Case: 21-60462 Document: 00516558289 Page: 1 Date Filed: 11/28/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 28, 2022
No. 21-60462 Lyle W. Cayce
Clerk
Ornella Angelina Hammerschmidt,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A095 368 118
Before Smith, Barksdale, and Haynes, Circuit Judges.
Haynes, Circuit Judge:
Ornella Angelina Hammerschmidt (“Hammerschmidt”) petitions
for review of the Board of Immigration Appeals’s (“BIA”) final order
denying her application for, inter alia, withholding of removal under the
Immigration and Nationality Act (“INA”) and protection under the
Convention Against Torture (“CAT”). For the following reasons, the
petition is DENIED in part and DISMISSED in part.
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No. 21-60462
I. Background
Hammerschmidt, a native and citizen of Venezuela, was paroled into
the United States for deferred inspection in 2001. The crimes and attendant
consequences which form the basis of this petition began in 2009 when
Hammerschmidt pled guilty to making a false statement in an immigration
petition in violation of 18 U.S.C. § 1546(b). In 2015, Hammerschmidt was
indicted for aiding and abetting and making false, fictitious, or fraudulent
claims to the IRS alongside her co-defendant husband in violation of
18
U.S.C. § 287. Though the indictment alleged that Hammerschmidt was
involved in twenty-two counts of false or fraudulent tax returns,
Hammerschmidt pled guilty to only a singular count—the fraudulent request
of a tax refund in the amount of $2,812.00. Nevertheless, she was ordered to
pay restitution jointly and severally with her husband in the amount of
$45,365 and was sentenced to 48 months in prison.
Following these convictions, Hammerschmidt was placed in removal
proceedings for the commission of a “crime involving moral turpitude” and
seeking to procure a visa by fraud or misrepresentation. The Immigration
Judge (“IJ”) sustained both charges of removability. Hammerschmidt then
applied for withholding of removal under the INA and deferral under CAT
and purportedly reserved her asylum claim for appeal to the BIA. The IJ
denied the application, concluding that Hammerschmidt’s testimony
regarding alleged persecution and torture was not credible. Even assuming
her testimony was credible, the IJ held that her withholding claim would
nevertheless fail because her conviction under § 287 constituted an
aggravated felony and a particularly serious crime, rendering her ineligible
for both asylum and withholding of removal. The IJ likewise denied CAT
deferral on the adverse credibility finding and the absence of proof that she
would suffer torture if returned to Venezuela. The BIA adopted and
affirmed.
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Hammerschmidt timely petitions for review, contending that her
conviction under § 287 cannot qualify as an “aggravated felony” or a
“particularly serious crime,” the BIA’s adverse credibility finding is not
supported by the record, and she provided sufficient evidence showing her
eligibility for CAT protection.
II. Jurisdiction
Before reaching the merits, we begin, as we must, by examining our
jurisdiction. Rodriguez v. Holder, 705 F.3d 207, 210 (5th Cir. 2013). The
“criminal alien bar” of
8 U.S.C. § 1252(a)(2)(C) strips us of jurisdiction to
review the BIA’s final order of removal against a petitioner who is removable
by reason of having committed certain criminal offenses, including crimes of
moral turpitude and aggravated felonies. See id.; Hernandez-De La Cruz v.
Lynch,
819 F.3d 784, 786 (5th Cir. 2016).1 Under this bar, the petitioner
“may obtain judicial review of constitutional and legal challenges to the final
order of removal, but not of factual challenges.” Nasrallah v. Barr,
140 S. Ct.
1683, 1687–88 (2020). Because the challenge here to the denial of asylum
and withholding is primarily directed to legal questions, the classification of
Hammerschmidt’s conviction, we have jurisdiction to consider it.
As to our review of the decisions below, we generally have authority
to review only the BIA’s decision. Wang v. Holder, 569 F.3d 531, 536 (5th
Cir. 2009). But when, as here, the IJ’s ruling impacts the BIA’s decision, we
may review both.
Id. We review questions of law and constitutional claims
de novo, while we review the limited factual findings over which we do have
1
The criminal alien bar, however, is inapplicable to CAT orders. See Nasrallah v.
Barr, 140 S. Ct. 1683, 1692 (2020). Thus, we have jurisdiction over the entire portion of
the CAT-related petition.
3
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jurisdiction for substantial evidence. Fuentes-Pena v. Barr, 917 F.3d 827, 829
(5th Cir. 2019).
III. Withholding of Removal and Asylum Under the INA
As described in the relevant statutes, an alien deemed removable may
apply for withholding of removal or asylum under certain circumstances. See
8 U.S.C. §§ 1231(b)(3)(A) (withholding), 1158(b)(1) (asylum). The statutes,
however, also provide ineligibility for both if the applicant was convicted of a
“particularly serious crime.” See
id. §§ 1231(b)(3)(B)(ii); 1158(b)(2)(A)(ii).
Whether the conviction at issue constitutes a “particularly serious crime”
depends, in part, on the relief sought. In the asylum context, any categorical
aggravated felony listed in
8 U.S.C. § 1101(a)(43) is a “particularly serious
crime.”
