Chiao Ku v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-3001

_____________

CHIAO FANG KU,

AKA Chiao Fang Ronan, AKA Anna Ronan,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

_____________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A077-160-352)

Immigration Judge: Walter A. Durling

______________

Argued September 12, 2018

______________

Before: JORDAN, VANASKIE, and NYGAARD, Circuit

Judges



The Honorable Judge Vanaskie transmitted the opinion to the Clerk for

filing prior to retiring from the bench on January 1, 2019. Due to the

intervening holiday, the opinion has been entered on the docket by the

Clerk this day.

(Opinion Filed: January 3, 2019)

Thomas M. Griffin [Argued]

Surin & Griffin

718 Arch Street

Suite 701N

Philadelphia, PA 19106

Counsel for Petitioner

Chad A. Readler, Acting Assistant Attorney General

Nancy E. Friedman, Senior Litigation Counsel

Justin R. Markel, Senior Litigation Counsel

Gregory A. Pennington, Jr. [Argued]

United States Department of Justice

Office of Immigration Litigation

Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

________________

OPINION

________________

VANASKIE, Circuit Judge.

Seeking to remain in this country, Chiao Fang Ku

petitions for review of a final order of removal issued by the

Board of Immigration Appeals (“BIA” or “Board”). The

Board determined that Ku had committed an aggravated felony

2

under 8 U.S.C. § 1101(a)(43)(M)(i) because her prior

conviction for wire fraud constituted an offense involving

fraud or deceit in which the loss to the victims exceeded

$10,000. The Board also found that Ku’s wire fraud conviction

constituted a “crime involving moral turpitude” under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I) such that, without a waiver, she is

ineligible for an adjustment of status. Although the

Immigration Judge (“IJ”) granted Ku a waiver of

inadmissibility under 8 U.S.C. § 1182(h)(1)(B) based on the

extreme hardship that her deportation would cause her U.S.

Citizen children, the Board reversed that decision. Ku

challenges each of the Board’s decisions.

In Nijhawan v. Holder, 557 U.S. 29 (2009), the Court

held that determination of whether a fraud offense involved

loss to the victims of $10,000 or more requires a circumstance-

specific approach, allowing the immigration court to review

both the charging document and sentencing-related materials

to determine the loss amount attributable to the offense. On

the facts of this case, we find that the undisputed loss to the

victims of well over $10,000 was sufficiently tethered to Ku’s

wire fraud conviction such that the conviction qualifies as an

aggravated felony. Furthermore, we find no error in the

Board’s determination that wire fraud constitutes a crime of

moral turpitude. Lastly, regarding the waiver of admissibility,

we do not have jurisdiction to review the discretionary denial

of a waiver under § 212(h) of the INA. Accordingly, we will

deny in part and dismiss in part Ku’s petition for review.

I.

Ku is a native and citizen of Taiwan. She was admitted

to the United States in 1997 and gained status as a lawful

permanent resident in 2002. In 2014, Ku was charged with a

3

single count of wire fraud, in violation of 18 U.S.C. § 1343.

Ku waived her right to an indictment and was charged by

information only. The Information alleged that Ku was tasked

with managing the finances of her in-laws, E.R. and M.R, and

that she was provided access to her in-laws’ bank accounts in

connection with this role. The Information further alleged that,

between May 2008 and July 2013, Ku defrauded her in-laws

by using her access to their accounts to take money from them

for her personal use. In particular, it alleged that Ku: (1)

transferred funds from her in-laws’ accounts to her own

accounts; (2) withdrew funds from her in-laws’ accounts as

cash; (3) made payments from her in-laws’ accounts to pay off

her personal credit cards; (4) wrote and cashed checks payable

to herself by forging her mother-in-law’s signature; and (5)

fraudulently applied for and obtained credit cards in her

mother-in-law’s name and used them for her own purposes.

The Information alleged that, in total, Ku stole more than

$950,000 from her in-laws.

These allegations were incorporated by reference into

the sole count of the Information, which alleged that, on or

about November 7, 2011, Ku,

having devised and intending to devise a

scheme and artifice to defraud and to obtain

money and property by means of materially

false and fraudulent pretenses,

representations, and promises, did cause

writings, signs, signals, pictures, and sounds

to be transmitted by means of wire

communications in interstate commerce for

the purpose of executing such scheme and

artifice, to wit: executing an online payment

from M.R.’s Sovereign Bank account, ending

4

in 8497, to the defendant’s Chase credit card

account, ending in 6567, in the amount of

$2,290.53.

