Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hamilton v. Holder

October 27, 2009

SHAWN JAMES HAMILTON, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT.



PETITION FOR REVIEW OF A DECISION OF THE BOARD OF IMMIGRATION APPEALS.

The opinion of the court was delivered by: O'brien, Circuit Judge.

PUBLISH

Before O'BRIEN, PORFILIO, and TYMKOVICH, Circuit Judges.

Shawn James Hamilton petitions for review of an order of the Board of Immigration Appeals (BIA) affirming the decision by the immigration judge (IJ), which found Hamilton ineligible for cancellation of removal because he had been convicted of an aggravated felony. We deny the petition.

Background

Hamilton is a native and citizen of Canada. In 1993, he became a permanent lawful resident of the United States. In 2006, the Department of Homeland Security sought to remove Hamilton based upon his conviction of a crime of moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). Hamilton conceded removability but sought cancellation of removal for certain permanent residents pursuant to 8 U.S.C. § 1229b(a), which required him to show he "ha[d] not been convicted of any aggravated felony," id. § 1229b(a)(3).*fn2 At his first merits hearing before the IJ, Hamilton admitted to a conviction of conspiracy to commit mail fraud. But, he argued, that conviction did not qualify as an aggravated felony because, according to the restitution order contained in the judgment of conviction, the victims' loss was limited to $9,900, below the $10,000 floor for a felony offense.*fn3

The IJ wanted to further develop the record as to the amount of loss so he continued the hearing to give the parties an opportunity to present additional evidence on that issue. At the second hearing, the government submitted Exhibit 6, which contained the following evidence: (1) the plea agreement for Hamilton's co-conspirator, Gregory Maxwell; (2) Maxwell's judgment of conviction; (3) the information charging Hamilton with one count of conspiracy to commit mail fraud; (4) Hamilton's presentence investigation report (PSR); and (5) an addendum to Hamilton's PSR. See Admin. R. at 202-244. Hamilton objected to all of the evidence in Exhibit 6, with the exception of the information, which had previously been admitted with Hamilton's judgment of conviction in Exhibit 5 at the first merits hearing.

The IJ denied relief, concluding Hamilton was not eligible for cancellation of removal because he had been convicted of a fraud or deceit offense resulting in a loss to the victim or victims exceeding $10,000. Hamilton's conviction came as a result of his involvement in a scheme whereby he and a co-conspirator (Maxwell) burned Maxwell's automobile in order to collect insurance proceeds.

In determining the amount of loss to the victims the IJ relied on information contained in Hamilton's PSR, which reported the insurance claim for the loss of Maxwell's automobile at $22,240.*fn4 See Admin. R. at 6, 229. The BIA affirmed the IJ's decision. This petition for review followed.

Analysis

I. Jurisdiction

We first address jurisdiction. Although Congress has explicitly barred our jurisdiction to review denials of discretionary relief under § 1229b, see 8 U.S.C. § 1252(a)(2)(B)(i), and to review final orders of removal against an alien who is removable for committing a crime of moral turpitude, see id. § 1252(a)(2)(C)-both of which are applicable here-the government concedes we have jurisdiction to consider the legal issue presented in this case under the exception to these jurisdictional bars in 8 U.S.C. § 1252(a)(2)(D). See, e.g., Vargas v. Dep't of Homeland Security, 451 F.3d 1105, 1106 (10th Cir. 2006). Our review is limited to a narrow issue of law: whether it was proper for the IJ to consider information contained in Hamilton's PSR in order to determine if the amount of loss sustained by the victims of his crime met the $10,000 threshold, defining the offense as an aggravated felony, see 8 U.S.C. § 1101(a)(43)(M)(i).

II. Standard of Review

A single BIA member decided the merits of the appeal and issued an opinion affirming the IJ's decision. See 8 C.F.R. § 1003.1(e)(5). In these circumstances, the BIA's order is the final order under review but "we may consult the IJ's opinion to the extent that the BIA relied upon or incorporated it." Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). We review de novo ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.