11-2805-ag
Masoud 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 10th day of July, two thousand twelve.

Present:       ROSEMARY S. POOLER,
               REENA RAGGI,
               GERARD E. LYNCH,
                          Circuit Judges.

_____________________________________________________
FAWZIYEH RAKI MASOUD, AKA FAWZIYEH RAKI,
AKA FAWZIYEH HADABA, AKA FAWZI, AKA
“THE HAJA,”

                                      Petitioner,

                        -v.-                                                11-2805-ag

ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,

                                      Respondent.


Appearing for Appellant:       Jonathan R. Nelson, New York, N.Y.

Appearing for Appellee:        Colin J. Tucker, Trial Attorney, Office of Immigration Litigation,
                               Civil Division, United States Department of Justice (Tony West,
                               Assistant Attorney General, Terri J. Scadron, Assistant Director,
                               on the brief), Washington, D.C.
       Petition for review of an order of the Board of Immigration Appeals (“BIA”).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.

        Petitioner Fawziyeh Raki Masoud seeks review of a June 13, 2011 order of the BIA
affirming the June 26, 2009 decision of Immigration Judge (“IJ”) Gabriel C. Videla ordering her
removal from the United States. In re Fawziyeh Raki Masoud, No. A040 172 475 (B.I.A. June
13, 2011), aff’g No. A040 172 475 (Immig. Ct. N.Y. City June 26, 2009). We assume the
parties’ familiarity with the underlying facts and procedural history of this case.

         Under the Immigration and Nationality Act (“INA”), “an offense that . . . involves fraud
or deceit in which the loss to the victim . . . exceeds $10,000” is an aggravated felony. See INA
§ 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i). When a noncitizen is convicted of an offense
involving fraud and charged with removability under this subsection, the court must engage in a
“circumstance-specific” analysis to determine whether the loss amount attributable to the offense
exceeds $10,000, Nijhawan v. Holder, 557 U.S. 29, 38-40 (2009), which requires the
government to establish “by clear and convincing evidence that the circumstances surrounding
the specific counts of conviction involve the requisite amount of loss under the INA,” Pierre v.
Holder, 588 F.3d 767, 773 (2d Cir. 2009). In particular, “the loss [found by the agency] must be
tied to the specific counts covered by the conviction.” Nijhawan, 557 U.S. at 42 (emphasis
added) (internal quotation marks omitted).

        The principal issue in this case is whether the agency erred in determining that Masoud’s
conviction for wire fraud in violation of 18 U.S.C. § 1343 constituted an aggravated felony under
INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i). It is undisputed that the offense involved
fraud; at issue is whether the agency erred in concluding that the charging document and
judgment of conviction demonstrated by clear and convincing evidence that the loss to the
victim(s) exceeded $10,000. Although we generally lack jurisdiction to review a final order of
removal based on a conviction of an aggravated felony, 8 U.S.C. § 1252(a)(2)(C), we retain
jurisdiction to decide questions of law and constitutional claims, id. § 1252(a)(2)(D), including
whether the agency properly determined that Masoud’s conviction was an aggravated felony, see
Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007). We review Masoud’s claims de novo. See
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

        Masoud first argues that her criminal information is insufficient evidence of loss amount
because the particular count to which Masoud pleaded guilty did not specify a loss amount. She
conceded before the agency both that the prefatory allegations in the information alleged that the
overall scheme caused a loss of approximately $359,739.95, and that the scheme did in fact
“involve[] a loss of over $300,000.” She argues, however, that, under Nijhawan, the loss amount
included in the prefatory allegations was not sufficiently “tied” to Masoud’s conviction because
the prefatory allegations “did not link [the $359,739.95 loss] in any way to [Masoud]’s conduct.”




