                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________
                                                                           FILED
                                            No. 11-13594       U.S. COURT OF APPEALS
                                        Non-Argument Calendar    ELEVENTH CIRCUIT
                                      ________________________       JULY 10, 2012
                                                                          JOHN LEY
                                           Agency No. A017-057-819         CLERK




CESAR AUGUSTO BEDOYA YEPES,

llllllllllllllllllllllllllllllllllllllll                                       Petitioner,

                                                    versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                     Respondent.

                                     ________________________

                               Petition for Review of a Decision of the
                                    Board of Immigration Appeals
                                    ________________________

                                               (July 10, 2012)

Before EDMONDSON, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
      Cesar Augusto Bedoya Yepes (“Bedoya”) petitions for review of an order of

the Board of Immigration Appeals (“BIA”) affirming the immigration judge’s (“IJ”)

decision finding him removable under Immigration and Nationality Act (“INA”), 8

U.S.C. § 1227(a)(2)(A)(ii), and pretermitting his application for cancellation of

removal under 8 U.S.C. § 1229b(a). The BIA concluded that Bedoya was statutorily

ineligible for cancellation of removal because he had not shown that he had not been

convicted of an aggravated felony, namely, a fraud offense for which the loss to the

victim exceeded $10,000. In reaching its conclusion, the BIA relied upon a

restitution order entered against Bedoya for $38,538, stemming from his convictions

for one count of second-degree theft, one count of fraudulent use of a credit card for

$100 or more, two counts of forgery of a check, and two counts of uttering a forged

instrument or check.

      On appeal, Bedoya argues that: (1) the BIA erred in combining the losses that

resulted from two separate offenses of uttering of a forged instrument in order to

reach the $10,000 threshold; (2) none of the convictions to which he pled guilty

resulted in a loss over $10,000; (3) he was eligible for cancellation of removal; and

(4) in the alternative, we should apply the “rule of lenity” and resolve in his favor the

ambiguity about whether the agency statutorily was permitted to combine loss

amounts in cases like his. After thorough review, we deny the petition.

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       We review de novo whether we have jurisdiction to consider a petition for

review. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). We review also de

novo the BIA’s legal determinations. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d

1190, 1195 (11th Cir. 2006).

       We review only the decision of the BIA, except to the extent that the BIA

expressly adopted the opinion of the IJ. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d

1341, 1350 (11th Cir. 2009). Because the BIA here did not expressly adopt the IJ’s

decision, we will review only the BIA’s order. See id.1

       As an initial matter, we must determine whether we have jurisdiction to review

the BIA’s removal order. We lack jurisdiction to review a final order of removal

when, inter alia, the alien is inadmissible for having committed two crimes of moral



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          However, we will not consider Bedoya’s argument on appeal that reliance on the
restitution order in his case at this stage of the proceedings would violate his due process rights
because Bedoya, by not raising the claim in his initial brief and raising it for the first time in his
reply brief, has abandoned the issue. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1282 n.12 (11th
Cir. 2001). Furthermore, several of Bedoya’s claims on appeal inaccurately identify some of the
IJ’s findings as being determinations made by the BIA. First, Bedoya’s argument that the BIA
erred in combining the losses from two separate offenses in reaching the $10,000 threshold (as
well as his “alternative” rule-of-lenity argument) mischaracterizes the BIA’s order because the
BIA did not add the amounts of the two separate checks in making its cancellation-of- removal
determination. To the extent that Bedoya’s argument on appeal is a challenge to the IJ’s
determination that the check amounts could be combined, we will not review this challenge
because review is limited to the BIA’s order, which did not expressly adopt the IJ’s opinion. See
Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir.2007) (explaining that because the IJ
determination that petitioner challenged had not been adopted by the BIA, it did not form part of
the order under review). Nor do we consider Bedoya’s claim that a showing of a scheme to
defraud was necessary because the BIA expressly declined to consider the issue. See id.

