                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0781n.06

                                        Case No. 09-3869

                          UNITED STATES COURT OF APPEALS                              FILED
                               FOR THE SIXTH CIRCUIT                               Dec 22, 2010
                                                                             LEONARD GREEN, Clerk
 MAURICE IKECHUKWU IBE,                              )
                                                     )
           Petitioner,                               )
                                                     )       ON PETITION FOR REVIEW OF
                  v.                                 )       AN ORDER OF THE BOARD OF
                                                     )       IMMIGRATION APPEALS
 ERIC H. HOLDER,                                     )
 ATTORNEY GENERAL,                                   )
                                                     )
           Respondent.                               )
                                                     )
 _______________________________________             )


BEFORE: MOORE, SUTTON, and FRIEDMAN,* Circuit Judges.

       FRIEDMAN, Circuit Judge. The primary issue in this case is whether the Immigration Judge

justifiably concluded that the loss to the United States from the petitioner Maurice Ibe’s Medicare

fraud of which he was convicted, exceeded $10,000. The effect of that determination was that Ibe,

who was otherwise removable, i.e., deportable, was not eligible for any of the statutory exceptions

to removal. We agree with the Immigration Judge and therefore deny the petition for review of the

decision of the Board of Immigration Appeals dismissing Ibe’s appeal.

                                                 I




       *
        Daniel M. Friedman, United States Court of Appeals for the Federal Circuit, sitting by
designation.
No. 09-3869
Ibe v. Holder

       Ibe, a Nigerian citizen, lawfully entered the United States in 1989 as a student. He

subsequently adjusted his status to that of lawful permanent resident. He is married to an American

citizen and they have three young children.

       In 2002, Ibe pled guilty to an indictment charging him with Medicare fraud, a felony, in

violation of 18 U.S.C. §§ 1347 and 2, by “execut[ing] . . . a scheme and artifice to defraud a health

care benefit program” by billing Medicare for “items [that] were purportedly provided to Medicare

beneficiaries, but were either never provided or not provided to the extent that Medicare was billed.

As a result of the scheme, he wrongfully defrauded Medicare out of in excess of $45,500.”

       Ibe was sentenced to 36-months probation and to pay restitution of $29,000. The restitution

order stated the “Total Amount of Loss” was “29,000.”

       When Ibe returned to the United States from Nigeria in 2007, after attending his mother’s

funeral there, he was denied admission. On the same day, he was served with a Notice to Appear

before an Immigration Judge to show cause why he should not be removed from the United States.

The Notice alleged that he was removable under § 212(a)(2)(A)(i)(I) of the Immigration and

Nationality Act (“Immigration Act”) as “an alien who has been convicted of . . . a crime involving

moral turpitude.” The Notice also alleged that he was removable under § 212(a)(7)(A)(i)(I) of that

Act as an alien who, at the time of seeking admission, did not have a valid entry document.

       An alien who has been convicted of an “aggravated felony” is not eligible for discretionary

relief from removal, such as cancellation of removal or waiver of inadmissibility. 8 U.S.C. §

1229b(a)(3) (cancellation of removal); 8 U.S.C. § 1182(h) (waiver of inadmissibility). The

Immigration Act defines “aggravated felony” to include

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       an offense that - (i) 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).

       At the initial hearing before the Immigration Judge, Ibe admitted the factual allegations in

the Notice to Appear, and conceded both charges of removability. Ibe informed the Immigration

Judge that he would be seeking discretionary relief, but government counsel intervened, stating “it

would appear that the respondent is an aggravated felon by virtue of the fact that the loss to the

victim [is] $29,000[,]” making Ibe ineligible for discretionary relief. To show that Medicare’s loss

from the fraud exceeded $10,000, the government introduced early in the hearing, as Exhibit 2, the

documents relating to Ibe’s indictment, guilty plea, and sentence. These documents contained the

allegation in the indictment that he had “defrauded Medicare out of in excess of $45,500" and the

statement in the restitution order to repay $29,000 that that figure was the “Total Amount of Loss.”

       The Immigration Judge stated: “it does appear from the documents that the fraud did result

in a loss to the victims, which in this case was Medicare - - it was the United States Government - -

Medicare, the part B program of Medicare, was in excess of $10,000. And under Section

101(a)(43)(M)(I), an aggravated felon[y] includes an offense that involves fraud or deceit in which

the loss to the victim or victim[s] exceeds $10,000. It appears that this does fall within the

parameters of an aggravated felon[y].”       When Ibe replied that “they didn’t charge it,” the

Immigration Judge replied that “it’s not necessary.” The judge then stated: “The fact that he has

been convicted, not charged, but convicted of an aggravated felony renders him ineligible for the

forms of relief” from removal.


