Kaplun v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-2571

VADIM KAPLUN, Petitioner

v.

ATTORNEY GENERAL OF

THE UNITED STATES, Respondent

On Petition for Review of a Final Order

of the Board of Immigration Appeals

Immigration Judge: Honorable Charles M. Honeyman

(No. A22-214-070)

Argued March 8, 2010

Before: AMBRO, SMITH, and MICHEL,* Circuit Judges

(Opinion filed: April 9, 2010)

*

Honorable Paul R. Michel, Chief Judge, United States

Court of Appeals for the Federal Circuit, sitting by designation.

Thomas E. Moseley, Esquire (Argued)

Suite 2600

One Gateway Center

Newark, NJ 07102-0000

Counsel for Petitioner

Thomas W. Hussey, Esquire

Paul F. Stone, Esquire

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Gregory G. Katsas

Assistant Attorney General, Civil Division

Terri J. Scadron

Assistant Director

Manuel A. Palau, Esquire (Argued)

United States Department of Justice

Office of Immigration Litigation

450 5th Street, N.W.

Washington, DC 20001-0000

Counsel for Respondent

OPINION OF THE COURT

2

AMBRO, Circuit Judge

Petitioner Vadim Kaplun, a citizen of the Ukraine,

petitions for review of four decisions of the Board of

Immigration Appeals resulting in a final order of removal that

designated him removable for having committed an aggravated

felony, denied him withholding of removal by virtue of having

committed a particularly serious crime, and reviewed de novo

and reversed the Immigration Judge’s finding of a clear

probability of future torture if Kaplun were removed. He

contends that the Government did not prove he committed an

aggravated felony by clear and convincing evidence; as a non-

violent, white collar offense, his offense was not a particularly

serious crime; and the BIA applied an improper de novo

standard of review to the IJ’s finding that Kaplun’s torture if

removed would be probable. We conclude that the BIA was

correct on the first two issues, but applied an incorrect standard

of review on the third. Accordingly, we deny the petition for

review on the first two claims, and grant it on the third claim.

I. Facts and Procedural History

A. Kaplun’s background

Kaplun is a native of the Ukraine who was admitted to

the United States in 1977 as a seven-year-old refugee. He later

became a legal permanent resident. In 1997 and 1998 he was

charged and convicted in two federal criminal proceedings

based on his participation in fraudulent stock schemes.

3

For reasons we describe below, only the 1998 conviction

is at issue here. Kaplun there pled guilty to an information1

alleging securities fraud with losses of nearly $900,000 under 15

U.S.C. §§ 77q, 77x, and 18 U.S.C. § 2. Per the pre-sentence

investigation report (PSR), the total loss for the 1998 offense

was described as “at least $700,000 and less than $1,000,000.”

The $700,000 figure was used twice more in the PSR to

calculate the specific offense level2 and to calculate the

maximum fine. Defense counsel made no objection to the PSR.

After the District Court adopted the PSR (save for two

exceptions not relevant here) and granted a downward departure,

the undisputed Guideline range was 51–63 months’

imprisonment. Kaplun was sentenced to 56 months’

imprisonment for the 1998 conviction, but a fine was waived

because of his inability to pay.

B. Removal proceedings before the Immigration

Judge

1

Kaplun waived indictment and consented to proceeding

by information.

2

From 1987 to 2001, the United States Sentencing

Commission Guidelines Manual had specific provisions for

fraud offenses in § 2F1.1. Subsection 2F1.1(b)(1)(K) assigned

a 10-level increase for fraud offenses with a loss of more than

$500,000. This was used in Kaplun’s PSR. U.S.S.G. § 2F1.1

has since been repealed.

4

The Government began removal proceedings against

Kaplun in 2001 based on the 1997 and 1998 convictions. He

denied removability and later submitted an application for

asylum. The Government produced the judgment of conviction,

the PSR, and the information to establish the 1998 conviction

and its surrounding facts. No plea colloquy was produced,

though Kaplun does not deny that he pled guilty to the single-

count information.

In his application for asylum, Kaplun claimed that, as a

Jewish refugee, he would be subjected to persecution and torture

if he were removed to the Ukraine. In support of his claims, he

procured an expert witness to give testimony on anti-Semitism

in the Ukraine. This expert gave detailed testimony on the

situation and voiced disagreement with various Government

reports on the extent of anti-Semitism in that country. He also

testified that Kaplun would be unable to gain citizenship, get a

job, rent an apartment, or even buy a train ticket. It was his

expert opinion that Kaplun would be living on the street,

destitute, and would be targeted for extortion and torture.

