Khalulyan v. Garland

An alien who is convicted of an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” may be removed from the United States. 8 U.S.C. §§ 1101(a)(43)(M)(i), 1227(a)(2)(A)(iii).

Defendant petitioned for review the decision of the Board of Immigration Appeals that found him removable for having been convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i). Defendant assigned error to the government not meeting its burden of showing that he was guilty of a conspiracy that involved more than $10,000 in losses to the victims. Defendant argued that the Immigration Judge never determined how much loss he personally caused through his participation in the skimming device scheme. An alien who is convicted of an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” may be removed from the United States. 8 U.S.C. §§ 1101(a)(43)(M)(i), 1227(a)(2)(A)(iii). The Court was unpersuaded because Defendant was convicted of conspiracy and the amount of loss “tethered to” a conspiracy conviction is the loss associated with the conspiracy itself. Nijhawan v. Holder, 557 U.S. 29, 38 (2009). Defendant in his plea agreement admitted that he knew his co-conspirators were stealing credit card numbers and further agreed to a sentencing enhancement for a “Loss of More Than $250,000.” Dismissed in part and denied in part.