United States Court of Appeals 

for the Fifth Circuit 

No. 21-60462 

Ornella Angelina Hammerschmidt, 

Petitioner, 

versus

Merrick Garland, U.S. Attorney General, 

Respondent. 

Petition for Review of an Order of the 

Board of Immigration Appeals 

BIA No. A095 368 118 

Before Smith, Barksdale, and Haynes, Circuit Judges.

Haynes, Circuit Judge:

Ornella Angelina Hammerschmidt (“Hammerschmidt”) petitions 

for review of the Board of Immigration Appeals’s (“BIA”) final order 

denying her application for, inter alia, withholding of removal under the 

Immigration and Nationality Act (“INA”) and protection under the 

Convention Against Torture (“CAT”). For the following reasons, the 

petition is DENIED in part and DISMISSED in part. 

United States Court of Appeals 

Fifth Circuit 

FILED 

November 28, 2022 

Lyle W. Cayce 

Clerk 

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I. Background 

Hammerschmidt, a native and citizen of Venezuela, was paroled into 

the United States for deferred inspection in 2001. The crimes and attendant 

consequences which form the basis of this petition began in 2009 when 

Hammerschmidt pled guilty to making a false statement in an immigration 

petition in violation of 18 U.S.C. § 1546(b). In 2015, Hammerschmidt was 

indicted for aiding and abetting and making false, fictitious, or fraudulent 

claims to the IRS alongside her co-defendant husband in violation of 18 

U.S.C. § 287. Though the indictment alleged that Hammerschmidt was 

involved in twenty-two counts of false or fraudulent tax returns, 

Hammerschmidt pled guilty to only a singular count—the fraudulent request 

of a tax refund in the amount of $2,812.00. Nevertheless, she was ordered to 

pay restitution jointly and severally with her husband in the amount of 

$45,365 and was sentenced to 48 months in prison. 

Following these convictions, Hammerschmidt was placed in removal 

proceedings for the commission of a “crime involving moral turpitude” and 

seeking to procure a visa by fraud or misrepresentation. The Immigration 

Judge (“IJ”) sustained both charges of removability. Hammerschmidt then 

applied for withholding of removal under the INA and deferral under CAT 

and purportedly reserved her asylum claim for appeal to the BIA. The IJ 

denied the application, concluding that Hammerschmidt’s testimony 

regarding alleged persecution and torture was not credible. Even assuming 

her testimony was credible, the IJ held that her withholding claim would 

nevertheless fail because her conviction under § 287 constituted an 

aggravated felony and a particularly serious crime, rendering her ineligible 

for both asylum and withholding of removal. The IJ likewise denied CAT 

deferral on the adverse credibility finding and the absence of proof that she 

would suffer torture if returned to Venezuela. The BIA adopted and 

affirmed. 

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Hammerschmidt timely petitions for review, contending that her 

conviction under § 287 cannot qualify as an “aggravated felony” or a 

“particularly serious crime,” the BIA’s adverse credibility finding is not 

supported by the record, and she provided sufficient evidence showing her 

eligibility for CAT protection. 

II. Jurisdiction

Before reaching the merits, we begin, as we must, by examining our 

jurisdiction. Rodriguez v. Holder, 705 F.3d 207, 210 (5th Cir. 2013). The 

“criminal alien bar” of 8 U.S.C. § 1252(a)(2)(C) strips us of jurisdiction to 

review the BIA’s final order of removal against a petitioner who is removable 

by reason of having committed certain criminal offenses, including crimes of 

moral turpitude and aggravated felonies. See id.; Hernandez-De La Cruz v. 

Lynch, 819 F.3d 784, 786 (5th Cir. 2016).1

 Under this bar, the petitioner 

“may obtain judicial review of constitutional and legal challenges to the final 

order of removal, but not of factual challenges.” Nasrallah v. Barr, 140 S. Ct. 

1683, 1687–88 (2020). Because the challenge here to the denial of asylum 

and withholding is primarily directed to legal questions, the classification of 

Hammerschmidt’s conviction, we have jurisdiction to consider it. 

