Graham v. Mukasey

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 20, 2008
• Docket: 06-4538
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 08a0108n.06 Filed: February 20, 2008

06-4538

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

NICHOLAS ANTONIO GRAHAM, ) ) Petitioner, ) ) ON PETITION FOR REVIEW OF v. ) A FINAL ORDER OF THE BUREAU ) OF IMMIGRATION APPEALS MICHAEL MUKASEY, Attorney General of ) the United States, ) )

Before: MERRITT, DAUGHTREY, and MOORE, Circuit Judges.

PER CURIAM. Petitioner Nicholas Antonio Graham is a citizen of Jamaica who

entered the United States as a visitor, overstayed his visa, and was subsequently convicted

in federal court on two counts of conspiracy to commit mail fraud. He now petitions for

review of the final administrative order of removal based on his status as an alien convicted

of an aggravated felony, under 8 U.S.C. § 1227(a)(2)(A)(iii). Graham contends that the

expedited removal procedure to which he was subjected, pursuant to 8 U.S.C. § 1228(b),

violated both his due process and his equal protection rights. We find no merit to these

contentions and, therefore, deny the petition for review.

FACTUAL AND PROCEDURAL BACKGROUND 06-4538 Graham v. Mukasey

Graham is a native and citizen of Jamaica who entered the United States on a

temporary visitor’s visa in March 1988 and remained in this country without ever obtaining

lawful permanent residence. In July 2004, Graham pleaded guilty in the United States

District Court for the Eastern District of New York to two counts of conspiracy to commit

mail fraud. Several other counts were dismissed upon motion of the United States. In

addition to a prison sentence of 41 months, Graham was ordered to pay restitution totaling

$878,235, to be distributed among three victims.

While Graham was incarcerated, Immigration and Customs Enforcement placed him

in expedited removal proceedings that are applicable to aliens who are not permanent legal

residents and who commit certain crimes. See 8 U.S.C. § 1228(b). On November 8, 2006,

Graham was served in person with an official notice of intent to remove based on his

conviction for an “aggravated felony,” pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).

“Aggravated felony” is defined in 8 U.S.C. § 1101(a)(43), in pertinent part, as an offense

that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.”

Conspiracy to commit such an offense also qualifies as an aggravated felony. See 8

U.S.C. §§ 1101(a)(43)(M)(i), (a)(43)(U). The notice informed Graham of his procedural

rights, including the right to be represented by counsel at his own expense. It also

indicated that Graham had a right to contest removal “with supporting evidence,” request

an opportunity to review the government’s evidence, admit deportability, designate the

country to which he would be removed, and apply for withholding of removal on certain

grounds listed in the notice. Finally, the notice informed Graham that any written response

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had to be received by the Immigration and Naturalization Service within 10 calendar days

from the date of personal service on Graham and that, for good cause, Graham could

request an extension of time in which to file a response within that same 10-day period.

The notice included a check-off list setting out these options but, instead of selecting

one or more of those options, Graham simply refused to sign the notice when it was served

on him on November 8, 2006. A week later, he apparently obtained counsel, who

contacted the INS by letter dated November 17, 2006, requesting an extension of time and

explaining that he had just been retained and had not yet received copies of the notice or

other relevant documents. Counsel also requested an opportunity to review the

government’s evidence. The INS received this letter on November 20, 2006, the day

Graham’s written response was due if sent by mail. But Graham’s attorney had called the

INS in the meantime and, although there is some dispute about the content of this

conversation, immigration officials were clearly left with the impression that Graham’s

attorney intended to defend against removal on the ground that Graham’s convictions did

not qualify as aggravated felonies. By letter dated November 20, the same day the written

request for an extension was received, the INS deportation officer in charge of Graham’s

case denied the extension, directing counsel to the statutory definition of “aggravated

felony” in § 1101(a)(43) and explaining that “[t]he loss to the victims in this case is a matter

of public record and is well over ten thousand dollars.” Also on November 20, the INS

issued a final administrative removal order.

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Graham filed a timely notice of appeal petitioning for review of the removal order,

arguing that various aspects of the expedited proceeding violated his due process rights

and that the Attorney General’s unfettered discretion to place him in either expedited or

general removal proceedings violated his right to equal protection.

DISCUSSION

Because the petitioner was ordered to be removed from the United States pursuant

to 8 U.S.C. § 1227(a)(2)(A)(iii) following his conviction for an aggravated felony, we are

foreclosed from review of the final order of removal under 8 U.S.C. § 1252(a)(2)(C), except

to the extent that “constitutional claims or questions of law” are raised in a challenge to the

final order. 8 U.S.C. § 1252(a)(2)(D). The government contends that we lack jurisdiction

to review the order of removal in this case because Graham did not challenge the order at

the agency level. Alternatively, the government argues that Graham has waived his right

to challenge the legal basis of the order of removal by failing to contest the legality of the

order before this court. Beyond those arguments, the government also contends that the

constitutional claims have no merit. We conclude that there is at least some evidence in

the record to support the first and second of these contentions and a solid legal basis to

support the third.

