     Case: 13-60519      Document: 00512650596         Page: 1    Date Filed: 06/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-60519
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 3, 2014
ZHONG QIN YANG, also known as Yang Zhongqin,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner,

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                 Respondent.


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A093 408 583


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Zhong Qin Yang, a native and citizen of China, has filed a petition for
review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal of the denial of his applications for withholding of removal under 8
U.S.C. § 1231(b)(3) and the Convention Against Torture (CAT) and deferral of




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60519

removal under the CAT. 1 Yang was convicted of conspiracy to commit access
device fraud in violation of 18 U.S.C. § 1029(b)(2) and aggravated identity theft
in violation of 18 U.S.C. § 1028A(a)(1), sentenced to a total of 30 months of
imprisonment, and ordered to pay $54,329.44 in restitution. The Department
of Homeland Security (DHS) issued a notice to appear, alleging that Yang was
subject to removal under 8 U.S.C. § 1227(a)(2)(A)(i), because he was convicted
of a crime involving moral turpitude (CIMT) committed within five years after
admission for which a sentence of one year or longer may be imposed. The
DHS also alleged that Yang was removable under § 1227(a)(2)(A)(iii) because
his conspiracy conviction constituted an aggravated felony as he violated a law
relating to an attempt or conspiracy to commit an offense described under 8
U.S.C. § 1101(a)(43)(M).
Effect of Former Counsel’s Concessions
       Yang argues that the BIA erred in holding that he was bound by his
former counsel’s concessions because they were incorrect and the result of
unreasonable professional judgment and constituted ineffective assistance. He
maintains that the BIA abused its discretion in not addressing his claim that
his former counsel was ineffective. He contends that he suffered prejudice
because the concessions made him ineligible for certain relief, had no tactical
advantage, and caused him to be subject to mandatory detention.
       “Absent egregious circumstances, a distinct and formal admission made
before, during, or even after a proceeding by an attorney acting in his
professional capacity binds his client as a judicial admission.”                  Matter of
Velasquez, 19 I. & N. Dec. 377, 382 (BIA 1986).                       Certain “egregious
circumstances” may justify relieving an alien from being bound by his counsel’s


       1 Yang abandoned any challenge to the BIA’s holding that he was not entitled to
deferral of removal under the CAT by failing to brief the issue. See Soadjede v. Ashcroft, 324
F.3d 830, 833 (5th Cir. 2003).


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admissions, such as admissions and the concession of deportability that were
the result of unreasonable professional judgment or were so unfair that they
have produced an unjust result. Id. at 382-83.
      Although an alien has no Sixth Amendment right to effective counsel
during removal proceedings, Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th
Cir. 2001), this court has assumed without deciding that an alien’s ineffective
assistance claim may implicate Fifth Amendment due process concerns. Mai
v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006). To show ineffective assistance,
an alien must establish that his attorney performed deficiently and that he
was substantially prejudiced as a result of the ineffective representation in
that he was prevented from pursuing his rights. Mai, 473 F.3d at 165. To
show prejudice, an alien must make a prima facie showing that, but for
counsel’s error, he would have been entitled to the relief he sought. Miranda-
Lores v. INS, 17 F.3d 84, 85 (5th Cir. 1994).
      The BIA held that the concessions of Yang’s counsel were not incorrect
or the result of unreasonable professional judgment and, therefore, that he was
bound by his counsel’s concessions. Although the BIA did not expressly state
that Yang’s counsel was not ineffective, the BIA’s determination that his
counsel’s concessions were not the result of unreasonable professional
judgment indicates that the BIA implicitly determined that counsel’s
concessions did not constitute deficient performance.         Thus, the record
indicates that the BIA considered and implicitly denied Yang’s claim that his
counsel’s concessions constituted ineffective assistance of counsel. See Roy v.
Ashcroft, 389 F.3d 132, 139-40 (5th Cir. 2004).       As discussed below, the
concessions of Yang’s counsel were correct and were not the result of
unreasonable professional judgment.        Therefore, the BIA did not err in




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determining that Yang was bound by his counsel’s concessions. See Velasquez,
19 I. & N. Dec. at 382-83.
Removal Based on Aggravated Felony Conviction
      Yang argues that his conspiracy conviction was not an aggravated felony
because the DHS did not present evidence to establish that the convictions
resulted in an actual loss of over $10,000. He asserts that the immigration
judge (IJ) and BIA erred in relying on the restitution order to establish the loss
amount.
      Under § 1101(a)(43)(M)(i), a crime that “involves fraud or deceit in which
the loss to the victim or victims exceeds $10,000” is an aggravated felony. A
conspiracy to commit such an offense also constitutes an aggravated felony.
§ 1101(a)(43)(U). Yang’s conspiracy conviction under 18 U.S.C. § 1029(b)(2)
falls within the definition of an aggravated felony in § 1101(a)(43)(M)(i)
because the conspiracy was an agreement to commit crimes in violation of 18
U.S.C. § 1029(a)(1), (3), or (4), all of which require intent to defraud, and the
conspiracy resulted in a loss that exceeded $10,000. The IJ did not err in
considering the restitution order to determine the loss amount. See Nijhawan
v. Holder, 557 U.S. 29, 43 (2009); James v. Gonzales, 464 F.3d 505, 510-11
& n.31 (5th Cir. 2006). Yang has not shown that his counsel’s concession was
incorrect or the result of unreasonable professional judgment. See Velasquez,
19 I. & N. Dec. at 382-83. Yang has also failed to show that his counsel’s
concession was deficient performance or that, but for his counsel’s alleged
error, the IJ would have determined that his conspiracy conviction was not an
aggravated felony. See Miranda-Lores, 17 F.3d at 84-85.
Removal Based on Conviction for CIMT
      Yang contends that his aggravated identity theft conviction was not a
CIMT because the statute under which he was convicted did not require a



