denying a petition for review where the petitioner agreed in his plea agreement to liability for more than $10,000 but was ordered to pay restitution of less than $10,000
How later courts described this case
- denying a petition for review where the petitioner agreed in his plea agreement to liability for more than $10,000 but was ordered to pay restitution of less than $10,000
- assenting to restitution in a plea agreement
Written by the judges who cited it.
The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 14, 2007
No. 06-60039 Charles R. Fulbruge III
Clerk
JUAN JOSÉ MARTINEZ,
Petitioner,
v.
MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
Before DeMOSS, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:
On August 12, 2004, an Immigration Judge (“IJ”) found Martinez
removable for having been convicted of a crime involving moral turpitude. The
IJ also found that Martinez was ineligible for cancellation of removal because he
had been convicted of an aggravated felony. Martinez appealed to the Board of
Immigration Appeals (“BIA”), which, under 8 C.F.R. § 1003.1(e)(4) affirmed,
without opinion, the IJ’s decision. Martinez now seeks review of the IJ’s decision
and challenges the BIA’s use of a single-member panel and summary affirmance
procedure. We deny his petition.
No. 06-60039
I
In 2003, Juan José Martinez, a native and citizen of Mexico, applied for
admission to the United States as a returning resident alien. Upon entrance,
Martinez was served with a notice to appear that alleged he was ineligible for
admission because of a 1997 Texas conviction for insurance fraud, and the notice
charged that he was subject to removal based on his commission of a crime
involving moral turpitude.
Martinez conceded his removability, but he sought cancellation of removal1
because he had resided as a lawful permanent resident in the United States for
more than seven years. The Government argued that Martinez was ineligible
for cancellation2 because the 1997 conviction constituted an aggravated felony.3
The IJ found that Martinez committed an offense under Texas Penal Code
§ 35.02(a), and that this violation constituted a crime involving fraud. The IJ
further found that Martinez’s offense resulted in a loss to the victim of
$11,467.36. The IJ rejected Martinez’s argument that the record did not reflect
whether he was convicted under Texas Penal Code § 35.02(a) or § 35.02(b), and
Martinez’s contention that the loss amount should be $5,733.68. The IJ relied
on (1) Martinez’s plea bargain agreement, which reflected a total restitution of
$11,467.36, (2) the fact that Martinez’s wife was responsible for the other half
of the total restitution and was involved in the insurance fraud, and
(3) Martinez’s community supervision order, which indicated that Martinez was
jointly and separately liable for $11,467.36. The IJ denied Martinez’s
application for cancellation and ordered him removed to Mexico.
1
8 U.S.C. § 1229b(a).
2
See 8 U.S.C. § 1229b(a)(3).
3
8 U.S.C. § 1101(a)(43)(M)(i) (defining “aggravated felony” as including an offense that
“involves fraud or deceit in which the loss to the victim or victims exceeds $10,000”).
2
No. 06-60039
A single member of the BIA affirmed the IJ’s decision without opinion,
making the IJ’s decision the final agency determination,4 and the decision we
review.5 Martinez timely appealed.
II
Under 8 U.S.C. § 1252(a)(2)(B)(i), this court lacks jurisdiction to review the
IJ’s discretionary decisions under 8 U.S.C. § 1229b, but retains jurisdiction over
purely legal and nondiscretionary decisions.6 Specifically, this court retains
jurisdiction to determine whether the conviction qualifies as an aggravated
felony under the Immigration and Naturalization Act (“INA”)—that is, to
determine whether we have jurisdiction.7 Whether an offense is an aggravated
felony under the INA is a question of law, and the IJ’s resolution of that issue is
a nondiscretionary decision under § 1101(a)(43)(M)(i). Although a reviewing
court may be required in some cases to examine the conviction record to
determine whether the conviction comes within a relevant INA definition, that
inquiry is a question of law.8 This court reviews de novo whether the particular
statute of conviction meets the relevant INA definition.9
III
This case presents two issues. The first is whether the IJ committed
reversible error in ruling that Martinez’s offense constituted an aggravated
felony. The second is whether the BIA properly applied its streamlined review
procedures.
