Zapico-Delgado

MEMORANDUM

We deny the petition for review. In 2009 the United States Supreme Court decided the case of Nijhawan v. Holder, - U.S. -, 129 S.Ct. 2294 , 174 L.Ed.2d 22 (2009), and held that, 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 “references] 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…