Pierre v. Holder, No. 08-6217 (2d Cir. 2009)

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08-6217-ag Pierre v. Holder 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2009 (Argued: September 24, 2009 Decided: December 8, 2009) Docket No. 08-6217-ag -----------------------------------------------------x FRANTZCIA PIERRE, Petitioner, -- v. -ERIC H. HOLDER, JR., U.S. Attorney General,* Respondent. -----------------------------------------------------x B e f o r e : 22 WALKER and KATZMANN, Circuit Judges, and COTE,** District Judge. Petition for review of a decision and order of the Board of 23 Immigration Appeals ( BIA ) finding petitioner Frantzcia Pierre 24 removable as an aggravated felon under section 237(a)(2)(A)(iii) 25 of the Immigration and Nationality Act ( INA ), as defined by 26 subsections 101(a)(43)(M) and (U) of the Act. 27 not charged, either explicitly or implicitly, with an aggravated 28 felony as defined by subsection U, because subsection U is not a 1 2 3 4 * 1 2 3 ** Because Pierre was Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr. is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case. The Honorable Denise L. Cote, of the United States District Court for the Southern District of New York, sitting by designation. 1 1 necessarily included offense under subsection M, and because 2 Pierre therefore was denied her due process rights of notice and 3 an opportunity to be heard when the BIA sua sponte found her 4 removable on the basis of her conviction for an aggravated felony 5 as defined by subsection U, the petition for review is GRANTED 6 and the decision of the BIA is VACATED. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 VACATED. SARAH LOOMIS CAVE, Hughes Hubbard & Reed LLP, New York, New York, for Petitioner. EDWARD E. WIGGERS, Attorney, Office of Immigration Litigation (John S. Hogan, Senior Litigation Counsel, on the brief), for Tony West, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent. JOHN M. WALKER, JR., Circuit Judge: 22 Frantzcia Pierre appeals from an order of the Board of 23 Immigration Appeals ( BIA ) dated November 25, 2008, finding her 24 removable as an aggravated felon as defined under subsections M 25 and U of section 101(a)(43) of the Immigration and Nationality 26 Act ( INA ), 8 U.S.C. §§ 1101(a)(43)(M), (U). 27 upon us to determine two questions: 28 a necessarily included offense to a charge of removability under 29 section 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 30 1227(a)(2)(A)(iii), as defined by subsection M; and (2) whether 31 the BIA violated Pierre s due process rights when it found her 2 This case calls (1) whether subsection U is 1 removable as an aggravated felon under subsection U after the 2 Government had expressly disavowed its reliance on subsection U 3 as a basis for finding she had been convicted of an aggravated 4 felony. 5 explicitly or implicitly, under subsection U, and because 6 subsection U is not a necessarily included offense to a charge 7 under subsection M, Pierre was denied her due process rights of 8 notice and an opportunity to be heard when the BIA sua sponte 9 found her removable as an aggravated felon as defined by We hold that because Pierre was not charged, either 10 subsection U. 11 the decision of the BIA. BACKGROUND 12 13 We thus GRANT the petition for review and VACATE The facts of this case are generally undisputed. They are 14 set forth below only insofar as they are relevant to Pierre s 15 challenge that the BIA erred in finding her removable as an 16 aggravated felon under section 237(a)(2)(A)(iii) of the INA, as 17 defined by subsections M and U. 18 Frantzcia Pierre, a native and citizen of Haiti, is a lawful 19 permanent resident of the United States. On December 13, 2006, 20 she plead guilty to federal charges of bank fraud and aggravated 21 identity theft in connection with an attempt to obtain a $500,000 22 mortgage. 23 presenting the mortgage application and false documents to bank 24 personnel, thereby failing to obtain any money from the bank. Notably, Pierre was arrested in the bank after 3 On 1 December 13, 2006, the district court sentenced Pierre to a 2 below-Guidelines prison term of 30 months. 3 On December 11, 2007, the Government personally served 4 Pierre with a Notice to Appear ( NTA ) for removal proceedings 5 under section 240 of the INA, 8 U.S.C. § 1229a. 6 that on December 13, 2006, Pierre was convicted of bank fraud and 7 aggravated identity theft, offenses that involved a monetary 8 loss to the victim in excess of Ten Thousand Dollars ($10,000). 