The Honorable Barbara S. Jones, of the United States District Court * for the Southern District of New York, sitting by designation. 10-0467-ag Varughese v. Holder

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 7 August Term, 2010 8 9 (Argued: November 10, 2010 Decided: November 12, 2010) 10 11 Docket No. 10-0467-ag 1 2 13 14 VARUGHESE ADACKAMANGAL VARUGHESE, 15 a/k/a Varughese Varughese, 16 1 7 Petitioner , 18 19 –v.– 20 21 ERIC H. HOLDER, JR., United States 22 Attorney General, 23 2 4 Respondent . 25 2 6 27 28 Before: 29 B.D. PARKER , WESLEY , Circuit Judges , JONE S , Judge . * 30 31 Petition for review of a final order of removal issued 32 by the Board of Immigration Appeals (“BIA” or “Board”), on 33 January 22, 2010, which affirmed the decision of the 34 Immigration Judge (“IJ”) finding petitioner removable as 35 charged. Petitioner contends principally that his removal 36 is improper because his money laundering conviction, in 37 violation of 18 U.S.C. 1956(a)(3)(b), does not constitute an 38 “aggravated felony” under the INA. He also challenges theThis matter was initially resolved by summary order, but we now 1 reissue that decision following the grant of the Government’s motion for publication of the summary order as a precedential opinion. 2 1 Board’s conclusion that he is ineligible for adjustment of 2 status pursuant to INA § 245, 8 U.S.C. § 1255. 3 4 P ETI TION D ENI ED . 5 6 7 8 T HOMAS E. MOSE LEY , Law Offices of Thomas E. Moseley, 9 Newark, NJ, for Petitioner . 10 1 1 C ARMEL A. MORGAN , Trial Attorney, Office of 12 Immigration Litigation, Civil Division, (Tony 13 West, Assistant Attorney General, Russell J. 14 E. Verby, Senior Litigation Counsel, on the 1 5 brief), for Eric H. Holder Jr., United States 16 Attorney General, Respondent . 17 1 8 19 2 0 P ER C URI AM : 1 21 Petitioner Varughese Adackamangal Varughese seeks 22 review of a final order of removal issued by the BIA, which 23 affirmed the decision of the IJ finding Varughese removable 24 as charged. In re Varughese , A 036 123 229 (B.I.A. Jan. 22, 25 2010). Specifically, the Board concluded that Varughese’s 26 conviction for money laundering, in violation of 18 U.S.C. § 27 1956(a)(3)(B), constitutes an “aggravated felony,” rendering 28 him removable pursuant to § 101(a)(43)(D) of the Immigration 29 and Nationality Act (“INA”). 8 U.S.C. § 1101(a)(43)(D). 30 Varughese challenges that determination on appeal, along3 1 with the BIA’s conclusion that he is ineligible for 2 adjustment of status pursuant to INA § 245, 8 U.S.C. § 1255. 3 We deny the petition for review. 4 5 I. Background 6 Varughese, a native and citizen of India, was admitted 7 to the United States on or about April 24, 1981 as a lawful 8 permanent resident. On November 25, 2002, Varughese was 9 arrested pursuant to a “sting” operation and charged in a 10 one-count indictment with money laundering, in violation of 11 18 U.S.C. § 1956(a)(3)(b), which provides that 12 [w]hoever, with the intent to conceal or 13 disguise the nature, location, source, 14 ownership, or control of property believed to be 15 the proceeds of specified unlawful activity . . 16 . conducts or attempts to conduct a financial 17 transaction involving property represented to be 18 the proceeds of specified unlawful activity, or 19 property used to conduct or facilitate specified 20 unlawful activity, shall be fined under this 21 title or imprisoned for not more than 20 years, 22 or both. 23 24 On October 7, 2005, pursuant to a cooperation 25 agreement, Varughese pled guilty to the charged offense. 26 During the plea hearing, Varughese testified that he issued 27 money orders through his check-cashing business to men that 28 he believed to be connected with drug dealers. He further4 1 testified that he did so in exchange for extra commissions, 2 and admitted specifically to three transactions involving 3 $30,000, $50,000, and $100,000, respectively. On July 16, 4 2008, the United States District Court for the Eastern 5 District of New York (Trager, J .) sentenced Varughese to 6 time served, along with three years of supervised release. 