It is clear, for example, that when given the opportunity to raise a defense to

removal when the notice of intent was served personally on the petitioner, Graham not only

refused to sign the form but also failed to indicate on the list of options that he had any

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opposition to removal. Apparently the only objection raised at the agency level by his

attorney concerned Graham’s status as an “aggravated felon” under the immigration

statute. In this court, the objection concerns the process by which the petitioner’s removal

was secured rather than to the validity of the order itself.

As to the procedural due process appeal raised here, it is clear that “[e]ven if an

alien enters the United States illegally, he or she ‘may be expelled only after proceedings

conforming to traditional standards of fairness encompassed in due process of law.’”

Warner v. Ashcroft, 381 F.3d 534, 538 (6th Cir. 2004) (quoting Shaughnessy v. United

States ex. rel. Mezei, 345 U.S. 206, 212 (1953)). Graham contends that his expedited

deportation violated the traditional standards of fairness guaranteed by the due process

clause in various ways, such as: in failing to address the reasons given for his request for

an extension before denying it; in failing to allow examination of the government’s evidence

before issuing the final order; and in failing to provide him with the opportunity to rebut that

evidence in a hearing before an immigration judge. Instead, he contends, there was a

“rush to judgment” and his “right to counsel [was] swept under the rug.”

However, in order to prevail on a procedural due process challenge, Graham must

also show prejudice. Indeed, we need not address the merits of a claim if there is no

demonstration of prejudice. See id. at 539 & n. 1. Moreover, to establish the requisite

prejudice, he must show that the due process violations led to a substantially different

outcome from that which would have occurred in the absence of those violations. See

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Garza-Moreno v. Gonzales, 489 F.3d 239, 241-242 (6th Cir. 2007) (alien must show that

the absence of the due process violation “would have changed the outcome of the case.”).

Here, the only claim of prejudice came very late in the process – in the petitioner’s final

reply brief in this court, in which he asserted that “the record of conviction does not

establish the requisite amount of loss to the victim” of over $10,000 and, therefore, that his

convictions do not qualify as aggravated felonies.

This argument is completely unsupported by “the record of conviction.” It is true that

the notice of intent served on Graham does not indicate on its face that the losses resulting

from his mail fraud offenses totaled more than $10,000. However, the certified copy of the

judgment of conviction entered against him includes an order of restitution to three

separate victims that totals $878,235. Moreover, his reliance on the Ninth Circuit’s

decision in Chang v. I.N.S., 307 F.3d 1185 (9th Cir. 2002), to support his contention that

the mere recitation of the amount of restitution is insufficient to establish losses over

$10,000 is wholly misplaced, because Chang’s situation is factually distinguishable from

Graham’s.

In Chang, the petitioner had executed an agreement with the government that

permitted him to plead guilty to one count of bank fraud in return for the government’s

dismissal of the remaining 13 counts in the indictment. See Chang, 307 F.3d at 1187-88.

The plea agreement provided that “[t]he defendant and the United States agree that the

offense in Count Seven to which the defendant is pleading guilty involves a loss to the

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victim of $605.30.” Id. at 1187. As part of the plea bargain, however, the defendant also

agreed to pay restitution in excess of the specific loss caused by the conduct to which he

pled guilty, specifically $32,628.67. See id. at 1187-88. Thereafter, the INS initiated

removal proceedings against Chang, who was a native of South Korea, arguing that he

was removable as an alien convicted of an aggravated felony. See id. at 1188. The

immigration judge and in turn the BIA relied upon facts in his pre-sentence report to find

that Chang’s conduct caused a loss of over $10,000. See id. The Ninth Circuit reversed,

holding that to ignore the limiting language in the plea agreement would effectively nullify

the requirement in the immigration statute that the $10,000 loss be tied to the alien’s

conviction. See id. at 1191.

In so holding, the Chang court distinguished Khalayleh v. I.N.S., 287 F.3d 978 (10th

Cir. 2002), a case in which the petitioner had pleaded guilty to one count of passing a bad

check in the amount of $9,308, but the INS nonetheless used losses from other bad

checks to allege that more than $10,000 in losses had occurred. See Chang, 307 F.3d at

1191. The Tenth Circuit affirmed, explaining that the count to which the petitioner had

pleaded guilty did not allege a discrete fraud but, rather, a scheme to defraud that

encompassed a number of checks and, therefore, that the loss tied to the count of

conviction was the loss from the entire scheme. See Khalayleh, 287 F.3d at 980. The

Chang court also explained that it was concerned about the “sandbagging of . . . non-

citizen criminal defendants,” i.e., that “[u]nwitting alien defendants might choose to plead

guilty to only a minor charge (one that clearly wouldn’t count as an aggravated felony) . .

