Maria Lepe De Quijada v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 4, 2020
• Docket: 15-72354
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIA DEL CARMEN LEPE DE No. 15-72354 QUIJADA, Agency No. A099-046-935 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 2, 2020** Pasadena, California

Before: HURWITZ and FRIEDLAND, Circuit Judges, and KORMAN,*** District Judge.

Maria Del Carmen Lepe-De Quijada, a native and citizen of Mexico,

petitions for review of a decision of the Board of Immigration Appeals (“BIA”)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. affirming an Immigration Judge’s denial of Quijada’s application for cancellation

of removal under 8 U.S.C. § 1229b(b) and special rule cancellation of removal

under the Nicaraguan Adjustment and Central American Relief Act. The BIA held

that Quijada was ineligible for either form of relief because she had been convicted

of an aggravated felony. We deny the petition for review.

Any “offense that . . . involves fraud or deceit in which the loss to the victim

or victims exceeds $10,000,” 8 U.S.C. § 1101(a)(43)(M)(i), is an aggravated felony

that renders a non-citizen ineligible for both regular and special rule cancellation of

removal, see 8 U.S.C. § 1229b(b)(1)(C); 8 C.F.R. § 1240.66(b)(1). In 2010,

Quijada pleaded guilty in state court to welfare fraud under California Welfare &

Institutions Code § 10980(c)(2). During the plea colloquy, the court noted that as

part of the disposition of Quijada’s criminal case, she had to “pay back L.A.

County $22,527.” The case docket also specified: “Defendant is to make

restitution to the victim pursuant to Penal Code section 1202.4(f), in the amount of

$22,527 to victim, Los Angeles County. ($13,040 Calworks; $9,487 Food

Stamps).” The BIA relied on the plea colloquy and case docket to conclude that

Quijada’s conviction constituted a “fraud or deceit” aggravated felony in which the

loss to the victim exceeded $10,000.

Quijada does not dispute that her offense involved fraud or deceit, but

contends that the BIA erred in holding that the offense caused a loss exceeding

2 $10,000. According to Quijada, the modified categorical approach governs the

loss amount determination, and the “narrow, specified set of documents” the BIA

is permitted to review as part of that approach is insufficient to establish that she

caused a loss exceeding the statutory threshold.

Quijada’s argument fails because the modified categorical approach does not

apply. We apply “a ‘circumstance-specific,’ fact-based approach that looks to the

facts underlying the conviction, rather than a ‘generic’ or ‘categorical’ approach, to

determine whether [a non-citizen] was convicted of an offense involving loss to the

victim exceeding $10,000.” Fuentes v. Lynch, 788 F.3d 1177, 1181 (9th Cir. 2015)

(per curiam) (quoting Nijhawan v. Holder, 557 U.S. 29, 36 (2009)). This approach

allows the immigration court to rely upon “sentencing-related material,” such as a

restitution order, to determine the amount of loss. See Nijhawan, 557 U.S. at 42-

43. Accordingly, the BIA did not err in looking to the restitution order described

in Quijada’s plea colloquy and case docket to conclude that her offense constitutes

an aggravated felony. See Ferreira v. Ashcroft, 390 F.3d 1091, 1098 (9th Cir.

2004), abrogated on other grounds by Nijhawan, 557 U.S. 29; see also id. at 1099

(observing that under California Penal Code § 1202.04(f), “a restitution order in

favor of a government agency shall be calculated based on the actual loss to the

agency”).

PETITION DENIED.