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turpitude for which a sentence of one year or longer may be imposed, as provided in

8 U.S.C. § 1227(a)(2)(A)(ii). 8 U.S.C. § 1252(a)(2)(C). When the bar to review

under § 1252(a)(2)(C) is implicated, “we retain jurisdiction to determine whether the

statutory conditions for limiting judicial review exist.” Keungne v. U.S. Att’y Gen.,

561 F.3d 1281, 1283 (11th Cir. 2009). That is, we must determine whether a

petitioner is “(1) an alien; (2) who is removable; (3) based on having committed a

disqualifying offense.” Id. (quotations omitted). If these conditions are met, §

1252(a)(2)(C) divests us of jurisdiction to review the removal order. See id. at 1284.

Section 1252(a)(2)(C) divests us of jurisdiction if the alien “does not contest that he

is an alien removable for prior disqualifying crimes.” Camacho-Salinas v. U.S. Att’y

Gen., 460 F.3d 1343, 1346 (11th Cir. 2006). However, even if the jurisdictional bar

of § 1252(a)(2)(C) applies, we still retain jurisdiction to consider constitutional

challenges and “questions of law” arising out of the alien’s removal proceedings. 8

U.S.C. § 1252(a)(2)(D).

      In this case, we lack jurisdiction under § 1252(a)(2)(C) to consider the BIA’s

final order of removal because Bedoya has not contested that he is an alien who is

removable for having committed two disqualifying crimes involving moral turpitude.

Nevertheless, we retain jurisdiction under § 1252(a)(2)(D) to consider the BIA’s non-




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discretionary legal determination that Bedoya was statutorily ineligible for

cancellation of removal since he had not shown that he was not an aggravated felon.

      That said, we find no merit to Bedoya’s claim that the agency erred in

determining that Bedoya was statutorily ineligible for cancellation of removal. The

Attorney General has discretion to cancel the removal of an otherwise inadmissible

or deportable alien if the alien “(1) has been . . . lawfully admitted for permanent

residence for not less than 5 years, (2) has resided in the United States continuously

for 7 years after having been admitted in any status, and (3) has not been convicted

of any aggravated felony.” 8 U.S.C. § 1229b(a). The burden of proof is on the alien

to show that he satisfies the applicable eligibility requirements for relief from removal

and is entitled to a favorable exercise of discretion. 8 C.F.R. § 1240.8(d). “If the

evidence indicates that one or more of the grounds for mandatory denial of the

application for relief may apply, the alien shall have the burden of proving by a

preponderance of the evidence that such grounds do not apply.” Id. An “aggravated

felony” under the INA includes, in relevant part, “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).

      In Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346 (11th Cir. 2005), we

reviewed an alien’s petition for review of a decision of the former Immigration and

                                           5
Naturalization Service (“INS”) finding the alien removable because her conviction

for grand theft was an aggravated felony. Id. at 1347-48. We noted that the INS was

required to show by “clear, unequivocal, and convincing evidence” that the alien’s

conviction constituted a “theft offense” under the INA. Id. at 1352. We agreed with

the alien that the statute under which she was convicted was divisible and

encompassed some offenses that would constitute an aggravated felony and other

offenses that would not. Id. at 1354-55. We concluded that, because the statutory

language and the fact of conviction were insufficient to determine whether the alien

had committed an aggravated felony, the BIA was permitted to look at the alien’s

record of conviction, “includ[ing] the charging document, plea, verdict or judgment,

and sentence.” Id. at 1355. We further concluded that, in light of the alien’s record

of conviction, the INS had not shown by clear and convincing evidence that the

alien’s conviction was an aggravated felony. Id. In addition, we said:

             [W]e disagree with the BIA that [the alien]’s simultaneous
      conviction for resisting a merchant establishes that her grand theft
      conviction was an aggravated felony. The BIA was permitted to look
      only at the record of conviction for the offense alleged to be an
      aggravated felony -- not to the record of a separate misdemeanor
      offense. We can find no authority, and the BIA cites none in its order,
      that permits the combining of two offenses to determine whether one or
      the other is an aggravated felony.

Id.