In an April 2004 ruling, the IJ found Kaplun removable

based on his prior convictions (though it was unclear which of

the two convictions qualified), but granted withholding of

removal and protection under the United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading

5

Treatment or Punishment (“CAT”),3 crediting the testimony of

Kaplun’s expert. Despite this, Kaplun appealed the part of the

ruling that found him removable. The Government cross-

appealed the part of the ruling granting withholding of removal.

C. The BIA’s first ruling

The first ruling by the Board of Immigration Appeals was

issued in November 2004. It held that the IJ erred in his

removal findings by inadvertently relying on the wrong record

of conviction, and it vacated the IJ decision and remanded for a

determination of whether Kaplun was indeed removable as

charged under either the 1997 or the 1998 conviction.

D. The Immigration Judge responds

The IJ issued a second ruling in February 2006, in which

he went through the removability charges in great detail. He

concluded that the sole sustainable removal charge was the 1998

fraud conviction. The basis for this decision was Kaplun’s

conviction for an aggravated felony as defined in 8 U.S.C.

§ 1101(a)(43)(M)(i) (“an offense that . . . involves fraud or

deceit in which the loss to the victim or victims exceeds

3

Technically a CAT claim is a claim under the Foreign

Affairs Reform and Restructuring Act, but we use the

convention adopted in our Circuit and refer to it as a CAT claim.

See Pierre v. Att’y Gen., 528 F.3d 180, 186 n.5 (3d Cir. 2008)

(en banc).

6

$10,000”). The IJ then certified the case and sent the matter

back to the BIA for resolution of the remaining issues on

appeal—namely, removability and the prior grant of relief from

removal under the CAT.

E. The BIA’s second ruling

The BIA issued a second decision in August 2006. It

addressed the following: (1) whether the removability charge

was sustainable based on the 1998 conviction; (2) whether that

1998 conviction was a particularly serious crime rendering

Kaplun statutorily ineligible for withholding of removal, or in

the alternative whether Kaplun met his burden of proof of

establishing eligibility for withholding of removal; and (3)

whether the IJ erred in finding that Kaplun had met his burden

of proving probability of torture under the CAT. The BIA

concluded that Kaplun was removable on the basis of the 1998

conviction, that it was a “particularly serious crime” (thereby

declining to address the alternative argument), and that the IJ

erred in granting relief under the CAT. It thus ordered Kaplun

removed to the Ukraine.

He filed a petition for review of the final order of

removal in August 2006. We did not rule on the petition at that

time.

F. The BIA issues a third ruling denying a motion

to reopen

7

In November 2006, Kaplun filed a motion with the BIA

to reopen his case based on our decision in Alaka v. Attorney

General, 456 F.3d 88, 108 (3d Cir. 2006) (in determining a loss

amount for 8 U.S.C. § 1101(a)(43)(M)(i), “we look only to the

charges to which the petitioner pled guilty, and not to conduct

that was neither admitted nor proven beyond a reasonable

doubt”). In February 2007, the BIA denied the motion to reopen

because it concluded that Alaka was factually distinguishable.

Kaplun then filed a petition for review with our Court in

February 2007. On motion of the Government, we remanded

Kaplun’s 2007 petition, along with his 2006 petition, to the BIA

in September 2007. We asked for a determination of whether

the BIA had authority

to reverse the immigration judge’s determination

that “there [was] a preponderance of evidence in

the record leading to a justification for a clear

probability finding that this particular respondent

. . . is likely to be targeted [for mistreatment,] at

least in part, by both governmental and non-

governmental entities within the Ukraine should

he be removed to that country . . . [and that such

mistreatment will rise to the level of torture.]”

G. The BIA’s fourth ruling

In May 2008, the BIA issued a precedential decision

answering the question on remand. Matter of V–K–, 24 I & N

8

Dec. 500 (BIA 2008). It held that it had the authority to review

the IJ’s determination de novo, and it reasoned as follows:

We now clarify that while we reviewed the

Immigration Judge’s factual rulings for clear

error, we do not consider a prediction of the

probability of future torture to be a ruling of

“fact.” Although predictions of future events may

in part be derived from “facts,” they are not the

sort of “[f]acts determined by the Immigration

Judge” that can only be reviewed for clear error.

....

Accordingly, we conclude that an Immigration

Judge’s prediction or finding regarding the

likelihood that an alien will be tortured may be

reviewed de novo because, like a conclusion

relating to whether a statutorily prescribed chance

of persecution or level of hardship exists, it relates

to whether the ultimate statutory requirement for

establishing eligibility for relief was met and is

therefore a mixed question of fact and law, or a

question of “judgment.”

