Gilda Altagracia Abreu-Reyes, A.K.A. Gilda A. Desmith v. Immigration and Naturalization Service

292 F.3d 1029, 2002 Cal. Daily Op. Serv. 5053, 2002 Daily Journal DAR 6423, 2002 U.S. App. LEXIS 10973

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 10, 2002
• Docket: 99-70542
• Status: Published

Opinions

OPINION

SAMUEL P. KING, District Judge.

Gilda Altagracia Abreu-Reyes a.k.a. Gilda Ada DeSmith .(“Abreu-Reyes”), a native and citizen of the Dominican Republic, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) finding her removable. Abreu-Reyes was convicted of bribery concerning a program receiving federal funds and of subscribing to a false tax return. The Immigration and Naturalization Service (“INS”) charged that Abreu-Reyes was subject to removal for having been convicted of an aggravated felony. We have jurisdiction pursuant to 8 U.S.C. § 1252(b).

I. FACTS

Abreu-Reye has been a lawful permanent resident in the United States since 1971. In 1997, she plead guilty to three counts of a five-count indictment, was convicted, and a federal district court sentenced her to six months in prison for bribery concerning a program receiving federal funds in violation of 18 U.S.C. § 666, and subscribing to a false tax return in violation of 26 U.S.C. § 7206(1).

On May 27, 1998, the INS issued a Notice to Appear in removal proceedings. The Notice to Appear alleged that Abreu-Reyes had been admitted to the United States, but was removable for having been convicted of an aggravated felony as defined in § 101(a)(43)(M) of the INA, 8 U.S.C. § 1101(a)(43)(M). At the removal hearing, the Immigration Judge (“IJ”) relied on the pre-sentence report prepared by the district court to find that Abreu-Reyes’s conviction for subscribing to a false tax return was an aggravated felony as a fraud offense under § 101(a)(43)(M) of the INA. Although the record before the IJ contained the ■ judgment of Abreu-Reyes’s conviction, the judgment itself did not indicate the amount of loss to the federal government. ■ Abreu-Reyes’s pre-sentence report was used to determine this critical fact because to constitute an aggrar vated felony, the loss to the victim must exceed $10,000. The IJ issued an order removing Abreu-Reyes.

On appeal to the BIA, Abreu-Reyes argued that the IJ erred in.relying on the information in the pre-sentence report to establish the amount of loss. The BIA disagreed, however, and found that many different documents may constitute the record of conviction that an IJ may permissibly rely upon. The BIA stated that while it has not specifically held that a pre-sentence report is included in a record of conviction, § 240(c)(8)(B) of the INA, 8 U.S.C. § 1229a(c)(3)(B), allows for its inclusion.

Abreu-Reyes also argued that the pre-sentence report was hearsay. In response, the BIA noted that hearsay evidence is admissible in immigration proceedings if the evidence is probative and its use is fundamentally fair. Thus, the BIA found that the IJ properly admitted the pre-sentence report into the record.

.Lastly, Abreu-Reyes argued that she was deprived of equal protection under the Fourteenth Amendment because of her ineligibility for removal relief. The BIA held that it lacked jurisdiction to rule upon the constitutionality of the INA arid its regulations. This petition for review followed.

II. DISCUSSION

A. JURISDICTION

Under the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), we must dismiss the alien’s petition for lack of jurisdiction. Castro-Baez v. Reno, 217 F.3d 1057, 1058 (9th Cir.2000) (citing 8 U.S.C. § 1252(a)(2)(C)). Accordingly, if the BIA correctly concluded that Abreu-Reyes was convicted of an aggravated felony, we lack jurisdiction to review the removal decision. Park v. INS, 252 F.3d 1018, 1021 (9th Cir.2001). Nevertheless, we retain jurisdiction to determine our own jurisdiction. Id.

B. THE PRE-SENTENCE REPORT

The first issue we must decide is whether the IJ erroneously relied upon the pre-sentence report to determine that Abreu-Reyes’s fraud conviction caused a loss to the victim, the Internal Revenue Service (“IRS.”), .in excess of $10,000. If not, her conviction would fall into the “aggravate,d felony” category and render her removable. 8: U.S.C. §§ 1101(a)(43)(M)(i) and (if).

We review de novo the threshold issue of whether a particular offence constitutes an “aggravated felony” for which an alien is deportable. Park, 252 F.3d at 1021. The BIA’s determinations of purely legal issues are reviewed de novo, but are generally entitled to deference under Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); E.g., Hughes v. Ashcroft, 255 F.3d 752, 757 (9th Cir.2001).

