Cite as 28 I&N Dec. 460 (BIA 2022) Interim Decision #4037 

460 

Matter of F-R-A-, Respondent

Decided February 3, 2022

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals

The amount of forfeiture ordered in a criminal proceeding may be considered in 

determining whether a crime of fraud or deceit resulted in a loss to a victim or victims 

exceeding $10,000 pursuant to section 101(a)(43)(M)(i) of the Immigration and 

Nationality Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2018), if the amount set forth in the order 

is sufficiently tethered and traceable to the conduct of conviction. 

FOR RESPONDENT: Enedina G. Kassamanian, Esquire, Henderson, Nevada 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Rachel Silber, Associate 

Legal Advisor 

BEFORE: Board Panel: O’CONNOR and GOODWIN, Appellate Immigration Judges; 

LIEBMANN, Temporary Appellate Immigration Judge. 

O’CONNOR, Appellate Immigration Judge: 

In a decision dated June 12, 2020, an Immigration Judge denied the 

respondent’s motion to terminate his removal proceedings. The Immigration 

Judge also denied the respondent’s application for asylum and withholding 

of removal under sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration 

and Nationality Act, 8 U.S.C. §§ 1158(b)(1)(A) and 1231(b)(3)(A) (2018), 

and for protection under the Convention Against Torture and Other Cruel, 

Inhuman or Degrading Treatment or Punishment, adopted and opened for 

signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 

197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for 

the United States Apr. 18, 1988) (“Convention Against Torture”). The 

respondent has appealed from this decision and has filed a motion to remand. 

Upon our request, both parties submitted supplemental briefing on the 

respondent’s removability. The appeal will be dismissed and the motion to 

remand will be denied. 

I. FACTUAL AND PROCEDURAL HISTORY 

 The respondent is a native and citizen of Ghana who entered the United 

States in 1992 and adjusted to lawful permanent resident status in 2013. At 

some point, the respondent became involved in a multi-million dollar 
Cite as 28 I&N Dec. 460 (BIA 2022) Interim Decision #4037 

461 

conspiracy to defraud cell phone users. According to the superseding 

criminal indictment in the record, the respondent owned a company that 

provided specialized digital content for a fee to cell phone users via text 

message. The respondent was approached by owners of a mobile aggregator 

company, who devised a plan to unknowingly and automatically subscribe 

cell phone users to receive content from the respondent’s company, which, 

in turn, charged these users a monthly premium fee through their mobile 

carrier. The cell phone users never consented or agreed to the 

auto-subscription or resulting fee. The individuals at the mobile aggregator, 

and the respondent, then obtained that fraudulent fee from the mobile carrier, 

which mistakenly believed that the cell phone users had authorized the 

purchase of this respondent’s content. Based on this scheme, the respondent 

pled guilty in 2017 to conspiracy to commit wire fraud in violation of 18 

U.S.C. § 1349 and § 1343 (2012).1

 

 The Department of Homeland Security (“DHS”) placed him in removal 

proceedings, charging him with removability under section 237(a)(2)(A)(iii) 

of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2018), as a respondent convicted 

of an aggravated felony involving fraud or deceit under section 

101(a)(43)(M)(i) of the Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2018).2

 The DHS 

lodged an additional charge of removability under the same provision, 

charging the respondent with having been convicted of an aggravated felony 

attempt or conspiracy under section 101(a)(43)(U) of the Act. The DHS also 

submitted an additional factual allegation: that the respondent was ordered 

to pay forfeiture traceable to his criminal offense in the amount of 

$346,717.08. 

 

1

 Although the respondent pled guilty under the conspiracy provision in 18 U.S.C. § 1349, 

the judgment of conviction issued by the United States District Court for the Southern 

District of New York contained a clerical error, inadvertently stating that he was convicted 

under 18 U.S.C. § 1343, which defines the offense of fraud by wire, radio, or television. 

The district court later corrected the clerical error regarding the statute of conviction. The 

respondent has not demonstrated he was prejudiced by this clerical error because it is 

apparent from the record that all parties understood that the respondent was convicted 

under “conspiracy to commit wire fraud,” despite the clerical error regarding the statute 

number. Additionally, the respondent admitted the allegation in the notice to appear that 

he was convicted of this offense and the charges of removability remain the same. 