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. [but] the INS could later rely on information relating to a more serious charge and effect

the defendant’s removal even though the defendant would have thought justifiably that his

agreement with the government to plead guilty to only a minor charge foreclosed any such

efforts by the INS.” Chang, 307 F.3d at 1192 & n.3.

Graham has not even alleged, let alone provided documentation, that he was a

party to a plea agreement that limited the loss caused by his convictions to less than the

restitution amount or that the government is otherwise attempting to “sandbag” him with

removal despite a prior agreement to the contrary. Without such limiting language or any

other substantiated claim by Graham that the losses to his victims were less than $10,000,

we are left to conclude that the restitution ordered in the sentencing order was either

specifically tied to the counts of conviction or, as in Khalayleh, was the aggregate of loss

from a “plan or scheme” alleged in the counts of conviction, both of which charged a

conspiracy. Chang is not controlling, and we are satisfied that the record establishes

losses to Graham’s victims well above the $10,000 minimum for purposes of finding that

he was convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43). Consequently,

Graham has failed to demonstrate the requisite prejudice necessary to sustain his due

process claim.

Nor do we find any merit to the petitioner’s claim that his right to equal protection

was violated by the expedited removal process used in his case. Pursuant to the statutory

scheme for removal of non-permanent resident aliens convicted of aggravated felonies,

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the Attorney General has the discretion to place the alien in expedited proceedings, as

Graham was, or in general removal proceedings. See 8 U.S.C. § 1228(b) (expedited); 8

U.S.C. § 1229a (general). As the terminology suggests, expedited removal proceedings

are conducted more quickly and with less formal procedure than general removal

proceedings, and aliens placed in expedited proceedings are not eligible for certain types

of discretionary relief available to those placed in general proceedings. See Flores-

Ledezma v. Gonzales, 415 F.3d 375, 379 (5th Cir. 2005) (explaining the differences

between the two procedures).

The petitioner argues that the Attorney General’s “unfettered discretion to choose

between expedited removal procedure . . . and the general removal procedure . . . to

effectuate the removal of an alien who is not a lawful permanent resident” violates the

equal protection component of the Fifth Amendment’s due process clause because the

government has provided no standards governing the exercise of this discretion. However,

the petitioner concedes, as he must, that because no suspect class is involved, rational

basis scrutiny applies to this claim. Of course, “[r]ational basis review begins with a strong

presumption of constitutional validity,” and “[i]t is Petitioner’s burden to show that the law,

as-applied, is arbitrary; and not the government’s to establish rationality.” Malagon de

Fuentes v. Gonzales, 462 F.3d 498, 504 (5th Cir. 2006) (internal citations and quotation

marks omitted). Moreover, “[u]nder rational basis review, differential treatment must be

upheld against equal protection challenge if there is any reasonably conceivable state of

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facts that could provide a rational basis for the classification.” Id. (Internal citations and

quotation marks omitted).

Significantly, in this case the petitioner himself offers a rational basis for the

expedited process, noting in his appellate brief that “the decision seemingly depends

solely on how confident the ICE adjudicator is that [an] ‘aggravated felony’ has been

committed.” Just so. An adjudicator’s assessment that a case is simple as opposed to

complex is certainly a rational basis upon which to adopt expedited proceedings in

preference to general proceedings, especially when considered in conjunction with

Congress’s purpose in passing 8 U.S.C. § 1228(b), i.e., “to expedite the removal of criminal

aliens” who are not lawful permanent residents, along with the administrative constraints

of providing all such aliens with full hearings. See United States v. Hernandez-Vermudez,

356 F.3d 1011, 1014 (9th Cir. 2004) (discussing the legislative history of 8 U.S.C. §

1228(b)). Given the utterly straightforward nature of the government’s case against the

petitioner, and the obvious rationality of the decision to proceed with expedition in his

removal, we find no violation of Graham’s right to equal protection on this record.

In finding no intrinsic equal protection violation in the expedited removal procedure

authorized by § 1228(b), we join at least three of our sister circuits that have addressed this

same issue in circumstances very similar to the ones now before us and have reached the

same conclusion. See United States v. Calderon-Segura, ___ F.3d ___, 2008 WL 80705

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(9th Cir., Jan. 9, 2008); Gonzales v. Chertoff, 454 F.3d 813, 818 (8th Cir. 2006); Flores-

Ledezma, 415 F.3d at 381-82.

CONCLUSION

For the reasons set out above, we DENY review of the final order of removal in this

case.

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