4
8 C.F.R. 1003.1(e)(4).
5
Garcia-Melendez v. Ashcroft, 351 F.3d 657, 660 (5th Cir. 2003).
6
Wilmore v. Gonzales, 455 F.3d 524, 526 (5th Cir. 2006).
7
Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005).
8
Smith v. Gonzales, 468 F.3d 272, 275 (5th Cir. 2006).
9
Id.
3
No. 06-60039
A
The INA defines aggravated felony as an offense that “involves fraud or
deceit in which the loss to the victim or victims exceeds $10,000.”10 Martinez
argues that his insurance fraud conviction failed to meet this definition, because
it was unclear whether he was convicted under Texas Penal Code § 35.02(a),
which he concedes involves fraud or deceit, or § 35.02(b), which he argues might
not involve fraud or deceit.
We use a categorical approach to determine whether an offense involves
fraud or deceit.11 This approach requires that the court examine the statute of
conviction (rather than any underlying facts) when determining whether the
offense meets the definition of an aggravated felony. If the statute of conviction
creates multiple offenses, only some of which meet the definition of aggravated
felony, the court may examine the conviction record12 to determine whether the
alien was convicted under a subsection of the statute meeting the definition of
aggravated felony.13
At the time of Martinez’s conviction, Texas Penal Code § 35.02 delineated
two different offenses.14 Thus, under the categorical approach, this court must
inquire whether both offenses necessarily entail fraud or deceit.15 At the time
of Martinez’s conviction, §§ 35.02(a) and (b) provided:
10
8 U.S.C. § 1101(a)(43)(M)(i).
11
James v. Gonzales, 464 F.3d 505, 508 (5th Cir. 2006).
12
In this context, the conviction record includes the “charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to
which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16 (2005).
13
Omari v. Gonzales, 419 F.3d 303, 308 (5th Cir. 2005).
14
TEX. PEN. CODE ANN. §§ 35.02(a) & (b) (Vernon 2003).
15
See James, 464 F.3d at 508.
4
No. 06-60039
(a) A person commits an offense if, with intent to defraud or
deceive an insurer, the person causes to be prepared or presents to
an insurer in support of a claim for payment under a health or
property and casualty insurance policy a statement that the person
knows contains false or misleading information concerning a matter
that is material to the claim, and the matter affects a person’s right
to a payment or the amount of payment to which a person is
entitled.
(b) A person commits an offense if, with intent to defraud or
deceive an insurer, the person solicits, offers, pays, or receives a
benefit in connection with the furnishing of health care goods or
services for which a claim for payment is submitted under a health
or property and casualty insurance policy.
Both offenses share the same element, that the offender act “with intent
to defraud or deceive an insurer,” and the plain language of both sections
provides that a violation of either necessarily entails fraud or deceit. Thus,
Martinez’s argument that § 35.02(b) might not involve fraud or deceit is without
merit.
Martinez also contends that the IJ erred by using the modified categorical
approach to determine that his conviction occurred pursuant to § 35.02(a) prior
to determining whether any subsection of § 35.02 did not necessarily entail, or
have as an element, fraud or deceit. If the underlying record reflects that a prior
conviction was clearly pursuant to a subsection of a statute containing the
requisite elements of an offense, the IJ or reviewing court is not required to
resolve whether one or more other subsections of the same statute does not set
forth the required elements. This would be a needless exercise.
5
No. 06-60039
B
We must next address whether the IJ committed reversible error by
concluding that the loss to the victim exceeded $10,000. Here, Texas Penal Code
§ 35.02 is facially overinclusive since it penalizes offenses resulting in both less
than and more than $10,000 in loss to the victim. We therefore apply the
modified categorical approach, under which we may look to the conviction record
to determine whether the alien was charged with a crime meeting the definition
of an aggravated felony.16 When a case, like the instant case, involves a guilty
plea, the court may examine the “charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by the trial judge to
which the defendant assented.”17
The charging document tracks the overinclusive statutory language. But
the signed written plea agreement reflects, among other things, that Martinez
agreed to $11,467.36 in restitution, of which Martinez was directed to pay
$5,733.68. In discussing the restitution, the plea agreement specifically
referenced the conditions of Martinez’s probation to which Martinez agreed in
the plea agreement. One of those conditions stated that Martinez was jointly
and separately liable for the entire $11,467.33.
