United States Court of Appeals

for the Fifth Circuit ____________

No. 23-60282

Summary Calendar

____________

Sylvia O. Walter Eze, 

Petitioner, 

versus

Merrick Garland, U.S. Attorney General, 

Respondent. 

______________________________

Petition for Review of an Order of the 

Board of Immigration Appeals

Agency No. A045 081 521

______________________________

Before Jones, Southwick, and Ho, Circuit Judges.

Per Curiam:*

Sylvia O. Walter Eze, a native and citizen of Nigeria, petitions for 

review of the decision of the Board of Immigration Appeals (BIA) affirming 

her order of removal. The immigration judge (IJ) determined that she was 

removable because she had been convicted of an aggravated felony, namely 

an offense involving fraud or deceit in which the loss to the victim or victims 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

May 24, 2024

Lyle W. Cayce

Clerk

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exceeded $10,000, see 8 U.S.C. § 1101(a)(43)(M)(i); or an attempt or 

conspiracy to commit such an offense, see § 1101(a)(43)(U).

We review the BIA’s decision and consider the IJ’s decision only to 

the extent it influenced the BIA. Fosu v. Garland, 36 F.4th 634, 636 (5th Cir. 

2022). Constitutional claims and questions of law are reviewed de novo, and 

findings of fact are reviewed under the substantial evidence standard. Id.; 

Hammerschmidt v. Garland, 54 F.4th 282, 287 (5th Cir. 2022).

Walter Eze first argues that the Government failed to meet its burden 

of showing by clear and convincing evidence that the loss involved in her 

prior convictions exceeded $10,000. “The amount of loss under 

§ 1101(a)(43)(M)(i) is a factual matter to be determined from the record of 

conviction.” Fosu, 36 F.4th at 638 (internal quotation marks and citation 

omitted). The loss amount must be tied to the specific count of the 

conviction. Nijhawan v. Holder, 557 U.S. 29, 42 (2009); Fosu, 36 F.4th at 638.

At issue are Walter Eze’s federal convictions on six counts: one count 

of conspiracy to commit health care fraud (Count 1); four counts of health 

care fraud (Counts 2, 3, 5, and 6); and one count of conspiracy to pay and 

receive healthcare kickbacks (Count 7). She was sentenced to, among other 

things, restitution totaling $1,939,529.27. The criminal judgment also 

provided that she was jointly and severally liable for restitution amounts of 

$117,664.18 and $108,535.21. The IJ and BIA relied on those restitution 

figures in determining that the loss exceeded $10,000 for purposes of 

§ 1101(a)(43)(M)(i).

Walter Eze contends that she rebutted those restitution amounts with 

evidence that the actual losses involved in her four substantive counts, 

Counts 2, 3, 5, and 6, totaled less than $10,000. She argues that the four 

substantive counts were the object of the health care conspiracy under Count 

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1 and that the loss amount for that conspiracy therefore was limited to the 

loss involved in the four substantive counts.

These arguments are unavailing. Counts 2, 3, 5, and 6 each pertained 

to one fraudulent healthcare claim submitted on a discrete date in 2010 or 

2011, while the conspiracy under Count 1 was alleged to be a scheme to 

commit health care fraud that spanned from about 2007 to 2012. Her joint 

and several liability for $117,664.18 and $108,535.21 was clear and convincing 

evidence that her conduct contributed to a loss exceeding $10,000. See

Hammerschmidt, 54 F.4th at 288-89. The $1,939,529.27 restitution award 

also was clear and convincing evidence of a loss of more than $10,000. See 

Fosu, 36 F.4th at 638.

Walter Eze makes additional arguments on this issue, including that 

some of the payments received by her business were legitimate, the 

Government should be collaterally estopped from arguing otherwise, 

restitution is a sentencing matter that takes into account relevant conduct 

under the standard of preponderance of the evidence, and her conviction 

under Count 7 did not involve fraud and deceit for purposes of 

§ 1101(a)(43)(M)(i). Her arguments fail to show that the BIA’s loss 

determination should be disturbed. See Hammerschmidt, 54 F.4th at 288-89; 

Fosu, 36 F.4th at 638.

Further, the record does not reflect that the agency failed to apply the 

standard of clear and convincing evidence with respect to the loss under 

§ 1101(a)(43)(M)(i). Regarding her claims that the BIA, IJ, and Government 

misrepresented the administrative record, she has not made a prima facie 

showing that the claimed misrepresentations affected the outcome of her 

proceedings. See Arteaga-Ramirez v. Barr, 954 F.3d 812, 813 (5th Cir. 2020) 

(recognizing that prevailing on a due process claim requires that the alien 

make an initial showing of substantial prejudice). She also has not made the 

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requisite showing with respect to her claim of partiality by the IJ. See Wang 

v. Holder, 569 F.3d 531, 540 (5th Cir. 2009). Lastly, the IJ’s statement 

regarding whether her convictions categorically met the definition of an 

aggravated felony under § 1101(a)(43)(M)(i) has no bearing on the outcome 

of this case because the categorical approach does not apply to the loss 

assessment under § 1101(a)(43)(M)(i). See Nijhawan, 557 U.S. at 38-40.

The petition for review is DENIED.

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