(App. 590). The Information further contained forfeiture

allegations, which directed that, upon conviction of the sole

count of the Information, Ku “forfeit to the United States . . .

any property, real or personal, that constitutes, or is derived

from, proceeds traceable to the commission of the offense,

including but not limited to at least $950,000 in United States

currency.” (App. 591).

Ku pleaded guilty, pursuant to a plea agreement,1 to the

single count of the Information. In her sentencing

memorandum, Ku, through counsel, acknowledged that she

was “now subject to automatic deportation as a result of her

conviction in this case.” (App. 740). Ku was ultimately

sentenced to a term of 18 months’ imprisonment, followed by

one year of supervised release. The judgment includes a total

loss determination of $954,515.71 and orders restitution in that

amount. (App. 582).

After Ku completed her sentence, she was served with

a Notice to Appear and placed in removal proceedings. The

Notice to Appear charged Ku with being removable under

§ 237(a)(2)(A)(iii) of the Immigration and Nationality Act

(“INA” or the “Act”), 8 U.S.C. § 1227(a)(2)(A)(iii), as an

individual convicted of an aggravated felony as defined in 8

U.S.C. § 1101(a)(43)(M)(i). The Immigration Judge

concluded that Ku was removable as charged because the

1

The plea agreement is not part of the administrative

record before us, nor was it in the record before the IJ or BIA.

5

record of conviction substantiated a finding that the wire fraud

involved a loss of more than $10,000.

In order to avoid deportation, Ku sought to re-adjust her

status based on her U.S. Citizen husband.2 The Immigration

Judge granted Ku’s application for a waiver of inadmissibility

under § 212(h)(1)(B) of the Act, 8 U.S.C. § 1182(h)(1)(B),

based on the extreme hardship that her deportation would cause

her U.S. Citizen children, and granted Ku’s adjustment of

status pursuant to § 245(a) of the INA, 8 U.S.C. § 1255(a).

On appeal, the Board affirmed that the Government

demonstrated by clear and convincing evidence that Ku was

removable as an aggravated felon as defined at

§ 1101(a)(43)(M)(i) in that her offense involved fraud or deceit

in which the loss to the victims exceeded $10,000. In doing so,

the Board noted that the Information alleged that Ku stole more

than $950,000 in funds belonging to her in-laws, and that this

allegation was incorporated by reference into the count to

which Ku pleaded guilty. It also observed that the Information

also contained a forfeiture allegation stating that, upon

conviction, Ku would forfeit over $950,000 in currency.

Finally, the Board considered relevant that the Judgment of

Conviction found a total loss of over $950,000 and ordered

restitution in that amount.

The Board further concluded that Ku’s conviction was

for a crime involving moral turpitude, making her inadmissible

under § 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C.

§ 1182(a)(2)(A)(i)(I), such that she required a § 212(h) waiver

2

Ku's present husband is not the man to whom she was

previously married and whose parents are the elderly in-laws

she defrauded.

6

in order to adjust her status. See 8 U.S.C. § 1255(a) (providing

for adjustment of status of certain aliens to that of an alien

lawfully admitted for permanent residence); see also 8 U.S.C.

§ 1182(h)(1)(B) (providing for waiver of inadmissibility at the

discretion of the Attorney General). Although it acknowledged

the hardship posed to her family, the Board ultimately found

that, given the severity of her crime, Ku did not merit a

§ 212(h) waiver. It accordingly vacated the decision of the IJ

and denied Ku’s applications for a § 212(h) waiver and for

adjustment of status. Ku timely filed a petition for review.

II.

Although we have jurisdiction to review final orders of

removal under 8 U.S.C. § 1252(a),3 “no court shall have

3

We have taken a broad view of what constitutes a

“final order of removal” under § 1252. Higgs v. Att’y Gen.,

655 F.3d 333, 337–38 (3d Cir. 2011). “[A]n order is final for

jurisdictional purposes when a removability determination has

been made that is no longer appealable to the BIA, regardless

[of] whether a formal order of removal has been entered.” Id.

