Case: 18-14621 Date Filed: 07/16/2019 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-14621 Non-Argument Calendar ________________________ Agency No. A046-018-748 KAYLA PAUL LINDSEY, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (July 16, 2019) Before WILLIAM PRYOR, NEWSOM, and GRANT, Circuit Judges. PER CURIAM: Case: 18-14621 Date Filed: 07/16/2019 Page: 2 of 6 Kayla Lindsey, a native and citizen of the Bahamas, petitions for review of the Board of Immigration Appeals’s decision affirming the Immigration Judge’s order of removal and denial of a waiver of inadmissibility under § 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h). On appeal, she argues (1) that the government did not satisfy its burden of showing that she was removable, as her conviction under 18 U.S.C. § 371 is not an aggravated felony under INA § 101(a)(43)(M), 8 U.S.C. § 1101(a)(43)(M); (2) that the BIA erred in affirming the IJ’s decision that she is statutorily ineligible for a § 212(h) waiver of inadmissibility; and (3) that the IJ violated her due process rights by determining that she was ineligible for a § 212(h) waiver without reviewing her brief. After careful review, we dismiss in part and deny in part. I We review only the decision of the BIA, except to the extent that the BIA has expressly adopted the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Courts lack 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); 8 U.S.C. § 1227 (a)(2)(A)(iii). We do, however, retain jurisdiction “to determine underlying facts that establish our jurisdiction or lack of it,” which means here we can consider whether substantial evidence supports the government’s contention that Lindsey has committed an aggravated 2 Case: 18-14621 Date Filed: 07/16/2019 Page: 3 of 6 felony. Garces v. U.S. Atty. Gen., 611 F.3d 1337, 1343 (11th Cir. 2010). “The upshot of all this is that the jurisdictional question merges into our consideration of the merits.” Id. (citations omitted). The INA 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.” INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i). Lindsey concedes that she was previously convicted of conspiracy to defraud the United States under 18 U.S.C. § 371. She contends, however, that she was not removable as a result of this conviction because it does not qualify as an “aggravated felony.” The problem for Lindsey is that the Supreme Court has clearly held that § 371 “involves fraud or deceit” for purposes of § 1101(a)(43)(M)(i). Nijhawan v. Holder, 557 U.S. 29, 40 (2009). To the extent that Lindsey argues that the “loss” from her conviction did not “exceed[] $10,000,” we are unpersuaded. Lindsey argues that the ...
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