Likewise, the respondent was not prejudiced by his prior counsel’s purported failure to 

inform the court of this clerical error. See Flores v. Barr, 930 F.3d 1082, 1087 (9th Cir. 

2019) (per curiam) (acknowledging that a respondent must demonstrate that he or she 

suffered prejudice as a result of his or her counsel’s deficient performance). 

2

 The DHS also charged the respondent under section 237(a)(2)(A)(i) of the Act for 

having been convicted of a crime involving moral turpitude within 5 years after admission, 

but this charge was later withdrawn. 
Cite as 28 I&N Dec. 460 (BIA 2022) Interim Decision #4037 

462 

 The respondent denied all charges and two of the factual allegations 

concerning the amount of restitution and/or forfeiture he was ordered to pay 

traceable to his offense. He applied for asylum, withholding of removal, and 

protection under the Convention Against Torture. 

 The Immigration Judge found the respondent removable as charged and 

concluded that his conviction is one for a particularly serious crime that bars 

him from applying for asylum and withholding of removal under the Act and 

the Convention Against Torture. The Immigration Judge also concluded that 

the respondent had not met his burden to establish eligibility for deferral of 

removal under the Convention Against Torture. 

II. REMOVABILITY 

 The DHS has the burden of proving by “clear and convincing evidence” 

that is “reasonable, substantial, and probative,” section 240(c)(3)(A) of the 

Act, 8 U.S.C. § 1229a(c)(3)(A) (2018), that the respondent is removable as 

charged as “[an] alien who is convicted of an aggravated felony,” section 

237(a)(2)(A)(iii) of the Act. Section 101(a)(43)(M)(i) of the Act defines an 

aggravated felony as “an offense that . . . involves fraud or deceit in which 

the loss to the victim or victims exceeds $10,000.” 

 The parties do not dispute that the respondent’s conviction involved fraud 

or deceit. Therefore, the only remaining issue is whether his conviction 

resulted in a loss to his victim or victims exceeding $10,000. We review 

whether the respondent’s offense constitutes an aggravated felony under 

a de novo standard. See 8 C.F.R. § 1003.1(d)(3)(ii) (2021). 

 To determine if the loss to the respondent’s victims exceeded $10,000, 

we apply the “circumstance-specific approach.” Nijhawan v. Holder, 557 

U.S. 29, 38–39 (2009). This approach requires us to “look to the facts and 

circumstances underlying an offender’s conviction.” Id. at 34. Under recent 

case law from the United States Court of Appeals for the Ninth Circuit, in 

whose jurisdiction this case arises, we are not limited to reviewing a specific 

set of documents under a circumstance-specific approach; rather, we “are 

generally free to consider any admissible evidence” to determine the loss 

amount. Orellana v. Mayorkas, 6 F.4th 1034, 1041 (9th Cir. 2021). 

However, in doing so we must focus narrowly on loss amounts that are 

tethered to the counts of conviction. Nijhawan, 557 U.S. at 42; see also 

Orellana, 6 F.4th at 1043. 

It is well established that an order of restitution may be relied upon to 

determine if the loss to the victim was greater than $10,000, as long as that 

order is sufficiently tethered to the convicted conduct and shows the actual 

loss from the offense of conviction. See Nijhawan, 557 U.S. at 42–43 (noting 

the restitution order demonstrates that the losses to the victims were greater 
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463 

than $10,000); see also Fan Wang v. Att’y Gen. of U.S., 898 F.3d 341, 349–50 

(3d Cir. 2018) (considering the information, plea colloquy, presentence 

investigation, total loss specified in the judgment, and the restitution order in 

determining that the loss to the victim exceeded $10,000). The respondent 

argues that, unlike an order of restitution, we cannot rely on an order of 

forfeiture to determine whether a convicted offense involved a loss to the 

victims exceeding $10,000. 