Martinez cites a Ninth Circuit case, Chang v. INS,18 for the proposition
that “restitution” and “loss to the victim” are not necessarily interchangeable.
But as a later Ninth Circuit case, Ferreira v. Ashcroft,19 made clear, Chang does
not stand for the rule that an IJ may not look to a restitution order to determine
16
Omari, 419 F.3d at 308.
17
Id. (quoting Shepard v. United States, 544 U.S. 13, 16 (2005)).
18
307 F.3d 1185 (9th Cir. 2002).
19
390 F.3d 1091 (9th Cir. 2004).
6
No. 06-60039
the amount of loss.20 Instead, Chang stands for the proposition that a restitution
order does not establish the amount of loss if it directly contradicts the amount
of loss specified in a plea agreement or indictment.21 That is not the case here.
Like Ferreira, Martinez’s indictment merely stated that the loss exceeded
$1,500. Thus, the restitution amount and the indictment are consistent.
Martinez’s argument that the court should ignore the total restitution
amount and instead equate loss to victim with the restitution amount he
actually paid is meritless. In 8 U.S.C. § 1101(a)(43)(M)(i), Congress defined an
aggravated felony in terms of loss to the victim, not in terms of the amount the
defendant ultimately paid. The restitution order was for $11,467.36, for which
Martinez was “jointly and separately” liable. That Martinez only paid $5,733.68
does not decrease the actual loss to the victim.22
IV
Martinez finally argues that the BIA erred in using its streamlined review
process under § 1003.1(e)(4) to affirm the IJ’s decision without an opinion rather
than remand the case to the IJ or refer the case to a three-member panel.
The BIA may affirm the IJ’s decision without an opinion if:
the result reached in the decision under review was correct; any errors in
the decision under review were harmless or nonmaterial; and (A) [t]he
issues on appeal are squarely controlled by existing Board or federal
precedent; or (B) [t]he factual and legal questions raised on appeal are not
so substantial that the case warrants the issuance of a written opinion.23
20
Id. at 1098.
21
Id.
22
We do not decide whether a court may establish the amount of loss through a
restitution order alone. We use the restitution order in this case merely to disprove the
contention that it contradicts the amount of loss in Martinez’s plea agreement.
23
8 C.F.R. § 1003.1(e)(4).
7
No. 06-60039
Specifically, Martinez argues the issue regarding loss to the victim does
not meet the requirements of this streamlined review procedure. This argument
is foreclosed by precedent.24 When the BIA uses its streamlining procedures, the
IJ’s opinion is the final agency determination25 and the opinion this court
reviews.26 Thus, this court has said that requiring the BIA to perform the type
of review that Martinez requests is “unnecessary and duplicative” since courts
review the claim’s merits when examining the IJ’s decision.27 Since we find no
reversible error in the IJ’s decision, Martinez’s argument on this issue is
rejected.28
V
Based on the record, we find that Martinez’s conviction was an offense
involving fraud or deceit resulting in a loss to the victim exceeding $10,000.
Since Martinez’s conviction was an aggravated felony, we do not have
jurisdiction over his petition for review. The petition is DENIED.
24
Garcia-Melendez v. Ashcroft, 351 F.3d 657, 662-63 (5th Cir. 2003).
25
8 C.F.R. § 1003.1(e)(4).
26
Garcia-Melendez, 351 F.3d at 663.
27
Eduard v. Ashcroft, 379 F.3d 182, 195 n. 15 (5th Cir. 2004) (internal quotation marks,
brackets, and citations omitted).
28
See Garcia-Melendez, 351 F.3d at 663.
8