Chantelle Charne Robbertse v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 22-1739
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Chantelle Charne Robbertse
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: January 11, 2023
Filed: August 21, 2023
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Before GRASZ, MELLOY, and KOBES, Circuit Judges.
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MELLOY, Circuit Judge.
Petitioner Chantelle Charne Robbertse appeals the BIA’s finding of
removability and denials of withholding of removal and relief under the Convention
Against Torture (CAT). Finding no error, we affirm.

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I.
Robbertse, a citizen of South Africa, entered the United States in 1998 and
became a lawful permanent resident in 2012. She participated in an identity theft
scheme with her mother that defrauded the California Employment Development
Department of roughly $475,000 using the personally identifying information of
over fifty people. In June 2019, pursuant to a plea agreement, she pleaded guilty to
one count of Aggravated Identity Theft predicated on Wire Fraud. See 18 U.S.C.
§§ 1028A(c)(5) (referencing the predicate offenses contained at 18 U.S.C. §§ 1341–
51, including § 1343, wire fraud).
Her specific count of conviction alleged a loss amount of only $1,003.00.
Charges alleging greater loss amounts were dismissed pursuant to her plea
agreement. In the plea agreement itself, however, Robbertse admitted expressly that
she “aided and abetted” her mother in the mother’s scheme of “defrauding” the State
of California of $475,350.28. In addition, Robbertse agreed that she would be jointly
liable with her mother for restitution in the larger, total amount. And at sentencing,
the district court found her jointly liability with her mother for restitution in the
amount of $475,350.28.
Next, the BIA charged Robbertse as removable, characterizing her conviction
as a conviction for an offense involving “fraud or deceit” with a loss to the victim
exceeding $10,000 thus qualifying as an “aggravated felony” under 8 U.S.C.
§ 1101(a)(43)(M)(i) and making Robbertse removable pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii). In reaching this conclusion, the BIA determined that the
elements of the identity theft offense, 18 U.S.C. § 1028A, included a reference in
the alternative to several qualifying felony offenses, and required as an element that
the identity theft be committed “during and in relation to” one of the other qualifying
felonies. Robbertse challenged her removability, arguing her conviction did not
qualify under the categorical approach as an offense involving fraud or deceit. She
also argued, based on a “circumstance-specific approach,” that her offense did not
cause a loss exceeding $10,000. She also sought discretionary relief in the form of

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withholding of removal. Finally, she sought relief under the Convention Against
Torture. As to withholding of removal and CAT relief, Robbertse asserted she
would be persecuted or tortured in South Africa because she is white, her father had
been a high-ranking member of military intelligence prior to 1998, and her family
had otherwise been targeted by opponents of apartheid.
An IJ rejected her arguments, and the BIA affirmed, adopting the reasoning
and findings of the IJ and adding additional, consistent analysis. She renews her
arguments on appeal, asserting a categorical-approach argument as to the “fraud or
deceit” element and a circumstance-specific argument as to the $10,000 loss amount.
Because “the BIA adopted the IJ’s reasoning in relevant part while adding reasoning
of its own . . . , we will consider both decisions.” Tian v. Holder, 576 F.3d 890, 895
(8th Cir. 2009).
II.
The Supreme Court in Nijhawan v. Holder, described the “aggravated felony”
definition within 8 U.S.C. § 1101(a)(43)(M), as “contain[ing] some language that
refers to generic crimes and some language that almost certainly refers to the specific
circumstances in which a crime was committed.” 557 U.S. 29, 38 (2009). The Court
concluded that the $10,000 loss amount was to be analyzed applying a circumstance-
specific approach under a clear-and-convincing evidence standard. Id. at 42–43; see
also Sokpa-Anku v. Lynch, 835 F.3d 793, 795 (8th Cir. 2016) (“In Nijhawan[], the
Supreme Court held that the $10,000 threshold in § 101(a)(43)(M)(i) is not an
element of a fraud offense and therefore may be proved by evidence of the particular
circumstances of an alien’s specific offense.”). The Court later concluded in
Kawashima v. Holder, that the “fraud or deceit” element was to be analyzed
categorically but that the term “deceit” was broader than the term “fraud” and that
the underlying offense must “involve” deceit. 565 U.S. 478, 484 (2012) (“Rather,
[1101(a)(43)(M)](i) refers more broadly to offenses that ‘involv[e]’ fraud or
deceit—meaning offenses with elements that necessarily entail fraudulent or
deceitful conduct.”); see also Mowlana v Lynch, 803 F.3d 923, 925 (8th Cir. 2015)

