U.S.

Department of Justice
/

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Virginia 22041

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Saenz-Rodriguez, Michelle L., Esq. OHS/ICE Office of Chief Counsel - DAL
Saenz-Rodriguez & Assoc. 125 E. John Carpenter Fwy, Ste. 500
13601 Preston Rd. Irving, TX 75062-2324
#W1000
Dallas, TX 75240

Name: BAIG, SAADAT A 043-589-486

Date of this notice: 1/26/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

DOYLJtL c t1/lA)

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Greer. Anne J.
Mullane, Hugh G.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Saadat Baig, A043 589 486 (BIA Jan. 26, 2017)
 ,
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A043 589 486 - Dallas, Texas Date:

JAN 2 6 2017
In re: SAADAT BAIG

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Michelle L. Saenz-Rodriguez, Esquire

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -

Convicted of aggravated felony

APPLICATION: Termination

The respondent timely appeals from the Immigration Judge's August 10, 2016, decision,
ordering his removal from the United States. The appeal will be sustained.

The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, and the likelihood of future events, under the "clearly erroneous"
standard. See 8 C.F.R. 1003.l(d)(3)(i); Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015);
Matter of R-S-H-, 23 I&N Dec. 629 (BIA 2003); Matter of S-H-, 23 l&N Dec. 462 (BIA 2002).
The Board reviews questions of law, discretion, judgment, and all other issues in an appeal from
an Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii).

The respondent is a native and citizen of Pakistan and a lawful permanent resident of the
United States since 1993. On October 7, 2015, the respondent entered a plea of guilty in the
United States District Court for the District of Kansas, for the offense of Food Stamp fraud, a
Class D Felony, in violation of 7 U.S.C. 2024(b) (Exh. 2). Upon conviction, the respondent
was sentenced to a 6-month prison term, and was ordered to pay $118.69 in restitution to the
United States Department of Agriculture, and agreed to an order of forfeiture in the amount of
$169,000, the sum of the gross proceeds from his illegal conduct (Exh. 2).

The issue before us on appeal is the respondent's challenge to the Immigration Judge's
decision finding that this conviction renders the respondent removable under section
237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), as an
alien convicted of an aggravated felony; namely, "an offense that . . . involves fraud or deceit in
which the loss to the victim or victims exceeds $10,000." See section 10l(a)(43)(M)(i) of the
Act, 8 U.S.C. 110l(a)(43)(M)(i).

The respondent does not contend that his 2015 federal conviction for Food Stamp Fraud is
not an offense that "involves fraud or deceit" within the meaning of section 101(a)(43)(M)(i) of
the Act. However, he challenges the Immigration Judge's determination that his offense of
conviction caused a loss to victims of more than $10,000, so as not to qualify as an aggravated
felony offense.
Cite as: Saadat Baig, A043 589 486 (BIA Jan. 26, 2017)
A043 589 486

In the section I01(a)(43)(M)(i) context, calculating the amount of victim loss resulting from
a fraud crime entails a "circumstance-specific" inquiry, not a "categorical" one.
Nijhawan v. Holder, 557 U.S. 29, 36 (2009); see also Matter of Babaisakov, 24 I&N Dec. 306,
317-320 (BIA 2007). An Immigration Judge's findings regarding the amount of victim loss are
inherently factual; as such, they are entitled to deference on appeal, subject only to clear error
review. Cf United States v. Lawrence, 189 F.3d 838, 844 (9th Cir. 1999); see also 8 C.F.R.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

I003.l(d)(3)(i). As with any other fact offered to establish removability, moreover, the DHS
must prove the amount of victim loss by clear and convincing evidence. Section 240(c)(3)(A) of
the Act, 8 U.S.C. 1229a(c)(3)(A). With the foregoing principles in mind, we are persuaded by
the respondent's appellate argument that the Immigration Judge's determination that the
respondent's offense of conviction resulted in a loss to his victim of more than $10,000 is clearly
erroneous.

