             Case: 13-10510    Date Filed: 08/22/2013   Page: 1 of 6


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-10510
                           Non-Argument Calendar
                         ________________________

                          Agency No. A091-152-345

MINTRA RAGOONATH,

                                                                        Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.

                         ________________________

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

                               (August 22, 2013)

Before DUBINA, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:

      Mintra Ragoonath petitions for review of her final administrative order of

removal from the Department of Homeland Security. On appeal, she argues that

we should remand her case for a full removal hearing before an immigration judge
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because: (1) her conviction for bank embezzlement, 18 U.S.C. § 656, is not

categorically an aggravated felony when the loss exceeds $10,000; and (2) even if

it is, the government failed to demonstrate a loss in excess of $10,000 by clear,

convincing, and unequivocal evidence. After thorough review, we affirm.

      We review de novo whether a prior conviction qualifies as an aggravated

felony. Accardo v. U.S. Att’y Gen., 634 F.3d 1333, 1335 (11th Cir. 2011). The

Supreme Court has instructed appellate courts, when reviewing full immigration

hearings, to remand a case for additional investigation or explanation if the record

does not contain appropriate fact findings. See INS v. Ventura, 537 U.S. 12, 16-17

(2002). Consistent with this, we will remand if the record contains inadequate

findings. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375-77 (11th Cir. 2006).

      Our jurisdiction to review orders of removal is limited by the Immigration

and Nationality Act (“INA”), which provides that “no court shall have jurisdiction

to review any final order of removal against an alien who is removable by reason

of   having   committed    a    criminal       offense   covered   in   [8   U.S.C.   §

1227(a)(2)(A)(iii)].” 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however,

over “constitutional claims or questions of law raised upon a petition for review.”

8 U.S.C. § 1252(a)(2)(D).      The question of whether a petitioner’s conviction

constitutes an “aggravated felony” within the meaning of the INA is a question of




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law that falls within our jurisdiction. See Balogun v. U.S. Att'y Gen., 425 F.3d

1356, 1360 (11th Cir. 2005).

      An alien is normally placed into removal proceedings pursuant to 8 U.S.C. §

1229a. However, an alien convicted of an aggravated felony may be removed in

an expedited administrative proceeding.      8 U.S.C. § 1228(b).         An expedited

administrative removal proceeding will be used if the officer is satisfied that an

individual: (1) is an alien; (2) who has not been admitted for lawful permanent

residence; (3) who has been finally convicted of an aggravated felony; and (4) who

is deportable under § 1227(a)(2)(A)(iii) because of that conviction. See 8 C.F.R. §

238.1(b)(1). If the individual submits a response, the service officer must find that

deportability is established by clear, convincing, and unequivocal evidence in the

record of the proceeding. 8 C.F.R. § 238.1(d)(2). An alien may rebut the charges

by specifically challenging certain findings in writing and supporting the challenge

with “affidavit(s), documentary information, or other specific evidence supporting

the challenge.” 8 C.F.R. § 238.1(c)(2)(i).

      An alien convicted of an aggravated felony is removable.            8 U.S.C. §

1227(a)(2)(A)(iii). An offense involving fraud or deceit that results in a loss to a

victim of over $10,000 is an aggravated felony. See 8 U.S.C. § 1101(a)(43)(M).

While a crime of fraud or deceit required a greater loss to a victim prior to 1996,

Congress amended the definition of an aggravated felony in 1996, lowered the


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threshold amount to qualify to losses in excess of $10,000, and explicitly made the

amendments retroactive. Id.; Maldonado v. U.S. Att’y Gen., 664 F.3d 1369, 1378-

79 (11th Cir. 2011). We have held that a conviction under 18 U.S.C. § 656

involves fraud and deceit and is therefore categorically an aggravated felony if the

loss exceeds $10,000. Moore v. Ashcroft, 251 F.3d 919, 923 (11th Cir. 2001).

      The Supreme Court addressed the issue of establishing loss amount for

immigration purposes in Nijhawan v. Holder, 557 U.S. 29 (2009). First, it held

that loss amount is a factual circumstance surrounding the fraud and not an element

of the fraud itself. Id. at 36-40. However, the loss must be tied to the specific

counts covered by the conviction involving fraud and deceit, and, “since the

Government must show the amount of loss by clear and convincing evidence,

uncertainties caused by the passage of time are likely to count in the alien’s favor.”

Id. at 42. Ultimately, the Court held that the immigration judge properly “relied

upon earlier sentencing-related material,” including a factual stipulation at

sentencing and a restitution order -- both showing the loss was greater than

$10,000 -- especially given the lack of conflicting evidence from the petitioner,

when finding the loss amount was clear and convincing. Id. at 42-43. Similarly,

the Third Circuit has said that a restitution order “may be helpful” to the inquiry,

but is not controlling in the face of conflicting evidence. Munroe v. Ashcroft, 353

F.3d 225, 227 (2003).


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      We’ve said that an immigration judge is not entitled to rely solely on a

restitution order to establish the loss amount for an aggravated felony if the

restitution order includes additional conduct not included in the plea, as raised and

demonstrated by the petitioner. Obasohan v. U.S. Att’y Gen., 479 F.3d 785, 789-

91 (11th Cir. 2007), overruled on other grounds by Nijhawan, 557 U.S. 29. In that

case, we held that “the restitution order was insufficient as a matter of law” at the

immigration hearing, both because it referenced conduct not charged, proven, or

admitted prior to sentencing and because the standard at sentencing was a lower

“preponderance of the evidence” standard. Id. at 791. The government, however,

admitted to the fact that the restitution order was based on acts other than the

offense of conviction. Id. at 789-90.

      Here, Ragoonath initially challenges the characterization of her conviction

as categorically an aggravated felony and the retroactive application of the

necessary loss amount for a fraud and deceit conviction to qualify as an aggravated

felony. We have already addressed both issues, and the claims are without merit.

Moore, 251 F.3d at 923; Maldonado, 664 F.3d at 1378-79; see also Chambers v.

Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998) (holding that we are bound by

prior panel opinions until they are overruled or abrogated by the Supreme Court or

this Court sitting en banc).




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      Ragoonath also argues that DHS failed to establish the amended loss amount

of $10,000 necessary for an aggravated felony by clear, convincing, and

unequivocal evidence. See 8 C.F.R. § 238.1(b)(1), (d)(2). She also says that the

findings are insufficient for appellate review because there was no specific loss

amount in the final administrative removal order. However, she was specifically

charged with committing an aggravated felony under 8 U.S.C. § 1101(a)(43)(M) in

her notice and found to have committed such a felony in her final administrative

removal order. Accordingly, DHS implicitly found a loss in excess of $10,000,

which is sufficient if the record properly supports that finding.

      In support of the loss amount, the government provided a restitution order

from a one-count indictment with a loss in excess of $10,000. Once Ragoonath

received the notice of intent to issue a final administrative removal order, she could

rebut the charges by presenting evidence, including affidavits, supporting her

challenges to those charges.      However, she presented no additional evidence

showing the loss amount was less, or that she was not otherwise convicted of an

aggravated felony. This restitution amount is controlling in the absence of any

evidence to the contrary, and there is none. See Nijhawan, 557 U.S. at 42-43.

Accordingly, we deny her petition.

      PETITION DENIED.




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