7 On March 30, 2009, Varughese was served with a Notice 8 to Appear, charging him with removability pursuant to 8 9 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an 10 “aggravated felony.” Specifically, INA § 101(a)(43)(D), 8 11 U.S.C. § 1101(a)(43)(D) provides that an “aggravated felony” 12 includes “an offense described in [18 U.S.C. § 1956] 13 (relating to monetary instruments) if the amount of the 14 funds exceeded $10,000.” § 1101(a)(43)(D). 15 On several occasions in 2009, Varughese appeared before 16 the IJ and contested his removability. Specifically, 17 Varughese argued that: (1) he was not convicted of 18 laundering “funds exceed[ing] $10,000,” because the statute 19 under which he was convicted uses the term “proceeds” and 20 not “funds”; (2) even if the term “proceeds” is equated to 21 “funds,” the Supreme Court has interpreted the term 22 “proceeds” in another context to mean “profits,” and,5 1 because this was a sting operation, no real profits were 2 obtained; and (3) the legislative history of § 1956 3 indicates that the term “funds” actually refers to the 4 amount of the fine imposed, and not the amount of money 5 laundered. 6 On September 3, 2009, the IJ issued a written decision 7 finding Varughese removable as charged. The IJ concluded 8 that, because the money laundering statute under which 9 Varughese pled guilty is silent as to monetary amount, it 10 was appropriate to consider statements made by Varughese 11 during his plea colloquy to determine the amount of funds 12 implicated in the offense of conviction. In so doing, the 13 IJ found “clear evidence” that Varughese’s offense involved 14 amounts far exceeding the $10,000 threshold set forth in the 15 INA. Furthermore, the IJ rejected Varughese’s contention 16 that the statute’s use of the word “funds” actually refers 17 to the amount of the fine imposed, instead of the amount of 18 money laundered. Accordingly, the IJ concluded that 19 Varughese was removable as charged, and ordered him removed 20 to India. 21 On January 22, 2010, the BIA dismissed Varughese’s 22 appeal. The BIA adopted, and expounded upon, the reasoning6 1 of the IJ. Specifically, the BIA explained that, pursuant 2 to the Supreme Court’s decision in Nijhawan v. Holder , --- 3 U.S. ---, 129 S. Ct. 2294 (2009), the IJ properly relied 4 upon the statements made by Varughese during his plea 5 colloquy to conclude that the amount of funds involved in 6 his crime exceeded $10,000. 7 Varughese now seeks review in this Court. For the 8 reasons that follow, Varughese’s arguments are without 9 merit. His petition is therefore denied and his appeal 10 dismissed. 11 II. Discussion 12 Where, as here, the BIA has adopted the IJ’s reasoning 13 and offered additional commentary, our Court reviews the 14 decision of the IJ as supplemented by the Board. 1 5 Gertsenshteyn v. U.S. Dep’t of Justice , 544 F.3d 137, 142 16 (2d Cir. 2008). “While the BIA’s interpretation of 17 immigration statutes is generally entitled to Chevron 18 deference, interpretations in non-precedential unpublished 19 BIA decisions, as in the instant case, are not so entitled.” 2 0 Dobrova v. Holder , 607 F.3d 297, 300 (2d Cir. 2010). We 21 need not, and do not, resolve whether such unpublished 22 decisions are entitled to Skidmore deference, because ourdeWe are unpersuaded by Varughese’s contention that the term “amount of 2 the funds,” as it is used in the money laundering statute, refers to the amount of the fine imposed. 7 1 novo review reveals that the determination below was 2 correct. 