 For the following reasons, we conclude that the amount of forfeiture, like 

the amount of restitution, may be considered to determine the amount of loss 

to the victims under section 101(a)(43)(M)(i) if the proceeds received are 

sufficiently tethered and traceable to the conduct of conviction. Forfeiture is 

a punitive tool used by the Government in sentencing to “separat[e] a 

criminal from his ill-gotten gains.” Caplin & Drysdale, Chartered v. United 

States, 491 U.S. 617, 629 (1989). In practice, “an order of forfeiture may not 

feel much different from an order of restitution, because both orders 

contemplate cash payments in similar amounts.” United States v. Torres, 

703 F.3d 194, 203 (2d Cir. 2012). However, restitution is meant to 

compensate victims for harm suffered, while forfeiture is a punishment to the 

defendant, meant to take away the proceeds received from the criminal 

actions. See id. Restitution and forfeiture may be ordered “in the same or 

similar amounts” because “restitution is calculated based on the victim’s loss, 

while forfeiture is based on the offender’s gain.” United States v. McGinty, 

610 F.3d 1242, 1247 (10th Cir. 2010) (citation omitted). Thus, if the loss the 

victims experienced is equal to the proceeds the offender gained, then the 

amount ordered for forfeiture will be similar to the amount of restitution 

ordered. 

 Only property closely tied to the criminal conduct and tainted by the 

crime can be subject to forfeiture. See United States v. Thompson, 990 F.3d 

680, 687 (9th Cir. 2021). This concept is embodied in the Federal statutes 

governing forfeiture, requiring in every instance the tainted property be 

identified as being related to the criminal actions and then removed from the 

defendant. See 18 U.S.C. § 982 (2018); 21 U.S.C. § 853 (2018); see also

18 U.S.C. § 981 (2018) (listing property subject to civil forfeiture, which can 

be ordered in criminal proceedings through 28 U.S.C. § 2461 (2018)). 

 Additionally, in conspiracy convictions, only the proceeds personally 

acquired by an individual conspirator may be subject to forfeiture—there is 

no joint and several liability. See Honeycutt v. United States, 137 S. Ct. 1626, 

1632 (2017) (determining that forfeiture is only limited to tainted property 

and therefore “does not countenance joint and several liability, which, by its 

nature, would require forfeiture of untainted property”). Therefore, in 

application, only specific proceeds received by the defendant can be subject 
Cite as 28 I&N Dec. 460 (BIA 2022) Interim Decision #4037 

464 

to forfeiture, rather than the amount that was received by the entire criminal 

enterprise. 

 We therefore conclude that the DHS can meet its burden of demonstrating 

a loss in excess of $10,000 to the victims of an offense involving fraud or 

deceit under section 101(a)(43)(M)(i) by showing that a respondent was 

subject to criminal forfeiture for such an amount and that the forfeiture 

ordered was traceable and sufficiently tethered to the conviction. See Chiao 

Fang Ku v. Att’y Gen. U.S., 912 F.3d 133, 140 (3d Cir. 2019) (considering a 

forfeiture allegation contained in the information and holding that 

a conviction under 18 U.S.C. § 1343 constituted an aggravated felony under 

section 101(a)(43)(M)(i)); Eversley-MacClaren v. Holder, 578 F. App’x 664, 

666 (9th Cir. 2014) (determining that the Board appropriately relied on 

a forfeiture order, along with other sentencing documentation, to find the loss 

to the victims exceeded $10,000 under section 101(a)(43)(M)(i)); 

cf. Barikyan v. Barr, 917 F.3d 142, 146–47 (2d Cir. 2019) (holding that an 

order of forfeiture showing a respondent laundered more than $10,000, 

established that he was convicted of aggravated felony money laundering 

pursuant to section 101(a)(43)(D) of the Act). 

 In the instant case, the respondent was convicted of conspiracy to commit 

wire fraud under 18 U.S.C. §§ 1349 and 1343. He agreed in his plea 

agreement that he was subject to forfeiture for his offense under 18 U.S.C. 

§ 981(a)(1)(C) (subjecting to forfeiture all property derived from proceeds 

traceable to the offense, or a conspiracy to commit the offense). See 

Thompson, 990 F.3d at 683 (involving a defendant convicted under 18 U.S.C. 

§§ 1349 and 1343 who was subject to forfeiture under 18 U.S.C. 

§ 981(a)(1)(C)); United States v. Day, 524 F.3d 1361, 1375–76 (D.C. Cir. 

2008) (describing when a forfeiture order is appropriate under 18 U.S.C. 

§ 981(a)(1)(C)). The sentencing judge applied the Supreme Court’s decision 

in Honeycutt in determining the forfeiture amount, specifically linking this 

amount to proceeds directly traceable to the respondent. See Thompson, 990 

F.3d at 689 (determining Honeycutt applies to forfeiture under 18 U.S.C. 

