David Evdokimow v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: August 4, 2022
• Docket: 20-2951
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 20-2951

DAVID ZDRAVETZ EVDOKIMOW,

Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA

_

On Petition for Review of an Order of the Department of Homeland Security (DHS-1: A076-556-789) _

Argued April 13, 2022

Before: AMBRO, BIBAS, and ROTH, Circuit Judges

(Opinion filed: August 4, 2022)

Stephen C. Fleming (Argued) Suite 601 119 South Burrowes Street State College, PA 16801 Counsel for Petitioner

Kathryn M. McKinney (Argued) United States Department of Justice Office of Immigration Litigation P. O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent Craig R. Shagin (Argued) Kathryn Paradise The Shagin Law Group, LLC 120 South Street Harrisburg, PA 17101 Counsel Amicus Curiae

OPINION *

AMBRO, Circuit Judge

David Evdokimow, a Swedish citizen, entered the United States in 1992 to study

medicine as a J-1 non-immigrant exchange visitor. In 2020 he was ordered to leave as a

non-citizen convicted of an aggravated felony. He now challenges that order of removal,

arguing it was not supported by clear and convincing evidence. Based on the indictment,

the judgment of conviction, and sentencing-related materials, we believe the Department

of Homeland Security (DHS) sufficiently showed Evdokimow’s conviction met the

threshold for an aggravated felony under either 8 U.S.C. § 1101(a)(43)(M) or (U). We thus

deny his petition.

I.

As a plastic surgeon, Evdokimow built a lucrative reconstructive surgery practice

in northern New Jersey. But as his practice grew, so did his tax liability. To lessen that

liability, Evdokimow began falsely reporting his taxable income in both his corporate and

personal tax filings. He filtered funds through shell companies and claimed those expenses

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 as business expenses, yet he actually used them for personal purposes. Evdokimow also

omitted from his tax returns much of the cash and check payments he received directly

from patients (as they, unlike insurance companies, do not report their payments to the

IRS). His unpaid tax obligations from tax years 2006–2010, according to the Government,

totaled $2,978,774 ($2,043,298 in unpaid corporate taxes and $935,476 in unpaid personal

taxes).

Evdokimow did not evade the IRS’s review for long. The Government launched an

investigation, and he was charged in an eight-count indictment: one count of conspiracy to

defraud the United States under 18 U.S.C. § 371, four counts of personal income tax

evasion (and attempt) under 26 U.S.C. § 7201 and 18 U.S.C. § 2, and three counts of

corporate tax evasion (and attempt) under 26 U.S.C. § 7201 and 18 U.S.C. § 2.

Evdokimow opted for trial, and a jury found him guilty on all counts. The District Court

imposed a 36-month sentence and ordered a $96,000 fine.

This conviction also had broader consequences. As a Swedish citizen present in the

United States on an O-1 visa, Evdokimow could be removed through expedited

proceedings if his conviction qualified as an “aggravated felony.” 8 U.S.C.

§§ 1227(a)(2)(A)(iii), 1228(b); 8 C.F.R. § 238.1. Following his term of imprisonment, the

DHS decided to begin the removal process. In August 2020, the DHS issued a notice of

intent to issue a Final Administrative Removal Order (FARO). It alleged Evdokimow was

not a citizen of the United States or a lawful permanent resident and was deportable under

8 U.S.C. § 1227(a)(2)(A)(iii) because he had been “convicted of an aggravated felony as

defined in” 8 U.S.C. § 1101(a)(43)(M), (U). A.R. at 4. These provisions, taken together,

3 mean an “aggravated felony” is an offense or “an attempt or conspiracy to commit an

offense” that “involves fraud or deceit in which the loss to the victim or victims exceeds

$10,000,” or “is described in section 7201 of title 26 (relating to tax evasion) in which the

revenue loss to the Government exceeds $10,000.” 8 U.S.C.§ 1101(a)(43)(M), (U).