9 The Government charged that Pierre was removable under section The NTA alleged 10 237(a)(2)(A)(iii) of the INA because she was convicted of an 11 aggravated felony as defined by section 101(a)(43)(M), a law 12 relating to an offense that . . . involves fraud or deceit in 13 which the loss to the victim or victims exceeds $10,000. 14 Notably, Pierre was not charged as removable on the basis of her 15 conviction for an aggravated felony as defined by section 16 101(a)(43)(U) of the INA, 8 U.S.C. § 1101(a)(43)(U), an attempt 17 or conspiracy to commit an offense described in [subsections 18 101(a)(43)(A)-(T)]. 1 1 2 3 4 5 6 7 8 9 10 11 1 Section 101(a) of the INA, 8 U.S.C. § 1101(a), states in relevant part as follows: (a) As used in this chapter . . . . (43) The term aggravated felony means (M) an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the 4 1 Pierre moved to terminate the removal proceedings on the 2 basis that the Government could not show by clear and convincing 3 evidence that her conviction for bank fraud involved an actual 4 loss exceeding $10,000, as required under subsection M. 5 Pierre s hearing, the Immigration Judge ( IJ ) expressed doubt as 6 to the adequacy of the NTA and specifically provided the 7 Government with an opportunity to amend its NTA to include a 8 charge under subsection U on the basis of Pierre s attempt to 9 cause an actual loss in excess of $10,000. At The Government 10 declined to do so, taking the position that Pierre s conviction 11 for straight bank fraud involving a potential loss in excess of 12 $10,000 satisfied the requirements of subsection M. 13 again inquired whether the Government wanted to add a charge 14 under subsection U because there was no actual loss to the bank, 15 the Government again declined, stating that Pierre was not 16 charged under U with an attempt. 17 that I just don t think we need [a charge under subsection U], 1 2 3 4 5 6 7 8 9 10 11 12 13 After the IJ She s charged under M, and revenue loss to the Government exceeds $10,000; [and] . . . . (U) an attempt or conspiracy to commit an offense described in this paragraph. The term applies to an offense described in this paragraph whether in violation of Federal or State law . . . . Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph. 5 1 because . . . [t]he fact that they caught her and she wasn t 2 successful in the fraud doesn t mean that she wasn t convicted of 3 a fraud offense that involved over $10,000. 4 In an oral ruling dated July 2, 2008, the IJ found Pierre 5 removable after determining that she had been convicted of 6 federal bank fraud and that the Government had met its burden of 7 proof by clear and convincing evidence that based on the 8 indictment[,] . . . the intended loss or potential loss was in 9 . . . excess of $10,000. In so finding, the IJ relied on In re 10 S-I-K-, 24 I. & N. Dec. 324 (B.I.A. 2007), which, according to 11 the IJ, focused on the potential loss to the victims or the 12 actual intended loss to the victims. 13 removable as charged, the IJ denied Pierre s applications for 14 withholding of removal under section 241(b)(3) of the INA, 8 15 U.S.C. § 1231(b)(3), and relief under the Convention Against 16 Torture ( CAT ). 17 After finding Pierre Pierre timely appealed the IJ s decision to the BIA. On 18 November 25, 2008, the BIA dismissed Pierre s appeal in an 19 unpublished, non-precedential decision signed by a single board 20 member. 21 removable under subsection M because the bank sustained no actual 22 loss, the BIA agreed with Pierre that subsection M requires 23 actual loss. 24 Procedure 31(c) to conclude that subsection U applied to Pierre s In response to Pierre s argument that she was not However, after invoking Federal Rule of Criminal 6 1 case as a necessarily included lesser offense of subsection M, 2 the BIA declined to disturb the IJ s finding of removability. 3 support of its conclusion that Pierre was removable as an 4 aggravated felon on the basis of her conviction for fraud 5 involving a potential loss in excess of $10,000, the BIA relied 6 on its decisions in S-I-K- and In re Onyido, 22 I. & N. Dec. 552 7 (B.I.A. 1999), the latter of which the BIA noted this circuit had 8 deferred to in our decision in Ming Lam Sui v. INS, 250 F.3d 105, 9 111-12 (2d Cir. 2001). DISCUSSION 10 11 12 In I. Standard of Review Where, as here, the BIA supplements the decision of an IJ 13 with its own reasoning, we review the decision of the IJ as 14 supplemented by the BIA. 15 Cir. 2008). 