§ 981(a)(1)(C)); see also Honeycutt, 137 S. Ct. at 1632–35 (holding that 

forfeiture is limited to property or proceeds in the defendant’s possession that 

are directly traceable to his or her conduct). According to the amended 

judgement, the respondent was ordered to pay “[f]orfeiture traceable to the 

offense, in the amount of $346,717.08.” The amended judgment and the 

letter from the Federal prosecutor both explicitly state that the $346,717.08 

forfeiture amount was traceable to the respondent’s criminal conduct of 

conspiring to defraud cell phone customers.3

 This amount is thirty-four times 

greater than $10,000. 

 

3

 The respondent asserts that the prosecutor’s letter is not sufficiently reliable to establish 

that he agreed to the $346,717.08 forfeiture amount. However, as we previously noted, 
Cite as 28 I&N Dec. 460 (BIA 2022) Interim Decision #4037 

465 

 Beyond the forfeiture amount, other evidence supports the Immigration 

Judge’s finding that the respondent’s conviction resulted in a loss to the 

victims greater than $10,000. The respondent, through his criminal defense 

counsel, admitted in his plea deal that his actions caused a loss greater than 

$550,000 to his victims, resulting in a sentencing enhancement. U.S. 

Sentencing Guidelines Manual § 2B1.1(b)(1)(H) (U.S. Sentencing Comm’n 

2017) (providing for a 14-level enhancement when the loss to the victims is 

greater than $550,000 but less than $1.5 million). The district judge 

recognized this admission during the sentencing hearing. Further, the 

respondent’s indictment, to which he pled guilty, stated that the respondent 

received $600,000 in gross payments from the mobile aggregator, 

a “significant portion” of which came from auto-subscription proceeds 

obtained from the cell phone customers. Moreover, the prosecutor’s letter to 

the district judge, relaying the amount of forfeiture agreed upon, states that 

the Government intended to distribute that money to the victims upon their 

identification, indicating that the amount of forfeiture was directly 

attributable to the amount the victims lost. See 18 U.S.C. § 981(e)(6) 

(explaining that the Government may transfer forfeited property “as 

restoration to any victim of the offense giving rise to the forfeiture”). 

 The respondent argues that we cannot consider the forfeiture amount as 

an indication of the loss to his victims because the forfeiture order incorrectly 

listed legitimate funds, including funds he was given as advance payments 

during a time in which he claims he believed the scheme was legal. The 

respondent additionally argues that he invested some of his own money into 

his company, which was inappropriately included in the forfeiture 

calculation. 

 Whether or not the forfeiture amount included legitimate funds was 

a topic for consideration during the respondent’s sentencing hearing. The 

prosecutor asserted that the respondent should be ordered to pay $600,000 in 

forfeiture, which the Government claimed was the amount that the 

respondent actually received in payments. However, the respondent’s 

 

when applying the circumstance-specific approach we may consider any admissible 

documents. See Orellana, 6 F.4th at 1041. In immigration proceedings, the test for 

admissibility is whether the evidence is probative, reliable, and fundamentally fair to the 

parties. See Matter of Y-S-L-C-, 26 I&N Dec. 688, 690 (BIA 2015). The respondent has 

not demonstrated that the letter from the prosecutor is inadmissible in this regard—the 

letter appeared on letterhead from the prosecutor and was sent to the respondent’s criminal 

counsel, resulting in the amended judgment including the forfeiture order. Additionally, 

the respondent has not provided sufficient evidence that he did not, in fact, agree to this 

forfeiture amount, or that the prosecutor’s letter does not accurately reflect the parties’ 

understanding of the amount traceable to the respondent’s conduct that resulted in a loss to 

his victims. Therefore, we find the letter to be appropriately reliable to substantiate the 

amount of forfeiture the respondent was ordered to pay. 
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466 

criminal defense counsel opposed that amount, claiming that $600,000 was 

an incorrect number. Rather, the defense attorney argued that the amount 

traceable to the respondent’s criminal actions was $346,000, minus $150,000 

that went to a coconspirator. The respondent’s criminal defense counsel thus 

asserted that the correct forfeiture amount, which reflects the tainted money 

gained by the respondent, should have been $236,000.4

 

 Accordingly, even if the district court inappropriately included legitimate 

funds in the forfeiture determination, the respondent’s own defense counsel 

agreed that the respondent received at least $236,000 in fraudulent payments 

from his victims, an amount well in excess of $10,000. We need not 

determine the exact amount of loss, as long as there is no clear error in the 

Immigration Judge’s determination that the loss to the victims was greater 

than $10,000. Because the Immigration Judge’s findings are not clearly 

erroneous, we agree with the Immigration Judge that the DHS met its burden 

of establishing the $10,000 loss requirement under section 101(a)(43)(M)(i), 

and the respondent’s arguments to the contrary are unavailing. 