The INA provides an extensive list of what may constitute proof of a criminal conviction.' § 240(c)(3)(B). Significantly, § 240(e)(3)(B)(vi) provides that “[a]ny document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of a conviction” shall constitute proof of a criminal conviction.¹ When examining an alien’s removability, courts refer to the record of conviction, which includes the indictment or information,- plea, verdict or judgment, and sentence, to determine the nature of the underlying crime for which an alien was convicted. See Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir.1993) (examining alien’s indictment to determine whether the resulting conviction involved moral turpitude); Wadman v. INS, 329 F.2d 812, 814 (9th Cir.1964).

We find that the pre-sentence report falls into the category of documents that constitute proof of the nature of the alien’s criminal conviction. The pre-sentence report is a document prepared under the direction of the court in which the conviction is entered, and it indicates the existence of a conviction. In this case, the report was prepared under the direction of the federal district court'by a probation officer after Abreu-Reyes pled guilty to two counts of subscribing to a false tax return. Although the judgment is proof of the conviction, the IJ necessarily relied upon the pre-sentence report for proof of the amount of loss to the victim because no other document in the record provided that information.

Abreu-Reyes asserts that it was improper to admit the pre-sentence report as part of the record of conviction because it is irrelevant and unreliable hearsay. The test for admissible hearsay in removal proceedings is whether (1) the hearsay statement is probative and (2) whether its admission is fundamentally fair. See Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir.1983). In addition, the INS must present “clear, unequivocal, and convincing” evidence to prove removability. Woodby v. INS, 385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). The court examines “whether there is reasonable, substantial, and probative evidence in the record as a whole to support the BIA’s decision that the INS” has met this burden. Heman-dez-Robledo v. INS, 777 F.2d 536, 539 (9th Cir.1985).

The report provided considerable detail with regard to Abreu-Reyes’s crimes, including the loss to the victim as calculated by the IRS, which far exceeded $10,000. For example, paragraph forty-nine of the pre-sentence report states that “[according to the calculations of the IRS case agent, DeSmith owes $37,546 ($25,470 for 1992 and $12,076 for 1993) in taxes not paid” and that “this amount does not include penalties and interest.” Paragraph fifty under the heading “Victim Impact” again states that “[a]s a result of the defendant’s commission of the offense, the $37,546 is due in taxes owed to the IRS and that “[a]s indicated, this figure does not include interest and penalties.’ ”

Furthermore, Abreu-Reyes provided no evidence at the removal hearing or to the BIA that the amount of the loss to the IRS was less than $10,000. There is also no indication that pursuant to Federal Rules of Criminal Procedure 32(b)(6)(B) Abreu-Reyes communicated in writing any objections to any material information in the pre-sentence report.

The fact that Abreu-Reyes was sentenced to only six months does not show that the loss to the government was not in excess of $10,000. The pre-sentence report shows a Total Offense Level of twelve, which corresponds to a sentencing range of ten to sixteen months. However, the district judge could have sentenced Abreu-Reyes to six months, instead of ten to sixteen months, for a couple of reasons. For example, the district judge could have possibly considered paragraph 135 of the pre-sentence report, entitled “Impact of Plea Agreement,” which states that “[p]ur-suant to a written plea agreement, the defendant’s total adjusted offense level would be 12 less two levels for acceptance of responsibility for a total offense level of 10, giving her a guideline sentencing range of 6 to 12 months.”

Another valid reason for the six-month sentence could be that Abreu-Reyes served her term as a combination of a six-month sentence and community confinement or home detention with a supervised release. Paragraph 136 of the-pre-sen-tence report, entitled “Supervised Release,” explains that “[t]he sentencing factors to which the parties have stipulated place the defendant in Zone B of the Sentencing Table.” A Zone B sentencing range means that Abreu-Reyes could have served “at least one month of imprisonment and the remainder of the term ... by community confinement or home detention Paragraph 136 also states that Abreu-Reyes was “evaluated and found suitable for the electronic monitoring home detention program.”

Additionally, paragraphs 138 and 139, entitled “Probation,” explain that if the district judge finds the applicable sentencing range is in Zone B, then the “[m]ini-mum term may be satisfied by community confinement, intermittent confinement, or home detention as a condition of probation” and that the “minimum term in sentencing range is 1-6 months.” Thus, the district judge could have sentenced Abreu-Reyes to just six months with a term of home detention because her applicable sentencing range fell under Zone B.

We do not know exactly how the district judge decided on a six-month sentence, but the pre-sentence report provides plausible alternatives as to how he could have arrived at that figure. Nothing in the pre-sentence report suggests that the six-month sentence somehow resulted from a finding that the loss to the government was not in excess of $10,000. Everything in the pre-sentence report indicates a higher loss.

