Alberto Rivas-Marin v. Eric Holder, Jr.

MEMORANDUM

Petitioner Alberto Rivas-Marin (“Rivas-Marin”), a native and citizen of Nicaragua, petitions for review of a decision of the Board of Immigration Appeals (“BIA”). The BIA upheld the immigration judge’s (“IJ”) ruling that Rivas-Marin’s mail fraud conviction under 18 U.S.C. § 1341 constituted an aggravated felony under 8 U.S.C. § 1101 (a)(43)(M)(i), thus requiring his removal to Nicaragua.

Although 8 U.S.C. § 1252 (a)(2)(C) prohibits judicial review of orders of remova-bility resting on an alien’s conviction for an aggravated felony, we still retain jurisdiction “to determine if jurisdiction exists.” Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir.2005) (internal quotation marks omitted). Thus, we may determine, as a matter of law, whether Rivas-Marin’s mail fraud conviction is an aggravated felony under § 1101(a)(43)(M)(i), which defines “aggravated felony” as a crime involving fraud or deceit causing more than $10,000 in loss to victims.

The Supreme Court has held that an alien’s mail fraud conviction under § 1341 is an aggravated felony under § 1101(a)(43)(M)(i). Nijhawan v. Holder, 557 U.S. 29 , 129 S.Ct. 2294, 2303-04 , 174 L.Ed.2d 22 (2009). Alternatively,…