As to our review of the decisions below, we generally have authority 

to review only the BIA’s decision. Wang v. Holder, 569 F.3d 531, 536 (5th 

Cir. 2009). But when, as here, the IJ’s ruling impacts the BIA’s decision, we 

may review both. Id. We review questions of law and constitutional claims 

de novo, while we review the limited factual findings over which we do have 

1 The criminal alien bar, however, is inapplicable to CAT orders. See Nasrallah v. 

Barr, 140 S. Ct. 1683, 1692 (2020). Thus, we have jurisdiction over the entire portion of 

the CAT-related petition.

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jurisdiction for substantial evidence. Fuentes-Pena v. Barr, 917 F.3d 827, 829 

(5th Cir. 2019). 

III. Withholding of Removal and Asylum Under the INA 

As described in the relevant statutes, an alien deemed removable may 

apply for withholding of removal or asylum under certain circumstances. See 

8 U.S.C. §§ 1231(b)(3)(A) (withholding), 1158(b)(1) (asylum). The statutes, 

however, also provide ineligibility for both if the applicant was convicted of a 

“particularly serious crime.” See id. §§ 1231(b)(3)(B)(ii); 1158(b)(2)(A)(ii). 

Whether the conviction at issue constitutes a “particularly serious crime” 

depends, in part, on the relief sought. In the asylum context, any categorical 

aggravated felony listed in 8 U.S.C. § 1101(a)(43) is a “particularly serious 

crime.” Id. § 1158(b)(2)(B)(i) (“[A]n alien who has been convicted of an 

aggravated felony shall be considered to have been convicted of a particularly 

serious crime.”). In the withholding context, however, the statute explains: 

“For purposes of [a particularly serious crime], an alien who has been 

convicted of an aggravated felony . . . for which the alien has been sentenced 

to an aggregate term of imprisonment of at least 5 years shall be considered 

to have committed a particularly serious crime.” Id. § 1231(b)(3)(B)(iv). 

Nonetheless, a conviction need not meet the five-year sentence 

threshold to constitute a “particularly serious crime” for withholding 

purposes. See Vetcher v. Barr, 953 F.3d 361, 368–69 (5th Cir. 2020). Instead, 

when a crime falls outside of the § 1231(b)(3)(B) criteria, the IJ employs a 

“case-by-case” approach to determine whether the crime in question 

qualifies as “particularly serious.” Id.; see also Aviles-Tavera v. Garland, 22 

F.4th 478, 483 (5th Cir. 2022). 

A. Aggravated Felony 

Whether a conviction constitutes an aggravated felony is a question of 

law. Fosu v. Garland, 36 F.4th 634, 636–37 (5th Cir. 2022) (per curiam). An 

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aggravated felony includes 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). To determine whether an offense falls within this 

category, we apply the “circumstance-specific approach” with the “loss to 

the victim” as the lodestar. Nijhawan v. Holder, 557 U.S. 29, 36–38 (2009). 

When assessing the loss, the IJ may consider “sentencing-related material” 

such as “[t]he court’s restitution order.” Id. at 42–43; Fosu, 36 F.4th at 638. 

Indeed, a restitution order, standing alone, may provide the requisite “clear 

and convincing evidence of the losses to [a petitioner’s] victims.” Fosu, 36 

F.4th at 638. 

Hammerschmidt does not take issue with the IJ’s reliance on the 

restitution order in determining the loss as a general matter. Instead, 

Hammerschmidt posits that $45,354 cannot establish the loss to the victim 

because she pled guilty to just one count involving a loss less than $3,000. 

But this contention obfuscates the very meaning of “joint and several” 

liability, which renders each defendant “liable for the entire amount of the 

harm.” Honeycutt v. United States, 137 S. Ct. 1626, 1631 (2017) (emphasis 

added). Further, we have previously rejected contentions of this very shade. 

