Court: Court of Appeals for the Third Circuit; September 12, 2013; Federal Appellate Court
Rafael Corporan, a Dominican citizen and lawful permanent resident, sought review of an Immigration Judge's (IJ) order declaring him removable under 8 U.S.C. § 1227(a)(2)(A)(iii) due to a prior conviction for conspiracy. In 2009, Corporan pled guilty to conspiracy under 18 U.S.C. § 371, receiving a five-month sentence and ordered to pay restitution of $47,299. Following this, the Department of Homeland Security (DHS) charged him with being removable as an alien convicted of an "aggravated felony" under the Immigration and Nationality Act (INA), specifically citing loss exceeding $10,000 under 8 U.S.C. § 1101(a)(43)(M)(i).
Corporal claimed his conviction was a hybrid offense, which necessitated meeting the criteria for both fraud and theft offenses. The IJ initially sided with Corporan, determining he was not removable as his sentence did not meet the one-year requirement under the relevant theft provision. However, the Board of Immigration Appeals (BIA) overturned this decision, stating that Corporan's conviction involved fraud and deceit with a loss exceeding $10,000, thus rendering him removable.
On appeal, Corporan argued that the BIA's conclusion on the loss amount was erroneous, as the IJ had not made a factual determination on this issue, which is a requirement under 8 C.F.R. § 1003.1(d)(3)(iv). The appellate court found Corporan's first argument regarding hybrid offenses was no longer valid following the precedent set in Al-Sharif v. USCIS, which rejected the hybrid offense theory. Consequently, the court agreed that Corporan's conviction constituted an aggravated felony based on fraud or deceit alone.
However, the court granted Corporan's petition concerning the factual determination of the loss amount, vacating the removal order and remanding the case to the BIA with instructions to further remit it to the IJ for a proper factual finding on the loss. The court also clarified its jurisdiction over the matter, indicating that while it cannot review removal orders based on aggravated felony convictions, it can assess the nature of the conviction itself. The government's motions to dismiss and remand were deemed moot.
