19-3565

Rodden v. Wilkinson

BIA

Brennan, IJ

A042 782 847

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

12th day of February, two thousand twenty-one.

PRESENT:

AMALYA L. KEARSE,

PIERRE N. LEVAL,

SUSAN L. CARNEY,

Circuit Judges.

_____________________________________

JOHN RODDEN,

Petitioner,

v. 19-3565

ROBERT M. WILKINSON, ACTING UNITED 

STATES ATTORNEY GENERAL,∗

Respondent.

_____________________________________

FOR PETITIONER: NIALL MACGIOLLABHUÍ, Esq., New York, NY.

FOR RESPONDENT: WILLIAM C. MINICK, Attorney, (Linda S. 

Wernery, Assistant Director, on the 

brief) for Ethan P. Davis, Acting 

∗ Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney 

General Robert M. Wilkinson is automatically substituted for former Acting 

Attorney General Jeffrey A. Rosen as Respondent.
2

Assistant Attorney General, Civil 

Division; Office of Immigration 

Litigation, United States Department 

of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board 

of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, 

ADJUDGED, AND DECREED that the petition for review is DENIED.

Petitioner John Rodden, a native and citizen of Ireland, seeks 

review of a 2019 decision of the BIA affirming a 2018 decision of 

an Immigration Judge (“IJ”) that ordered his removal and found him 

ineligible for a waiver of inadmissibility under 8 U.S.C. 

§ 1182(h). In re John Rodden, No. A042 782 847 (B.I.A. Sept. 30, 

2019), aff’g No. A042 782 847 (Immig. Ct. N.Y. City Feb. 8, 2018). 

We assume the parties’ familiarity with the underlying facts and 

procedural history, to which we refer only as necessary to explain 

our decision denying the petition.

“[W]e review the decision of the IJ as supplemented by the 

BIA.” Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007). Because 

Rodden was ordered removed for a crime involving moral turpitude 

(“CIMT”) under 8 U.S.C. § 1182(a)(2)(A)(i)(I), our jurisdiction is 

limited to review of constitutional claims and questions of law. 

8 U.S.C. § 1252(a)(2)(C), (D). 

The Attorney General has discretion under 8 U.S.C. § 1182(h) 

to waive certain grounds of inadmissibility. An alien who has 
3

been convicted of an aggravated felony after having been admitted 

for lawful permanent residence in the United States is ineligible, 

however, for such a waiver. Id.

In 2009, Rodden pleaded guilty to conspiracy to commit “any 

offense against the United States, or to defraud the United 

States,” in violation of 18 U.S.C. § 371, based on his 

participation in a scheme involving filing false corporate tax 

returns. Rodden was admitted as a lawful permanent resident in 

1993 and does not dispute that he is removable because of his 

conviction involving moral turpitude, that is, his conviction 

under § 371. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). Accordingly, the 

only issue before us is whether his conspiracy conviction is an 

“aggravated felony” as defined by the Immigration and 

Naturalization Act (“INA”), barring him from applying for a waiver

under 8 U.S.C. § 1182(h).

Whether a conviction is an aggravated felony under the INA is 

a question of law, on which we review the agency’s decision de 

novo. Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). For 

the reasons discussed below, we conclude that Rodden’s offense of 

conviction is a fraud aggravated felony within the meaning of 8 

U.S.C. § 1101(a)(43)(M)(i) because first, 18 U.S.C. § 371 

categorically involves fraud and deceit, and second, the record 
4

contains sufficient evidence that Rodden’s violation of § 371

resulted in a loss in excess of $10,000 as the INA definition of 

aggravated felony requires.

I. Fraud and Deceit

A fraud aggravated felony is “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). To determine whether 

Rodden’s conviction “involve[s] fraud or deceit[,] . . . we employ

a categorical approach by looking to the statute defining the crime 

of conviction, rather than to the specific facts underlying the 

crime.” Kawashima v. Holder, 565 U.S. 478, 483 (2012) (internal 

quotation marks and alteration omitted). The definition provided 

in § 1101(a)(43)(M)(i) is “not limited to offenses that include 

fraud or deceit as formal elements . . . . [It also] refers more 

broadly to offenses that ‘involv[e]’ fraud or deceit — meaning 

offenses with elements that necessarily entail fraudulent or 

deceitful conduct.” Id. at 484. When the fraud aggravated felony 

provision was enacted, “the term ‘deceit’ meant ‘the act or 

practice of deceiving (as by falsification, concealment, or 

cheating).’” Id.

Rodden’s statute of conviction, 18 U.S.C. § 371, provides 

that “[i]f two or more persons conspire either to commit any 
5

offense against the United States, or to defraud the United States, 

or any agency thereof in any manner or for any purpose, and one or 

more of such persons do any act to effect the object of the 

conspiracy, each shall be fined under this title or imprisoned not 

more than five years, or both.” The parties agree that § 371 is 

divisible into two clauses: the “offense clause” and the “defraud 

clause.” They further agree that Rodden pleaded guilty to an 

offense that falls under the defraud clause of § 371. See United 

States v. Atilla, 966 F.3d 118, 130 (2d Cir. 2020) (observing that 

18 U.S.C. § 371 is divisible and prohibits two kinds of 

conspiracies against the United States). “To prove a conspiracy 

under the defraud clause, the government must establish (1) that 

the defendant entered into an agreement (2) to obstruct a lawful 

function of the government (3) by deceitful or dishonest means and 

(4) at least one overt act in furtherance of the conspiracy.” Id.

at 130 (internal quotation marks and brackets omitted).

Rodden argues that conspiracy to defraud the United States 

under § 371 is not a categorical match to 8 U.S.C. 

