Oscar Rodriguez v. William Barr, U. S. Atty Gen


Case: 18-60633 Document: 00515406025 Page: 1 Date Filed: 05/06/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED May 6, 2020 No. 18-60633 Lyle W. Cayce Clerk OSCAR GILBERTO RODRIGUEZ, also known as Oscar Gilberto Rodriguez Benavides, Petitioner v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent Petitions for Review of an Order of the Board of Immigration Appeals BIA No. A014 257 576 Before JONES, ELROD, and HIGGINSON, Circuit Judges. STEPHEN A. HIGGINSON, Circuit Judge:* Petitioner, Oscar Gilberto Rodriguez, petitions this court for review of the Board of Immigration Appeals’ (BIA’s or Board’s) order affirming the immigration judge’s (IJ’s) decision finding him removable under Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA). Rodriguez also * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 18-60633 Document: 00515406025 Page: 2 Date Filed: 05/06/2020 No. 18-60633 seeks review of the BIA’s denial of his motion to reconsider and terminate his immigration proceedings. We deny both petitions. I. Rodriguez, a citizen of Mexico, has resided in the United States as a lawful permanent resident since 1968. On October 16, 2014, Rodriguez pled guilty to conspiracy to commit mail fraud, wire fraud, and to use a United States interstate mail facility in aid of unlawful activity. After his conviction, the Department of Homeland Security (DHS) initiated removal proceedings. On December 21, 2017, it charged in a notice to appear that Rodriguez was removable because his conspiracy conviction was an aggravated felony under 8 U.S.C. § 1101(a)(43)(M), which makes offenses involving fraud and deceit in which the loss to the victims exceeds $10,000 an aggravated felony, and under § 1101(a)(43)(U), which makes attempting or conspiring to commit an offense described in § 1101(a)(43)(M) an aggravated felony. DHS then filed an additional charge of removability that contained the factual allegation that the loss to victims of Rodriguez’s criminal acts exceeded $10,000. On February 16, 2018, DHS filed a second additional charge of removability that withdrew the two prior charges and instead charged Rodriguez as being removable because his conviction was an aggravated felony only under § 1101(a)(43)(U). Rodriguez appeared at a series of hearings before the IJ. After reviewing the government’s evidence, the IJ found that Rodriguez had been convicted of violating 18 U.S.C. § 371 by conspiring to commit mail fraud, wire fraud, and unlawful use of mail facilities. Rodriguez did not challenge that the object of the conspiracy involved fraud or deceit. He argued, however, that he was not removable because the government had not shown a $10,000 loss to a victim or victims. 2 Case: 18-60633 Document: 00515406025 Page: 3 Date Filed: 05/06/2020 No. 18-60633 To prove the loss amount, the DHS relied on the allegations in the superseding indictment to which Rodriguez pleaded guilty, and on the restitution amount. Rodriguez argued that the amounts specified ...

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