(quoting Yusupov v. Att’y Gen., 518 F.3d 185, 195 (3d Cir.

2008)); see also Shehu v. Att’y Gen., 482 F.3d 652, 656 (3d

Cir. 2007) (“[D]enial of a . . . petition for asylum, withholding

of removal, and relief under the [Convention Against Torture]

constitutes ‘a final order of removal’ within the meaning of

[§ 1252], [because] the alien is entitled to no further process

before deportation.”). Here, although the Board did not

explicitly order Ku removed to Taiwan, it found her removable

and denied her application for adjustment of status, her only

petition for relief. (App. 5). Furthermore, the Board sustained

DHS’s appeal, which requested that Ku be ordered removed to

Taiwan. Accordingly, for the purposes of this appeal, we

7

jurisdiction to review any final order of removal against an

alien who is removable by reason of having committed [an

aggravated felony].” 8 U.S.C. § 1252(a)(2)(C). “We do,

however, have jurisdiction to examine ‘constitutional claims or

questions of law.’” Fan Wang v. Att’y Gen., 898 F.3d 341, 343

(3d Cir. 2018) (quoting Catwell v. Att’y Gen., 623 F.3d 199,

205 (3d Cir. 2010); 8 U.S.C. § 1252(a)(2)(D)). Therefore, we

have authority to take up the issue, applying plenary review, of

whether Ku’s conviction qualifies as an aggravated felony

because it is “a purely legal question, and one that governs our

own jurisdiction.” Id. (quoting Valansi v. Ashcroft, 278 F.3d

203, 207 (3d Cir. 2002)). We also review de novo the legal

question of what elements of a federal criminal statute

implicate moral turpitude, while affording Chevron deference

to the Board’s definition of “moral turpitude.” Knapik v.

Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004).

III.

On appeal, Ku challenges all three aspects of the BIA’s

order. First, she contends that the BIA incorrectly determined

that her wire-fraud conviction involved a loss of more than

$10,000 by relying on evidence that was not sufficiently

tethered to the sole count of conviction.4 Second, Ku argues

consider the Board’s order to be a final order of removal. The

Government’s motion to remand this case to the Board for

issuance of an order directing that Ku be removed to Taiwan

and to allow the IJ to make additional findings on removability

will be denied as moot.

4

We note that Ku does not challenge—and did not

challenge before the IJ or the Board—that her wire fraud

8

that the Board erred in finding that her wire-fraud conviction

was for a crime involving moral turpitude because the statute

of conviction does not require a showing of intent. Third, Ku

asserts that the BIA applied the incorrect legal standard in

reversing the IJ’s grant of a discretionary waiver of

inadmissibility. We reject all three of Ku’s challenges and

therefore deny the petition for review.

A.

Section 237(a)(2)(A)(iii) of the INA, as amended,

provides that “[a]ny alien who is convicted of an aggravated

felony at any time after admission is deportable.” 8 U.S.C.

§ 1227(a)(2)(A)(iii). The Act defines “aggravated felony,” in

relevant part, as 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 Nijhawan v. Holder, the Supreme Court addressed

the issue of whether the $10,000 threshold of the aggravated

felony statute “refers to an element of a fraud statute or to the

factual circumstances surrounding commission of the crime on

a specific occasion.” 557 U.S. at 33. The Court adopted the

latter interpretation, characterizing the review as examining

“the specific way in which an offender committed the crime on

a specific occasion.” Id. at 34. The Court distinguished the

“circumstance-specific approach” to be used in determining

whether a crime “involves fraud or deceit in which the loss to

the victim or victims exceeds $10,000” from the “categorical

approach” used in determining whether a crime is a “violent

felony” under the Armed Career Criminal Act (“ACCA”), 18

conviction “involves fraud or deceit” under 8 U.S.C.

§ 1101(a)(43)(M).

9

U.S.C. § 924(e). Id. at 34–40. It also rejected the use of the

so-called “modified categorical approach” employed in some

contexts, which would limit an IJ’s consideration to charging

documents, jury instructions, special jury findings, or some

equivalent judge-made findings and—in the case of a guilty

plea—to the written plea documents or plea colloquy. Id. at

41. While the Supreme Court acknowledged that “the statute

foresees the use of fundamentally fair procedures,” it rejected

the argument that fairness requires such evidentiary

limitations. Id. Accordingly, it found “nothing unfair” about

the IJ’s reliance upon the defendant’s stipulation and the

district court’s restitution order to determine that the crime at

issue was an “aggravated felony” under § 1101(a)(43)(M)(i).