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       After Ibe said he “should be given an opportunity to at least challenge the issue of whether

this is aggravated felony or not,” the Immigration Judge gave him approximately two months to do

so and continued the hearing. The judge stated that she was giving Ibe the “opportunity to brief the

issue of whether he has been convicted of an aggravated felony such that he would no longer be

ineligible for certain forms of relief.” She so acted after stating several times that, based on the

documentary evidence, Ibe had been so convicted. As she stated at one point to Ibe’s counsel: “This

is a legal argument, sir. It’s not a factual argument. The facts are have been [sic] established by

Exhibit No. 2.”

       After Ibe had filed a brief, the Immigration Judge rendered an oral opinion denying Ibe’s

request for an exception to removal and ordering him removed. The judge held that Ibe’s Medicare

fraud conviction was for an offense involving fraud or deceit and that the record established that the

loss to the victim (Medicare) exceeded $10,000. She therefore ruled that Ibe’s Medicare fraud

conviction was for an aggravated felony. The Immigration Judge stated:

       In light of this Court’s conclusion that the respondent has been convicted of an
       aggravated felony, the respondent cannot establish his statutory eligibility for
       cancellation of removal under Section 240A(a), a waiver under Section 212(h) (as the
       respondent is and was a permanent resident), adjustment of status, or voluntary
       departure.

       The Board of Immigration Appeals sustained the Immigration Judge’s decision. In a

relatively short order, the Board “adopt[ed] and affirm[ed] the decision of the Immigration Judge,”

and dismissed Ibe’s appeal. The Board stated: “The fact that, in this case, the judgment indicates

a total amount of loss of $29,000 whereas the indictment alleges the respondent defrauded in excess



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of $45,500 does not create any ambiguity about whether the respondent’s crime caused a loss

exceeding $10,000 rendering it an aggravated felony.”

                                                  II

       The statutory provisions governing this case, although somewhat complex, may be briefly

summarized. An alien who has been convicted of a crime involving moral turpitude may be denied

admission. 8 U.S.C. § 1182(a)(2)(A)(i)(I). The Attorney General has discretion generally to admit

or waive removal of an alien convicted of a crime of moral turpitude, but cannot do so for an alien

convicted of an aggravated felony. 8 U.S.C. § 1229b(a)(3); 8 U.S.C. § 1182(h). As noted, an

aggravated felony involving fraud or deceit is one “in which the loss to the victim or victims exceeds

$10,000.” 8 U.S.C. § 1101(a)(43)(M)(i).

       Before the Immigration Judge, Ibe conceded his removability, but sought discretionary relief

from such action. The government contended that he was not eligible for that relief because he had

been convicted of an aggravated felony. The issue at that point was whether his Medicare fraud

conviction was for such a crime. The answer turned on whether the government’s loss from the

crime exceeded $10,000. The Immigration Judge and the Board justifiably concluded that it did.

       A. The documents in Exhibit 2 established the following facts: (1) Ibe pled guilty to an

indictment charging Medicare fraud and alleging that, “[a]s a result of the scheme he wrongfully

defrauded Medicare out of in excess of $45,500,” (2) his sentence included payment of restitution

of $29,000, and (3) the document imposing the sentence stated, under “Total Amount of Loss,”

“29,000.”    If unrefuted, these facts justified the Immigration Judge’s conclusion that the

government’s loss from Ibe’s Medicare fraud exceeded $10,000 and that his crime therefore was an

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Ibe v. Holder

aggravated felony. In other words, those facts established a prima facie case that Ibe’s fraud

conviction was for an aggravated felony.

       The burden then shifted to Ibe to refute that showing. Ibe, however, neither presented nor

summarized any evidence he was prepared to present showing that the government’s loss from his

fraud was $10,000 or less. At no point in this case - not before the Immigration Judge, the Board

of Immigration Appeals, or this court - did he present such evidence or state what it would be. His

only argument was that the amounts in Exhibit 2 ($45,500 and $29,000) did not accurately reflect

but actually exaggerated the amount the government lost.