As argued by the respondent on appeal, although he was initially charged with 6 counts under
a sealed indictment dated December 14, 2014 (Exh. 2), he only entered a plea of guilty to
Count 4 for the offense of Food Stamp Fraud. The remaining counts in the indictment were
dismissed as part of the plea agreement. The respondent maintains that pursuant to the plea
agreement at p.5 (Exh. 2), he was only ordered to pay restitution in the amount of $118.69,
which he claims represents the only amount of loss for which he was responsible by pleading
guilty to Count 4 of the indictment. The respondent contends the Immigration Judge improperly
applied the circumstance-specific approach to include the forfeiture amount of $169,000 he was
also ordered to pay in the determination of the amount of loss to the victim.

The respondent argues that although the forfeiture order relates to the offense, it is a penalty
that should not be used in determining the loss to the victim. The respondent states that
restitution and forfeiture are distinct legal terms with different consequences. The respondent
maintains that restitution is remedial in nature, and its goal is to restore the victim's loss.
However, he contends forfeiture is punitive in nature and seeks to diminish any profits that were
gained by the offender. Given their distinctive nature and goals, the respondent argues that they
are not interchangeable. We agree. See United States v. Taylor, 582 F.3d 558, 586 (5th Cir.
2009) (citing United States v. Webber, 536 F.3d 584, 602-03 (7th Cir. 2008); United States v.
Torres, 703 F.3d 194 (2d Cir. 2012), "[r]estitution is loss based, while forfeiture is gain based."
Id. at 203 (quoting United States v. Genova, 333 F.3d 750, 761 (7th Cir. 2003)).

The respondent argues that the Court in Nijhawan not only indicated that the loss must be
tied to specific counts covered by the conviction, but also relied on the restitution amount
ordered by the court in that case to determine if the $10,000 threshold amount had been met.
Applying the circumstance-specific analysis in Nijhawan, the respondent concludes that the
Immigration Judge should have focused only on the actual amount of restitution he was ordered
to pay by pleading guilty to Count 4 of the indictment, i.e., $118.69, in order to determine that
the loss to the victim did not meet the $10,000 threshold found in section 101(a)(43)(M)(i) of the
Act.

The respondent's conviction for the Food Stamp Fraud scheme is linked to plea to Count 4 of
the indictment, which in turn is based on a single fraudulent transaction that took place on April
15, 2014, and which specifically sets out the sum of $118.69 as the amount of restitution for the
actual loss sustained. Therefore, even though the court entered a forfeiture order in this case in
2
Cite as: Saadat Baig, A043 589 486 (BIA Jan. 26, 2017)
A043 589 486

the amount of $169,000, identified as the proceeds of the entire Food Stamp Fraud scheme in the
court documents cited herein, we find the forfeiture order is not sufficiently tethered to the
respondent's conviction for the single fraudulent transaction in Count 4 of the indictment to
support the Immigration Judge's determination that the amount of loss to the victim exceeded the
$10,000 threshold.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In conclusion, as we find clear error in the Immigration Judge's determination that the
respondent's conviction in the Food Stamp Fraud scheme caused a loss to the victim in excess of
$10,000, we are unable to sustain his findings that the respondent's 2015 federal conviction for
Food Stamp Fraud qualifies as an aggravated felony offense under section 101(a)(43)(M)(i) of
the Act, as charged in the Notice to Appear (Form I-862) (Exh. 1), and so as to find the
respondent to removable on that basis,.

Accordingly, the following order will be entered.

ORDER: The respondent's appeal is sustained.

FURTHER ORDER: The proceedings are terminated.

Board Member Hugh G. Mullane respectfully dissents without opinion.

3
Cite as: Saadat Baig, A043 589 486 (BIA Jan. 26, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS, TEXAS

Immigrant & Refugee Appellate Center, LLC | www.irac.net

File: A043-589-486 August 10, 2016

In the Matter of

)
SAADAT BAIG ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGE: Section 237(a)(2)(A)(iii) of the Act.