See James v. Gonzales, 464 F.3d 505, 510–12 (5th Cir. 2006), overruled on other 

grounds by Nijhawan, 557 U.S. at 32; see also Martinez v. Mukasey, 508 F.3d 

255, 259–60 (5th Cir. 2007), overruled on other grounds by Nijhawan, 557 U.S. 

at 32.2

 In James, we held that the restitution order, which far exceeded 

2

 In James and Martinez, we applied the then-applicable “categorical approach” to 

determine whether the offense qualified as an aggravated felony within the meaning of 

§ 1101(a)(43)(M)(i). James, 464 F.3d at 508; Martinez, 508 F.3d at 258. Under this 

approach, we looked to the statute, rather than the underlying facts, to make this 

assessment. The Supreme Court has since clarified that we must apply the “circumstancespecific approach” to determine whether an offense, particularly one that does not contain 

a monetary threshold of $10,000, qualifies as an aggravated felony. Nijhawan, 557 U.S. at 

40. The holding of Nijhawan, however, does not disturb our conclusions in James and 

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$10,000, provided an accurate picture of the loss to the victims of the scheme 

which the petitioner aided and abetted. 464 F.3d at 510–12. For this reason, 

we concluded the restitution amount—not the single count to which the 

petitioner pled—established his conviction of an aggravated felony. Id. 

Separately, in Martinez, we concluded that a conviction qualified as an 

aggravated felony where the petitioner was subject to a plea agreement 

holding her jointly and severally liable for $11,467.33 in restitution, despite 

being directed to pay only half. 508 F.3d at 258–60. 

Our conclusion in this case is no different. The restitution order, 

which Hammerschmidt concedes holds her “joint and severally liable,” 

indicates that her conduct contributed to a total loss of more than $45,000.3

 

Because Hammerschmidt is personally liable for this amount, and her 

arguments to the contrary are foreclosed by binding precedent, we cannot 

conclude that the BIA erred in finding that the loss to the victim in this case 

exceeded $10,000. See James, 464 F.3d at 507; Martinez, 508 F.3d at 260; 

see also Vasquez-Orellana v. Holder, 338 F. App’x 536, 538, 541 (7th Cir. 2009) 

(statutory threshold met where joint-and-several restitution order amounted 

to $13,000 among four co-defendants, despite petitioner’s individual act’s 

Martinez that a joint-and-several restitution order which exceeds the statutory $10,000 

threshold brings the offense within the realm of an “aggravated felony” even if the count 

to which the petitioner pled involves less. See James, 464 F.3d at 510–12; Martinez, 508 

F.3d at 259–60. Indeed, this conclusion is bolstered by Nijhawan’s holding that a 

restitution order demonstrated that the “conviction involved losses considerably greater 

than $10,000,” and this “clear and convincing evidence” demonstrated an aggravated 

felony under § 1101(a)(43)(M)(i). 557 U.S. at 42–43. 

3

 It is worth noting, however, that Hammerschmidt is not liable for all of her 

husband’s criminal acts. Indeed, her husband was ordered to pay $1,830,848 in restitution. 

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only contributing to a $3,005 loss). Her conviction falls squarely within the 

definition of an aggravated felony under § 1101(a)(43)(M)(i).4 

B. Particularly Serious Crime 

Though Hammerschmidt was convicted of an aggravated felony, her 

conviction carried a sentence of less than five years. As such, withholding of 

removal remains available to her unless her conviction qualifies as 

“particularly serious.” To determine whether the conviction is particularly 

serious, the IJ is required to apply the “case-by-case test,” which considers 

“the nature of the conviction, the type of sentence imposed, and the 

circumstances and underlying facts of the conviction.” Aviles-Tavera, 22 

F.4th at 483. When analyzing “the nature of the conviction or elements of 

the offense, an IJ may evaluate whether a crime is an aggravated felony, but 

the IJ is not limited to solely this consideration” under the test. Id. (citing In 

re N-A-M-, 24 I. & N. Dec. 336, 342–43 (BIA 2007)). 