       Ibe contends that the Immigration Judge’s statements that Exhibit 2 established that Ibe’s

crime of conviction was an aggravated felony and that she was authorizing Ibe to file a brief on that

legal issue, but not on factual issues, precluded him from presenting such evidence. We do not read

the Immigration Judge’s comments as imposing such a limitation. In any event, in his brief Ibe did

not set forth (in the body or in an appendix) any evidence he was prepared to offer on the amount

the government lost from his fraud. He certainly could have made an offer of proof on that subject.

The Immigration Judge gave him two months to file such a brief. He does not contend that the time

was inadequate to develop and formulate such evidence and did not seek an extension of time for

filing on that ground.

       Ibe further contends that he was denied procedural due process because the Notice to Appear,

which instituted the removal proceedings, charged only that he had committed a crime involving

moral turpitude, and that the charge that the crime was an aggravated felony was not made until

government counsel so asserted at the outset of the hearing. But the government was not required

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“to list every defense against [petitioner’s] potential applications for discretionary relief.” Matovski

v. Gonzales, 492 F.3d 722, 739 (6th Cir. 2007). The Notice to Appear alleged that Ibe was convicted

for Medicare fraud, and that he was removable for committing a crime of moral turpitude, both of

which Ibe conceded. The issue whether the Medicare fraud was an aggravated felony only became

relevant when Ibe sought discretionary relief. Ibe does not assert that this delay in identifying his

conviction as one for an aggravated felony precluded him from submitting evidence to refute that

charge; nor could he, in view of the two months the Immigration Judge gave him to submit a brief

addressing the aggravated felony issue.

        B. Ibe contends, however, that the recent Supreme Court decision in Nijhawan v. Holder,

129 S. Ct. 2294 (2009), controls this case and requires reversal of the Board’s decision. Nijhawan,

in which the petitioner’s aggravated felony status was the basis on which the government removed

him, involved a different issue than the present case - - one of statutory interpretation.

        The question there, as the Court described it, was whether the statutory language here

involved, defining “aggravated felony” as one “in which the loss to the victim or victims exceeds

$10,000,” “refers to an element of the fraud or deceit ‘offense’ as set forth in the particular fraud or

deceit statute defining the offense of which the alien was previously convicted” - the so-called

“categorical” interpretation. 129 S. Ct. at 2297. The Court instead applied a “circumstance -

specific” interpretation, id. at 2300, holding that the statutory “language does not refer to an element

of the fraud or deceit crime. Rather it refers to the particular circumstances in which an offender

committed a (more broadly defined) fraud or deceit crime on a particular occasion,” namely, “the

facts and circumstances underlying an offender’s conviction.” Id. at 2297-99.

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        The Immigration Judge’s decision in the present case applied the “particular

circumstances”standard announced in Nijhawan. Her determination that Ibe’s Medicare fraud was

an aggravated felony rested squarely upon the evidence that the details of his conviction and sentence

established that the government’s loss from that particular fraud exceeded $10,000.

        Ibe relies not on the Court’s holding but on broad statements in the opinion, such as “the

statute foresees the use of fundamentally fair procedures, including procedures that give an alien a

fair opportunity to dispute a Government claim that a prior conviction involved a fraud with the

relevant loss to victims.” Id. at 2303. Those statements were made in rejecting the petitioner’s

“alternative argument” that to achieve fairness the Court should adopt a “modified categorical

approach” involving certain evidentiary limitations, instead of either an absolute categorical

approach or the “facts specific” approach the Court adopted. Id. at 2302. They explain why the

Court concluded that its construction of the statute provided aliens with basically fair procedures.

        This court has recognized “the perils of failing to anchor broad language to the context in

which it was written.” Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 395 (6th Cir. 2005). As

the Federal Circuit has stated, “[b]road statements in judicial opinions must be interpreted in light

of the issue before the court, and cannot uncritically be extended to significantly different situations.”

Perez v. Dep’t of Justice, 480 F.3d 1309, 1312 (2007). Here, as we have shown, the government

established by clear and convincing evidence that its loss from Ibe’s Medicare fraud exceeded

$10,000 and Ibe had “a fair opportunity to dispute a Government claim that a prior conviction

involved a fraud with the relevant loss to victims.” Nijhawan, 129 S. Ct. at 2303.



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                                        CONCLUSION

       The petition for review of the decision of the Board of Immigration Appeals is denied.




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