24 I & N Dec. at 501–02 (alteration in original) (citations

omitted).

Kaplun then filed the petition for review that is before us

9

today, as to which we have jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(1).

II. Standard of Review

When the BIA issues its own decision on the merits and

not a summary affirmance, we review its decision, not that of

the IJ. Sheriff v. Att’y Gen., 587 F.3d 584, 588 (3d Cir. 2009).

As Kaplun is subject to a final order of removal by reason of

having committed an aggravated felony, we review his petition

only to the extent it raises questions of law or constitutional

claims, and purely factual or discretionary determinations are

outside our scope of review. See Pierre v. Att’y Gen., 528 F.3d

180, 184 (3d Cir. 2008) (en banc) (citing 8 U.S.C.

§ 1252(a)(2)(C)–(D)). We review the BIA’s legal

determinations de novo, subject to the principles of deference

articulated in Chevron v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 844 (1984). Pierre, 528 F.3d at 184; see

also Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). The

Board’s interpretation of its own regulation is “controlling

unless ‘plainly erroneous or inconsistent with the regulation.’”

Auer v. Robbins, 519 U.S. 452, 461 (1997) (citations omitted).

III. Discussion

A. Kaplun’s 1998 conviction was shown to be an

aggravated felony by clear and convincing

evidence.

10

Kaplun’s first claim stems from his 1998 securities fraud

conviction. He argues that the sole charge of removability

should not have been sustained because the Government did not

prove the $10,000 loss required to qualify as an “aggravated

felony” with clear and convincing evidence. We disagree.

Federal immigration law provides that any “alien who is

convicted of an aggravated felony at any time after admission is

deportable.” 8 U.S.C. § 1127(a)(2)(A)(iii). The list of offenses

that qualify as an “aggravated felony” is given by 8 U.S.C.

§ 1101(a)(43). As noted, § 1101(a)(43)(M)(i) makes “an

offense that . . . involves fraud or deceit in which the loss to the

victim or victims exceeds $10,000” an aggravated felony.

The Supreme Court has recently clarified the approach

we are to take when determining what evidence can be

consulted to determine whether a crime is an “aggravated

felony” for purposes of 8 U.S.C. § 1101(a)(43)(M)(i). Nijhawan

v. Holder, 557 U.S. __, 129 S. Ct. 2294 (2009). The Court first

determined that this provision “calls for a ‘circumstance-

specific,’ not a ‘categorical,’ interpretation.” Id. at 2300. With

regard to the $10,000 figure, “the monetary threshold applies to

the specific circumstances surrounding an offender’s

commission of a fraud and deceit crime on a specific occasion.”

Id. at 2302.

The Court also rejected a “modified categorical

approach,” which would limit the evidence to “a jury verdict, or

a judge-approved equivalent . . . [such as] charging documents,

11

jury instructions, and any special jury finding . . . [, or] written

plea documents or the plea colloquy.” Id. Noting that the

Government was held to a “clear and convincing” burden of

proof (and not “beyond a reasonable doubt”), it found “nothing

unfair about [an IJ] rel[ying] upon earlier sentencing-related

material” (there, a stipulation for sentencing purposes and a

restitution order). Id. It also noted that “the sole purpose of the

aggravated felony inquiry is to ascertain the nature of a prior

conviction; it is not an invitation to relitigate the conviction

itself.” Id. (internal quotation marks omitted).

In our case, the record shows that the IJ was presented

with clear and convincing evidence that Kaplun was convicted

of a fraud crime with a loss exceeding $10,000. Two powerful

and uncontroverted items of evidence establish the amount

clearly and convincingly. The first is the criminal information

to which Kaplun pled guilty, in which he is alleged to have

converted nearly $900,000 of investors’ funds to his personal

use and that of his accomplices. Although no plea colloquy was

produced by the Government or Kaplun, he does not deny

pleading guilty to the information alleging the criminal conduct

involving fraud or deceit.

The PSR is the second piece of evidence establishing a

loss greater than $10,000. At three different points in the PSR,

the loss is alleged to be at least $700,000. First, in the “Offense

Conduct” section, the loss resulting from Kaplun’s conduct in

the 1998 conviction is described as follows:

12

As an overview, between late April 1995 and

October 1995, VADIM KAPLUN was involved

in a securities fraud scheme which resulted in a

total loss to over two hundred investors of at least

$700,000 and less than $1,000,000.