 Finally, the respondent argues that we cannot rely on the forfeiture 

amount because the victims of his crime were never identified. However, 

section 101(a)(43)(M)(i) of the Act merely requires a “loss to the victim or 

victims”; it does not require that the exact identity of the victim or victims 

be known. The respondent fails to cite any authority establishing that victim 

identification is an element of section 101(a)(43)(M)(i). 

 In any event, it is clear from the record that there were victims of the 

respondent’s crime. Indeed, the sentencing judge applied an enhancement to 

the respondent’s conviction because there were 10 or more victims, 

specifically taking time to explain to the respondent the harm that his actions 

may have had on his victims. We therefore agree with the Immigration Judge 

that the DHS met its burden of establishing by clear and convincing evidence 

that the respondent has been convicted of an aggravated felony involving 

fraud or deceit under section 101(a)(43)(M)(i) of the Act in which the loss to 

the victims exceeded $10,000.5

 

 

4

 We note that, before the respondent entered into an agreement with the prosecutors 

regarding the forfeiture amount, the district judge was inclined to agree with the 

Government that the amount traceable to the respondent’s offense was $600,000. 

5

 Although the respondent argues that his conviction is not sufficiently final for 

immigration purposes because he filed an appeal from his criminal conviction, the 

respondent has not provided sufficient evidence that an appeal has been filed and is still 

pending. See Matter of J.M. Acosta, 27 I&N Dec. 420, 432 (BIA 2018) (holding that 

a respondent must come forward with evidence that an appeal of a conviction has been 

filed within the prescribed deadline). But see Brathwaite v. Garland, 3 F.4th 542 (2d. Cir. 

2021) (disagreeing, in part, with our holding in Matter of J.M. Acosta). In fact, the DHS 

submitted information that the respondent’s appeal of his criminal conviction to the Second 

Circuit has been dismissed. Therefore, the respondent’s conviction is sufficiently final for 
Cite as 28 I&N Dec. 460 (BIA 2022) Interim Decision #4037 

467 

 We additionally conclude that the respondent’s conviction under 

18 U.S.C. §§ 1349 and 1343, constitutes an aggravated felony under section 

101(a)(43)(U) of the Act. First, the DHS has shown that the respondent was 

convicted of generic conspiracy under section 101(a)(43)(U) based on his 

conviction for Federal conspiracy under 18 U.S.C. § 1349. Second, as noted, 

there is no dispute that the offense underlying this conspiracy involved “fraud 

or deceit” within the meaning of section 101(a)(43)(M)(i). Third, it is 

evident from the record that the potential loss to the victims exceeded 

$10,000. See Matter of S-I-K-, 24 I&N Dec. 324, 326 (BIA 2007) (outlining 

a “three-fold burden” the DHS must bear to establish that a respondent is 

removable for an aggravated felony under sections 101(a)(43)(M)(i) and 

(U)). Accordingly, we will affirm the Immigration Judge’s conclusion that 

the respondent is removable as charged under section 237(a)(2)(A)(iii) of the 

Act. 

III. RELIEF AND PROTECTION FROM REMOVAL 

A. Particularly Serious Crime 

 We agree with the Immigration Judge that the respondent’s conviction 

for conspiracy to commit wire fraud constitutes a particularly serious crime 

barring asylum and withholding of removal under the Act and under the 

Convention Against Torture. See sections 208(b)(2)(A)(ii), (B)(i) 

241(b)(3)(B)(ii) of the Act; 8 C.F.R. § 1208.16(d)(2) (2021). The Act 

prohibits the respondent from obtaining asylum or withholding of removal if 

he has “been convicted by a final judgment of a particularly serious crime 

[and is] a danger to the community of the United States.” Sections 

208(b)(2)(A)(ii), 241(b)(3)(B)(iii) of the Act. Where the record “indicates 

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

relief may apply, the [applicant] shall have the burden of proving by 

a preponderance of the evidence that such grounds do not apply.” Matter of 

M-B-C-, 27 I&N Dec. 31, 33 (BIA 2017) (emphases omitted) (quoting 

8 C.F.R. § 1240.8(d) (2016)). 

 As discussed above, the respondent’s conviction for conspiracy to 

commit wire fraud is a conviction for an aggravated felony. This conviction 

renders the respondent statutorily ineligible for asylum because it is one for 

a particularly serious crime. See sections 208(b)(2)(A)(ii), (B)(i) of the Act. 