16 final orders of removal under section 237(a)(2)(A)(iii) of the 17 INA, see 8 U.S.C. § 1252(a)(2)(C), we have jurisdiction to review 18 constitutional claims or questions of law, including whether a 19 specific conviction constitutes an aggravated felony, which we 20 review de novo. 21 Holder, 558 F.3d 196, 199 (2d Cir. 2009). 22 James v. Mukasey, 522 F.3d 250, 253 (2d Although we normally lack jurisdiction to review See 8 U.S.C. § 1252(a)(2)(D); Garcia-Padron v. Under Chevron U.S.A., Inc. v. Natural Resources Defense 23 Council, Inc., 467 U.S. 837 (1984), we defer to the BIA s 24 determination when our jurisdiction depends on the definition of 7 1 a phrase used in the INA, a statute that the BIA administers, and 2 when the intent of Congress is unclear and the agency's 3 interpretation is reasonable. 4 (internal quotation marks omitted). 5 is warranted where, as in this case, the challenged BIA decision 6 is unpublished. 7 Thanh Nguyen v. Chertoff, 501 F.3d 107, 111 (2d Cir. 2007)); see 8 also Mendis v. Filip, 554 F.3d 335, 338 & n.3 (2d Cir. 2009) 9 (noting unpublished decisions are not accorded Chevron deference James, 522 F.3d at 253-54 However, no such deference Garcia-Padron, 558 F.3d at 199 (quoting Phong 10 and declining to decide whether they are accorded Skidmore 11 deference or reviewed de novo because neither the IJ s nor BIA s 12 decision contains any analysis with persuasive power ). 13 II. Subsection (U) Is Not a Necessarily Included Lesser Offense 14 of Subsection (M) 15 The first question we must answer is whether subsection U is 16 a necessarily included offense in a charge of removability under 17 section 237(a)(2)(A)(iii) as defined by subsection M. 18 a matter of first impression that the Government s charge that an 19 alien is removable on the basis of a conviction for an aggravated 20 felony as defined by subsection M does not necessarily include a 21 charge of removability for an aggravated felony as defined by 22 subsection U. 23 24 We hold as Under section 237(a)(2)(A)(iii) of the INA, [a]ny alien who is convicted of an aggravated felony at any time after admission 8 1 is deportable. 8 U.S.C. § 1227(a)(2)(A)(iii). 2 101(a)(43) of the INA lists twenty subsections of substantive 3 offenses that constitute aggravated felon[ies] for purposes of 4 the INA. 5 this list defines an aggravated felony as an offense that 6 . . . involves fraud or deceit in which the loss to the victim or 7 victims exceeds $10,000. 8 subsection U, an aggravated felony also includes an attempt or 9 conspiracy to commit an[y] [one of the substantive] offense[s] See 8 U.S.C. §§ 1101(a)(43)(A)-(T). Section Subsection M of 8 U.S.C. § 1101(a)(43)(M)(i). Under 10 described in [subsections 101(a)(43)(A)-(T)]. 11 § 1101(a)(43)(U). 12 at issue for purposes of Pierre s removability is her offense of 13 bank fraud under 18 U.S.C. § 1344, an offense which the BIA 14 correctly found entailed an attempt to obtain a mortgage for 15 $500,000 using the identification of another person. 2 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 8 U.S.C. The parties do not dispute that the conviction Under 18 U.S.C. § 1344, whoever knowingly executes, or 2 The Government s indictment charged Pierre with bank fraud in violation of 18 U.S.C. §§ 1344(2) and 2, alleging that: On or about September 2, 2005, in the District of Massachusetts and elsewhere, . . . Frantzcia Pierre . . . did knowingly and willfully execute and attempt to execute a scheme and artifice to obtain money, funds, credits, assets, securities and other property owned by and under the custody and control of a federally insured financial institution, namely Flagstar Bank, by means of false or fraudulent pretenses, representations or promises, by attempting to obtain a mortgage for $500,000 using the Identifying Information of [another] person . . . . 9 1 attempts to execute, a scheme or artifice . . . to obtain any of 2 the moneys, funds, credits, assets, securities, or other property 3 owned by, or under the custody or control of, a financial 4 institution, by means of false or fraudulent pretenses is 5 punishable for bank fraud. 6 include a specific loss amount as an element of federal bank 7 fraud. 8 align directly with the INA s definition of a fraud-based 9 aggravated felony under subsections M and U, which require an However, section 1344 does not Thus, Pierre s conviction under section 1344 does not 10 actual or intended loss to the victim in excess of $10,000, 11 respectively. 