APPLICATIONS:

ON BEHALF OF RESPONDENT: MICHELLE L. SAENZ-RODRIGUEZ, Esquire

13601 Preston Road, W-1000
Dallas, TX 75240

ON BEHALF OF OHS: VAS SADRI, Esquire

Assistant Chief Counsel
U.S. Department of Homeland Security
Office of the Chief Counsel
125 East John Carpenter Freeway, Suite 500
Irving, TX 75062

DECISION AND ORDER OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Pakistan. The present action

commenced when the Department of Homeland Security issued a Notice to Appear

dated March 22, 2016. The notice was served on the respondent on the same date.

[Exhibit 1].

1
 In the Notice to Appear, the Department alleged that the respondent was subject

to removal from the United States, notwithstanding his status as a lawful permanent

resident, as a consequence of an October 7, 2015, conviction in the United States

Immigrant & Refugee Appellate Center, LLC | www.irac.net

District Court, District of Kansas, for the offense of food stamp fraud, in violation of

7 United States Code Section 2024(b). This conviction, according to the Department,

made the respondent subject to removal under the provisions of Section 237(a)(2)(A)(iii)

of the Act, in that the respondent was convicted of an aggravated felony as defined in

Section 101(a)(43)(M)(i) of the Act, a law relating to fraud or deceit in which the loss to

the victim or victims exceeds $10,000.

The respondent first came to Court on June 14, 2016. The respondent's rights

were explained to him in English. 1

The respondent, through counsel, sought additional time to plead, and the matter

was reset for hearing on June 27, 2016.

At the June 27 hearing, the respondent, through counsel, admitted the four

factual allegations in the Notice to Appear, but denied the charge of removability. The

respondent claims that the loss to the victims in this case did not exceed $10,000 and,

therefore, the charge of removability under Sections 101(a)(43)(M)(i) and

237(a)(2)(A)(iii) of the Act were not appropriate. The Court asked for briefs on this

issue, and both parties eventually provided briefs, which are contained in the record.

On July 25, 2016, the Court, after reviewing the briefs filed by the parties and

listening to oral argument on the issue, issued its ruling.

The central issue in this case is whether the loss to the victim exceeds $10,000.

As noted above, the respondent's conviction for food stamp fraud shows that he was

ordered to pay restitution in the amount of $118.69 and further, a forfeiture judgment

1 The respondent proceeded in English throughout the proceedings.

A043-589-486 2 August 10, 2016

was entered against him in the amount of $169,000. Both parties in their brief cited

Nijhawan v. Holder, 557 US 38 (2009) to support their respective positions. Niihawan

calls for Courts to use a 11circumstance-specific11 approach to determine whether the loss

Immigrant & Refugee Appellate Center, LLC | www.irac.net

to a victim exceeds $10,000 for Immigration purposes, rather than a categorical

approach.

Further, the Supreme Court in Niihawan indicates that the loss must be tied to

specific counts covered by the conviction. For his ffB-part, the respondent relies on the

fact that restitution in this case was only set at $118.69. Further, the respondent notes

that the Nijhawan case specifically relied on the restitution amount ordered by the Court

in that case to cover the issue of whether the $10,000 threshold was met. Further, the

respondent argues that restitution is remedial, that is, designed to make a victim whole

for a loss, as opposed to forfeiture, which is punitive in nature.

Interestingly, OHS cited to the exact same provisions in the Niihawan case, but

argues that the proper interpretation of the "amount of loss11 should include both

restitution and forfeiture. In further support of their position, DHS directed the Court to

review the plea agreement, which was properly signed by the respondent as part of his

plea admitting to count four of the indictment while the other five counts were dismissed

by the Government as the plea bargain in his case. In the plea agreement, the

respondent admits to illegally obtaining more than $120,000 but less than $200,000 in

food stamp fraud. On page eight of the plea agreement, the defendant, now

respondent, agrees to a forfeiture of $169,000, which sum represents proceeds

obtained from the actions set forth in counts one through six of the indictment. Further,

DHS cites the forfeiture notice itself included in the indictment, which indicates that

"upon conviction of one or more [emphasis added], counts 1 through 18, respondent

shall forfeit ... $169,000, the amount of money involved in the violations herein."

