Dimitar Petlechkov v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
Nos. 20-14861, 23-14072
Non-Argument Calendar
____________________
DIMITAR PETLECHKOV,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
Agency No. A216-634-377
____________________
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2 Opinion of the Court 20-14861, 23-14072
Before R OSENBAUM , J ILL PRYOR , and G RANT, Circuit Judges.
PER CURIAM:
In these two consolidated cases, Dimitar Petlechkov peti-
tions for review of two final administrative orders of removal—or
more accurately, the same removal order issued twice by the De-
partment of Homeland Security. Construing his pro se pleadings
liberally, Petlechkov argues that the Department (1) lacked the au-
thority to issue the second order of removal while his petition for
review of the first order remained pending, (2) lacked sufficient ev-
idence to support its determination that his conviction for mail
fraud qualified as an aggravated felony within the meaning of the
Immigration and Nationality Act (INA), and (3) violated his Fifth
Amendment due process rights by failing to provide him with no-
tice and an opportunity to contest his removability. For the rea-
sons discussed below, we deny the consolidated petitions for re-
view.
I.
We assume the parties’ familiarity with the relevant factual
and procedural history and proceed directly to the issues Petle-
chkov raises in his petitions for review. Because Petlechkov was
removed based on his conviction for an aggravated felony, our ju-
risdiction is limited to constitutional claims or questions of law. 8
U.S.C. § 1252(a)(2)(C)–(D).
To begin, we reject the argument that the Department had
no authority to reconsider its first administrative order of removal
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20-14861, 23-14072 Opinion of the Court 3
and issue a new one while the petition for review of the first order
remained pending in this Court. The INA makes clear that simul-
taneous judicial review of a final order of removal and agency re-
consideration of the removal order is permissible by instructing
courts to consolidate “any review sought of a motion to reopen or
reconsider” a final order of removal with any pending review of the
underlying removal order. 8 U.S.C. § 1252(b)(6); see Stone v. I.N.S.,
514 U.S. 386, 394 (1995). This provision indicates that a petition for
review of a final order of removal “remains active and pending be-
fore the court” while the agency considers and rules on a motion
for reconsideration. Stone, 514 U.S. at 394. Logically, if the agency
is authorized to reconsider its removal order on the motion of a
party while a petition for review of the order is pending, it is au-
thorized to take the same action as part of a limited remand from
this Court.
Nor was the Department’s reconsideration of its removal or-
der here outside the scope of our limited remand, as Petlechkov
argues. It is true that our remand order contemplated a more for-
mal and transparent procedure than the Department employed.
We instructed the Department to provide notice “in a written de-
cision” if it determined “that the better course would be to vacate
the removal order and conduct additional proceedings under 8
U.S.C. § 1228 or to refer the matter to an immigration judge for
proceedings under 8 U.S.C. § 1229a.” The administrative record
indicates that the Department did not issue a written decision or
otherwise provide formal notice to Petlechkov before reconsider-
ing his removability, as we expected it to do. But although the
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4 Opinion of the Court 20-14861, 23-14072
Department’s action may have been procedurally flawed (as dis-
cussed further below), its reconsideration of Petlechkov’s remova-
bility and issuance of a new final order of removal was within the
range of activity authorized by our limited remand order.
Petlechkov also argues that the Department should not be
allowed to “cancel” its original removal order after he has already
been removed from the United States. He contends that permit-
ting the Department to cancel its first order would cut off his right
to judicial review and leave him without recourse for the legal and
constitutional violations he alleged in his petition for review of that
order.1 We need not decide whether the Department has the au-
thority to cancel a removal order after it has been executed, be-
cause that is not what the Department did here.
According to the Department, it was unable to locate addi-
tional evidence on remand contradicting Petlechkov’s claim that
he had not been served with a Notice of Intent before the Depart-
ment issued its first final order of removal. See 8 U.S.C.
§ 1228(b)(4)(A); 8 C.F.R. §§ 103.8, 238.1(b). It therefore reopened
Petlechkov’s administrative removal proceedings, expanded the
administrative record, and reconsidered his removability. After
1 Petlechkov also argues that the second order of removal is invalid because it
attempts to extend the reach of the INA outside the territorial jurisdiction of
the United States. Not so. The order makes findings regarding Petlechkov’s
legal status in the United States and orders him to be removed from this coun-
try, none of which attempts to reach Petlechkov outside the borders of the
United States.
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20-14861, 23-14072 Opinion of the Court 5
determining again that Petlechkov was removable as an alien who
had been convicted of an aggravated felony, it issued a new final
administrative order of removal—identical to the first one—to rep-
resent its decision on reconsideration.