Id. § 1158(b)(2)(B)(i) (“[A]n alien who has been convicted of an
aggravated felony shall be considered to have been convicted of a particularly
serious crime.”). In the withholding context, however, the statute explains:
“For purposes of [a particularly serious crime], an alien who has been
convicted of an aggravated felony . . . for which the alien has been sentenced
to an aggregate term of imprisonment of at least 5 years shall be considered
to have committed a particularly serious crime.” Id. § 1231(b)(3)(B)(iv).
Nonetheless, a conviction need not meet the five-year sentence
threshold to constitute a “particularly serious crime” for withholding
purposes. See Vetcher v. Barr, 953 F.3d 361, 368–69 (5th Cir. 2020). Instead,
when a crime falls outside of the § 1231(b)(3)(B) criteria, the IJ employs a
“case-by-case” approach to determine whether the crime in question
qualifies as “particularly serious.” Id.; see also Aviles-Tavera v. Garland,
22
F.4th 478, 483 (5th Cir. 2022).
A. Aggravated Felony
Whether a conviction constitutes an aggravated felony is a question of
law. Fosu v. Garland, 36 F.4th 634, 636–37 (5th Cir. 2022) (per curiam). An
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aggravated felony includes any “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). To determine whether an offense falls within this
category, we apply the “circumstance-specific approach” with the “loss to
the victim” as the lodestar. Nijhawan v. Holder,
557 U.S. 29, 36–38 (2009).
When assessing the loss, the IJ may consider “sentencing-related material”
such as “[t]he court’s restitution order.”
Id. at 42–43; Fosu,
36 F.4th at 638.
Indeed, a restitution order, standing alone, may provide the requisite “clear
and convincing evidence of the losses to [a petitioner’s] victims.” Fosu,
36
F.4th at 638.
Hammerschmidt does not take issue with the IJ’s reliance on the
restitution order in determining the loss as a general matter. Instead,
Hammerschmidt posits that $45,354 cannot establish the loss to the victim
because she pled guilty to just one count involving a loss less than $3,000.
But this contention obfuscates the very meaning of “joint and several”
liability, which renders each defendant “liable for the entire amount of the
harm.” Honeycutt v. United States, 137 S. Ct. 1626, 1631 (2017) (emphasis
added). Further, we have previously rejected contentions of this very shade.
See James v. Gonzales,
464 F.3d 505, 510–12 (5th Cir. 2006), overruled on other
grounds by Nijhawan,
557 U.S. at 32; see also Martinez v. Mukasey,
508 F.3d
255, 259–60 (5th Cir. 2007), overruled on other grounds by Nijhawan,
557 U.S.
at 32.2 In James, we held that the restitution order, which far exceeded
2
In James and Martinez, we applied the then-applicable “categorical approach” to
determine whether the offense qualified as an aggravated felony within the meaning of
§ 1101(a)(43)(M)(i). James, 464 F.3d at 508; Martinez,
508 F.3d at 258. Under this
approach, we looked to the statute, rather than the underlying facts, to make this
assessment. The Supreme Court has since clarified that we must apply the “circumstance-specific approach” to determine whether an offense, particularly one that does not contain
a monetary threshold of $10,000, qualifies as an aggravated felony. Nijhawan,
557 U.S. at
40. The holding of Nijhawan, however, does not disturb our conclusions in James and
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$10,000, provided an accurate picture of the loss to the victims of the scheme
which the petitioner aided and abetted. 464 F.3d at 510–12. For this reason,
we concluded the restitution amount—not the single count to which the
petitioner pled—established his conviction of an aggravated felony. Id.
Separately, in Martinez, we concluded that a conviction qualified as an
aggravated felony where the petitioner was subject to a plea agreement
holding her jointly and severally liable for $11,467.33 in restitution, despite
being directed to pay only half. 508 F.3d at 258–60.
Our conclusion in this case is no different. The restitution order,
which Hammerschmidt concedes holds her “joint and severally liable,”
indicates that her conduct contributed to a total loss of more than $45,000.3
Because Hammerschmidt is personally liable for this amount, and her
arguments to the contrary are foreclosed by binding precedent, we cannot
conclude that the BIA erred in finding that the loss to the victim in this case
exceeded $10,000. See James, 464 F.3d at 507; Martinez,
508 F.3d at 260;
see also Vasquez-Orellana v. Holder,
338 F. App’x 536, 538, 541 (7th Cir. 2009)
(statutory threshold met where joint-and-several restitution order amounted
to $13,000 among four co-defendants, despite petitioner’s individual act’s
Martinez that a joint-and-several restitution order which exceeds the statutory $10,000
threshold brings the offense within the realm of an “aggravated felony” even if the count
to which the petitioner pled involves less. See James, 464 F.3d at 510–12; Martinez, 508
F.3d at 259–60. Indeed, this conclusion is bolstered by Nijhawan’s holding that a
restitution order demonstrated that the “conviction involved losses considerably greater
than $10,000,” and this “clear and convincing evidence” demonstrated an aggravated
felony under § 1101(a)(43)(M)(i). 557 U.S. at 42–43.