Hammerschmidt contends that the IJ misapplied the legal test and 

failed to first consider whether the elements of the crime fall within the 

category of particularly serious crimes. We disagree. Contrary to this 

assertion, the IJ first assessed the elements of the offense under the 

aggravated felony analysis. Following this determination, the IJ turned to the 

circumstances surrounding the crime, including Hammerschmidt’s conduct 

in holding herself out as an attorney and preying on “vulnerable persons,” 

such as those who did not speak English, to develop tax returns and defraud 

the government. We find no error in the IJ’s application of the correct legal 

test. See, e.g., Samba v. Lynch, 641 F. App’x 376, 380–81 (5th Cir. 2016) (per 

curiam) (concluding that, with respect to tax fraud, the “BIA did examine 

4

 Having been convicted of an aggravated felony, Hammerschmidt is therefore 

statutorily ineligible for asylum, and we need not address her contentions as to this claim. 

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the elements of the offense and found no clear error in the [IJ’s] finding 

that . . . [petitioner’s] conduct obstructed an important government function 

through fraudulent means”).5

 To the extent Hammerschmidt’s argument 

extends further, “essentially ask[ing] us to reweigh the facts and find that 

[her] crime was not particularly serious,” we lack jurisdiction to consider this 

argument under § 1252(a)(2)(C). Tibakweitira v. Wilkinson, 986 F.3d 905, 

911 (5th Cir. 2021). 

IV. Deferral Under CAT 

Deferral of removal under CAT differs from asylum and withholding 

of removal in that the conviction of a “particularly serious crime” does not 

bar relief thereunder. See 8 C.F.R. § 1208.17(a). To obtain protection under 

the CAT, a petitioner “must show [inter alia] that it is more likely than not 

that she will be tortured if she returns to her country of origin.” MartinezLopez v. Barr, 943 F.3d 766, 772 (5th Cir. 2019). Factual findings underlying 

the denial of CAT protection are reviewed for substantial evidence. 

Nasrallah, 140 S. Ct. at 1692. 

Hammerschmidt maintains that the IJ erred by holding that she was 

not credible and finding her assertions of torture “speculative.” But 

Hammerschmidt has proffered little explanation to close the gaps the IJ 

found in her testimony beyond her contention that the IJ failed to consider 

the role post-traumatic stress disorder could have played. Because an “IJ 

may rely on any inconsistency or omission in making an adverse credibility 

determination,” and the IJ noted in detail several inconsistencies, we cannot 

say “that the evidence was so compelling that no reasonable factfinder could 

5

 Although Samba and related unpublished opinions cited herein “[are] not 

controlling precedent,” they “may be [cited as] persuasive authority.” Ballard v. Burton, 

444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Circuit Rule 47.5.4). 

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conclude against it.” Wang, 569 F.3d at 537, 538. Because the adverse 

credibility determination was proper, the evidence does not compel a finding 

she would “more likely than not” be tortured if removed. Martinez-Lopez, 

943 F.3d at 772. 

V. Motion to Continue 

 Finally, Hammerschmidt contends that the BIA engaged in improper 

factfinding when it affirmed the IJ’s denial of her motion to continue for 

adjudication of her U-Visa application despite the IJ’s failure to consider the 

good cause factors. But the BIA affirmed the IJ’s conclusion on the basis that 

Hammerschmidt failed to argue on appeal “why good cause ha[d] been 

established” and further concluded that “a review of the record” failed to 

persuade the BIA that she had established good cause. Hammerschmidt’s 

own failure to adequately brief the issue does not amount to improper 

factfinding. Moreover, she does not allege—and the BIA decision does not 

show—that the BIA developed a record, gathered new information, or chose 

between disputed facts. See Velasquez-Zelaya v. Garland, No. 20-60531, 2022 

WL 445158, at *1 (5th Cir. Feb. 14, 2022) (per curiam) (unpublished) (“That 

the BIA looked to different, but undisputed, record facts than the [IJ] does 

not establish that the BIA engaged in improper fact-finding.”). For these 

reasons, we find no basis for granting review on this point. 

VI. Conclusion 

 Having found no error in the decisions below over which we have 

jurisdiction, we DENY Hammerschmidt’s petition for review and 

DISMISS the remainder. 

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