Nothing about the Department’s second final order of re-
moval indicated that it was intended to “cancel,” vacate, or even
supersede the first order. As discussed above, the INA contem-
plates that the Department may issue an order on reconsideration
that acts as a second final, reviewable order, all while judicial re-
view of the first final order of removal is ongoing. See Stone, 514
U.S. at 394–95. The agency’s first order of removal is “final when
issued, irrespective of the later filing of a reconsideration motion,”
and once the agency issues a ruling on the motion for reconsidera-
tion, the petitioner can “file a separate petition to review that sec-
ond final order,” as Petlechkov did here.2 Id. at 395. As we have
explained before, the finality (and reviewability) of an initial final
order of removal is not affected when the agency grants reconsid-
eration and affirms its original decision without changing the sub-
stance of the first order. Jaggernauth v. U.S. Att’y Gen., 432 F.3d
1346, 1351 (11th Cir. 2005).
In addition to challenging the validity of the second final or-
der of removal, Petlechkov has renewed his arguments that (1) his
conviction for mail fraud was not an aggravated felony under the
2 Petlechkov’s petition for review of the second final order of removal was
docketed as case number 23-14072 and consolidated with his pending petition
for review in case number 20-14861.
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6 Opinion of the Court 20-14861, 23-14072
INA, and (2) the Department violated his Fifth Amendment due
process rights by failing to provide notice and an opportunity to
respond before removing him from the United States. We address
each argument in turn.
II.
The INA provides that an “alien who is convicted of an ag-
gravated felony at any time after admission is deportable.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). The INA’s definition of “aggravated felony” in-
cludes 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)(i). We review whether a prior conviction quali-
fies as an aggravated felony de novo. Garcia-Simisterra v. U.S. Att’y
Gen., 984 F.3d 977, 980 (11th Cir. 2020). But we review the agency’s
factual findings about the amount of loss involved in a prior con-
viction under “the highly deferential substantial evidence test.” Id.
Under this test, the agency’s “findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the
contrary.” Id. at 980–81.
Petlechkov concedes that his mail fraud conviction involves
fraud or deceit, but he argues that the evidence in the administra-
tive record is insufficient to support the Department’s finding that
the amount of loss exceeded $10,000. We disagree.
The administrative record contains, among other things, the
indictment charging Petlechkov with 20 counts of mail fraud in vi-
olation of 18 U.S.C. § 1341; the district court’s judgment (on re-
mand after direct appeal) adjudicating Petlechkov guilty of three of
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20-14861, 23-14072 Opinion of the Court 7
those counts and imposing a sentence of 37 months’ imprison-
ment, two years of supervised release, and restitution to FedEx
Corporation in the amount of $801,219.02; and two Sixth Circuit
Court of Appeals opinions affirming Petlechkov’s convictions on
three counts of mail fraud and affirming his sentence, including the
order of restitution. See United States v. Petlechkov, 922 F.3d 762 (6th
Cir. 2019) (Petlechkov I); United States v. Petlechkov, No. 21-5174, 2022
WL 168651 (6th Cir. Jan. 19, 2022) (Petlechkov II). Collectively,
these documents show that Petlechkov’s mail fraud convictions
arose from a scheme in which he obtained sharply discounted ship-
ping rates from FedEx by posing as a vendor for a high-volume
shipper, and then sold FedEx’s shipping services to third parties for
a profit. Petlechkov II, 2022 WL 168651, at *1. Petlechkov used his
fraudulently obtained discount to ship more than 63,000 packages
in five years. Id.
At sentencing, the district court calculated FedEx’s financial
loss from this scheme by subtracting the amount that Petlechkov
paid FedEx for its shipping services from the amount that the third-
party shippers would have paid for those same services if they had
purchased them directly from FedEx, based on an average of the
third parties’ own discounted shipping rates. Id., at *3. The district
court adopted the resulting figure of $801,219.02 as the amount of
actual loss to FedEx and ordered Petlechkov to pay restitution in
that amount. Id., at *3–*4. The Sixth Circuit Court of Appeals
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8 Opinion of the Court 20-14861, 23-14072
affirmed, finding that the district court made a reasonable estimate
of loss based on the information available. Id.
Petlechkov argues that the Department should not have re-
lied on the sentencing court’s method of calculating loss because
that method assumed that the third-party shippers would have
been willing to pay their usual contract rates for the express ship-
ping that he sold them at a much lower cost. If not for his fraud,
he says, his customers likely would have chosen a less expensive
shipping method or another shipping company. This argument is
specious. Petlechkov’s fraud caused FedEx to provide premium
shipping services at a much lower rate than it otherwise would
have charged. The difference between what FedEx should have
been paid and what it was paid for the services it actually provided
provides a reasonable measure of its lost profit.