Second, in the “Offense Level Computation” section, the loss is

again determined to be greater than $10,000:

Specific Offense Characteristic: This fraud

resulted in a loss of at least $700,000. Pursuant to

Guideline 2F1.1(b)(1)(K), ten levels are added.

U.S.S.G. § 2F1.1(b)(1) provided a schedule of offense level

enhancements that vary depending on the amount of loss

resulting from the offense, giving the defendant every incentive

to ensure that it is calculated correctly so as to avoid excess

punishment.4 Third, in the “Fines” section, the loss is once

again determined to be greater than $10,000:

Statutory Provisions: . . . For Count One of 98-

CR-1387 (JGK), pursuant to 18 USC 3571(d), the

maximum fine is $1,400,000, namely twice the

4

For example, subsection (K) provides for ten levels to

be added for a loss greater than $500,000. Subsection (J)

provides for nine levels to be added if the loss is greater than

$350,000 while subsection (L) provides for eleven levels to be

added if the loss is greater than $800,000.

13

loss of at least $700,000 caused by Kaplun’s

participation in that fraud scheme.

Kaplun made no objection to the PSR, and save for two

exceptions not related to the loss amount, the District Court

adopted the PSR in its entirety, including its findings of fact.

Like the Supreme Court in Nijhawan, “[w]e can find

nothing unfair about the immigration judge’s having here relied

upon earlier sentencing-related material.” 129 S. Ct. at 2303.

While the Government could have produced a plea colloquy

transcript demonstrating Kaplun’s acceptance of the loss amount

(and Kaplun suggests that we should demand such evidence), in

the face of his guilty plea to the information alleging over

$10,000 in losses, the three uses of a loss amount over $10,000

in the PSR that was adopted by the District Court, the absence

of any objections to the PSR by Kaplun, and “the absence of any

conflicting evidence (and [Kaplun] mentions none), this

evidence is clear and convincing.” Id.

B. The BIA did not commit legal error when it

determined that Kaplun’s aggravated felony

was a “particularly serious crime”

The BIA found Kaplun ineligible for withholding of

removal because the 1998 conviction was for a “particularly

serious crime.” Removal is withheld if “the alien’s life or

freedom would be threatened in that country because of the

alien’s race, religion, nationality, membership in a particular

14

social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).

However, this does not apply if “the alien, having been

convicted by a final judgment of a particularly serious crime[,]

is a danger to the community of the United States.” Id.

§ 1231(b)(3)(B)(ii).

“Particularly serious crime” includes an “aggravated

felony (or felonies) for which the alien has been sentenced to an

aggregate term of imprisonment of at least 5 years.” Id.

§ 1231(b)(3)(B). It also provides for a discretionary designation

of “particularly serious crime” when the Attorney General

determines that, no matter how short the sentence, the crime

qualifies as particularly serious. Id. Kaplun was not sentenced

to an aggregate term of at least five years, so we look only to the

discretionary portion of the statute. We do not have jurisdiction

over discretionary decisions, and without any assertion of legal

error, Kaplun is not entitled to relief on this claim.

Kaplun makes three legal arguments why he has not been

convicted of a “particularly serious crime”: (1) the Government

has waived the issue, having not brought it before the IJ; (2) the

“entire analysis . . . rests upon the legally erroneous conclusion

that [his] guilty plea admitted all the allegations in the

information”; and (3) the BIA decision “ran contrary to actual

Board precedent.” We reject all three arguments.

First, Kaplun cites no relevant authority for the

proposition that the Government waives the right to challenge

withholding of removal if it does not bring it before the IJ. The

15

sole authority cited, Tokatly v. Ashcroft, 371 F.3d 613, 618 (9th

Cir. 2004), does not support that proposition. There, the

Government “waived waiver” by failing to argue to the BIA that

a petitioner had waived an argument, raising the issue for the

first time before the Court of Appeals. This situation is

distinguishable for two reasons: (1) Kaplun himself did not raise

this issue before the BIA; and (2) the Government raised the

issue prior to briefing in the federal courts, having brought it to

the BIA’s attention. We thus decline to hold that the

Government waived the argument here.

Second, we reject Kaplun’s assertion that the entire

analysis rested on a legally erroneous conclusion for the reasons

discussed in Part III.A. The Government has established the

commission of an aggravated felony by clear and convincing

evidence. Nor is there a problem with “tethering,” for the 1998

conviction and loss figure was a result of a single-count

information, and there is no dispute that the entire loss amount

alleged was tied to Kaplun’s guilty plea and conviction. See

Alaka, 456 F.3d at 108 (holding that “the loss amount relevant

to [an alien’s] aggravated felony determination is . . . the loss

suffered by the victim of the count to which [the alien] pled

guilty”). This assertion also fails.

