2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-12-2013

Rafael Corporan v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1702

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 11-1702

_______________

RAFAEL CORPORAN,

Petitioner

v.

THE ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

_______________

On Petition for Review of a Final Order 

of the Board of Immigration Appeals

(No. A044-129-887)

Immigration Judge: Honorable Kenneth S. Hurwitz

_______________

Argued April 16, 2013

_______________

Before: AMBRO, HARDIMAN, and COWEN, Circuit Judges

(Opinion filed: September 12, 2013)

Jack Wallace, Esquire

Immigration Law & Litigation Group

2964 Aviation Avenue, Suite 301

Miami, FL 33133

Jessica Zagier Wallace, Esquire (Argued)

Carlton Fields

100 Southeast Second Street, Suite 4200

Miami, FL 33131

Counsel for Petitioner
2

Eric H. Holder, Jr. 

 Attorney General

Stuart F. Delery

 Acting Assistant Attorney General

 Civil Division

Thomas B. Fatouros (Argued)

 Senior Litigation Counsel

Janette L. Allen, Esquire

Thomas W. Hussey, Esquire

Aaron R. Petty, Esquire

United States Department of Justice

Office of Immigration Litigation

Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

_______________

OPINION OF THE COURT

_______________

AMBRO, Circuit Judge

Rafael Corporan petitions for review of an Immigration Judge‟s (“IJ”) order 

finding him removable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act 

(“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii). We grant in part, deny in part, and remand the 

case to the Board of Immigration Appeals (“BIA”). 

I.

In 2009, Corporan, a citizen of the Dominican Republic and lawful permanent 

resident of the United States, pled guilty to one count of conspiracy in violation of 18 

U.S.C. § 371. He was sentenced to five months‟ imprisonment and ordered to pay 

restitution (along with a co-conspirator) of $47,299. Following that conviction, the 
3

Department of Homeland Security (“DHS”) charged Corporan as removable as an alien 

convicted of an “aggravated felony” defined in INA § 101(a)(43), 8 U.S.C. 

§ 1101(a)(43). Specifically, DHS contended that he committed an offense that 

“involve[d] fraud or deceit in which the loss to the victim or victims exceed[ed]

$10,000,” 8 U.S.C. § 1101(a)(43)(M)(i). Corporan filed a motion for termination of the 

removal proceedings, arguing that his conviction was a hybrid offense under Nugent v. 

Ashcroft, 367 F.3d 162 (3d Cir. 2004). A hybrid offense is an offense described by two 

of § 1101(a)(43)‟s definitions, and thus must meet the requirements of both in order to be 

an “aggravated felony.” Corporan conceded that his was an offense involving fraud or 

deceit under § 1101(a)(43)(M)(i), but he argued that it was also a theft offense under 

§ 1101(a)(43)(G), which requires a one-year prison sentence.

The IJ agreed that Corporan‟s was a hybrid offense under Nugent and determined 

that he was not removable because his conviction did not include the requisite one-year 

prison sentence under § 1101(a)(43)(G). As such, the IJ explained that “[t]he issue of 

whether respondent‟s fraud conviction resulted in the loss of more than $10,000[] need 

not be resolved.” 

On appeal, the BIA overturned the IJ‟s decision, determining that Nugent did not 

apply. The BIA held that Corporan was convicted of an offense involving fraud and 

deceit with a loss of $10,000 and “[he] is removable.” On remand, the IJ ordered 

Corporan removed. 

Corporan filed this petition for review, arguing that: (1) his offense was a hybrid 

offense under Nugent; and (2) in any event, the BIA erred by concluding that his offense 
4

involved a loss of $10,000, as this is a factual finding that must be made by the IJ in the 

first instance.

II.1 

Corporan‟s first argument is now foreclosed. In Al-Sharif v. United States Citizen 

and Immigration Services, ___ F.3d ___, No. 12-2767, 2013 WL 4405689 (3d Cir. Aug. 

19, 2013) (en banc), we rejected Nugent‟s hybrid theory. Any “offense that „involves 

fraud or deceit in which the loss to the victim exceeds $10,000‟ is an aggravated felony 

under § 1101(a)(43)(M)(i) regardless of whether it also meets the requirements of some 

other subparagraph [of § 1101(a)(43)].” Id. at *4. At the Court‟s request, the parties 

filed letter responses to Al-Sharif, and agree that Corporan‟s first allegation of error is not 

a viable ground for relief.

As to the loss amount—Corporan‟s second alleged error—the BIA erred by 

making a factual determination after the IJ explicitly declined to do so. See 8 C.F.R. 

§ 1003.1(d)(3)(iv) (“[T]he Board will not engage in factfinding in the course of deciding 

appeals. . . . If further factfinding is needed in a particular case, the Board may remand 

the proceeding . . . .”). The loss to the victim under § 1101(a)(43)(M)(i) is a 

“circumstance-specific” calculation, Kaplun v. Att’y Gen., 602 F.3d 260, 265 (3d Cir. 

 

1 We lack jurisdiction to review a removal order if the alien was convicted of an 

aggravated felony, 8 U.S.C. § 1252(a)(2)(C), but have jurisdiction to determine our 

jurisdiction, that is, to determine whether the petitioner was convicted of an aggravated 

felony. Stubbs v. Att’y Gen., 452 F.3d 251, 253 n.4 (3d Cir. 2006). The Government 

argues that Corporan failed to exhaust the amount-of-loss issue because he did not raise it

to the BIA after the IJ entered the removal order. We disagree. Under Popal v. 

Gonzales, we have jurisdiction to review an IJ‟s order that is “a mere ministerial act, 

taken to effectuate the unmistakable judgment of the BIA.” 416 F.3d 249, 253 (3d Cir. 

2005). 
5

2010), which is determined by fact finding, see Singh v. Att’y Gen., 677 F.3d 503, 513 

(3d Cir. 2012) (considering evidence of loss amount); In re Babaisakov, 24 I. & N. Dec. 

306, 319 (B.I.A. 2007) (same). 

Thus, we grant the petition as to the loss amount, vacate the removal order, and 

remand to the BIA with instructions to remand to the IJ for a factual finding on this 

issue.2

 

2 Reflecting the unusual posture of this case, our order vacates the final administrative 

order entered by the IJ. However, as is our practice, we remand to the BIA. See Popal, 

416 F.3d at 255 n.6. The Government‟s Motion to Dismiss and Motion to Remand are

denied as moot.