[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-14621

Non-Argument Calendar

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Agency No. A046-018-748

KAYLA PAUL LINDSEY, 

 Petitioner,

versus

U.S. ATTORNEY GENERAL, 

 Respondent.

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Petition for Review of a Decision of the

Board of Immigration Appeals

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(July 16, 2019)

Before WILLIAM PRYOR, NEWSOM, and GRANT, Circuit Judges.

PER CURIAM: 

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Kayla Lindsey, a native and citizen of the Bahamas, petitions for review of 

the Board of Immigration Appeals’s decision affirming the Immigration Judge’s 

order of removal and denial of a waiver of inadmissibility under § 212(h) of the 

Immigration and Nationality Act, 8 U.S.C. § 1182(h). On appeal, she argues (1) 

that the government did not satisfy its burden of showing that she was removable, 

as her conviction under 18 U.S.C. § 371 is not an aggravated felony under INA 

§ 101(a)(43)(M), 8 U.S.C. § 1101(a)(43)(M); (2) that the BIA erred in affirming 

the IJ’s decision that she is statutorily ineligible for a § 212(h) waiver of 

inadmissibility; and (3) that the IJ violated her due process rights by determining

that she was ineligible for a § 212(h) waiver without reviewing her brief. After 

careful review, we dismiss in part and deny in part.

I

We review only the decision of the BIA, except to the extent that the BIA 

has expressly adopted the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 

(11th Cir. 2001). Courts lack jurisdiction to review “any final order of removal 

against an alien who is removable by reason of having committed” an aggravated 

felony. 8 U.S.C. § 1252(a)(2)(C); 8 U.S.C. § 1227 (a)(2)(A)(iii). We do, however, 

retain jurisdiction “to determine underlying facts that establish our jurisdiction or 

lack of it,” which means here we can consider whether substantial evidence 

supports the government’s contention that Lindsey has committed an aggravated 

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felony. Garces v. U.S. Atty. Gen., 611 F.3d 1337, 1343 (11th Cir. 2010). “The 

upshot of all this is that the jurisdictional question merges into our consideration of 

the merits.” Id. (citations omitted). 

The INA defines “aggravated felony,” in relevant part, as “an offense that

. . . involves fraud or deceit in which the loss to the victim or victims exceeds

$10,000.” INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i). Lindsey 

concedes that she was previously convicted of conspiracy to defraud the United 

States under 18 U.S.C. § 371. She contends, however, that she was not removable 

as a result of this conviction because it does not qualify as an “aggravated felony.”

The problem for Lindsey is that the Supreme Court has clearly held that 

§ 371 “involves fraud or deceit” for purposes of § 1101(a)(43)(M)(i). Nijhawan v. 

Holder, 557 U.S. 29, 40 (2009). To the extent that Lindsey argues that the “loss” 

from her conviction did not “exceed[] $10,000,” we are unpersuaded. Lindsey 

argues that the IJ erred in using “the specific circumstance approach . . . to find 

[her] deportable,” but that is precisely the approach called for by Nijhawan. See id.

at 32 (concluding that the language “in which the loss to the victim exceeds 

$10,000” refers to “the particular circumstances in which an offender committed a 

. . . fraud or deceit crime on a particular occasion”). 

Here, the IJ properly looked to Lindsey’s plea agreement that shows that she 

paid a restitution amount of just over $186,830. She has not provided any 

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evidence that this restitution amount was not “tied to the specific counts covered 

by the conviction,” id. at 42, by, for example, alleging that it relates to uncharged 

conduct. Indeed, she even admitted in her § 212(h) waiver application that she had 

pleaded guilty to receiving $186,830 in grant kickbacks. “In the absence of any 

conflicting evidence (and petitioner mentions none), this evidence is clear and 

convincing.” Id. at 43. See also id. at 42–43 (“find[ing] nothing unfair” about the 

IJ’s use of “earlier sentencing-related material” and the petitioner’s “own 

stipulation . . . show[ing] that the conviction involves losses considerably greater 

than $10,000”). 

Because we conclude that the BIA did not err in concluding that Lindsey is 

removable as an aggravated felon, we dismiss her petition in part for lack of 

jurisdiction pursuant to INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). 