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(“The accompanying term ‘involves’ is broadening, and an offense ‘involves fraud
or deceit’ under subsection (M)(i) as long as it contains elements that ‘necessarily
entail fraudulent or deceitful conduct.’” (quoting Kawashima, 565 U.S. at 484)).
Regarding the presence of a fraud or deceit element, we easily conclude that
Robbertse’s conviction involved fraud or deceit. The wire-fraud statute, 18 U.S.C.
§ 1343, incorporated by reference in the identity-theft statute, § 1028A, provides in
part, “Whoever, having devised or intending to devise any scheme or artifice to
defraud, or for obtaining money or property by means of false or fraudulent
pretenses, representations, or promises, transmits or causes to be transmitted by
means of wire . . . communication in interstate or foreign commerce, any writings,
signs, signals, pictures, or sounds for the purpose of executing such scheme or
artifice, shall be fined . . . or imprisoned[.]” Section 1028A lists wire fraud and other
underlying predicate felonies in the alternative, and we conclude this section lists
alternative elements rather than means. See Mathis v. United States, 579 U.S. 500,
505–06 (2016) (distinguishing elements and means); see also United States v.
Jenkins-Watts, 574 F.3d 950, 969–70 (8th Cir. 2009) (describing as an “element” the
predicate felony underlying a § 1028A charge).
Regarding the circumstance-specific approach applicable to the loss-amount
determination, Robbertse argues the underlying standards of proof in her criminal
case refute the BIA’s conclusions. She also argues that any amounts greater than
the $1,003.00 alleged in her count of conviction relate to dismissed counts and
cannot be considered. She argues, essentially, that because her specific count of
conviction did not require proof beyond a reasonable doubt that she caused a loss in
excess of $10,000, and because sentencing determinations rest on a mere
preponderance of the evidence, her record of conviction fails to establish a loss
amount greater than $10,000 by clear-and-convincing evidence.
We disagree and conclude Robbertse misconstrues the nature of Nijhawan’s
circumstance-specific approach. In Nijhawan, the Court neither declared particular
evidence “off limits” for the circumstance-specific analysis nor otherwise attempted

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to define the world of evidence that might be considered. See Nijhawan, 557 U.S.
at 41 (addressing a petitioner’s proposed evidentiary limitations and stating,
“nothing in prior law . . . so limits the immigration court”). Rather, the Court
emphasized the need to focus on the previously applicable burdens of proof when
drawing inferences from different aspects of a prior record. See id. at 42
(“immigration judges must assess findings made at sentencing ‘with an eye to what
losses are covered and to the burden of proof employed.’” (citation omitted)). In
general, the elements of a count of conviction or a count to which a defendant pleads
guilty have been proven beyond a reasonable doubt. In contrast, mere allegations
contained in dismissed counts generally provide little future evidentiary value.
Similarly, little can be said of the elements of acquitted counts other than the fact
that a jury failed to find all such elements beyond a reasonable doubt.
But, in applying Nijhawan’s circumstances-specific approach, the BIA is not
constrained to looking only at the elements of a prior offense with the categorical
approach. Rather, the BIA may examine any relevant evidence when applying the
clear-and-convincing standard. Under this standard, sentencing determinations,
standing alone, may not always suffice; such determinations generally rest on the
preponderance-of-the-evidence standard. But, express admissions, such as those
found in a plea colloquy or written plea agreement, carry a general evidentiary value
that may suffice. And, sentencing determinations may carry greater weight when
considered alongside such evidence. Nijhawan, 557 U.S. at 42–43 (“We can find
nothing unfair about the immigration judge’s having here relied upon earlier
sentencing-related material. The defendant’s own stipulation, produced for
sentencing purposes, shows that the conviction involved losses considerably greater
than $10,000. The court’s restitution order shows the same. In the absence of any
conflicting evidence (and petitioner mentions none), this evidence is clear and
convincing.”).
Against this backdrop, when looking at the totality of such evidence, the
amount at issue must be “tied” or “tethered” to the offense of conviction. Tian, 576
F.3d at 895. The loss amount, therefore, may not relate merely to “general conduct”