3 At the outset, we reject Varughese’s contention that 4 INA § 101(a)(43)(D), which defines an “aggravated felony” as 5 a money laundering offense in which “the amount of the funds 6 exceeded $10,000," 8 U.S.C. § 1101(a)(43)(D), captures only 7 those violations of criminal statutes that use the specific 8 word “funds.” It is irrelevant that Varughese was convicted 9 under a subsection of the money laundering statute that does 10 not actually use the word “funds,” because the phrase “the 11 amount of the funds exceeded $10,000” in the INA simply 12 “refers to the particular circumstances in which an offender 13 committed a . . . crime on a particular occasion.” Nijhawan 1 4 v. Holder , 129 S. Ct. at 2298. Simply put, it refers to the 15 amount of money laundered. See Chowdhury v. INS , 249 F.3d 2 16 970, 974 (9th Cir. 2001). That determination is properly 17 made pursuant to a “circumstance-specific” approach, and not 18 a “categorical” one. Nijhawan, 129 S. Ct. at 2300. Because 19 Varughese admitted to laundering well in excess of $10,000 20 on multiple occasions during his plea colloquy, the record8 1 of conviction sufficiently establishes that the 2 circumstances of his money laundering conviction involved 3 funds in excess of $10,000. Id . at 2303 (defendant’s 4 stipulation at sentencing constitutes proper basis to assess 5 circumstance-specific fact). 6 Varughese next urges that, even assuming the “amount of 7 the funds” inquiry is circumstance-specific, the amounts 8 that he admitted laundering during his plea colloquy are not 9 sufficiently “tethered” to his conviction in order to 10 establish his removability. See id. (observing that “the 11 loss must be tied to the specific counts covered by the 12 conviction”) (internal quotation marks omitted). In 13 substance, Varughese argues that because no amount is cited 14 in the indictment to which he pled guilty, the statements he 15 made during his plea colloquy are not sufficiently related 16 to his conviction to establish that his conviction was an 17 “aggravated felony.” 18 We are unpersuaded. Varughese was charged in a one19 count indictment alleging multiple “financial transactions” 20 over the course of several months in 2001 and 2002. A. 155. 21 Varughese confirmed during the sentencing hearing that he 22 was involved in multiple instances of money launderingVarughese also contends that the money laundering statute’s use of the 3 term “proceeds” must mean “profits,” in light of the Supreme Court’s decision in United States v. Santos , 553 U.S. 507 (2008), and that his conviction is therefore infirm because there can be no true “profits” realized in a sting operation. Not only is this argument baseless — the specific subsection under which Varughese was convicted expressly contemplates sting operations — but it is also irrelevant. The soundness of Varughese’s underlying conviction is not before us, for “[c]ollateral attacks are not available in a . . . petition challenging the BIA’s removal decision.” Lanferman v. BIA , 576 F.3d 84, 88 (2d Cir. 2009). 9 1 between “November 2001 and January 2002.” A. 205. 2 Accordingly, his admissions to laundering funds in excess of 3 $10,000 are sufficiently related to the count for which he 4 was convicted. 3 5 Finally, we reject Varughese’s contention that he is 6 eligible for adjustment of status pursuant to INA § 245. 7 Adjustment of status is a discretionary benefit affordable 8 to an alien who, among other things, is “eligible to receive 9 an immigrant visa and is admissible to the United States for 10 permanent residence.” INA § 245, 8 U.S.C. § 1255(a). 11 Because Varughese’s money laundering conviction renders him 12 ineligible for admissibility to the United States, he is 13 similarly ineligible for adjustment of status. INA § 14 212(a)(2)(I)(i), 8 U.S.C. § 1182(a)(2)(I)(i) (“Any alien who 15 . . . has engaged, is engaging, or seeks to enter the United 16 States to engage, in an offense described in section 1956 or 17 1957 of Title 18 (relating to laundering of monetary 18 instruments) is inadmissible” to the United States.).10 1 Moreover, because Varughese’s money laundering conviction 2 constitutes an “aggravated felony,” the Attorney General was 3 without discretion to afford him a waiver of 4 inadmissibility. INA § 212(h), 8 U.S.C. § 1182(h). 5 6 III. Conclusion 7 For the foregoing reasons, the petition for review is 8 D ENI ED . Having completed our review, any stay of removal 9 previously granted in this petition is VACATED , and any 10 pending motion for a stay of removal is D ISMISS ED as moot.