Because the respondent was not sentenced to an aggregate term of 

imprisonment of at least 5 years, however, his conviction is not automatically 

 

immigration purposes, and the respondent was not prejudiced by prior counsel’s alleged 

error in failing to inform the court of the purported lack of finality to his conviction. See 

Flores, 930 F.3d at 1087. 
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468 

one for a particularly serious crime for purposes of withholding of removal. 

See section 241(b)(3)(B) of the Act. 

 However, our analysis does not end there. We may conclude that an 

offense is a particularly serious crime based on the nature of the conviction, 

the type of sentence imposed, and the circumstances and underlying facts of 

the conviction. See Matter of N-A-M-, 24 I&N Dec. 336, 342 (BIA 2007), 

aff’d, N-A-M- v. Holder, 587 F.3d 1052 (10th Cir. 2009); Matter of 

Frentescu, 18 I&N Dec. 244, 247 (BIA 1982), superseded by statute in part, 

former section 243(h) of the Act, 8 U.S.C. § 1253(h) (1994), as recognized 

in Miguel-Miguel v. Gonzales, 500 F.3d 941, 946 (9th Cir. 2007). Although 

offenses against persons are more likely to be categorized as particularly 

serious crimes, crimes against property may also be found to be particularly 

serious. Matter of Frentescu, 18 I&N Dec. at 247. Additionally, aggravated 

felonies are “one of the types of crimes ‘most likely to be’ particularly 

serious.” Bare v. Barr, 975 F.3d 952, 962 (9th Cir. 2020) (citation omitted). 

 The nature of the respondent’s conviction, which involves attempting or 

conspiring to obtain money or property through fraud, brings it within the 

ambit of a particularly serious crime. See 18 U.S.C. §§ 1343, 1349; Matter 

of N-A-M-, 24 I&N Dec. at 342; see also Arbid v. Holder, 700 F.3d 379, 385 

(9th Cir. 2012) (affirming the Board’s conclusion that mail fraud is 

a particularly serious crime). Thus, we may consider all reliable information 

in determining whether the respondent’s crime is particularly serious. See 

Bare, 975 F.3d at 964–65; Matter of N-A-M-, 24 I&N Dec. at 342. 

 As noted, the respondent was convicted based on his involvement in 

a multi-million dollar conspiracy to defraud cell phone users. Specifically, 

the respondent joined his coconspirators in a plan to register cell phone users, 

without their knowledge or approval, to receive digital content from the 

respondent’s company, which in turn charged the cell phone users a monthly 

premium fee for that content through their mobile carrier. The respondent 

and his coconspirators then obtained the fraudulent fee from the mobile 

carrier. The respondent was sentenced to 33 months in prison for this 

conduct and ordered to pay forfeiture in the amount of $346,717.08, which 

was traceable to his conduct. 

 The Immigration Judge considered the respondent’s intentional 

involvement in the criminal enterprise, the amount the respondent received 

from the scheme, and the length of the respondent’s sentence for 

imprisonment. Considering the totality of the circumstances, we agree with 

the Immigration Judge that the respondent has been convicted of a 

particularly serious crime. See Arbid, 700 F.3d at 385 (concluding that a 

complex scheme to defraud victims of nearly $2 million that resulted in a 

sentence of 16 months of imprisonment and a restitution order of $650,000 

was particularly serious). 
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469 

 The respondent asserts on appeal that he believed the business to be 

legitimate at first. However, he pled guilty to willfully and knowingly 

conspiring to defraud individuals. The respondent’s plea of guilty is 

sufficient to constitute an admission that he knew he was defrauding his 

victims.6

 See Fed. R. Crim. P. 11(b)(3) (2018) (requiring the district court to 

determine that there is a factual basis for all elements of the charge before 

accepting a guilty plea). Additionally, the indictment states that the 

respondent was approached in 2012 by the mobile aggregator in order to 

begin “auto-subscribing” customers to his content, which he then did—

a process that necessarily involves defrauding the cell phone customers who 

did not authorize the subscription. We are therefore unpersuaded that the 

respondent was unaware of the illegality of the venture. 