There being no evidence to the contrary, we find that the IRS calculations in the pre-sentence report are relevant and reliable and, therefore, satisfy the probative prong of the admissible hearsay test. We further find that, as a whole, the report provided clear and convincing evidence that the loss to the victim was in excess of $10,000. The question then arises whether admitting this evidence was fundamentally unfair because of the confidential nature of pre-sentence reports..

While it is true that a pre-sentence report is a confidential document, disclosure of pre-sentence.reports is warranted in some cases. Parties seeking access to a pre-sentence report must make a threshold showing that disclosure would serve the “ends of justice.” United States v. Schlette, 842 F.2d 1674, 1581 (9th Cir.1988) (citing Berry v. Dep’t of Justice, 733 F.2d 1343, 1352 (9th Cir.1984)). The court then balances the need for disclosure against the reasons for confidentiality on a case-by-case basis. Id. The issue here is whether the IJ’s use of the pre-sentence report for this limited purpose was proper.

“A pre-sentence report is prepared primarily for court use, although an ancillary function is to aid agency decision-making.” Id. Congress created immigration judges to act for the agency and to apply the laws of the United States to the INS. See Singh v. Waters, 87 F.3d 346, 346-47 (9th Cir.1996). If third parties may have access and rely on pre-sentence reports in certain situations, surely an IJ acting for an agency may as well.. Furthermore, although the record does not explain how the IJ obtained the pre-sentence report, determining whether an alien is removable for having committed an aggravated felony certainly meets the “ends of justice” standard.

More importantly, the IJ’s narrow use of the pre-sentence report to ascertain whether the loss to the victim was greater than $10,000 did not invade the confidentiality of the rest of the document; no other information was disclosed. Further, the need.for .disclosure of the amount of loss to the victim outweighs the reasons for maintaining the confidentiality of that information. Thus, we find that admitting the evidence of the amount of.loss to the victim contained in the pre-sentence report was not fundamentally unfair, and the IJ properly relied on the pre-sentence report to determine Abreu-Reyes’s removability.

C.AGGRAVATED FELONY

Abreu-Reyes argues that the crime for which she was charged, subscribing to a false tax return in violation of 26■U.S.C. § 7206(1), does not fall within the definition of aggravated felony. Under 8 U.S.C. § 1101(a)(43)(M)(i), the term “aggravated felony” means an, offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” The statute clearly encompasses the offense for which Abreu-Reyes was charged because her offense-subscribing to a false tax return-involved “fraud or deceit,” and the loss to the United States exceeded $10,000. “ ‘Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a court in departing from the plain meaning of words ... in search of an intention which the words themselves did not suggest.’ ” United States v. Gonzales, 520 U.S. 1, 8, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) (quoting United States v. Wiltberger, 5 Wheat. 76, 95-6, 5 L.Ed. 37 (1820) (Marshall, C.J.)).

We note that the United States Supreme Court recently explained that the term “aggravated felony” has always been “defined expansively” and that it was “broadened substantially” by IIRIRA. INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2276 n. 4, 150 L.Ed.2d 347 (2001) (observing that “all convictions involving fraud or deceit in which the-loss to the victim exceeds $10,000 (as opposed to $200,000 pre-IIRI-RA)” are now considered aggravated felonies) (emphasis added).

D. NATIONALITY CLAIM

It is unclear whether Abreu-Reyes contended that she was a national of the United States. Nonetheless, we have jurisdiction to review her claim that she is a national and, thus, is not “an alien” subject to removal. 8 U.S.C. § 1252(b)(5)(A); Hughes at 755. We may dismiss the claim if we find that no genuine issue of material fact regarding her nationality was presented. Id. at 758. While Abreu-Reyes mentions the possibility that she might be a “national” in the introduction to her brief, she did not present it as an issue for our review or provide any support for her contention. Thus, we find that Abreu-Reyes failed to establish a genuine issue of material fact regarding her nationality. Accordingly, we dismiss any nationality claim.

E. CONSTITUTIONAL CLAIM

Abreu-Reyes further claims that her ineligibility for discretionary relief from removal was unconstitutional. Because we conclude that Abreu-Reyes’ conviction is an aggravated felony, we lack jurisdiction over this claim.

PETITION FOR REVIEW DENIED.

1 . 8 C.F.R. § 3.41 also provides: "In any proceeding before an Immigration Judge ... (d) Any other evidence that reasonably indicates the existence of a criminal conviction may be admissible as evidence thereof.” (emphasis added).