When Evdokimow failed to challenge the allegations, 1 the DHS issued the FARO

and ordered him removed from the United States to Sweden. He now seeks our review of

that order.

II.

Federal courts have no “jurisdiction to review any final order of removal against an

alien who is removable by reason of having committed” an aggravated felony—the ground

for Evdokimow’s removal. See 8 U.S.C. § 1252(a)(2)(C). But we may review

constitutional claims and questions of law, including whether a conviction qualifies as an

aggravated felony. See id. § 1252(a)(2)(D); Wang v. Att’y Gen., 898 F.3d 341, 343 (3d Cir.

2018).

The Government insists, though, that our jurisdiction to answer even that question

is limited because, under 8 U.S.C. § 1252(d)(1), Evdokimow needed to exhaust his

challenge to the DHS’s aggravated felony designation before petitioning for our review.

Not so. That subsection requires exhaustion only of “administrative remedies available to

1 In October 2020, Evdokimow’s attorney filed with the DHS a notice of appearance and a response to the notice of intent requesting “an opportunity to review the evidence the Government is relying upon to establish removability and an opportunity to rebut the charges.” A.R. at 74–75. Nothing in the record shows, nor does Evdokimow contend on appeal, that he tried to rebut or challenge this evidence. 4 the alien as of right.” 8 U.S.C. § 1252(d)(1). And legal challenges, like to an aggravated

felony designation, are “unavailable to aliens during expedited removal proceedings.”

Jacome v. Att’y Gen., 39 F.4th 111, 121 (3d Cir. 2022). Evdokimow need not—and indeed

could not—raise this issue before the DHS prior to bringing it to our Court. So we have

jurisdiction to review his petition.

III.

A.

Under the Immigration and Nationality Act, the DHS may use expedited

proceedings to remove “an alien” who has “not been lawfully admitted for permanent

residence” and who was convicted of an “aggravated felony.” 8 C.F.R. § 238.1(b); see 8

U.S.C. §§ 1227(a)(2)(A)(iii), 1228(b). The DHS, following these procedures, ordered

Evdokimow removed based on its assessment that his federal conviction was an aggravated

felony. Because this is a legal conclusion, we take a fresh look at it; that is, we review it

de novo. Wang, 898 F.3d at 343.

An aggravated felony includes, among other things, (1) an offense that “involves

fraud or deceit in which the loss to the victim or victims exceeds $10,000,” (2) an offense

“described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to

the Government exceeds $10,000,” or (3) “an attempt or conspiracy to commit” one of

those offenses with over $10,000 in intended losses. 2 8 U.S.C. § 1101(a)(43)(M), (U); Rad

2 Evdokimow does not challenge the DHS’s conclusion that his conviction was an offense that either “involve[d] fraud or deceit” or was “described in section 7201 of title 26.” 8 U.S.C. § 1101(a)(43)(M). 5 v. Att’y Gen., 983 F.3d 651, 670 (3d Cir. 2020). We assess whether the $10,000 threshold

has been met by using the “circumstance-specific approach.” Ku v. Att’y Gen., 912 F.3d

133, 139 (3d Cir. 2019). This means we examine the “specific way in which an offender

committed the crime on a specific occasion,” Nijhawan v. Holder, 557 U.S. 29, 34 (2009),

rather than looking just to the elements of the crime (the categorical approach) or to the

charging documents, plea agreement or jury findings, and judgments (the modified

categorical approach), Ku, 912 F.3d at 139. The agency may examine all the documents

permitted under those two more restrictive approaches and “others, including the

presentence investigation report and any sentencing-related material,” to determine

whether the loss from the offense exceeds $10,000. Ku, 912 F.3d at 139 (internal quotation

marks omitted).