Id. at 42–43.

Since Nijhawan, we have consistently applied the

circumstance-specific approach to determine the amount of

loss in “aggravated felony” cases. See, e.g., Kaplun v. Att’y

Gen., 602 F.3d 260, 265–66 (3d Cir. 2010); Doe v. Att’y Gen.,

659 F.3d 266, 274–76 (3d Cir. 2011). Most recently, we

addressed the issue in Fan Wang, in which we reviewed “not

only those documents that may be considered in a modified

categorical approach (the indictment, plea agreement, and

judgment),” but also others, including “the presentence

investigation report and any sentencing-related material.” 898

F.3d at 348–49 (citations and internal quotation marks

omitted). Relying on Nijhawan, we reasoned that

consideration of such materials “is appropriate so long as the

petitioner has been given a ‘fair opportunity’ to challenge the

Government’s claim.” Id. at 349 (quoting Nijhawan, 557 U.S.

at 41). Accordingly, we determined that the Board did not go

beyond the bounds of proper review by examining the record—

including the sole count of the superseding information, the

10

plea colloquy, the presentence investigation report, the “total

loss” specified in the judgment, and the restitution order—to

determine whether the petitioner’s prior conviction was an

“aggravated felony.” Id. at 349–50. In determining the proper

amount of loss in that case, we were persuaded by the

Government’s argument that the loss amount listed in the

judgment and restitution order was “undeniably tethered” to

the conduct for which the petitioner was convicted. Id. at 351.

We consider the loss to the victims in this case—as

evidenced by the Information, Judgment, and Restitution

Order—to be sufficiently tethered to the count of conviction

such that Ku’s conviction was an aggravated felony.

Paragraphs 1 through 10 of the Information allege that Ku stole

more than $950,000 in funds belonging to her in-laws, and

these paragraphs were incorporated by reference into the count

to which Ku pleaded guilty. Furthermore, the forfeiture

allegation contained in the Information states that, upon

conviction, Ku would forfeit the “proceeds traceable to the

commission of the offense, including but not limited to at least

$950,000 in United States currency.” (App. 591). Finally, the

Judgment of Conviction indicates a loss of $954,515.71 and

orders restitution in that amount. Each of these documents is

reviewable under the circumstance-specific approach laid out

by the Supreme Court in Nijhawan. Together, they provide

clear and convincing evidence that Ku’s offense involved a

loss of over $10,000. Nonetheless, we briefly addresses Ku’s

arguments to the contrary, all of which lack merit.

1.

First, Ku contends that the circumstance-specific

approach described in Nijhawan does not apply in her case

because the single count of the Information made clear that it

11

was for the specified amount of $2,290.53. She urges us to

read Nijhawan to have kept intact the modified categorical

approach for cases in which the charging document contains a

clear indication of the loss amount. Under the modified

categorical approach, she contends, the Board was correct in

reviewing the Information but, because the count of conviction

contains a loss amount of $2,290.53, the Board should have

stopped there.

Contrary to Ku’s assertion, Nijhawan does not stand for

the proposition that, when the count of conviction contains a

loss amount, immigration officials must look no further. The

Supreme Court explicitly rejected the use of the modified

categorical approach in determining whether a prior conviction

is an aggravated felony under § 1101(a)(43)(M)(i). Nijhawan,

557 U.S. at 41–42; see also Kaplun, 602 F.3d at 265–66

(interpreting Nijhawan). Rather, it determined that the

circumstance-specific approach is required because the

aggravated felony statute “refers to the particular

circumstances in which an offender committed a (more broadly

defined) fraud or deceit crime on a particular occasion,” and

not to an element of the offense. Nijhawan, 557 U.S. at 32.

Noting that the Government in immigration proceedings is

held only to a “clear and convincing” burden of proof, and not

“beyond a reasonable doubt,” the Supreme Court found

“nothing unfair about [an IJ] rel[ying] upon earlier sentencing-

related material”—in that case a sentencing stipulation and

restitution order. Id. at 42–43. 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).