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that is otherwise unconnected to the count of conviction. Nijhawan, 557 U.S. at 42.
And the loss amount may not rest solely on the allegations contained in “acquitted
or dismissed counts.” Id. But, general evidence otherwise satisfying the clear-and-
convincing standard as to the offense at issue is not somehow infirm or beyond
consideration merely because that evidence also relates to the allegations in a
dismissed count.
Here, in her criminal plea, Robbertse expressly consented to joint liability for
restitution in an amount vastly exceeding the $10,000 threshold at issue in the
present setting. Further, she conceded that her criminal activity served to aid and
abet her mother’s entire fraudulent scheme as to the much larger amount. These
concessions suffice to establish by clear and convincing evidence that her offense
caused a loss in excess of $10,000. See Sokpa-Anku, 835 F.3d at 796 (finding the
requisite loss amount based, in part, on a restitution order and noting that Nijhawan
had stated restitution is indicative of loss amount). Robbertse’s arguments to the
contrary amount to attempts to confuse the broadly permitted evidentiary analysis of
Nijhawan with a categorical or modified categorical approach. We reject such
arguments.
III.
Regarding withholding of removal, the agency determined Robbertse was
ineligible for relief because her offense qualified as a “particularly serious crime.”
8 U.S.C. § 1231(b)(3)(B) (barring withholding of removal for a noncitizen “if the
Attorney General decides that . . . (ii) the alien, having been convicted by a final
judgment of a particularly serious crime is a danger to the community of the United
States”). The agency addressed her sentence and found her offense was not a per se
“particularly serious crime” because her resulting sentence was less than five years’
imprisonment. See id. But, applying a multifactored analysis as set forth in Tian,
576 F.3d at 897 and Matter of N-A-M, 24 I&N Dec. 336, 342 (BIA 2007), the agency
weighed the factors and found Robertse ineligible.

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In general, our review as to this issue is limited to the purely legal question of
whether the agency applied the correct standard; we are prohibited from reviewing
the agency’s balancing of factors. 8 U.S.C. § 1252(a)(2)(C) and (D) (barring general
court review of withholding determinations for noncitizens convicted of aggravated
felonies but preserving review of “of constitutional claims or questions of law”).
Accordingly, we address Robertse’s argument that the agency failed to apply the
proper standard.
Here, Robbertse alleges various infirmities with the agency’s articulation of
the standard, but we find no error. For example, she argues the IJ and BIA failed to
address relevant factors such as the length of her sentence or the fact that property
crimes are less likely to be “particularly serious” than violent crimes. She also
focuses upon the identity theft statute rather than the underlying and incorporated-
by-reference fraud statute. Ultimately she characterizes her offense as relating to a
“petty crime” akin to “jaywalking.”
We find no legal error. The agency could have been more clear in its
discussion of factors, but when the record reflects identification and application of
the proper standard, our analysis ends. Robbertse’s arguments as to the improper
standard amount largely to a selective reading of the underlying agency decisions.
For example, one relevant factor is the “type of sentence,” not merely the length of
sentence, and the agency clearly considered both the length of sentence (by not
adopting a per se analysis) and the type of sentence (the large restitution order). The
agency clearly was swayed in its analysis by the scale of the loss and the resulting
restitution of almost half a million dollars. The failure to more clearly and
methodically recite the relevant factors when conducting its analysis does not
amount to legal error.
IV.
Finally, we find no error in the BIA’s denial of CAT relief. Robbertse’s
arguments and evidence regarding country conditions and the likelihood of torture

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fall well short of the showing required for CAT relief. To the extent she argues the
IJ and BIA erred in not admitting certain additional evidence, she fails to articulate
clearly what the evidence in question would have shown and how it would have
changed the CAT analysis.
Accordingly, we affirm the judgment of the BIA and deny the petition for
review.
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