3
It is worth noting, however, that Hammerschmidt is not liable for all of her
husband’s criminal acts. Indeed, her husband was ordered to pay $1,830,848 in restitution.
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only contributing to a $3,005 loss). Her conviction falls squarely within the
definition of an aggravated felony under § 1101(a)(43)(M)(i).4
B. Particularly Serious Crime
Though Hammerschmidt was convicted of an aggravated felony, her
conviction carried a sentence of less than five years. As such, withholding of
removal remains available to her unless her conviction qualifies as
“particularly serious.” To determine whether the conviction is particularly
serious, the IJ is required to apply the “case-by-case test,” which considers
“the nature of the conviction, the type of sentence imposed, and the
circumstances and underlying facts of the conviction.” Aviles-Tavera, 22
F.4th at 483. When analyzing “the nature of the conviction or elements of
the offense, an IJ may evaluate whether a crime is an aggravated felony, but
the IJ is not limited to solely this consideration” under the test.
Id. (citing In
re N-A-M-,
24 I. & N. Dec. 336, 342–43 (BIA 2007)).
Hammerschmidt contends that the IJ misapplied the legal test and
failed to first consider whether the elements of the crime fall within the
category of particularly serious crimes. We disagree. Contrary to this
assertion, the IJ first assessed the elements of the offense under the
aggravated felony analysis. Following this determination, the IJ turned to the
circumstances surrounding the crime, including Hammerschmidt’s conduct
in holding herself out as an attorney and preying on “vulnerable persons,”
such as those who did not speak English, to develop tax returns and defraud
the government. We find no error in the IJ’s application of the correct legal
test. See, e.g., Samba v. Lynch, 641 F. App’x 376, 380–81 (5th Cir. 2016) (per
curiam) (concluding that, with respect to tax fraud, the “BIA did examine
4
Having been convicted of an aggravated felony, Hammerschmidt is therefore
statutorily ineligible for asylum, and we need not address her contentions as to this claim.
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the elements of the offense and found no clear error in the [IJ’s] finding
that . . . [petitioner’s] conduct obstructed an important government function
through fraudulent means”).5 To the extent Hammerschmidt’s argument
extends further, “essentially ask[ing] us to reweigh the facts and find that
[her] crime was not particularly serious,” we lack jurisdiction to consider this
argument under § 1252(a)(2)(C). Tibakweitira v. Wilkinson, 986 F.3d 905,
911 (5th Cir. 2021).
IV. Deferral Under CAT
Deferral of removal under CAT differs from asylum and withholding
of removal in that the conviction of a “particularly serious crime” does not
bar relief thereunder. See 8 C.F.R. § 1208.17(a). To obtain protection under
the CAT, a petitioner “must show [inter alia] that it is more likely than not
that she will be tortured if she returns to her country of origin.” Martinez-Lopez v. Barr,
943 F.3d 766, 772 (5th Cir. 2019). Factual findings underlying
the denial of CAT protection are reviewed for substantial evidence.
Nasrallah,
140 S. Ct. at 1692.
Hammerschmidt maintains that the IJ erred by holding that she was
not credible and finding her assertions of torture “speculative.” But
Hammerschmidt has proffered little explanation to close the gaps the IJ
found in her testimony beyond her contention that the IJ failed to consider
the role post-traumatic stress disorder could have played. Because an “IJ
may rely on any inconsistency or omission in making an adverse credibility
determination,” and the IJ noted in detail several inconsistencies, we cannot
say “that the evidence was so compelling that no reasonable factfinder could
5
Although Samba and related unpublished opinions cited herein “[are] not
controlling precedent,” they “may be [cited as] persuasive authority.” Ballard v. Burton,
444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Circuit Rule 47.5.4).
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conclude against it.” Wang, 569 F.3d at 537, 538. Because the adverse
credibility determination was proper, the evidence does not compel a finding
she would “more likely than not” be tortured if removed. Martinez-Lopez,
943 F.3d at 772.
V. Motion to Continue
Finally, Hammerschmidt contends that the BIA engaged in improper
factfinding when it affirmed the IJ’s denial of her motion to continue for
adjudication of her U-Visa application despite the IJ’s failure to consider the
good cause factors. But the BIA affirmed the IJ’s conclusion on the basis that
Hammerschmidt failed to argue on appeal “why good cause ha[d] been
established” and further concluded that “a review of the record” failed to
persuade the BIA that she had established good cause. Hammerschmidt’s
own failure to adequately brief the issue does not amount to improper
factfinding. Moreover, she does not allege—and the BIA decision does not
show—that the BIA developed a record, gathered new information, or chose
between disputed facts. See Velasquez-Zelaya v. Garland, No. 20-60531, 2022
WL 445158, at *1 (5th Cir. Feb. 14, 2022) (per curiam) (unpublished) (“That
the BIA looked to different, but undisputed, record facts than the [IJ] does
not establish that the BIA engaged in improper fact-finding.”). For these
reasons, we find no basis for granting review on this point.
VI. Conclusion
Having found no error in the decisions below over which we have
jurisdiction, we DENY Hammerschmidt’s petition for review and
DISMISS the remainder.
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