Finally, we reject Kaplun’s contention that the BIA

decision runs contrary to BIA precedent. Citing to a now-

superseded BIA decision, Matter of Frentescu, 18 I & N Dec.

244 (BIA 1982), he argues that the BIA “has never held that . . .

a non-violent white collar criminal offense could constitute a

16

particularly serious crime.” Kaplun does not point out that

Frentescu’s definition of “particularly serious crime” has been

replaced by the definition in 8 U.S.C. § 1231(b)(3)(B). It

includes aggravated felonies with a term of imprisonment of at

least five years, and there are a number of “non-violent white

collar criminal offense[s]” that are aggravated felonies5

punishable by at least five years’ imprisonment. Moreover,

nothing in our precedent suggests that a financial crime cannot,

as a matter of law, be a particularly serious crime.

C. The BIA applied an incorrect standard of

review to the IJ’s determination that there was

a probability of future torture.

Kaplun’s final claim alleges BIA error in reviewing the

probability of future torture de novo and not under a “clearly

erroneous” standard. Though the question is not as

straightforward as it first appears, we agree with Kaplun.

5

The list of aggravated felonies in 8 U.S.C.

§ 1101(a)(43) is comprehensive and goes beyond “crimes of

violence” (which are covered by 8 U.S.C. § 1101(a)(43)(F)).

See, e.g., 8 U.S.C. § 1101(a)(43)(D) (money laundering), (P)

(document fraud), (Q) (failure to appear for service of sentence),

(R) (bribery, counterfeiting, forgery, or trafficking in vehicles

with altered Vehicle Identification Numbers), (S) (obstruction

of justice, perjury, and bribery of a witness), & (T) (failure to

appear pursuant to a court order to answer to or dispose of a

felony).

17

Prior to 2002, the BIA reviewed all aspects of an IJ’s

decision de novo. In August 2002, procedural reforms were

adopted after a period of notice and comment, and codified in

the Code of Federal Regulations. The new rule governing BIA

review now reads:

(d) Powers of the Board—

....

(3) Scope of review. (i) The Board will not

engage in de novo review of findings of fact

determined by an immigration judge. Facts

determined by the immigration judge, including

findings as to the credibility of testimony, shall be

reviewed only to determine whether the findings

of the immigration judge are clearly erroneous.

(ii) The Board may review questions of law,

discretion, and judgment and all other issues in

appeals from decisions of immigration judges de

novo.

8 C.F.R § 1003.1(d)(3)(i)–(ii). If the probability of torture is a

“finding of fact,” the BIA may only review it for clear error, but

if it is a “question of law, discretion, [or] judgment,” the BIA

reviews the IJ’s decision de novo.

Eligibility for withholding of removal under the CAT is

18

governed by 8 C.F.R. § 208.16(c). To obtain withholding on

this ground, “[t]he burden of proof is on the applicant . . . to

establish that it is more likely than not that he or she would be

tortured if removed to the proposed country of removal.” 8

C.F.R. § 208.16(c)(2). Here, the BIA concluded that a finding

of a “probability of future torture” was “a mixed question of fact

and law, or a question of ‘judgment,’” subject to de novo

review. 24 I & N Dec. at 502. It reasoned that “[a]lthough

predictions of future events may in part be derived from ‘facts,’

they are not the sort of ‘[f]acts determined by the Immigration

Judge’ that can only be reviewed for clear error.”6 Id. at 501

6

We reject the BIA’s assertion that a “prediction of

future events” is alternatively a “question of judgment” subject

to de novo review. In this context, “judgment” means either the

application of legal standards or the exercise of discretion, and

not a situation where the decision-maker must determine the

likelihood of a future event. Only the legal aspects of judgment

or exercises of discretion, not the findings of fact, receive de

novo review by the BIA. In either case, the BIA must take the

facts as given (unless they are clearly erroneous), and only then

exercise its judgment or discretion whether those facts meet the

particular legal standard under review (e.g., whether the facts

are sufficient to be deemed torture).

This is borne out in the Attorney General’s comments on

the final rule. The Attorney General interpreted the rule to

allow for de novo review of “judgments as to whether facts

established by a particular alien amount to [a legal standard].”