 The respondent also argues that the seriousness of the crime is diminished 

because specific victims could not be identified. But a crime need not have 

an identifiable victim to be particularly serious. See, e.g., Matter of R-A-M-, 

25 I&N Dec. 657, 662 (BIA 2012) (concluding that the crime of child 

pornography is particularly serious because, even though the respondent had 

not harmed an identifiable victim, his offense, by its nature, “contributed to 

the sexual abuse of children” generally). Further, the judge at the 

respondent’s sentencing hearing emphasized that the respondent’s criminal 

actions harmed 10 or more real people. 

 We likewise find unavailing the respondent’s argument that his 

conviction was not serious because he was involved in the scheme for 

a shorter period of time than his coconspirators. Despite the respondent’s 

shorter involvement, he nonetheless obtained $346,717.08 in “ill-gotten 

gains” from the fraudulent scheme. Caplin & Drysdale, Chartered, 491 U.S. 

at 629. Therefore, considering the nature and seriousness of the crime and 

the scope of the harm caused, we agree with the Immigration Judge that the 

respondent’s conviction is for a particularly serious crime. He is therefore 

ineligible for asylum and withholding of removal under the Act and under 

the Convention Against Torture. See sections 208(b)(2)(A)(ii), (B)(i), 

241(b)(3)(B)(ii) of the Act; 8 C.F.R. § 1208.16(d)(2). 

B. Convention Against Torture 

 The Immigration Judge also properly denied the respondent’s request for 

deferral of removal under the Convention Against Torture. See 8 C.F.R. 

§ 1208.17 (2021). The respondent contends on appeal that he will be tortured 

 

6

 We note that while we may consider the facts of the respondent’s conviction in 

determining whether his crime was particularly serious, we cannot “go beyond the judicial 

record to determine the [respondent’s] guilt or innocence.” Matter of C-A-S-D-, 27 I&N 

Dec. 692, 700 (BIA 2019) (citation omitted). 
Cite as 28 I&N Dec. 460 (BIA 2022) Interim Decision #4037 

470 

in Ghana because of his political beliefs and tribal affiliation. The respondent 

expressed his opposition to the ruling political party in an online manifesto 

while in the United States. In 2017, the Ghanaian police questioned his 

brother regarding the respondent’s manifesto and his monetary assets, and 

then extorted the respondent’s brother for money. 

 However, the respondent does not contest the Immigration Judge’s 

finding that he did not experience past torture in Ghana. See 8 C.F.R. 

§ 1208.16(c)(3)(i). We also discern no clear error in the Immigration Judge’s 

factual finding that the respondent could avoid torture by relocating within 

Ghana. See 8 C.F.R. §§ 1003.1(d)(3)(i), 1208.16(c)(3)(ii). Further, we agree 

with the Immigration Judge’s assessment that, even if the respondent is 

harmed upon his return to the country, the harm he would likely suffer would 

not amount to torture. See 8 C.F.R. § 1208.18(a)(2) (2021) (“Torture is an 

extreme form of cruel and inhuman treatment and does not include lesser 

forms of cruel, inhuman or degrading treatment or punishment that do not 

amount to torture.”); see also Vitug v. Holder, 723 F.3d 1056, 1066 (9th Cir. 

2013) (affirming the Board’s conclusion that beatings and economic 

deprivation did not rise to the level of torture). 

 We recognize, as the Immigration Judge did, that there are reports of 

corruption and abuse within the Ghanaian Government. However, these 

conditions are not specific to the respondent and are insufficient to meet the 

respondent’s burden of proving it is more likely than not he will be tortured 

in Ghana. See 8 C.F.R. § 1208.16(c)(2); see also Delgado-Ortiz v. Holder, 

600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam) (stating that generalized 

evidence of violence and crime in the country of removal is insufficient to 

satisfy the more likely than not standard for protection under the Convention 

Against Torture). Additionally, the 2019 country conditions report from the 

Department of State, which the respondent submitted as evidence in support 

of his claim, states that there were “no reports of political prisoners or 

detainees,” that “tribal leaders and chiefs are empowered to regulate land 

access and usage within their tribal areas,” and that “[v]illage and other 

traditional chiefs can mediate local matters and enforce customary tribal 

laws.”7

 Because the evidence does not support the respondent’s claim that it 

 

