1

21-6019-ag

Tineo v. Garland

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 12th day of May, two thousand twenty-two.

PRESENT: JOHN M. WALKER, JR.,

GUIDO CALABRESI,

JOSÉ A. CABRANES,

Circuit Judges.

MARGARITA TINEO,

Petitioner, 21-6019-ag

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY 

GENERAL,

Respondent.

FOR PETITIONER: Aleksander Boleslaw Milch, The Kasen 

Law Firm, PLLC, Flushing, NY.

FOR RESPONDENT: Brett F. Kinney for Brian Boynton, Acting 

Assistant Attorney General, Holly M. 

Smith, Assistant Director, Office of 

Immigration Litigation, United States 

Department of Justice, Washington, DC.
2

UPON DUE CONSIDERATION of this petition for review of a decision of the Board 

of Immigration Appeals (“BIA”) dated December 16, 2020, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the petition for review be and hereby is DENIED.

Petitioner Margarita Tineo, a native and citizen of the Dominican Republic, seeks review of a 

December 16, 2020 decision of the BIA affirming an August 7, 2018 decision of an Immigration 

Judge (“IJ”) denying both her motion to terminate her removal proceedings and her application for 

cancellation of removal. In re Margarita Tineo, No. A020 578 848 (B.I.A. Dec. 16, 2020), aff’g No. 

A020 578 848 (Immig. Ct. N.Y.C. Aug. 7, 2018). We assume the parties’ familiarity with the 

underlying facts and procedural history.

DISCUSSION

An applicant for relief from removal has the burden to prove eligibility for cancellation of 

removal. 8 U.S.C. § 1229a(c)(4); Pereida v. Wilkinson, 141 S. Ct. 754, 761 (2021). We review de novo

whether a conviction qualifies as an aggravated felony. Rampersaud v. Barr, 972 F.3d 55, 59-60 (2d Cir. 

2020). We review both the BIA’s and the IJ’s decisions “for the sake of completeness.” Wangchuck v. 

Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).

I. Motion to Terminate

Tineo’s argument that the immigration court lacked jurisdiction and should have terminated 

her removal proceedings because her notice to appear (“NTA”) omitted the time and date of her 

hearing is foreclosed by our case law. Tineo relies on Pereira v. Sessions, 138 S. Ct. 2105 (2018) and 

Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) to argue that her NTA was not sufficient to vest 

jurisdiction with the immigration court because it did not contain the time and date for her initial 

hearing. But we have held that Pereira and Niz-Chavez concern only a narrow issue regarding the 

alien’s accrual of presence or residence for the purposes of cancellation of removal. See Banegas 

Gomez v. Barr, 922 F.3d 101, 110 (2d Cir. 2019); see also Chery v. Garland, 16 F.4th 980, 987 (2d Cir. 

2021) (“Banegas Gomez remains good law even after the Supreme Court’s opinion in Niz-Chavez” 

because “[a]s with Pereira, Niz-Chavez focused only on the stop-time rule . . . and did not address the 

effect of a defective NTA on an IJ’s jurisdiction.”). 

“[A]n NTA that omits information regarding the time and date of the initial removal hearing 

is . . . adequate to vest jurisdiction in the Immigration Court, at least so long as a notice of hearing 

specifying this information is later sent to the alien.” Banegas Gomez, 922 F.3d at 112. Therefore, the 

agency properly denied Tineo’s motion to terminate because she appeared after receiving a hearing 

notice that specified both time and date. Id. 
3

II. Cancellation of Removal

A lawful permanent resident such as Tineo is eligible for cancellation of removal if she “(1) 

has been . . . lawfully admitted for permanent residence for not less than 5 years, (2) has resided in 

the United States continuously for 7 years after having been admitted in any status, and (3) has not 

been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a). The only issue here is whether 

Tineo’s conviction for credit card fraud, 18 U.S.C. § 1029(a)(2) (2000), is an aggravated felony. “The 

term 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). Tineo does not dispute that her 

conviction is a fraud offense, so the sole question is the amount of loss.

To determine the amount of loss, we “inquire into ‘the specific circumstances surrounding 

an offender’s commission of a fraud and deceit crime on a specific occasion.’” Rampersaud, 972 F.3d 

at 60 (quoting Nijhawan v. Holder, 557 U.S. 29, 40 (2009)). “We then ascertain whether the petitioner 

caused more than $10,000 in losses that are ‘tied to the specific counts covered by the conviction’ 

and not ‘based on acquitted or dismissed counts or general conduct.’” Id. (quoting Nijhawan, 557 

U.S. at 42). The immigration judge may rely on sentencing materials and restitution orders in the 

absence of any conflicting evidence. See Nijhawan, 557 U.S. at 42–43.

Tineo did not establish that her fraud offense was not an aggravated felony. She waived 

indictment and pleaded guilty to a single count of credit card fraud. The judge ordered restitution of 

$20,037.25 to her four victims. This record sufficiently ties the conviction to the restitution amount 

because Tineo pleaded guilty to the sole charge and confirmed that the charge covered the use of 

multiple cards over a six-month period. See Nijhawan, 557 U.S. at 42–43 (finding “nothing unfair” 

about reliance on defendant’s stipulation confirmed by a restitution order to determine loss 

amounts); cf. Rampersaud, 972 F.3d at 62 (“[A] restitution award can, in some cases, reliably establish 

loss to the victims of a fraud offense.”). 

In sum, the agency properly considered the restitution amount, and Tineo did not meet her 

burden to show eligibility for cancellation of removal. See Nijhawan, 557 U.S. at 42–43. 

CONCLUSION

We have reviewed all of the arguments raised by Tineo on appeal and find them to be 

without merit. For the foregoing reasons, the petition for review is DENIED. All pending motions 

and applications are DENIED and stays VACATED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court