Board of Immigration Appeals: Procedural Reforms To Improve

19

(alteration in original) (citation omitted). As the Government

notes, the BIA spoke even more forcefully in Matter of A–S–B–,

24 I & N Dec. 493, 498 (BIA 2008), making the blanket

assertion that “it is impossible to declare as ‘fact’ things that

have not yet occurred.”7

For the reasons that follow, insofar as the BIA interpreted

8 C.F.R. § 1003.1(d)(3) to hold that an IJ’s assessment of the

probability of future torture is not a finding of fact because the

events have not yet occurred, we conclude its interpretation

plainly errs. See Auer, 519 U.S. at 461. Accordingly, it is not

controlling, and to the extent that the BIA relied on this

incorrect statement to justify its interpretation of its own

Case Management, 67 Fed. Reg. 54,878, 54,890 (Aug. 26,

2002). On the topic of discretion to grant relief, the rule was

interpreted to mean that “the ‘discretion,’ or judgment, exercised

based on . . . findings of fact, and the weight accorded to

individual factors, may be reviewed by the Board de novo.” Id.

7

In an opinion published after we heard argument in this

case, the BIA continues to take the stance adopted in Matter of

V–K– and Matter of A–S–B– that likelihoods cannot be “facts”

because they involve future events. See Matter of H–L–H– &

Z–Y–Z–, 25 I & N Dec. 209, 212–13 & n.4 (BIA 2010). To the

extent that A–S–B– and H–L–H– & Z–Y–Z– address the standard

of review applied to an IJ’s determination of a “well-founded

fear of future persecution” in the asylum context (and not a

likelihood of torture), we do not purport to resolve that issue at

this time.

20

regulation governing the standard of review, we reject its

conclusion.

Facts include past events, but they are not restricted to

historical events. See Black’s Law Dictionary 669 (9th ed.

2009) (defining “fact” to mean “something that actually exists;

an aspect of reality,” or “[a]n actual or alleged event or

circumstance, as distinguished from its legal effect,

consequence, or interpretation”; defining “[f]acts” to “include

not just tangible things, actual occurrences, and relationships,

but also states of mind such as intentions and opinions”);

Webster’s Third New Int’l Dictionary 813 (1971) (defining

“fact” as “the quality or character of being actual or of being

made up of facts”; giving as an example “a question of fact

hinges on the actual evidence”). A present probability of a

future event is something “distin[ct] from its legal effect” that is

“made up of facts” and “actually exists” but is “not [a] tangible

thing[], [or] actual occurrence[].” This likelihood, while an

assessment of a future event, is what a decision-maker in an

adjudicatory system decides now as part of a factual framework

for determining legal effect.

For example, that “it took 2 hours to drive the 100 miles

to grandmother’s house last week” may be established and

found as a fact through documentary, testimonial, or other

evidence. A finding of fact may also stem from an assessment

of what is expected to occur in the future. Take, for instance, “It

is likely that it will take less than 3 hours to drive the 100 miles

to grandmother’s house next week.” The likelihood (an

21

inferential fact) may be established through, for example,

testimony of past experience, testimony on typical traffic

conditions, or even expert opinion testimony on traffic patterns.

Of course, to call a likelihood “fact” is not to say that the likely

outcome will necessarily occur, but the likelihood itself remains

a factual finding that can be made ex ante the actual outcome.

Taking another example from the medical malpractice

context, experts frequently testify to their opinions (or

“predictions”) of future disability and future pain and suffering.

When a jury chooses to believe the expert’s predictions, it

makes a factual finding that the plaintiff will be unable to

perform certain tasks in the future and will experience some

degree of pain and suffering. If a patient plaintiff improves, or

dies unexpectedly, we do not say that a jury made a factual

error, nor do we conclude—indeed, it would be too late to do

so—that the expert should not have been found worthy of belief.

The patient plaintiff’s future condition is a factual finding made

by the jury.8

8

Elsewhere outside of the immigration context, we have

held that factual inferences drawn from historical facts

(including the likelihood of future events) are reviewed for clear

error. See United States v. Stewart, 452 F.3d 266, 273 (3d Cir.

2006) (holding that whether the release of an individual, found

not guilty solely by reason of insanity, creates a substantial risk

of future danger to society is a finding of fact reviewed for clear

error); Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 900

(3d Cir. 1991) (“[W]here the district court was required to draw

22

Applied to immigration generally (and specifically this

case), a finding of fact by an IJ includes expressions of

likelihood based on testimony (both lay and expert) and/or

documentary evidence. For example, if an IJ concludes, based

on expert opinion, that “Kaplun is likely to be imprisoned if

removed to the Ukraine,” that finding would be factual and

reviewable only for clear error, even though it is possible that

Kaplun may be removed and yet never imprisoned. If Kaplun

were removed but turned out not to be imprisoned (the likely

outcome did not materialize), it would not change the inquiry

into the likelihood of imprisonment from a question of fact to a

mixed question of law and fact or a question of judgment.