II

Lindsey next challenges the BIA’s conclusion that she was statutorily 

ineligible for a waiver under INA § 212(h), 8 U.S.C. § 1182(h). The Attorney 

General has the discretion to waive a finding of inadmissibility for an immigrant 

who is “the spouse, parent, son, or daughter of a citizen of the United States . . . if 

it is established to the satisfaction of the Attorney General that the alien’s denial of 

admission would result in extreme hardship” to the qualifying relative. INA 

§ 212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B). The Attorney General, however, lacks 

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discretion to grant a § 212(h) waiver to an alien who has committed an “aggravated 

felony” while “lawfully admitted for permanent residence.” INA § 212(h), 8 

U.S.C. § 1182(h); Balogun v. U.S. Atty. Gen., 425 F.3d 1356, 1359 (11th Cir. 

2005). The INA limits our jurisdiction here as well; we lack jurisdiction “to 

review a decision of the Attorney General to grant or deny a waiver,” 8 U.S.C. § 

1182(h), but we do have jurisdiction “to review the legal question of whether 

[Lindsey] is statutorily eligible to apply for a § 212(h) waiver.” Poveda v. U.S. 

Atty. Gen., 692 F.3d 1168, 1172 (11th Cir. 2012) (citations omitted).

We have already determined that Lindsey’s conviction for conspiracy to 

defraud the United States qualifies as an aggravated felony under 8 U.S.C. 

§ 1227(a)(2)(A)(iii). Moreover, Lindsey is the recipient of an IR-1 immigrant visa 

as the spouse of a United States citizen, and thus she is “lawfully admitted for 

permanent residence.” See Malik v. Attorney Gen. of U.S., 659 F.3d 253, 255 (3d 

Cir. 2011) (noting that the petitioner was a “legal permanent resident . . . after 

receiving an IR–1 immigrant visa based on his . . . marriage to . . . a United States 

citizen”); Matter of Torres-Garcia, 23 I & N Dec. 866, 872 (BIA 2006) (stating 

that “[u]pon [the] issuance of [a spousal] visa, the [alien] would have been 

admissible as an immigrant and, upon admission, would thereafter have been a 

lawful permanent resident of the United States”).1 The BIA thus correctly 

 1 Although we do not afford field manuals Chevron deference, see Bradley v. Sebelius, 621 F.3d 

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determined that Lindsey is statutorily ineligible for a waiver of inadmissibility 

under INA § 212(h), 8 U.S.C. § 1182(h).

III

Finally, Lindsey argues that the BIA “erred in not finding implicit bias” in 

the IJ’s decision stemming from the fact that the IJ “ruled from the bench that 

[Lindsey] was ineligible” for a § 212(h) waiver without reading her brief. The IJ’s 

failure to read her brief, she contends, amounts to a denial of due process. 

Lindsey has not identified a due process violation here. To do so, Lindsey 

“must show that she was deprived of liberty without due process of law and that 

the purported errors caused her substantial prejudice,” meaning that “in the 

absence of the alleged violations, the outcome of the proceeding would have been 

different.” Lapaix v. U.S. Atty. Gen., 605 F.3d 1138, 1143 (11th Cir. 2010) 

(citations omitted). Lindsey cannot show “substantial prejudice” here because, as 

we have already concluded, she was statutorily ineligible for a § 212(h) waiver, 

regardless of whether the IJ read her briefs or not. Therefore, the BIA did not err 

in concluding that the IJ did not violate Lindsey’s due process rights. 

PETITION DISMISSED IN PART AND DENIED IN PART.

 

1330, 1338 (11th Cir. 2010), we note that the United States Citizenship and Immigration 

Services’s “Adjudicator’s Field Manual” further supports the conclusion that IR-1 visa recipients 

are lawful permanent residents. See U.S. Citizenship & Immigration Servs., Dep’t of Homeland 

Sec., Adjudicator’s Field Manual, Appx. 23-7 (June 6, 2019) (including IR-1 visa recipients 

among the categories of “Legal Permanent Resident Aliens”). 

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