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Keywords

pleafelonydue processsustainedpiracy
pleafelonydue processpiracy

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Pierre v. Holder

Facts

Frantzcia Pierre, a native and citizen of Haiti, is a lawful permanent resident of the United States. On December 13, 2006, she plead guilty to federal charges of bank fraud and aggravated identity theft in connection with an attempt to obtain a $500,000 mortgage. Notably, Pierre was arrested in the bank after presenting the mortgage application and false documents to bank personnel, thereby failing to obtain any money from the bank. On December 11, 2007, the Government personally served Pierre with a Notice to Appear (NTA) for removal proceedings under section 240 of the INA, alleging that Pierre was convicted of bank fraud and aggravated identity theft, offenses that involved a monetary loss to the victim in excess of Ten Thousand Dollars ($10,000).

Frantzcia Pierre, a native and citizen of Haiti, is a lawful permanent resident of the United States. On December 13, 2006, she plead guilty to federal charges of bank fraud and aggravated identity theft in connection with an attempt to obtain a $500,000 mortgage. Notably, Pierre was arrested in the bank after presenting the mortgage application and false documents to bank personnel, thereby failing to obtain any money from the bank.

Issue

The issues were (1) whether subsection U was a necessarily included offense to a charge of removability under 237(a)(2)(A)(iii) of the INA, and (2) whether the BIA violated petitioner's due process rights when it found her removable as an aggravated felon under subsection U after the Government expressly disavowed its reliance on subsection U.

The issues were (1) whether subsection U was a necessarily included offense to a charge of removability under 237(a)(2)(A)(iii) of the INA, 8 U.S.C.S. 1227(a)(2)(A)(iii), as defined by subsection M, an issue of first impression; and (2) whether the BIA violated petitioner's due process rights when it found her removable as an aggravated felon under subsection U after the Government expressly disavowed its reliance on subsection U as a basis for finding she was convicted of an aggravated felony.

Rule

Under section 237(a)(2)(A)(iii) of the INA, any alien who is convicted of an aggravated felony at any time after admission is deportable. Subsection M defines an 'aggravated felony' as an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000. Subsection U includes 'an attempt or conspiracy to commit an offense described in [subsections 101(a)(43)(A)-(T)].'

Under section 237(a)(2)(A)(iii) of the INA, '[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.' 8 U.S.C. 1227(a)(2)(A)(iii). Section 101(a)(43) of the INA lists twenty subsections of substantive offenses that constitute 'aggravated felon[ies]' for purposes of the INA. See 8 U.S.C. 1101(a)(43)(A)-(T). Subsection M of this list defines an 'aggravated felony' as 'an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.' 8 U.S.C. 1101(a)(43)(M)(i). Under subsection U, an 'aggravated felony' also includes 'an attempt or conspiracy to commit an[y] [one of the substantive] offense[s] described in [subsections 101(a)(43)(A)-(T)].' 8 U.S.C. 1101(a)(43)(U).

Analysis

The court held that because Pierre was not charged under subsection U, and because subsection U is not a necessarily included offense to a charge under subsection M, Pierre was denied her due process rights of notice and an opportunity to be heard when the BIA sua sponte found her removable as an aggravated felon as defined by subsection U. The court noted that the BIA had agreed with Pierre that she was not removable under subsection M because the bank that she attempted to defraud sustained no actual loss, yet it still found her removable under subsection U without proper notice.

The court held that because Pierre was not charged, either explicitly or implicitly, under subsection U, and because subsection U is not a necessarily included offense to a charge under subsection M, Pierre was denied her due process rights of notice and an opportunity to be heard when the BIA sua sponte found her removable as an aggravated felon as defined by subsection U.

Conclusion

The court granted the petition for review and vacated the order of removal.

We thus GRANT the petition for review and VACATE the decision of the BIA.

Who won?

Frantzcia Pierre prevailed in the case because the court found that the BIA's decision violated her due process rights by not providing proper notice regarding the charges against her.

Frantzcia Pierre prevailed in the case because the court found that the BIA's decision violated her due process rights by not providing proper notice regarding the charges against her.

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