7

 We may take administrative notice of the contents of the State Department report 

because it is an official document. See 8 C.F.R. § 1003.1(d)(3)(iv) (providing that the 

Board may take administrative notice of the contents of official documents). Notably, the 

facts we cite above from the country conditions report, which the respondent submitted in 

support of his claim, existed at the time of the respondent’s hearing and the respondent had 

an opportunity to address the contents of the report before the Immigration Judge. Cf. 

Circu v. Gonzales, 450 F.3d 990, 993–95 (9th Cir. 2006) (providing that due process 

requires a respondent be given notice that a document will be considered and an 

opportunity to explain why the document should not be considered). 
Cite as 28 I&N Dec. 460 (BIA 2022) Interim Decision #4037 

471 

is more likely than not he will be tortured in Ghana with the acquiescence of 

an official or an individual acting in an official capacity, we agree with the 

Immigration Judge that the respondent did not meet his burden of 

establishing his eligibility for Convention Against Torture protection. 

IV. OTHER ISSUES 

The respondent asserts on appeal that his due process rights were violated 

during his removal proceedings for a myriad of reasons. First, the respondent 

asserts that he was not properly provided notice of the allegations and 

charges in the Form I-261 (Additional Charges of 

Inadmissibility/Deportability). However, the Form I-261 was served on the 

respondent’s counsel by regular mail, and notice to the respondent’s counsel 

constitutes notice to the respondent. See 8 C.F.R. § 1292.5(a) (2021); see 

also Matter of Barocio, 19 I&N Dec. 255, 259 (BIA 1985). Moreover, 

contrary to the respondent’s appellate assertion that he was not given the 

opportunity to address the new allegation and charge, the record indicates 

that the respondent’s attorney denied the additional allegation and charge 

contained in the Form I-261. 

 The respondent additionally argues that the absence from the record of 

a digital audio recording for the hearing on April 13, 2020, violated his due 

process rights. The record indicates, however, that the Immigration Judge 

remedied this error by conducting pleadings for a second time on June 12, 

2020. Thus, the respondent has not demonstrated that he was deprived of a 

full and fair hearing. See Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 

2011) (explaining that to establish the he or she was not afforded a full and 

fair hearing, a respondent must demonstrate that “the proceeding was ‘so 

fundamentally unfair that [he or she] was prevented from reasonably 

presenting his [or her] case’” (citation omitted)). 

 The respondent also filed a motion to reopen because he allegedly 

received ineffective assistance of counsel. We construe this motion as 

a motion to remand. See 8 C.F.R. § 1003.2(c)(4) (2021). In this motion, the 

respondent alleges his attorney before the Immigration Judge inappropriately 

submitted evidence regarding his order of forfeiture, did not sufficiently 

argue that his order of forfeiture was incorrectly calculated, and did not let 

the respondent personally contest the allegations and charges on his notice to 

appear. These arguments challenge his prior counsel’s strategic decisions 

and do not establish that prior counsel was ineffective. See Jurado v. Davis, 

12 F.4th 1084, 1100 (9th Cir. 2021) (noting that there is “a strong 

presumption of effective assistance of counsel . . . and wide latitude is given 

to . . . counsel in making tactical decisions”), cert. docketed, No. 21-6954 

(U.S. Jan. 25, 2022); Matter of B-B-, 22 I&N Dec. 309, 310 (BIA 1998) 
Cite as 28 I&N Dec. 460 (BIA 2022) Interim Decision #4037 

472 

(noting that “subsequent dissatisfaction with a strategic decision of counsel 

is not grounds to reopen” based on ineffective assistance); cf. United States 

v. Lopez-Chavez, 757 F.3d 1033, 1042 (9th Cir. 2014) (finding ineffective 

assistance where counsel conceded removability when there was clear 

precedent establishing that the respondent was not removable as charged). 

As such, we will deny the respondent’s motion to remand on the basis of 

ineffective assistance of counsel. Accordingly, the respondent’s motion to 

remand is denied and his appeal is dismissed. 

ORDER: The respondent’s motion to remand is denied. 

FURTHER ORDER: The respondent’s appeal is dismissed.