§ 1101(a)(43)(M)(i) because § 371 can be violated merely “by 

dishonest means,” which he contends can be something less than 

deceit. In light of the Supreme Court’s decision in Kawashima v. 

Holder, 565 U.S. 478 (2012), however, this argument fails. In 
6

Kawashima, the Court ruled that fraud and deceit need not be formal 

elements of an offense for the offense to “involve” fraud under 

the INA definition of aggravated felony. Id. at 483–84. We agree 

with the BIA that the Black’s Law Dictionary definition of 

“dishonest” comports with the Court’s broad reading in Kawashima

of fraud and deceit under § 371: it provides that a person is 

“dishonest” when he displays “a lack of integrity or probity . . 

. and therefore [a] tend[ency] to cheat people,” and that a 

“dishonest” action is one “not involving straightforward dealing; 

discreditable; underhanded; fraudulent.” Dishonest, Black’s Law 

Dictionary (11th ed. 2019), available through Westlaw. 

Accordingly, we conclude that the crime described in the defraud 

clause of § 371 and to which Rodden pleaded guilty categorically 

involves fraudulent and deceitful conduct.

II. Loss to Victim Exceeding $10,000

In addition to involving fraud or deceit, a fraud offense is 

an aggravated felony under the INA only if the loss to the victim 

exceeds $10,000. We are satisfied that the record in Rodden’s 

case establishes that the loss to the victim — the United States

— caused by Rodden’s crime exceeded $10,000. 

As the applicant for relief from removal, Rodden had the 

burden to establish his eligibility for a waiver. See 8 U.S.C. 
7

§ 1229a(c)(4)(A)(i). Because there was evidence that implicated 

a mandatory bar — an aggravated felony conviction — to the relief 

he sought, the burden fell to him to prove by a preponderance that 

the bar did not apply. 8 C.F.R. § 1240.8(d) (“If the evidence 

indicates that one or more of the grounds for mandatory denial of 

the application for relief may apply, the alien shall have the 

burden of proving by a preponderance of the evidence that such 

grounds do not apply.”).

The “[$10,000] monetary threshold applies to the specific 

circumstances surrounding an offender’s commission of a fraud and 

deceit crime on a specific occasion.” Nijhawan v. Holder, 557 

U.S. 29, 36, 40 (2009). “[T]he loss must be tied to the specific 

counts covered by the conviction.” Id. at 42 (internal quotation 

marks omitted). 

Here, to establish the extent of the victim’s loss, the agency 

relied on Rodden’s criminal judgment, which imposes on him a 

restitution obligation of $12,729. The criminal information and 

related judgment, read together, establish that Rodden pleaded 

guilty to one count of conspiracy to defraud the United States, 

and that the offense conduct ended in September 1999. Of 

significance here, the information charged no other crime.

Rodden argues on appeal, as he did before the Immigration 
8

Judge, that his plea transcript reflects that the restitution order 

covers conduct beyond that of the sole count of conviction. 

Rodden urges that the plea transcript reveals that he was “required 

to make restitution for the tax losses caused by the conspiracy 

from 1997 through 2002” and points out in contrast that his § 371 

offense conduct was ruled to have ended in 1999. A.R. at 277, 

301. Suggesting that the amount of the restitution order might 

reflect some loss in addition to that caused by this offense 

conduct, he observes that a sentencing court can order “restitution 

beyond the offense of conviction when the defendant agrees to such 

in a plea agreement.” United States v. Silkowski, 32 F.3d 682, 

688–89 (2d Cir. 1994) (internal quotation marks and citation 

omitted). 

We find Rodden’s suggestion unpersuasive. The record 

contains no indication other than the Magistrate Judge’s statement

during the plea hearing that Rodden would be “required to make 

restitution for the losses caused by the conspiracy from 1997 to 

2002,” A.R. 277, that any part of the restitution order is “based 

on acquitted or dismissed counts or general conduct” or conduct 

that continued beyond 1999. Nijhawan, 557 U.S. at 42. Rodden’s 

criminal information contains no other counts, and no other conduct 

of Rodden’s was discussed at the hearing. Therefore, we conclude 
9

that Rodden failed to establish by a preponderance of the evidence 

that the restitution amount imposed did not directly result from 

his sole count of conviction. 

Even assuming Rodden’s plea agreement did include an 

agreement to pay some restitution based on conduct occurring after 

the period specified in his offense of conviction, Rodden would 

still not have carried his burden unless the amount of that 

restitution (based on something other than the conduct of 

conviction) equaled at least $2,729. Rodden was required to show 

that his offense of conviction did not cost the government more 

than $10,000. Unless at least $2,729 of the restitution was for 

something other than Rodden’s conduct of conviction, the 

restitution order of $12,729 strongly supports the inference that 

the government’s loss from Rodden’s criminal conduct exceeded 

$10,000. Rodden has not introduced the plea agreement, or any 

other evidence, that shows that the amount of loss attributable to 

his conduct of conviction was less than $10,000. Therefore, we see 

no basis for concluding that Rodden’s conviction did not cause a 

loss of more than $10,000 to the government; certainly Rodden has 

not shown otherwise. Id. Given the record before us, we conclude 

that the restitution amount reliably establishes the loss amount

for purposes of 8 U.S.C. § 1101(a)(43)(M)(i). Rodden has therefore 
10

been convicted of a fraud aggravated felony under the INA and is 

ineligible for a waiver of inadmissibility under 8 U.S.C. 

§ 1182(h).

We have considered all of Rodden’s arguments and find in them 

no basis for reversal. For the foregoing reasons, the petition for 

review is hereby DENIED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court