The confusion arises when the question is posed as

whether it is more likely than not that Kaplun would be tortured.

Torture is a term with legal significance. The regulations

outline the evidence to be considered in assessing the possibility

of future torture:

In assessing whether it is more likely than not that

an applicant would be tortured in the proposed

country of removal, all evidence relevant to the

factual inferences from historical facts . . .[,] we review those

inferences for clear error too.”); see also Onishea v. Hopper,

171 F.3d 1289, 1300–01 (11th Cir. 1999) (en banc) (holding that

a district court’s finding as to the risk of future prison violence

based on conflicting evidence was a factual determination

reviewed for clear error).

23

possibility of future torture shall be considered,

including, but not limited to:

(i) Evidence of past torture inflicted

upon the applicant;

(ii) Evidence that the applicant could

relocate to a part of the country of

removal where he or she is not

likely to be tortured;

(iii) Evidence of gross, flagrant or mass

violations of human rights within

the country of removal, where

applicable; and

(iv) Other relevant information

regarding conditions in the country

of removal.

8 C.F.R. § 208.16(c)(3).

Here, the BIA noted that there were three likelihoods

involved: “In his decision, the Immigration Judge credited the

testimony of [Kaplun]’s expert witness that [Kaplun] ‘[1] is

likely to need to come into contact with governmental entities

and [2] is likely to be a target for extortion and mistreatment that

[3] is likely to rise to the level of torture.’” 24 I & N Dec. at

501; see also App. 26–27 (IJ Oral Dec.). The BIA treated this

24

trio of likelihoods as a single question, namely, whether there

was a clear probability that, if removed, Kaplun would be

tortured in the future.

In the case of the likelihood of torture, there are two

distinct parts to the mixed question: (1) what is likely to happen

to the petitioner if removed; and (2) does what is likely to

happen amount to the legal definition of torture? The two parts

should be examined separately.

The first question is factual. A finding that a petitioner

is likely to be imprisoned (based, for instance, on the evidence

of gross violations of human rights in the country of removal) is

a finding of fact. A finding that a petitioner is likely to be

extorted for vast sums of money if removed (based, for example,

on the testimony of the petitioner and his expert) is also a

finding of fact. So is a finding that a petitioner is likely to be

beaten by government officials based on a finding that the

petitioner was severely beaten in the past. This is to be

distinguished from the legal consequence of those underlying

facts.

The second question, however, is a legal question.

Torture is a term of art, and whether imprisonment, beating, and

extortion are severe enough to rise to the level of torture is a

legal question. While the underlying facts vary from petitioner

to petitioner, the legal question remains the same: do the facts

found by the IJ (and that the BIA determines are not clearly

erroneous) meet the legal requirements for relief under the

25

CAT? This is a question of law where the IJ has no comparative

advantage over the BIA.

Glueing the two questions together, however, does not

entitle the BIA to review the first question, the factual one, de

novo. It must break down the inquiry into its parts and apply the

correct standard of review to the respective components. This

is consistent with the Attorney General’s guidance promulgated

with the 2002 procedural reforms. See Board of Immigration

Appeals: Procedural Reforms To Improve Case Management,

67 Fed. Reg. 54,878, 54,890 (Aug. 26, 2002). There, the

Attorney General gave two examples that were consistent with

this dichotomy between fact and law. The second example,

eligibility for cancellation of removal, is relevant to our inquiry:

Similarly, in cancellation of removal, those facts

that [the alien] claims make up “exceptional and

extremely unusual hardship” to [the alien]’s

putative qualifying relative . . ., and whether the

putative qualifying relative is actually a

qualifying relative, will be reviewed by the Board

only to determine if the immigration judge’s

determination was clearly erroneous. Whether

those facts, as determined by the immigration

judge and found not to be clearly erroneous,

amount to “exceptional and extremely unusual

hardship” . . . may be reviewed by the Board de

novo.

26

Id. (citations omitted). While looking at the hardship

necessarily involves ascertaining the future factual

consequences that would result from removal of the alien, it is

the degree of hardship that constitutes a legal question, namely,

whether it is “exceptional and extremely unusual.” Id. (citing

Matter of Monreal-Aguinaga, 23 I & N Dec. 56 (BIA 2001)).