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guilty mind or intent to deceive. He asserts that, therefore, his counsel’s
concession that he was removable based on a CIMT was incorrect, was the
result of unreasonable professional judgment, and constituted ineffective
assistance of counsel.
      The statute under which Yang was convicted, 18 U.S.C. § 1028A(a)(1),
provides that a defendant commits aggravated identity theft if he “knowingly
transfers, possesses, or uses, without lawful authority, a means of
identification of another person.” The plain language of the statute requires
that the defendant act with a guilty mind or intent to deceive as it expressly
requires that the defendant act “knowingly” and “without lawful authority.”
See, e.g., Flores–Figueroa v. United States, 556 U.S. 646, 657 (2009) (holding
that a conviction under § 1028A(a)(1) requires that a defendant have
knowledge that the means of identification at issue belonged to another
person); see also Hyder v. Keisler, 506 F.3d 388, 392 (5th Cir. 2007) (holding
that a crime involving “dishonesty as an essential element” falls within the
court’s understanding of the definition of CIMT). Yang has not shown that
counsel’s concession was deficient performance or that, but for counsel’s
alleged error, the IJ and BIA would have held that his aggravated identity
theft conviction was not a CIMT. See Mai, 473 F.3d at 165; Miranda–Lores, 17
F.3d at 84–85.
      Yang’s conspiracy conviction was also a CIMT. Section § 1029(b)(2)
provides that a person may be convicted if he is a party to a conspiracy of two
or more persons to commit an offense under subsection (a) of this statute, all
of which involve intent to defraud. Fraud is a crime involving moral turpitude.
See Jordan v. DeGeorge, 341 U.S. 223, 223–24, 232 (1951); Planes v. Holder,
652 F.3d 991, 997–98 (9th Cir. 2011) (holding that an offense under § 1029(a)(3)
was properly determined to be a CIMT). Further, for purposes of 8 U.S.C.



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§ 1227(a)(2)(A)(i), Yang was admitted to the United States in 2009, within five
years of the date of his convictions in 2012, and he was also sentenced to over
one year of imprisonment. Therefore, all of the requirements for removal based
on a conviction for a CIMT under § 1227(a)(2)(A)(i) were met. Yang has not
shown that counsel’s concession constituted deficient performance or that, but
for counsel’s alleged error, the IJ and BIA would have held that his conspiracy
conviction was not a CIMT. See Mai, 473 F.3d at 165; Miranda–Lores, 17 F.3d
at 84–85.
Particularly Serious Crimes
      Yang contends that his counsel’s concession that his convictions were
particularly serious crimes was incorrect and constituted ineffective assistance
because his convictions were not crimes against persons, were nonviolent, and
did not cause a serious danger to the community. He contends that the IJ and
the BIA erred in not analyzing this issue.
      A crime need not involve violence or cause harm or physical danger to
other persons in order to be considered a particularly serious crime. See, e.g.,
Hakim v. Holder, 628 F.3d 151, 152 (5th Cir. 2010) (holding that alien’s prior
convictions for drug trafficking, tax fraud, and money laundering were
particularly serious crimes making him ineligible for withholding of removal
under § 1231(b)(3)(B)(ii)). The IJ concurred with counsel’s concession that
Yang’s prior convictions were particularly serious “given the nature and extent
of the damage caused by [Yang’s] conspiracy to commit access device fraud and
aggravated identity fraud.” The record supports the IJ’s determination as
Yang was involved in a large scale scheme that resulted in losses to 23 different
individuals and banking organizations, the theft of 419 identities, and a loss of
$54,329.44. Given the large extent of the scheme, Yang has not shown that his
counsel’s concession that his convictions were particularly serious crimes was



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deficient performance or that, but for his counsel’s alleged error, the IJ and
BIA would have found that his convictions were not particularly serious
crimes. See Mai, 473 F.3d at 165; Miranda–Lores, 17 F.3d at 84–85.
Eligibility for Waiver of Inadmissibility under 8 U.S.C. § 1182(h)
      Yang contends that the BIA erred in holding that he was statutorily
ineligible for a waiver of inadmissibility under § 1182(h) because the BIA
ignored the possibility that he may reapply for adjustment of status in
conjunction with a § 1182(h) waiver.
      The IJ and BIA did not err in holding that Yang was not eligible for
waiver of inadmissibility under § 1182(h). Yang argued that he may file an
adjustment of status application, but he did not state or present any evidence
showing that he had actually filed such an application or that he was eligible
for an adjustment of status. Yang relies on decisions of other circuits that he
was only required to make a prima facie showing that he was eligible for
adjustment of status. However, these cases are not binding authority in this
circuit and are inconsistent with this court’s precedent. See United States v.
Sauseda, 596 F.3d 279, 282 (5th Cir. 2010) (holding that other circuits’
decisions are persuasive only); Cabral v. Holder, 632 F.3d 886, 891–92 (5th Cir.
2011) (holding that an alien, who had not filed concurrent application for
adjustment of status under 8 U.S.C. § 1255, was ineligible to apply for a
§ 1182(h) waiver). The IJ and BIA did not err in finding that he was not eligible
for a waiver of inadmissibility because he had not filed a concurrent
adjustment of status application. See Cabral, 632 F.3d at 891–92; Matter of
Rivas, 26 I. & N. Dec. 130, 131–32 (BIA 2013).
      PETITION DENIED.




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