12 1101(a)(43)(M), (U). 13 issue in Nijhawan v. Holder, --- U.S. --- , 129 S. Ct. 2294 14 (2009), a case in which the alien was charged as removable on the 15 basis of his conviction for an aggravated felony as defined by 16 both subsections M and U. 17 determining whether the monetary threshold is met for purposes of 18 the INA, we look not to the formal elements of federal bank fraud 19 but instead to the specific circumstances surrounding an 20 [alien s] commission of a fraud and deceit crime on a specific 21 occasion. 22 89 n.3 (2d Cir. 2009) (per curiam) (discussing Nijhawan s 23 applicability). 24 section 237(a)(2)(A)(iii) on the basis of his or her conviction Compare 18 U.S.C. § 1344 with 8 U.S.C. §§ The Supreme Court recently addressed this Id. at 2298. Under Nijhawan, when Id. at 2302; see also Lanferman v. BIA, 576 F.3d 84, Thus, whether an alien is removable under 10 1 for an aggravated felony as defined under subsection M requires a 2 circumstance-specific analysis that examines whether the 3 Government has demonstrated by clear and convincing evidence that 4 the circumstances surrounding the specific counts of conviction 5 involve the requisite amount of loss under the INA. 6 129 S. Ct. at 2300, 2303. 7 Nijhawan, Here, the parties agree that the circumstances surrounding 8 Pierre s offense of bank fraud demonstrate that the bank 9 sustained no actual loss for purposes of satisfying subsection M. 10 The question then becomes whether a potential loss in excess of 11 $10,000 can satisfy the requirements of subsection M, either 12 because subsection M does not require an actual loss to the 13 victim or because subsection U is a necessarily included lesser 14 offense of subsection M that may serve as an independent basis 15 for finding that an alien is an aggravated felon under the INA. 16 As to the first of these possibilities, we have already stated 17 that subsection M requires an actual loss to the victim or 18 victims in excess of $10,000, see Ming Lam Sui, 250 F.3d at 119, 19 a conclusion that the Government does not challenge in this case 20 and in which the BIA seemingly agrees. 21 146 739, slip op. at 2 (B.I.A. Nov. 25, 2008) (unpublished 22 decision); In re Babaisakov, 21 I. & N. Dec. 306, 316-20 (B.I.A. 23 2007) (stating that restitution orders, defendants admissions of 24 loss, and other evidence may support a finding of actual loss in 11 See In re Pierre, A042 1 excess of $10,000 under subsection M); S-I-K-, 24 I. & N. Dec. at 2 327 n.2 (charging removability under subsections M and U and 3 stating that requiring proof of an actual loss . . . for 4 attempts and conspiracies would defeat the very purpose behind 5 [subsection U] and that we do not require proof of actual loss 6 where the offense of conviction was an anticipatory offense ); 7 Onyido, 22 I. & N. Dec. at 554 (noting that a failed attempt to 8 obtain more than $10,000 is of no consequence under subsection 9 U).3 As to the second of these possibilities, that subsection U 10 is a necessarily included lesser offense of subsection M, there 11 is no BIA precedent adopting such a position, and, indeed, the 12 relevant case law supports a contrary conclusion. 13 For example, in S-I-K-, the Government charged the 14 respondent alien with removability on the basis of his conviction 15 for an aggravated felony as defined by subsections M and U. 16 I. & N. Dec. at 326. 17 convicted of conspiracy and mail fraud in connection with his 18 making false statements relating to a health care benefit program 19 and health insurance fraud. 1 2 3 4 5 6 7 8 9 10 3 24 In that case, the respondent had been Id. at 324. In reviewing the IJ s In Eke v. Mukasey, 512 F.3d 372, 380 (7th Cir. 2008), the Seventh Circuit, without citing either BIA precedent to the contrary or our decision in Ming Lam Sui, stated in dicta that subsection M might refer to both actual and intended loss. In doing so, the panel relied on Judge Wallace s concurring opinion in Kharana v. Gonzales, 487 F.3d 1280, 1286-87 (9th Cir. 2007), which was written without the benefit of the BIA s decision in SI-K- and was rejected by the majority, see id. at 1282 n.3. For the reasons already stated, we remain unpersuaded that subsection M encompasses both actual and potential loss. 12 1 order of removal, the BIA noted that the Government had a three- 2 fold burden in proving the respondent s removability by clear and 3 convincing evidence under subsection U: (1) it must demonstrate 4 that the respondent was convicted of conspiracy within the 5 meaning of subsection U; (2) it must prove that the object of the 6 conspiracy was an offense involving fraud or deceit within the 7 meaning of subsection M; and (3), it must prove that the offense 8 that was the object of the conspiracy involved an actual or 9 potential loss to the victim in excess of $10,000. Id. at 326. 