Take, for instance, our analysis in Ku. There we held the criminal information,

judgment, and restitution order all supported the conclusion that Ku’s wire fraud conviction

was an aggravated felony. 912 F.3d at 139–40. That information—to which Ku pled

guilty—alleged she stole more than $950,000. Id. at 140. The judgment of conviction

stated a loss of $954,515 and ordered restitution in that amount. Id. This collection of

documents “provide[d] clear and convincing evidence that Ku’s offense involved a loss of

over $10,000.” Id. Similarly, in Wang we looked to the superseding information, the

presentence report, and the District Court’s judgment that “specified a total loss of $2.2

million” and “ordered Wang to pay restitution in this amount.” 898 F.3d at 349 (internal

quotation marks omitted).

6 Here, as in those cases, the charging documents, judgment, and presentence report

show by clear and convincing evidence that Evdokimow’s conviction involved an actual

or intended loss greater than $10,000. The indictment charged Evdokimow with evading

paying at least $1.5 million in taxes. The jury convicted him on all counts. 3 And the

probation office’s presentence report noted the “total tax loss” from Evdokimow’s scheme

was $2,978,774. A.R. at 50. Taken together, and absent any conflicting evidence, these

charging and sentencing documents were enough to support the DHS’s finding that the

total loss from Evdokimow’s scheme was far beyond $10,000. 4

B.

Evdokimow also maintains that the DHS made two procedural errors in issuing his

FARO. First, the Agency mailed the FARO to a wrong address, so he was not properly

served with a copy under the DHS’s regulations. Second, a line in the FARO incorrectly

listed his offense as a theft offense under 8 U.S.C. § 1101(a)(43)(G) rather than a tax or

fraud offense under 8 U.S.C. § 1101(a)(43)(M). Though Evdokimow does not specify a

3 Evdokimow points out the “jury verdict form only indicates a finding of guilty without any finding as to loss amount.” Pet. Br. at 15. But the Supreme Court has held that the Government need not point to a jury finding on the loss amount for it to show a conviction qualifies as an aggravated felony. Nijhawan, 557 U.S. at 41–42. 4 To be sure, sometimes charging and sentencing documents will be insufficiently clear, and then the DHS’s reliance on those documents will not satisfy the “clear and convincing” standard. For example, in Rad v. Attorney General we held the agency failed to show by clear and convincing evidence that an offense involved a loss of greater than $10,000 when the BIA tried to infer the loss determination based on the sentence imposed. 983 F.3d at 666–67, 669. There, the BIA “depended on an inference drawn from the criminal judgment,” instead of “reviewing evidence from Rad’s sentencing hearing.” Id. at 658. Here, though, the DHS was not estimating the loss based solely on the sentence the District Court announced. It relied on sentencing documents (the presentence report) and the charging documents, each of which specifically designated a loss greater than $10,000. 7 basis for relief for these incidents, we deem it a due process claim. To succeed on such a

claim, the petitioner must show (1) a fundamental procedural error, and (2) prejudice.

Salazar v. Barr, 932 F.3d 704, 709 (8th Cir. 2019). And to establish prejudice, the

petitioner must demonstrate “the outcome of the proceeding may well have been different

had there not been any procedural irregularities.” Id. (internal quotation marks omitted).

Assuming these procedural errors were “fundamental”—a point of which we are

skeptical—Evdokimow does not try to argue he was prejudiced by them or that,

alternatively, he should not be required to show prejudice. He thus abandoned those

arguments. Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993) (“When an issue is either not

set forth in the statement of issues presented or not pursued in the argument section of the

brief, the appellant has abandoned and waived that issue on appeal.”). Even had he not,

there was no prejudice. Evdokimow’s counsel has now received the FARO in multiple

forms, and he has timely challenged the order in federal court. Further, the incorrect

statutory citation in one line in the FARO made no difference, as the order itself correctly

cited § 1101(a)(43)(M) and (U), as did the notice of intent.

* * *

David Evdokimow’s tax evasion scheme cheated the Government out of nearly $3

million in tax revenue, according to the record from his criminal proceeding. This easily

clears the $10,000 loss threshold for his conviction to qualify as an aggravated felony. He

also has not shown that he is entitled to relief on any due process ground. We thus deny

his petition for review.