Submitted, Pasadena, California March 3, 2015.[*]
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A092-969-907.
The panel denied Maria Arce Fuentes' petition for review of the Board of Immigration Appeals' decision finding that her conviction for conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) qualified as an aggravated felony because the amount of funds exceeded $10,000 as required by 8 U.S.C. § 1101(a)(43)(D).
The panel held that the BIA correctly found that the $10,000 monetary threshold refers to the " specific circumstances" of a money laundering offense, as opposed to an element of a generic crime, and that the BIA was thus not limited to examining the language of the conviction under the categorical approach but rather properly relied on the presentence report (PSR) to determine whether the threshold amount was met.
The panel held that an overt act is not an element of a money laundering conspiracy, and thus to sustain a conviction under § 1956(h) one need not be proved. The panel held that the BIA erred in relying on the indictment and judgment to find that Arce conspired to launder more than $10,000, but that the error was harmless because the BIA properly relied on the PSR to find that she conspired to launder more than that amount. The panel noted that it joined the Second, Third, and Tenth Circuits in concluding that the BIA's reliance on a PSR in conducting the circumstance-specific approach does not render a removal proceeding fundamentally unfair.
David B. Landry, San Diego, California, for Petitioner.
Gregory M. Kelch, Trial Attorney, Linda S. Wernery, Assistant Director, Stuart F. Delery, Acting Assistant Attorney General, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
Before: Harry Pregerson, Ferdinand F. Fernandez, and Jacqueline H. Nguyen, Circuit Judges.
Maria Arce Fuentes challenges the Board of Immigration Appeals' (" BIA" ) finding that she was removable on the ground that she was convicted of an aggravated felony. Arce's conviction for conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) qualifies as an aggravated felony " if the amount of the funds exceeded $10,000." 8 U.S.C. § 1101(a)(43)(D). Following the Supreme Court's reasoning in Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), we conclude that the BIA correctly found that the $10,000 monetary threshold in 8 U.S.C. § 1101(a)(43)(D) refers to the " specific circumstances" of a money laundering offense as opposed to an element of a generic crime. Thus, the BIA was not limited to the categorical approach of examining the language of the statute ...