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w . v i l l a no v a . e du/thir dc ir c uit_2013/244NOT 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 Rev iew of a Final Order of the Board of Immigration Appeals (No . A0 44

- 129

- 8 87 ) Immigration Judge: Honorable Kenneth S. Hurwitz

_______________ Argued April 1 6 , 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 Petitioner2

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 O ffice 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

r esident 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, t he3

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 u nder 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) , whic h 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) . A s 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 Co rporan 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 offense4

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. Un ited 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 Corpor an‟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 Boa rd will not engage in factfinding in the course of deciding appeals. . . . If further factfinding is needed in a particular case, the Board may r emand 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 c onvicted 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.” 4 16 F.3d 249, 2 53 (3d Cir. 2005).5

2010) , which is determined by fact finding , s ee 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. 20 07) ( 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. T he Government‟s Motion to Dismiss and Motion to Remand are denied as moot.