10 In addressing whether the Government could remove an alien solely 11 on the basis of an attempt or a conspiracy under subsection U, 12 the BIA stated that 13 14 15 16 17 18 19 20 21 22 23 Congress s inclusion of a separate aggravated felony category for inchoate crimes of attempt and conspiracy reflects a legislative judgment that an offense described in one or more of the subparagraphs of section 101(a)(43) may be considered an aggravated felony, even if it was not consummated, where the [Department of Homeland Security] can prove that the alien was convicted of an attempt or conspiracy to commit such a crime. Id. (emphasis added). 24 analysis for a charge under subsection U is thus whether the 25 object of the conspiracy or attempt would have fit within the 26 particular aggravated felony category had it been successfully 27 completed. 28 charged under both subsections M and U. 29 anticipates the BIA s decision in this case that an alien may be According to the BIA, the proper Id. at 327. The alien in S-I-K-, however, had been 13 Nothing in S-I-K- 1 removed independently for an aggravated felony as defined by 2 subsection U on the sole basis that the Government charged the 3 alien with a completed offense under one of the INA s twenty 4 other categories of aggravated felon[ies] but failed to meet 5 its burden under that offense alone. 6 In Ming Lam Sui, we implicitly addressed the interplay of 7 section 101(a)(43) s subsections in deciding whether an alien was 8 removable for a fraud-based offense where he failed to cause an 9 actual loss exceeding $10,000. See 250 F.3d at 110. In that 10 case, we confronted the question of whether an alien may be 11 removed under subsections M and U when he or she has not been 12 convicted formally of a conspiracy or an attempt, but where 13 the facts related to the offense of conviction allow for the 14 conclusion that the alien attempted to defraud his or her would- 15 be victims of more than $10,000. 16 question, we deferred to the BIA s determination in Onyido that 17 subsection U does not use the word attempt to mean conviction 18 of an offense formally denominated as an attempt, but instead 19 means conduct that satisfies a generally accepted definition of 20 an attempted offense. 21 After accepting the BIA s interpretation of attempt in 22 subsection U, we examined whether the alien s offense fell within 23 that definition. 24 conviction for the substantive offense of knowingly and Id. at 111. In resolving this Ming Lam Sui, 250 F.3d at 113, 115-16. See id. at 116. 14 Notably, despite the alien s 1 unlawfully possessing counterfeit securities with the intent to 2 deceive another in violation of 18 U.S.C. § 513(a), see id. at 3 108, we focused on whether the alien was removable under 4 subsection U for an inchoate offense involving a potential loss 5 in excess of $10,000, and not on whether the alien s attempt to 6 defraud his victims of more than $10,000 somehow satisfied the 7 requirements for a completed fraud offense under subsection M. 8 See id. at 119. 9 subsection U were met despite the alien s successful commission In examining whether the requirements of 10 of a fraud-based crime, our approach coincided with the BIA s 11 later decision in S-I-K-, which also treated subsection U as a 12 distinct basis for a charge of removability under section 13 237(a)(2)(A)(iii) of the INA. 14 at 326. 15 aliens had been charged with removability on the basis of their 16 convictions for an aggravated felony as defined by both 17 subsections M and U, but because their victims did not sustain 18 the requisite amount of actual loss under subsection M, the cases 19 proceeded under subsection U, not M. 20 See In re S-I-K-, 24 I. & N. Dec. Significantly, in both S-I-K- and Ming Lam Sui, the Thus, while the BIA properly relied on S-I-K-, Onyido, and 21 Ming Lam Sui in support of its statement that subsections M and U 22 may be charged and applied together, see In re Pierre, A042 146 23 739, slip op. at 1-2, these cases lend no support to the BIA s 24 conclusion that a charge solely under subsection M necessarily 15 1 includes an attempt or conspiracy to commit such an offense under 2 subsection U. 3 recognized in S-I-K-, subsections M and U provide separate 4 definitions of the term aggravated felony under section 5 101(a)(43), and because the Government usually charges these 6 subsections in combination as a basis for removal under section 7 237(a)(2)(A)(iii). 