Bhupinder Kaur Kharana v. Alberto R. Gonzales, Attorney General

487 F.3d 1280 Bhupinder Kaur KHARANA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. No. 04-71335. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 14, 2007. Filed May 29, 2007. Saad Ahmad, Law Offices of Minter & Ahmad, Fremont, CA, for the petitioner. William C. Minick (argued) and Earle B. Wilson (briefed), Office of Immigration Litigation, Civil Division, United States Department of Justice, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Ais-fes-gmf. Before: J. CLIFFORD WALLACE, D.W. NELSON, and M. MARGARET McKEOWN, Circuit Judges. Opinion by Judge D.W. NELSON; Concurrence by Judge WALLACE. D.W. NELSON, Senior Circuit Judge. 1 This case concerns the meaning of Immigration and Nationality Act ("INA") § 101(a)(43)(M)(i), 8 U.S.C. § 1101 (a)(43)(M)(i), 1 which defines the term "aggravated felony" to include "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." We must decide whether a defendant who pleads guilty to fraudulently appropriating more than $10,000 but subsequently makes her victims whole has "paid…

Opinion by Judge D.W. NELSON; Concurrence by Judge WALLACE.

This case concerns the meaning of Immigration and Nationality Act (“INA”) § 101(a)(43)(M)(i), 8 U.S.C. § 1101 (a)(43)(M)(i), 1 which defines the term “aggravated felony” to include “an offense that ... involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” We must decide whether a defendant who pleads guilty to fraudulently appropriating more than $10,000 but subsequently makes her victims whole has “paid down” the “loss to the victims” below the statutory threshold so that her offense no longer qualifies as an aggravated felony. We answer in the negative and deny the petition for review.

I. Background

In August 2001, Petitioner Bhupinder Kharana (“Petitioner” or “Kharana”), a lawful permanent resident of the United States, was charged in a state court with four counts of obtaining money by false pretenses in violation of California Penal Code § 532. The felony complaint alleged that Petitioner, by “false and fraudulent representation[s] and pretense[s], defraud[ed]” four victims of $11,000, $23,000, $17,000, and $26,250, respectively. Petitioner pled nolo contendere to all four counts.…

concurring in the judgment:

Kharana is deportable if she was “convicted of an aggravated felony,” 8 U.S.C. § 1227 (a) (2) (A) (iii), which is defined as an “offense ... involving] fraud or deceit in which the loss to the victim or victims exceeds $10,000,” 8 U.S.C. § 1101 (a)(43)(M)(i). There is no dispute that Kharana’s conviction under California Penal Code § 532(a) was for an offense involving “fraud or deceit.” However, because section 532(a) does not require that the victim or victims incur loss, Kharana’s statute of conviction is not a categorical match for subsection (M)(i). See Taylor v. United States, 495 U.S. 575, 599-602 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990).

We may look to the state charging document, among other things, to determine whether Kharana’s conviction involved loss to her victims exceeding $10,000. See Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir.2004). The felony complaint states that Kharana “did knowingly and designedly, and by false and fraudulent representation and pretense, defraud” her victims of more than $77,000. The felony complaint thus indicates losses that far exceed those required to qualify Kharana as an aggravated felon. One would…