337.1. In the event that derogatory information concerning an applicant surfaces
after her application has been granted, but before she has taken the oath, she may be excluded from
the public ceremony and thus prevented from obtaining naturalization. 8 C.F.R. § 335.5. There is
no exception to the requirement that the oath be taken in a “public ceremony.” Cf. 8 U.S.C. §
1448(c) (requiring public oath even in cases of incapacitation). An applicant cannot self-naturalize,
such as by reciting the oath of allegiance to himself or by identifying himself as a U.S. citizen on a
voter registration document. See Aljani v. Chertoff, 545 F.3d 229, 234 (2d Cir. 2008). Nor does
signing an oath of allegiance at a naturalization interview satisfy the oath requirement. See Okafor v.
Gonzales, 456 F.3d 531, 534 (5th Cir. 2006); Tovar-Alvarez v. U.S. Att’y Gen., 427 F.3d 1350, 1352
(11th Cir. 2005); Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 968 n.4 (9th Cir. 2003).

         Sampathkumar was scheduled to report for a naturalization oath ceremony on May 12, 2004,
but the ceremony subsequently was cancelled by USCIS. Contrary to her argument, the oath
previously administered at her naturalization interview in the presence of the examiner and one
other person does not bestow citizenship. Sampathkumar testified that she passed her naturalization
tests, signed an oath of allegiance, and was congratulated by the immigration officer for becoming a
U.S. citizen. But according to Sampathkumar’s own testimony, the officer indicated after her
interview that he wanted to get her into the oath ceremony, which he then proceeded to schedule.

         3 An aggravated felony is grounds for removability under 8 U.S.C. § 1227(a)(2)(A)(iii), but not grounds for

inadmissibility under 8 U.S.C. § 1182(a)(2). Although § 1227 incorporates the grounds listed in § 1182, see 8 U.S.C.
1227(a)(1), the reverse is not true. Section 1182 does not contain language incorporating the aggravated felony grounds
of § 1227.
         4  If the agency determines that § 1014 is a CIMT, it should address how Sampathkumar’s waiver eligibility was
affected by the numerous trips she took abroad after she had already adjusted to lawful permanent resident status. That
is, the agency should consider whether Sampathkumar’s international travels as a lawful permanent resident rendered her
“previously . . . admitted to the United States as an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1182(h).
                                                            5
Despite Sampathkumar’s mistaken belief that that oath ceremony was not required, the
Government’s cancellation of her ceremony interrupted her naturalization process. She never took
the oath of citizenship in a “public ceremony” and consequently never became a U.S. citizen. See 8
U.S.C. § 1448; 8 C.F.R. § 335.5.

                                        CONCLUSION

        For the foregoing reasons, the petition for review is DENIED as it relates to
Sampathkumar’s citizenship claim, and GRANTED in remaining part, insofar as Sampathkumar
seeks a remand for a decision on (1) whether the loss resulting from her crime exceeded $10,000,
and (2) whether her conviction under 18 U.S.C. § 1014 constitutes a crime involving moral
turpitude. The cause is accordingly REMANDED to the BIA to permit necessary findings by the
IJ consistent with this opinion.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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