8 I. & N. Dec. at 326; Ming Lam Sui, 250 F.3d at 110; Onyido, 22 I. 9 & N. Dec. at 553; see also, e.g., In re Cianfarano, A014 794 509, This is especially so because, as the BIA See Nijhawan, 129 S. Ct. at 2298; S-I-K-, 24 10 2009 WL 2981837 (B.I.A. Aug. 27, 2009) (unpublished decision) ; 11 In re Ragbir, A44 248 862, 2007 WL 1180505 (B.I.A. Mar. 14, 2007) 12 (same); In re Cole, A36 300 683, 2005 WL 3802284 (B.I.A. Nov. 23, 13 2005) (same). 14 We are similarly unpersuaded by the BIA s reliance on the 15 Federal Rules of Criminal Procedure. See In re Pierre, A042 146 16 739, slip op. at 2 n.1. 17 return a guilty verdict for (1) an offense necessarily included 18 in the offense charged; (2) an attempt to commit the offense 19 charged; or (3) an attempt to commit an offense necessarily 20 included in the offense charged, if the attempt is an offense in 21 its own right, Fed. R. Crim. P. 31(c), Congress issued no 22 comparable rule in the INA. 23 Congress set forth twenty-one separate categories of offenses 24 that provide a statutory basis for removal as an aggravated felon While Rule 31(c) does allow a jury to Rather, in section 101(a)(43), 16 1 under section 237(a)(2)(A)(iii) of the INA. Moreover, in section 2 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), Congress specified 3 that the alien must be given written notice of, inter alia, 4 [t]he acts or conduct alleged to be in violation of law and 5 [t]he charges against the alien and the statutory provisions 6 alleged to have been violated. 7 well as the established principle that a removal proceeding is 8 civil, not criminal, in nature, see INS v. Lopez-Mendoza, 468 9 U.S. 1032, 1038 (1984), there is no basis for relying on the Given the statutory scheme as 10 Federal Rules of Criminal Procedure to conclude that subsection M 11 necessarily includes a charge under subsection U, especially 12 where doing so would relieve the Government of its notice 13 obligations under section 239(a)(1) of the INA. 14 BCIS, 511 F.3d 324, 327 (2d Cir. 2007) ( Statutory construction 15 is a holistic endeavor. . . . In ascertaining the plain meaning 16 of a statute, [where our analysis necessarily begins,] the court 17 must look to the particular statutory language at issue, as well 18 as the language and design of the statute as a whole. (internal 19 citations and quotation marks omitted)). 20 Accord Puello v. Because Pierre s offense did not cause an actual loss to the 21 bank in excess of $10,000, because subsection U is not a 22 necessarily included lesser offense of subsection M, and because 23 a potential loss cannot satisfy the requirements of subsection M 24 alone, we exercise our jurisdiction and vacate the BIA s finding 17 1 that Pierre is removable as an aggravated felon under section 2 237(a)(2)(A)(iii), as defined by subsection M. 3 III. The BIA s Decision Violated Pierre s Due Process Rights 4 We further conclude that the BIA s sua sponte invocation of 5 subsection U as a basis for finding Pierre removable as an 6 aggravated felon under section 237(a)(2)(A)(iii) of the INA 7 violated Pierre s due process rights. 8 9 Under the Fifth Amendment of the United States Constitution, [n]o person shall be . . . deprived of life, liberty, or 10 property without due process of law. 11 is well-established that a lawful permanent resident is entitled 12 to constitutional due process in removal proceedings. 13 v. Flores, 507 U.S. 292, 306 (1993); Brown v. Ashcroft, 360 F.3d 14 346, 350 (2d Cir. 2004). 15 right to notice of the nature of the charges and a meaningful 16 opportunity to be heard. 17 quotation marks omitted). 