                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-18-2009

Iecho v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1520




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"Iecho v. Atty Gen USA" (2009). 2009 Decisions. Paper 1729.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1729


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-1520
                                     ___________

                              ODICHO NARSA IECHO,
                                           Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A40-124-164)
                   Immigration Judge: Honorable Walter A. Durling
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  January 28, 2009
               Before: MCKEE, NYGAARD, and ROTH, Circuit Judges

                            (Opinion filed: March 18, 2009)

                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Odicho Narsa Iecho, a native of Syria, was admitted to the United States as a

lawful permanent resident in 1986. In September 2006, Iecho was charged as removable

as an aggravated felon and for having committed two crimes involving moral turpitude.
The IJ dismissed the aggravated felony charge and granted cancellation of removal. The

government appealed. In April 2007, the BIA concluded that Iecho was an aggravated

felon and sustained the appeal. It reinstated the removal proceedings and remanded the

proceedings to the IJ. The IJ then denied Iecho’s request for withholding of removal but

granted relief under the Convention Against Torture. The BIA vacated the IJ’s decision

and ordered Iecho removed. Iecho then filed a timely petition for review.

       Iecho argues that he has not been convicted of an aggravated felony. In August

2005, Iecho pleaded guilty to one count of trafficking in unauthorized access devices

(stolen credit card numbers). Two counts of possessing fifteen or more unauthorized

access devices were dismissed. In his plea agreement, Iecho agreed that the appropriate

loss amount for each of the 557 stolen credit cards involved was $100 for a total of

$55,700.

       We have jurisdiction to consider whether Iecho is an aggravated felon and exercise

plenary review over the BIA’s conclusion. Garcia v. Attorney General, 462 F.3d 287,

290-91 (3d Cir. 2006). The term “aggravated felony” includes 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). Because this subsection specifies a mandatory loss amount, we may

depart from the usual categorical approach and look at the indictment, plea, verdict, and

sentence. Alaka v. Attorney General, 456 F.3d 88, 105-06 (3d Cir. 2006).

       In Alaka, the petitioner pleaded guilty to one count of bank fraud which involved a



                                             2
loss of $4,000. The sentencing court included the loss amount from two dismissed

charges to find the intended loss to be $47,969. We determined that the loss tied to the

dismissed charges was improperly considered in the analysis of whether Alaka’s

conviction was an aggravated felony. Id. at 105. Iecho, relying upon the following

statement from Alaka, argues that the loss amount for sentencing purposes should not be

used as the loss amount for the purposes of 8 U.S.C. § 1101(a)(43)(M)(i).

       Allowing the loss calculated for sentencing purposes to supersede the amount
       designated in the plea agreement ‘would divorce the $10,000 loss requirement
       from the conviction requirement, [citing 8 U.S.C. § 1227(a)(2)(A)(iii) ], because
       relevant conduct for sentencing purposes need not be admitted, charged in the
       indictment, or proven to a jury.’

Alaka, 456 F.3d at 108 (citation omitted). Here, however, Iecho admitted in the plea

agreement that $55,700 was the loss involved. In Alaka, we stated that the plea

agreement controlled the analysis. “In other words, because it is the plea agreement that

establishes the offense for which the defendant will be convicted, it is to that agreement,

and not the indictment or the sentence, that we look in determining the intended loss.” Id.

at 107. Here, the plea agreement establishes that the loss was over the $10,000

requirement. Thus, we agree with the BIA that Iecho is an aggravated felon.

       Because Iecho is an aggravated felon, our review of the BIA’s denial of relief

under the CAT is limited to constitutional claims or questions of law. 8 U.S.C. §

1252(a)(2)(C). While he argues that the BIA erred as a matter of law in denying relief

under the CAT, Iecho does not raise any constitutional claims or questions of law with



                                             3
respect to that issue. His arguments challenging the BIA’s acceptance of the

government’s first appeal are without merit.

      For the above reasons, we will deny the petition for review.




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