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        Masoud ’s argument relies on a misunderstanding of the scope of her liability. The
elements of wire fraud are (1) knowing participation in a scheme to defraud, (2) specific intent to
defraud, and (3) use of the wires in furtherance of the scheme. E.g., United States v. Davuluri,
239 F.3d 902, 906 (7th Cir. 2001).1 That is, “the crime comprehended by the mail and wire
fraud statutes is the scheme to defraud, not just the isolated iterations of wire transmissions or
mailings.” United States v. Locke, 643 F.3d 235, 247 (7th Cir. 2011) (emphasis added). As a
matter of law, then, Masoud pleaded guilty not only to the discrete use of the wire described in
the count to which she pleaded guilty, but also to (1) using the wire “in furtherance of” a scheme
to defraud that caused $359,739.95 in losses, (2) being a knowing participant in that scheme,
and (3) having a specific intent to defraud. See Davaluri, 239 F.3d at 906. As such, the loss
caused by the scheme was directly attributable to Masoud. See United States v. Wormick, 709
F.2d 454, 461 (7th Cir. 1983) (holding that conspiracy doctrines apply to multi-member mail
fraud schemes); United States v. Read, 658 F.2d 1225, 1230 (7th Cir. 1981) (“Each conspirator is
liable for overt acts of every other conspirator done in furtherance of the conspiracy, whether the
acts occurred before or after he joined the conspiracy.”). Therefore, contrary to Masoud’s
contention, the loss amount alleged in the criminal information was sufficiently “tied” to her
convicted conduct to support the agency’s finding that she was convicted of an aggravated
felony. See Doe v. Att’y Gen. of U.S., 659 F.3d 266, 276 (3d Cir. 2011) (concluding that losses
stated in complaint were sufficiently “tied” to convicted conduct where petitioner “pled guilty
not to a single fraudulent transaction but to aiding and abetting the whole of a large-scale
criminal endeavor”).

         Masoud further argues that the district court’s decision not to order her to pay restitution
proves that Masoud’s offense caused no loss. Masoud misreads the Mandatory Victims
Restitution Act of 1996 (“MVRA”), 18 U.S.C. § 3663A. Contrary to Masoud’s contention that
the MVRA required the district court to impose restitution exactly equal to Masoud’s individual
liability, the MVRA neither requires imposition of restitution in every case, see 18 U.S.C. §
3663A(c)(3)(A)-(B), nor deprives a district court of “discretion in apportioning liability where
multiple defendants are involved,” see United States v. Walton, 217 F.3d 443, 451 (7th Cir.
2000); 18 U.S.C. § 3664(h) (“If the court finds that more than 1 defendant has contributed to the
loss of a victim, the court may make each defendant liable for payment of the full amount of
restitution or may apportion liability among the defendants to reflect the level of contribution to
the victim’s loss and economic circumstances of each defendant.”). Thus, far from compelling
the conclusion that Masoud’s conviction involved no loss, the district court’s decision not to
order Masoud to pay restitution is indeterminate. For this reason, the fact that the district court
did not order restitution did not preclude the agency from relying on the loss amount alleged in
the criminal information to conclude that the government had proved by clear and convincing
evidence that Masoud’s conviction was for an offense “involv[ing] fraud or deceit in which the
loss to the victim . . . exceed[ed] $10,000.” INA § 101(a)(43)(M)(i), 8 U.S.C.
§ 1101(a)(43)(M)(i).

         1
          Because Masoud was convicted in the Eastern District of Wisconsin, we look to Seventh Circuit authority
to determine the scope of her liability for her wire fraud conviction. Cf. Ragbir v. Holder, 389 F. App’x 80, 83 n.4
(2d Cir. 2010) (summary order) (“Because Ragbir was convicted of fraud in the District of New Jersey, we cite
Third Circuit authority in determining the potential scope of the restitution order at issue.”).

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        Masoud also raises two due process claims: (1) that the IJ deprived Masoud of due
process by failing to order an adjournment sua sponte after the Supreme Court issued the
Nijhawan decision, and (2) that the agency deprived Masoud of due process by failing to
consider the fact that the criminal court did not order restitution or impose a prison sentence. We
are precluded from considering the first claim because Masoud failed to raise this issue before
the agency and the government raises issue exhaustion as an affirmative defense. See Lin Zhong
v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007); Theodoropoulos v. INS, 358 F.3d
162, 172-74 (2d Cir. 2004). As to the second claim, we may consider it because it is
“subsidiary” to Masoud’s exhausted claim that the agency lacked sufficient evidence of the loss
amount. See Gill v. INS, 420 F.3d 82, 85-86 (2d Cir. 2005). This claim nonetheless fails
because nothing in the record suggests that the agency did not consider all of the evidence. See
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d Cir. 2006) (noting that this
Court will “presume” that the agency “has taken into account all of the evidence before [it],
unless the record compellingly suggests otherwise”); Jian Hui Shao v. Mukasey, 546 F.3d 138,
169 (2d Cir. 2008) (noting that the agency has no obligation to “expressly parse or refute on the
record each . . . piece of evidence”).

       We note that Masoud has filed a separate petition for review of a denial of a motion to
reopen, No. 12-668, and that she has moved for appointment of counsel in that case. That
motion will be decided by a panel in due course and we do not address it in this Order.

       We have reviewed the remainder of Masoud’s arguments and found them to be without
merit. We therefore DENY the petition for review. The previously granted stay of removal is
VACATED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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