18 U.S. Const. amend. V. It See Reno At the core of due process is the Brown, 360 F.3d at 350 (internal We do not hesitate in holding that Pierre sustained a due 19 process violation under the facts of this case. Pierre s NTA 20 charged her as removable under section 237(a)(2)(A)(iii) solely 21 on the basis of her conviction for an aggravated felony as 22 defined by subsection M. 23 front of the IJ that the Government needed to charge Pierre with 24 more than a violation of subsection M given her failure to cause Despite Pierre s counsel s statement in 18 1 any actual loss to the bank and despite the IJ s repeated queries 2 whether the Government desired to amend its NTA to add a charge 3 under subsection U, the Government proceeded under subsection M 4 only. 5 subsection U as a basis for finding Pierre removable, adding that 6 it would not amend its NTA to include a charge under subsection 7 U. 8 felony as defined by subsection U, Pierre had no reason to defend 9 against such a charge in front of the IJ. Indeed, the Government expressly disavowed any reliance on Thus, having no notice of her removability for an aggravated 10 Moreover, when the IJ issued his oral ruling, he found 11 Pierre removable as charged on the basis of her conviction for 12 an aggravated felony as defined by subsection M. 13 when Pierre appealed the IJ s finding to the BIA, she was 14 appealing the IJ s order of removal under subsection M and had no 15 basis for raising a due process challenge in connection with a 16 finding of removability under subsection U. 17 until after the BIA issued its decision that Pierre s due process 18 challenge arose.4 1 2 3 4 5 6 7 8 9 10 11 4 Accordingly, In fact, it was not We reject as disingenuous the Government s argument that Pierre failed to exhaust her due process challenge in front of the BIA, and is therefore precluded from raising it on appeal. Given the Government s representations at the immigration hearing and the IJ s stated basis for finding Pierre removable, Pierre had no reason to believe at any point during the administrative proceedings that she would be found removable under section 237(a)(2)(A)(iii) for an aggravated felony as defined by subsection U. Because Pierre s due process challenge concerning her lack of notice and an opportunity to be heard did not arise until after the BIA issued its decision, this petition for review 19 1 We further hold that the BIA s sua sponte invocation of the 2 uncharged, disavowed subsection U as a basis for finding Pierre 3 removable under the INA prejudiced Pierre. 4 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) ( Parties claiming 5 denial of due process in immigration cases must, in order to 6 prevail, allege some cognizable prejudice fairly attributable to 7 the challenged process. (internal quotation marks omitted)). 8 stated earlier, Rule 31(c) provides statutory notice to a 9 criminal defendant that on the basis of the offense charged, the 10 defendant may be found guilty of a necessarily included offense 11 or an attempt. 12 corresponding statutory notice exists for an alien charged with 13 removability under section 237(a)(2)(A)(iii). 14 demonstrates that Pierre s lack of any statutory notice, any 15 actual notice, and any opportunity to be heard in connection with 16 a charge under subsection U precluded her from making any of the 17 arguments she now raises in response to that charge. 18 Accordingly, we hold that Pierre was denied her core due 19 process right of notice and an opportunity to be heard, in 20 violation of the Fifth Amendment. 21 22 1 2 3 4 See Garcia-Villeda v. See Fed. R. Crim. P. 31(c). As No such The record In sum, we hold that Pierre was not removable as an aggravated felon as charged under subsection M, because is her first opportunity to raise a due process challenge. See Lin Zhong v. U.S. Dep t of Justice, 480 F.3d 104, 118 n.16 (2d Cir. 2007) (stating that a motion to reopen removal proceedings is not required for administrative exhaustion). 20 1 subsection U is not a necessarily included lesser offense of 2 subsection M, and that Pierre was deprived of due process of law 3 when the BIA sua sponte invoked uncharged subsection U as a basis 4 for finding her removable under section 237(a)(2)(A)(iii). CONCLUSION 5 6 We GRANT the petition for review and VACATE the order of 7 removal.5 1 2 3 4 5 6 7 8 5 As Pierre conceded at oral argument, vacating the BIA s decision does not preclude the Department of Homeland Security from charging her anew under subsections M and U. We express no view on the desirability of such an action. However, if the Government does charge Pierre with removability under section 237(a)(2)(A)(iii), as defined by subsections M and U, she will have notice and a full opportunity to defend against those charges. 21

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