                                         6
      Later, in Nijhawan v. Holder, 129 S.Ct. 2294 (2009), the Supreme Court

determined that § 1101(a)(43)(M)(i)’s reference to a loss exceeding $10,000 referred

to the particular circumstances of the alien’s commission of a fraud offense, rather

than a statutory element of the fraud or deceit crime. Id. at 2297-98. The petitioner

in Nijhawan had been convicted in federal court of conspiracy to commit mail fraud,

wire fraud, bank fraud, and money laundering. Id. at 2298. The jury that convicted

him had not made any finding as to loss, but an order of restitution of $683 million

was entered against him, and he had stipulated to a loss of over $100 million. Id. The

Court explicitly rejected a categorical approach and held that a circumstance-specific

approach was appropriate in determining the loss amount. Id. at 2300. The Court

stated that “the loss must be tied to the specific counts covered by the conviction.”

Id. at 2303. The Court also said that there was “nothing unfair” about the IJ’s

reliance upon certain materials, including the order of restitution against the

petitioner, in determining that the loss exceeded $10,000. Id.

      Here, Bedoya has not shown that the agency erred in concluding that he was

statutorily ineligible for cancellation of removal. As we’ve said, Bedoya had to show

by a preponderance of the evidence that he had not committed an aggravated felony.

See 8 U.S.C. § 1229b(a); 8 C.F.R. § 1240.8(d).                   Under Nijhawan’s

circumstance-specific approach, the agency was allowed to consider the record from

                                          7
Bedoya’s conviction, including the amount of any restitution order. 129 S.Ct. at

2303. The record from Bedoya’s criminal proceedings indicates that Bedoya was

ordered to pay a total of $38,538 in restitution to the victim as to all of his counts of

conviction, which included two counts of uttering of a forged instrument. Despite

having the burden to show by a preponderance of the evidence that the loss amount

was not in excess of $10,000, Bedoya has not objected to this amount or identified

any evidence that would explain how the sentencing court calculated his restitution

amount. Therefore, Bedoya has not shown by a preponderance of the evidence that

he had not committed a fraud offense for which the loss exceeded $10,000. See 8

U.S.C. § 1101(a)(43)(M)(i).

      Although Bedoya argues that the loss as to his fraud counts was limited to the

face amount of the checks, and that any restitution amount in excess was derived from

the other counts of conviction, the burden was on Bedoya to explain any discrepancy

between the amount related to the two fraud counts and the restitution amount. See

8 C.F.R. § 1240.8(d). There is nothing in the record to support Bedoya’s conclusion

that the amount of restitution in excess of the face amount of the checks necessarily

was tied to the other counts of conviction. Because it was Bedoya’s burden to show

that the loss to the victim was not in excess of $10,000, and because he has not met

that burden here, the agency did not err in concluding that he was ineligible for

                                           8
cancellation of removal. See 8 U.S.C. § 1229b(a).

      Finally, Bedoya’s arguments regarding Jaggernauth are without merit. First,

in Jaggernauth, the burden was on the government to show by clear and convincing

evidence that the alien’s conviction was an aggravated felony, whereas here, the

burden was on Bedoya to show that his conviction was not an aggravated felony. See

Jaggernauth, 432 F.3d at 1352. Second, Jaggernauth applied a modified categorical

approach, which the Supreme Court in Nijhawan expressly rejected for purposes of

the loss-amount determination. See Nijhawan, 129 S.Ct. at 2300; Jaggernauth, 432

F.3d at 1354-55. Third, while Jaggernauth did reject the combination of multiple

offenses in determining whether a petitioner had committed an aggravated felony, we

were addressing the different issue of the government’s attempt to combine a theft

offense with a separate misdemeanor offense of resisting a merchant to determine that

one or the other was an aggravated felony. 432 F.3d at 1355. Here, the BIA did not

combine any of the elements of Bedoya’s offenses together and did not combine the

losses from separate offenses, but instead concluded in light of the restitution order

that the loss amount of each individual fraud count may have been in excess of

$10,000. Therefore, Jaggernauth is inapplicable, and we deny the petition.

      PETITION DENIED.




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