Zapico-Delgado, et al v. Holder, No. 06-74321 (9th Cir. 2010)

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FILED DEC 22 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT NATALIA MARGARITA ZAPICODELGADO, etc. No. 06-74321 Agency No. A091-637-431 Petitioner, MEMORANDUM * v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 4, 2010 San Francisco, California Before: THOMAS and IKUTA, Circuit Judges, and SETTLE, ** District Judge. We deny the petition for review. In 2009 the United States Supreme Court decided the case of Nijhawan v. Holder, 129 S. Ct. 2294 (2009), and held that, * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Benjamin Hale Settle, United States District Judge for the Western District of Washington, sitting by designation. when evaluating offenses under 8 U.S.C. § 1101(a)(43)(M)(i), courts should treat the references to victim or victims and a monetary loss in excess of $10,000 not . . . [as] an element of the fraud or deceit crime, but as refer[ences] to the particular circumstances in which an offender committed a (more broadly defined) fraud or deceit crime on a particular occasion. Id. at 2297-98. In determining whether these circumstances were present in a particular case, the Court also indicated that the decisionmaker would not be limited to reviewing the record of conviction, but could also consider a restitution order. Id. at 2303. Here, Nijhawan is controlling. The Board of Immigration Appeals did not err in affirming the Immigration Judge s reliance on the order of restitution to find that Petitioner s conviction for unlawful use of means of identification, in violation of 18 U.S.C. § 1028(a)(7), constituted an aggravated felony conviction under 8 U.S.C. § 1101(a)(43)(M)(I). Therefore, we lack jurisdiction to review Petitioner s final order of removal. 8 U.S.C. § 1252(a)(2)(C). DENIED. 2

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