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Levesque v. Lynch

United States Court of Appeals, First Circuit

September 18, 2015

JULIET ROSE MCKENZIE LEVESQUE, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, [*] Respondent

Tricia A. Quest and Moretti Perlow & Bonin Law Offices on brief for petitioner.

Lindsay M. Murphy, Trial Attorney, Office of Immigration Litigation, Civil Division, Department of Justice, Benjamin C. Mizer, Acting Assistant Attorney General, Civil Division, and Song Park, Senior Litigation Counsel, on brief for respondent.

Before Howard, Chief Judge, Lipez and Barron, Circuit Judges.

OPINION

Page 153

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

HOWARD, Chief Judge.

At issue in this immigration case is whether an individual must serve a " term of imprisonment" to have committed an " aggravated felony" as that term is defined in 8 U.S.C. § 1101(a)(43). Relying on the plain language of the statute, we hold that a federal or state conviction can constitute an " aggravated felony" under this law even if the petitioner served no incarcerative sentence for that crime. Accordingly, we deny the petition for review.

In 2011, Petitioner Juliet Rose McKenzie Levesque, a lawful permanent resident, pled guilty to conspiracy to commit wire fraud, bank fraud, and identity fraud. See 18 U.S.C. § 371. The federal district court sentencing Levesque determined that the total amount of loss to the victims was $29,444.22, and thus required Levesque to pay restitution in that amount. The court then ordered a five-year term of probation, although it did not impose any incarcerative sentence.

As a result of this predicate conviction, the Department of Homeland Security initiated removal proceedings against Levesque. See 8 U.S.C. § 1227(a)(2)(A)(iii). In June 2013, an Immigration Judge ordered Levesque removed under this provision, and the Board of Immigration Appeals upheld that decision. This timely appeal followed.

Our review in this case is limited to " constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(C); see also § 1252(a)(2)(D) (withholding federal jurisdiction, with limited exceptions, of " any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in . . . § 1227(a)(2)(A)(iii) . . ." ). Here, Levesque presents a pure question of law that we have the jurisdiction to consider and that we review de novo. See Campbell v. Holder, 698 F.3d 29, 32 (1st Cir. 2012).

We begin with the statutory provisions at the heart of this case. The statute governing Levesque's removal states, " [a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." § 1227(a)(2)(A)(iii). In turn, " aggravated felony" is defined to include: an offense involving " fraud or deceit in which the loss to the victim or victims exceeds $10,000," § 1101(a)(43)(M)(i), and an attempt to or conspiracy to commit said offense, § 1101(a)(43)(U). Of particular import here, the end of the section defining " aggravated felony" provides that the term:

applies to an offense described in [§ 1101(a)(43)] whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.

§ 1101(a)(43) (emphases added).

Levesque concedes that her predicate conviction for conspiring to commit wire fraud, bank fraud, and identity fraud, 18 U.S.C. ยง 371, constitutes an offense " involv[ing] fraud or deceit" under the definition of ...


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