A043-589-486 3 August 10, 2016

 The Department further argues that the respondent's plea of guilty on count four,

notwithstanding that the loss specifically attributed to that count is $118.69, triggers the

forfeiture notice, thus requiring the respondent to forfeit $169,000, which is in excess of

Immigrant & Refugee Appellate Center, LLC | www.irac.net

the $10,000 threshold set forth in Section 101(a)(43)(M)(i) of the Act.

After reviewing the pleadings by the parties, the Supreme Court's finding in

Nijhawan v. Holder, as well as the documents attached to the indictment and plea

agreement (which review is allowed under Niihawan v. Holder), the Court specifically

finds that OHS has met their burden of proof to show by clear and convincing evidence

that the loss to the victim in this case exceeded $10,000.

The Court relies on the documents contained in the sealed indictment, as well as

the forfeiture notice and plea agreement to reach its conclusion. While it is true that

count four only involved an amount of $118.69, the specific wording of the plea

agreement and forfeiture notice indicates that if the respondent plead guilty or was

found guilty on any of the counts in the indictment, that he would be subject to a

forfeiture of $169,000, which was the amount of loss in the acts complained of in the

indictment. The respondent agreed in the plea agreement that he obtained an amount

more than $120,000 but less than $200,000 through his illegal acts through the food

stamp fraud scheme.

It is clear to the Court, therefore, that the amount of loss in this transaction

exceeded $10,000. While the Court does take note of the respondent's argument that

restitution is restorative and forfeiture is punitive, the clear language of the documents

set forth in the record of this matter show that the loss to the Government was over

$10,000. The respondent agreed to the forfeiture judgment of $169,000, and

specifically admitted that the loss to the victims was over the $10,000 threshold.

Thus, the Court finds that by clear and convincing evidence, OHS has sustained

A043-589-486 4 August 10, 2016

their burden of proof that the loss to the victim in the respondent's food stamp fraud

conviction exceeded $10,000. The Court, therefore, sustained the charge of

removability under Section 237(a)(2)(A)(iii) of the Act.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

The respondent declined to designate a country of removal and the Court

designated Pakistan as the country of return, based on the respondent's nativity and

citizenship. At a July 25 hearing, the Court made this finding, and the respondent asked

for one more continuance to determine what relief might be available to him from an

order of removal. The matter was reset to August 10, 2016.

At that hearing, the respondent, through counsel, declined to seek any relief

before the Court. The Court notes that, given the respondent's conviction for food

stamp fraud and that the Court had previously found that said conviction was an

aggravated felony under Section 237(a)(2)(A)(iii) and 101(a)(43)(M)(i) of the Act, that

relief was very limited. The respondent declined to seek deferral of removal under the

Convention against Torture and, further, declined to seek any possible readjustment of

status that may have been available to him.

The Court, therefore, issued an order of removal to Pakistan to the respondent,

based on the charge set forth in the Notice to Appear. The following orders are entered:

ORDER

IT IS ORDERED that the charge of removability under Section 237(a)(2)(A)(iii) of

the Act be, and is hereby, sustained, having been proven by clear and convincing

evidence, for the reasons set forth above.

IT IS FURTHER ORDERED that the respondent, having been found subject to

removal by clear and convincing evidence, and, in the absence of any applications for

A043-589-486 5 August 10, 2016

relief before this Court, be, and is hereby, ordered removed from the United States to

Pakistan based on the charge contained in the Notice to Appear.

Dallas, Texas this 10th day of August 2016.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Please see the next page for electronic
signature
JAMES NUGENT
Immigration Judge

A043-589-486 6 August 10, 2016

.

/Is//
Immigration Judge JAMES NUGENT

nugentj on September 27, 2016 at 8:04 PM GMT

Immigrant & Refugee Appellate Center, LLC | www.irac.net

A043589-486 7 August 10, 2016