In any event, the question for our purposes is not whether
the district court in Petlechkov’s criminal case precisely calculated
the amount of loss caused by his mail fraud scheme. Rather, we
must decide whether substantial evidence in the administrative rec-
ord—including the Sixth Circuit’s opinion explaining the evidence
and affirming the district court’s calculation that FedEx suffered
more than $800,000 in actual loss—supported the Department’s
finding that Petlechkov’s conviction involved loss to the victim in
excess of $10,000. We conclude that it did.
III.
We turn next to Petlechkov’s argument that the Depart-
ment violated his due process rights by denying him notice and an
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20-14861, 23-14072 Opinion of the Court 9
opportunity to respond to the charge of removability. Noncitizens
in removal proceedings have the right to due process under the
Fifth Amendment. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143
(11th Cir. 2010). Due process requires that they be given notice
and an opportunity to be heard. Id. To establish a due process
violation in a deportation proceeding, a petitioner must show that
he was deprived of his liberty without due process and that the al-
leged error caused him substantial prejudice. Id. And to establish
substantial prejudice, the petitioner must show that the alleged
deprivation of due process affected the outcome of the proceeding.
Id.
Here, Petlechkov claims that he was not served with notice
or given an opportunity to respond and contest his removability
during either the original expedited removal proceeding or during
the limited remand from this Court. Our review of this issue is
complicated by the fact that the Department failed to make any
findings on remand about whether Petlechkov was served with a
Notice of Intent before it issued its first removal order, and it is not
clear from the record whether he was given the opportunity to pre-
sent evidence on the issue of removability before the Department
issued its second order of removal. But ultimately it is unnecessary
for us to determine whether Petlechkov was given the opportunity
to be heard by the Department on the issue of his removability
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10 Opinion of the Court 20-14861, 23-14072
because he has not shown that he suffered substantial prejudice as
a result. See id.
In an effort to make that showing, Petlechkov has proffered
hundreds of pages of transcripts and filings from his criminal case
in support of his argument that the amount of loss to FedEx from
his mail fraud did not exceed $10,000.3 He again challenges the dis-
trict court’s method of calculating loss, pointing to shipping in-
voices and testimony by one of the third-party shippers as proof
that his customers would not have used FedEx express shipping if
they had been charged the usual rates for that service. Petlechkov
was not prejudiced by the lack of opportunity to present this evi-
dence in his removal proceedings because it does not undermine
the Department’s conclusion that his fraud caused more than
$10,000 in loss to FedEx.
At sentencing, Petlechkov made the same arguments re-
garding what shipping rates his customers would have been willing
to pay in the absence of his fraud—arguments that were rejected
by the district court and the Sixth Circuit Court of Appeals, and
that the Department was not likely to find any more persuasive.
And even if the Department had adopted Petlechkov’s argument
3 Petlechkov has also asked us to take judicial notice of the proceedings in his
criminal case, United States v. Petlechkov, case no. 2:17-cr-20344-1 (W.D. Tenn.).
We grant his motion to take judicial notice, as previously amended. We con-
strue his third motion to amend his motion to take judicial notice (Doc. 113)
as a motion to supplement the record on appeal with the documents he filed
on November 9, 2022, labeled as a corrected appendix, and we grant the mo-
tion.
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20-14861, 23-14072 Opinion of the Court 11
at sentencing that the amount of FedEx’s loss should be limited to
Petlechkov’s own profit (the difference between what Petlechkov’s
customers paid him for shipping and what he paid FedEx), the out-
come of his removal proceeding would not have been different.
That is because Petlechkov stipulated at sentencing that his profit
from the mail fraud scheme was more than $300,000—far more
than necessary to support the Department’s finding that his mail
fraud conviction involved loss exceeding $10,000.
IV.
For the reasons discussed above, we DENY Petlechkov’s pe-
titions for review in these consolidated cases. We also DENY his
motion to vacate the Department’s second final order of removal
and his motion for oral argument, and we DENY AS MOOT his
motions to expedite oral argument and to appear for oral argu-
ment. We GRANT Petlechkov’s motion to take judicial notice of
his criminal proceedings in United States v. Petlechkov, case no. 2:17-
cr-20344-1 (W.D. Tenn.), and we GRANT his third motion to
amend his motion to take judicial notice, construed as a motion to
supplement the record on appeal with the documents he filed on
November 9, 2022, as a corrected appendix.
PETITIONS DENIED.
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