Nothing in Nijhawan suggests that the circumstance-

specific approach applies in some cases but not others, or that

12

the documents reviewable under that approach vary from case

to case. Furthermore, we have consistently interpreted

Nijhawan as allowing an IJ, in determining the loss amount, to

look beyond the charging document to sentencing-related

materials. See Kaplun, 602 F.3d at 265–66; Fan Wang, 898

F.3d at 348–49. Ku has not persuaded us that our reading is

incorrect.

2.

Second, Ku contends that, because her conviction was

for “a single act of a $2,290.53 on-line transfer,” the losses she

caused through other acts and transactions are not sufficiently

“tethered” to the count of conviction for purposes of the

aggravated felony statute. (Petitioner’s Br. at 27). In doing so,

Ku asks us to read the Information as charging her in Count

One with a “scheme and artifice to defraud” her in-laws of

$2,290.53, and not as charging her with one instance of wire

fraud that was part of a broader “scheme and artifice to

defraud” her in-laws of over $950,000. However, such an

interpretation is inconsistent with the language of the

Information. In Count One, the Government “re-alleges and

incorporates by reference” the first eight paragraphs, which

allege that, over five years, Ku defrauded her in-laws of more

than $950,000 by transferring funds from their accounts to her

own accounts, withdrawing funds as cash, making payments to

credit card companies for charges she incurred, and writing and

cashing checks payable to herself. (App. 588–90). The explicit

incorporation of those paragraphs into the count to which Ku

pleaded guilty supports an interpretation of the count itself as

describing Ku’s “scheme and artifice to defraud” her in-laws

of more than $950,000.

13

We are similarly unpersuaded by Ku’s contention that,

because Paragraphs 1 through 8 of the Information describe

conduct that does not necessarily amount to wire fraud, such

conduct cannot count toward the total loss resulting from her

conviction. It is incontrovertible that the “scheme and artifice

to defraud” charged in Count One of the Information

encompassed the whole course of Ku’s unlawful conduct,

including the one incident in which Ku committed wire fraud

in the amount of $2,390.53, and which resulted in a total loss

of over $950,000. In short, because Ku pleaded guilty to

committing wire fraud as part of a scheme to defraud her in-

laws of more than $950,000, the total loss amount is, to use our

language from Fan Wang, “undeniably tethered” to her wire

fraud conviction.

3.

Finally, Ku contends that the single-count Information

to which she pleaded guilty is part of the “justice package”

worked out between her and the Government and urges the

Court to defer to that agreement. (Petitioner’s Br. at 35). In

doing so, Ku relies on our opinion in Alaka v. Attorney

General, 456 F.3d 88 (3d Cir. 2006). However, the facts of

this case make it distinguishable from Alaka.

In Alaka—which we decided prior to Nijhawan5—we

held that the IJ erred by considering the amount of intended

5

Because Alaka was decided prior to the Supreme

Court’s decision in Nijhawan, its application of the modified

categorical approach to the aggravated-felony analysis does

not affect our decision. However, to the extent that Alaka

stands for the proposition that an IJ may not consider dismissed

14

loss for all of the charges against the petitioner rather than the

single count for which she was convicted. Alaka, 456 F.3d at

106. The petitioner had been indicted on three counts for

conduct involving fraudulent checks, but was convicted of only

one count, for which the actual loss was $4,716.68. Id. at 92.

The sentencing court nonetheless held that the petitioner’s

conduct was part of a “common scheme or plan,” and therefore

found the total intended loss to be nearly $50,000. Id. It

ordered her to pay $4,716.68 in restitution. Id. In subsequent

immigration proceedings, the IJ concluded that the petitioner

had been convicted of an aggravated felony on the ground that

the intended loss was more than $10,000. Id. at 105, n.27. On

appeal, we determined that, while the IJ properly considered

the factual findings of the sentencing report in determining

whether the offense was an aggravated felony, the loss amount

tied to the dismissed charges was not properly considered as

part of the aggravated-felony analysis. Id. at 106–08. In doing

so, we noted that “the plain and unambiguous language of the

statute . . . predicates removal on a convicted offense resulting

in losses greater than $10,000,” thereby foreclosing inclusion

of losses stemming from unconvicted offenses. Id. 106–07

(citations omitted). Furthermore, we considered that, because

it is “the plea agreement that establishes the offense for which

the defendant will be convicted, it is to that agreement, and not

the indictment or the sentence, that we look in determining the

intended loss.” Id. at 107. The petitioner “unmistakably pled

guilty to one count, and the plea agreement plainly documented

that loss at less than $10,000.” Id. at 108 (citations and

alterations omitted). Because the plea agreement “spell[ed] it

out for us in black and white,” we concluded that the plea

charges when calculating the loss attributable to the conviction,

it remains good law.

