IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60598

FABIAN KABWE MUYABA, also known as Fabian Muyaba, 

 Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL, 

 Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A099 287 065 

Before KING, COSTA, and HO, Circuit Judges.

PER CURIAM:*

Fabian Kabwe Muyaba is a citizen of Zimbabwe admitted into the United 

States on a B-1 immigration visa in 2001. He became a lawful permanent 

resident in 2006. In 2009, he was convicted of conspiracy and six counts of 

aiding and assisting in the preparation of false tax returns in a scheme that 

began in 2004 and ended in 2008. According to the indictment, Muyaba was 

personally responsible for fraudulently claimed business losses and tax credits 

totaling $112,227. The district court found the scheme resulted in a loss to the 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 6, 2020

Lyle W. Cayce

Clerk

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IRS of $2,661,060. Muyaba objected to being held accountable for the loss 

attributable to the whole scheme, instead claiming that he was responsible 

only for a loss of “approximately $86,000.” The district court sentenced him to 

120 months in prison and two years of supervised release and ordered 

cooperation with the IRS in collecting outstanding taxes. The Fifth Circuit 

affirmed Muyaba’s sentence. United States v. Mudekunye, 646 F.3d 281, 291 

(5th Cir. 2011).

In 2017, Immigration and Customs Enforcement (ICE) took custody of 

Muyaba and served him with a Notice to Appear (NTA) for removal 

proceedings. ICE notified him in the NTA that he was an alien convicted of an 

aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). The definition of 

aggravated felony includes “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);

In the alternative, the immigration judge made a finding that Muyaba was 

removable because the six counts of aiding and abetting tax fraud each 

qualified as a crime of moral turpitude.

The immigration judge recognized Muyaba was personally liable for 

$112,227 in fraudulent business losses and tax credits and that the scheme 

defrauded the IRS of $2,903,842. The immigration judge made a factual 

finding that Muyaba was convicted of an offense involving fraud in which the 

loss exceeded $10,000. That finding meant the fraud was an aggravated felony 

and he was eligible for deportation. The Board of Immigration Appeals denied 

the appeal.

Muyaba presents four arguments in this appeal. We find each meritless.

Our court recently rejected Muyaba’s first argument in Pierre-Paul v. 

Barr, 930 F.3d 684 (5th Cir. 2019). The Supreme Court issued a narrow 

holding in Pereira v. Sessions that an NTA without the time or place of removal 

proceedings is not “a notice to appear under section 1229(a).” 138 S. Ct. 2105, 

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2110 (2018). In Pierre-Paul, we held that the immigration judge may cure a 

defective NTA “by subsequently sending a notice of hearing that include[s] the 

time and date of the hearing.” Id. at 689. We further held that even if an NTA 

could not be cured in that manner, the defect “is not jurisdictional.” Id.

Like in Pierre-Paul, Muyaba seeks to invalidate jurisdiction by claiming 

his NTA lacked the specific time and date. See id. at 690. By including the 

curing information in subsequent NTAs, the court cured that potential defect. 

See id. at 693.

Muyaba’s second argument attempts to rebut his eligibility for removal 

for having committed an aggravated felony. He claims he was responsible for 

only $86,000 in actual losses. But even assuming he is right, that amount is 

still over the $10,000 minimum for his offense to qualify as an aggravated 

felony. 8 U.S.C. § 1101(a)(43)(M)(i); see also Nijhawan v. Holder, 557 U.S. 29, 

38–39 (2009) (describing the crimes that fit into subsection (M)(i)).

Muyaba’s third claim, that he did not commit at least two crimes of moral 

turpitude, also fails. His multiple offenses are distinct crimes for purposes of 

this statute. Animashaun v. INS, 990 F.2d 234, 237–38 (5th Cir. 1993).

Finally, Muyaba argues the BIA erred in failing to remand the 

proceedings to allow him to try to adjust his status and apply for a waiver of 

inadmissibility. He failed to meet the statutory prerequisites for adjustment 

of status and so is not eligible to apply for a waiver. See Cabral v. Holder, 632 

F.3d 886, 891 (5th Cir. 2011). As such, the BIA did not abuse its discretion in 

denying remand.

We affirm.

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