Returning to the trio of likelihoods in Kaplun’s case, the

BIA should have addressed the three questions as follows: (1)

the likelihood of Kaplun interacting with governmental

authorities on return to the Ukraine is a factual question; (2) the

likelihood of his being targeted for extortion and mistreatment

is also a factual question; and (3) whether the likely

mistreatment will amount to torture is a legal question.

Here—even though the BIA purported “not [to] find any facts

[itself,] but only assessed the facts as found by the Immigration

Judge and established by the evidence entered into the record,

determining that they were insufficient to meet [Kaplun]’s

burden of proof for protection under the Convention Against

Torture,” 24 I & N Dec. at 502—it appears that the BIA re-

examined the record and conducted de novo fact-finding instead

of applying the clearly erroneous standard.9

9

On this record, we can assume only that the BIA applied

a de novo standard to all of the IJ’s relevant factual findings.

The BIA justified its reversal of the IJ by declaring it

“possess[ed] the authority to review de novo findings deemed by

an Immigration Judge to satisfy an ultimate statutory standard,”

24 I & N Dec. at 502, and at no point did it purport to apply the

27

The IJ took testimony from an expert witness (his

qualifications and competency to testify are not challenged)

whose expert opinion was that Kaplun was likely to be detained

and imprisoned, and that the conditions of imprisonment would

constitute torture. The IJ credited the expert’s testimony and

concluded that Kaplun was likely to interact with governmental

entities. The IJ then found that there was a “extremely high”

likelihood this would make Kaplun a target for detention and

mistreatment with the acquiescence or consent of a public

official or other person acting in an official capacity for the

current government of the Ukraine. Based on these factual

findings, the IJ made the legal conclusion that Kaplun’s likely

detention would constitute torture, distinguishing it from

situations where “it is somewhat problematic as to . . . whether

the level of [mistreatment] is likely to rise to the level of the

regulatory language . . . as to what constitutes torture.”

The BIA applied de novo review to the question of

whether there was a probability of torture, including the factual

findings of the IJ. Specifically, the BIA disagreed with the IJ

crediting “the [expert] witness’s statements regarding what

would happen in [Kaplun’s] specific situation” if he were

clearly erroneous standard to the underlying facts. Perhaps a

more precise (and correct) statement would be that the BIA

possesses the authority to review de novo whether an

Immigration Judge’s factual findings (that are not clearly

erroneous) satisfy an ultimate statutory standard (in this case,

torture).

28

removed, dismissing it as “speculative.” This appears to have

been reversal of a factual finding under a de novo standard, an

impermissible BIA action.10 The BIA also disagreed with the

IJ’s factual finding that “public officials would consent or

acquiesce” to mistreatment of Kaplun, again appearing to make

a de novo reversal. It should have reviewed these factual

findings under a “clearly erroneous” standard, and the apparent

application of the incorrect standard of review was error. In

contrast, the BIA correctly applied a de novo standard of review

in determining whether the claimed discrimination or

mistreatment would constitute torture under the legal

framework.

We caution that we are not precluding BIA review of

facts found by the IJ. It is free to revisit the underlying facts

(including the likelihood of future events), but it must do so

under the clearly erroneous standard that applies to facts. This

review is important to the process of assuring that IJ-found facts

get proper deference.

10

Although terming an expert’s testimony “speculative”

may indicate that the BIA considered the factual findings to be

clearly erroneous, it did not say so. If it wishes to reverse

factual findings it believes are not “established by evidence

entered into the record,” 24 I & N Dec. at 502, it needs to apply

the clearly erroneous standard in such a way that reviewing

courts understand that standard to be in play.

29

IV. Conclusion

We hold that when the Government provides unrebutted

evidence of monetary loss in excess of $10,000 through an

information, a guilty plea to that information, a pre-sentence

report, and the documented lack of objection to that report, it has

proven the amount of loss by clear and convincing evidence for

the purpose of establishing an aggravated felony under 8 U.S.C.

§ 1103(a)(43)(M)(i). We further hold that the BIA committed

no legal error in designating Kaplun’s aggravated felony to be

a “particularly serious crime” under 8 U.S.C.

§ 1231(b)(3)(B)(ii), rendering him ineligible for withholding of

removal. Finally, we hold that the BIA erred in reviewing the

finding of a probability of torture de novo; it was required to

review the factual aspects of that inquiry for clear error, and it

was entitled to review only the legal aspects of the inquiry de

novo. Accordingly, we grant the petition for review and remand

for further proceedings consistent with this opinion.

30