15

agreement alone established the loss amount, and “not . . . the

loss charged in the indictment, tabulated for restitution

purposes, or calculated for sentencing.” Id. (citations omitted).

Here, in stark contrast to the petitioner in Alaka, the

record before us contains no plea agreement, and certainly not

one which explicitly spells out the loss amount to which Ku

pleaded guilty. Instead, Ku urges us to find that, based on the

fact that the Government could have charged her with a much

longer list of crimes but did not, the loss amount as indicated

in Count One was part of an explicit bargain between her and

the Government. However, this argument is based on pure

conjecture. Absent a clear and unmistakable indication of loss

in a written plea agreement, we are left with only the

Information, Judgment, and Restitution Order to determine the

loss attributable to Ku’s conviction. As explained above, these

documents, taken together, provide clear and convincing

evidence that the loss amount attributable to Ku’s wire fraud

conviction exceeded $10,000, and Ku has provided no plea

agreement or any other document to the contrary.6

6

The sentencing court in Alaka calculated the total loss

amount based on the “common scheme or plan,” which, it

considered, included both the count of conviction and the

dismissed counts, and we considered the IJ’s reliance on that

calculation to be in error in light of the plea agreement. 456

F.3d at 106. But this does not help Ku. As explained above,

the wire fraud count to which Ku pleaded guilty was based in

part on her “scheme and artifice to defraud” her in-laws of over

$950,000. (App. 590). Unlike the sentencing court in Alaka,

the sentencing court in this case did not base its loss calculation

on any acts that were not explicitly incorporated into the count

of conviction.

16

Ku’s argument that this Court should respect the

“justice package” between her and the Government also

touches on the Supreme Court’s landmark holdings in Padilla

v. Kentucky, 559 U.S. 356 (2010), and Descamps v. United

States, 570 U.S. 254 (2013), both of which, she argues, counsel

toward respecting agreements between criminal defendants

and the Government with respect to the collateral

consequences of a conviction. But this line of argument merely

highlights another critical shortcoming of Ku’s case. To the

extent Ku argues that the Information was designed

specifically to avoid immigration consequences, there is no

evidence in the record to support such a finding. Indeed, Ku’s

attorney indicated in her sentencing memorandum that Ku “is

now subject to automatic deportation as a result of her

conviction in this case.” (App. 740). This statement, while not

conclusive, certainly undermines any assertion that the “justice

package” referred to by Ku was designed to avoid an

aggravated felony conviction. Indeed, absent any other

evidence in the record to the contrary, the sentencing

memorandum supports a finding that, at the time of her guilty

plea, Ku understood that she was pleading guilty to an

aggravated felony.

B.

Having concluded that the Board did not err in finding

that Ku was convicted of an aggravated felony, we turn to the

question of whether Ku’s conviction constituted a “crime

involving moral turpitude” under the INA. Ku argues that wire

fraud is not a “crime involving moral turpitude” under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I) because it does not include as an element

the specific intent to defraud. This is incorrect.

17

The statute provides that a person is guilty of wire fraud

if, “having devised or intending to devise any scheme or

artifice to defraud,” that person “transmits or causes to be

transmitted by means of wire, radio, or television

communication in interstate or foreign commerce, any

writings, signs, signals, pictures, or sounds for the purpose of

executing such scheme or artifice.” 18 U.S.C. § 1343. Courts

have long treated fraud crimes as “involving moral turpitude.”

Jordan v. De George, 341 U.S. 223, 232 (1951) (“[T]he

decided cases make it plain that crimes in which fraud was an

ingredient have always been regarded as involving moral

turpitude.”); Singh v. Att’y Gen., 807 F.3d 547, 550 (3d Cir.

