2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-16-2003

Munroe v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-1471

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Munroe v. Atty Gen USA" (2003). 2003 Decisions. Paper 11.

http://digitalcommons.law.villanova.edu/thirdcircuit_2003/11
PRECEDENTIAL

Filed December 16, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-1471

AUBREY MALCOLM MUNROE,

Appellant

v.

JOHN ASHCROFT, AS ATTORNEY GENERAL OF THE

UNITED STATES; JAMES ZIGLAR, AS COMMISSIONER

OF THE IMMIGRATION & NATURALIZATION SERVICE;

ANDREA J. QUARANTILLO, DISTRICT DIRECTOR OF THE

IMMIGRATION & NATURALIZATION SERVICE; LORELEI

VALVERDE, ACTING ASSISTANT DISTRICT DIRECTORDETENTION AND REMOVAL

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(Dist. Court No. 02-cv-02256)

District Court Judge: Hon. Mary A. McLaughlin

Argued: September 15, 2003

Before: ALITO, AMBRO and CHERTOFF, Circuit Judges

(Opinion Filed: December 16, 2003)

PETER E. TORRES (argued)

P.O. Box 1613

New York, N.Y. 10159-1613

Counsel for Appellant
PATRICK L. MEEHAN

LAURIE MAGID

VIRGINIA A. GIBSON

SUSAN R. BECKER (Argued)

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

This is an appeal from the District Court’s order denying

Aubrey Malcolm Munroe’s petition for a writ of habeas

corpus. Monroe’s petition challenged a decision of the

Board of Immigration Appeals that he is deportable as an

aggravated felon due to his conviction in state court in New

Jersey for a fraud offense. In order to qualify as an

aggravated felony conviction, this offense had to involve a

loss to a victim or victims that exceeded $10,000. Monroe

argues that the New Jersey conviction does not qualify

because the sentencing judge eventually reduced the

amount of restitution that he was required to pay from

$11,522 to $9,999. Because the critical fact for present

purposes is the amount of loss, not the amount of

restitution, we affirm. 

I.

Munroe, a citizen and native of Guyana, was admitted to

the United States as a lawful permanent resident in 1980.

In 1995, Munroe was charged in two indictments returned

in the Superior Court, Hudson County, New Jersey. The

first indictment (No. 1228-07-95) charged Munroe with one

count of theft by deception, in violation of N.J.S.A. 2C: 20-

4, and alleged that Munroe had unlawfully obtained $1,000

from the First Fidelity Bank in Union City, New Jersey, in

August 1994, by depositing bad checks and then

withdrawing $1,000 from his account. The second

indictment (2227-12-95) charged Munroe with two

additional counts of violating the same statute. One count

2
alleged that Munroe had unlawfully obtained $10,500 from

the Bank of New York in Union City, and the other count

alleged that Munroe had unlawfully obtained $1270 from

that bank. In August 1999, Munroe pled guilty in the

Superior Court, Hudson County, New Jersey, to two counts

of violating N.J.S.A. 2C: 20-4. He was sentenced to two

concurrent terms of five years’ probation and was ordered

to pay restitution in the amount of $1,022 on the first

indictment and $10,500 on the second. 

Following this conviction, the Immigration and

Naturalization Service issued a Notice to Appear in Removal

Proceedings, charging that Munroe was subject to removal

on the ground that he had been convicted of two crimes

that involved moral turpitude and that did not arise from a

single scheme of misconduct. The Notice was later amended

to include the charge that Munroe was removable as an

aggravated felon pursuant to 8 U.S.C. § 1101(a)(2)(A)(iii),

based on his conviction for a crime involving fraud or deceit

in which the loss to the victim exceeded $10,000. See 8

U.S.C. § 1101(a)(43)(M)(i). 

An Immigration Judge ordered Munroe removed to

Guyana, holding that he had been convicted of two crimes

of moral turpitude and that the conviction under the Bank

of New York indictment met the statutory definition of an

aggravated felony. The BIA affirmed. 

In the meantime, Munroe and the Hudson County

Prosecutor’s Office jointly moved the Superior Court to

reduce the total amount of restitution required to $9,999,

and this motion was granted. It is apparent from the

motion and is not disputed here that the motion was not

based on a redetermination of the amount of loss caused by

the crimes but was intended to alter the effect of the

conviction for immigration purposes. 

Munroe moved for reconsideration by the BIA, but the

Board refused. The Board stated that Munroe had pled

guilty to a fraud offense involving a loss of more than

$10,000 and that it was therefore “irrelevant that

[Munroe’s] ordered restitution was later reduced.” Munroe

then filed a petition for a writ of habeas corpus, but the

District Court agreed with the Board’s reasoning, and this

appeal followed. 

3
II.

Under 8 U.S.C. § 1227(a)(2)(A)(iii), “[a]ny alien who is

convicted of an aggravated felony at any time after

admission is deportable.” The term “aggravated felony” is

now defined by statute to include “an 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). There

is no dispute in the present case that Munroe’s conviction

under the Bank of New York indictment for fraud by

deception was for an offense involving “fraud or deceit,” and

therefore that conviction qualifies as an aggravated felony

conviction if the amount of “loss to the victim” exceeded

$10,000. 

We agree with the BIA and the District Court that the

amount of loss involved in that conviction was greater than

$10,000. The indictment alleged that the loss exceeded this

amount, and Munroe does not claim that, when he pled

guilty, he admitted to only a lesser loss. Nor is there any

suggestion that the Superior Court ever found that the

amount of the loss was less than $10,000. As noted, the

Superior Court initially required Munroe to pay more than

$10,000 in restitution, and it is abundantly clear that the

Court later reduced the restitution to $9,999 for the

purpose of altering the consequences of the conviction for

immigration law purposes, not because of a recalculation of

the amount of the loss. Accordingly, the reduction in the

amount of restitution was, as the BIA held, “irrelevant” for

present purposes. 

The amount of restitution ordered as a result of a

conviction may be helpful to a court’s inquiry into the

amount of loss to the victim if the plea agreement or the

indictment is unclear as to the loss suffered. But when the

amount of restitution ordered is not based on a finding as

to the amount of the loss but is instead intended solely to

affect the defendant’s immigration status, the amount of

restitution is not controlling.

Munroe argues that, in determining the amount of the

loss involved in his state-court conviction, we are bound by

the terms of the state-court judgment and that the

reduction in the amount of restitution changed the terms of

4
that judgment. What we have said already, however, is

sufficient to dispose of this argument. Even assuming for

the sake of argument that an Immigration Judge or the BIA

is bound by the terms of a state- court judgment that has

been altered for the sole purpose of alleviating the

immigration law consequences of the conviction, that rule

would not help Munroe. Here, as noted, the amendment of

the judgment simply changed the amount of restitution; it

did not involve a state-court finding as to the amount of

loss. 

Moreover, although we need not reach the question, we

note that there is authority for the proposition that “[w]hen

a court vacates an otherwise final and valid conviction on

equitable grounds merely to avoid the immigration-law

consequences of the conviction, it usurps Congress’s

plenary power to set the terms and conditions of American

citizenship and the executive’s discretion to administer the

immigration laws.” Renteria-Gonzalez v. INS, 322 F.3d 804,

812 (5th Cir. 2003) (citation omitted). 

III.

For the reasons set out above, the District Court’s denial

of Munroe’s petition for writ of habeas corpus relief is

affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

5