2015) (“Crimes . . . involving allegations of dishonesty or fraud

fall well within the recognized definition of ‘crimes involving

moral turpitude.’”). Furthermore, we have also consistently

read the wire fraud statute as containing the element of specific

intent. See, e.g., United States v. Andrews, 681 F.3d 509, 518

(3d Cir. 2012) (“To prove wire fraud, the Government must

establish (1) the defendant’s knowing and willful participation

in a scheme or artifice to defraud, (2) with the specific intent to

defraud, and (3) the use of . . . interstate wire communications

in furtherance of the scheme.”) (internal quotation marks

omitted) (emphasis added).

Seeking to persuade us to revisit these tenets, Ku asks

us to read the statutory terms “having devised” and “intending

to devise” as disjunctive means of committing wire fraud, the

latter containing the mens rea of intent, and the former

eschewing any mens rea at all. But the language of the statute

does not lend itself to such an interpretation. The specific

intent requirement is contained in the latter part of the statute—

“for the purpose of executing [a] scheme or artifice [to

defraud]”—and must be proved regardless of whether the

18

person made the transmission after “having devised” or while

“intending to devise” the scheme to defraud. 18 U.S.C. § 1343.

Plainly read, the language Ku seizes on, “having devised or

intending to devise,” refers not to the requisite mens rea but to

the temporal relationship between the formation of the fraud

scheme and the transmission itself. Either way, the person

must have made the transmission for the purpose of executing

the fraud scheme in order to be convicted.

Ku’s statutory interpretation argument holds no weight.

Accordingly, we see no need to revisit the long-held tenet that

fraud crimes—including wire fraud—are crimes involving

moral turpitude under the INA.

C.

Finally, Ku asks us to find that the Board committed

error in its reversal of the IJ’s finding that she was eligible for

a discretionary waiver of inadmissibility based on the hardship

her deportation would cause her U.S. citizen children.

However, we lack jurisdiction over the Board’s decision on

this point.

The INA provides that an alien is inadmissible to the

United States if she has been convicted of a crime involving

moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). The Act also

provides, however, that the Attorney General may waive

inadmissibility to allow an applicant to obtain adjustment of

status under § 1182(h), “if the alien is a spouse, parent, or child

of a United States citizen . . . and can show that denial of

admission would cause extreme hardship to the citizen . . . .”

De Leon–Reynoso v. Ashcroft, 293 F.3d 633, 637 (3d Cir.

2002). The authority to waive one or more grounds of

inadmissibility is vested solely in the Attorney General and “no

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court shall have jurisdiction to review” a decision to deny such

a request. 8 U.S.C. § 1252(a)(2)(B)(i).

We may, however, review “constitutional claims or

questions of law raised upon a petition for review . . . .” Id. at

§ 1252(a)(2)(D). Our jurisdiction in that respect is “narrowly

circumscribed” in that it is limited to “colorable claims or

questions of law.” Cospito v. Att’y Gen., 539 F.3d 166, 170 (3d

Cir. 2008) (per curiam) (quotation marks and citation omitted).

While “[t]he question of our jurisdiction over a colorable legal

claim does not turn on whether that claim is ultimately

meritorious . . . , a party may not dress up a claim with legal

clothing to invoke this Court's jurisdiction.” Pareja v. Att’y

Gen., 615 F.3d 180, 187 (3d Cir. 2010) (citations omitted).

Ku argues that we have jurisdiction to consider her

petition for review on the waiver issue because it presents a

question of law, namely whether the Board applied the proper

legal standard in making the discretionary determination. But

Ku’s argument boils down to her contention that the Board

failed to consider certain equities relevant to the hardship

determination. As we have consistently held, “arguments such

as that an Immigration Judge or the BIA incorrectly weighed

evidence, failed to consider evidence or improperly weighed

equitable factors are not questions of law under

§ 1252(a)(2)(D).” Jarbough v. Att’y Gen., 483 F.3d 184, 189

(3d Cir. 2007). Because the substance of Ku’s petition for

review amounts to contesting the weight the Board should have

given to the positive equities of her case, we do not have

jurisdiction over it and will dismiss in part that aspect of the

petition.

IV.

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For the foregoing reasons, we will deny in part and

dismiss in part Ku's petition for review, and we will deny as

moot the Government's motion to remand.

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