Barikyan v. Barr

18‐14
Barikyan v. Barr
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2018
NO . 18‐14‐CV
ALEKSANDR EDUARDOVICH BARIKYAN,
Petitioner,
v.
W ILLIAM B ARR , U NITED S TATES A TTORNEY G ENERAL,
Respondent.1
A RGUED: D ECEMBER 12, 2018
D ECIDED: MARCH 4, 2019
Before: JACOBS , CALABRESI, Circuit Judges; R AKOFF*, District Judge.
Petitioner Aleksandr Eduardovich Barikyan, a native and citizen of Russia,
was convicted of conspiracy to commit money laundering, in violation of 18
U.S.C. § 1956(h), and charged as removable by the Department of Homeland
Security as an aggravated felon under § 1101(a)(43)(D). He seeks review of an
order of the Board of Immigration Appeals affirming a decision of an
Immigration Judge ordering his removal. He argues (i) that conviction for
conspiracy to commit money laundering under § 1956(h) is not defined as an
aggravated felony under 8 U.S.C. § 1101(a)(43)(D), and (ii) that the Government
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General William
Barr is automatically substituted for former Attorney General Jefferson B. Sessions III,
as Respondent.
*Judge Jed S. Rakoff, of the United States District Court for the Southern District of New
York, sitting by designation.

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did not sustain its burden of showing by clear and convincing evidence that he
laundered more than $10,000, as required for his removal. We deny the petition
for review.
B ENJAMIN R. WINOGRAD,
IMMIGRANT & R EFUGEE A PPELLATE C ENTER ,
LLC, A LEXANDRIA, VA, FOR THE PETITIONER .
JOSEPH H. H UNT, A SSISTANT A TTORNEY
G ENERAL ; A NTHONY C. PAYNE , A SSISTANT
D IRECTOR , O FFICE OF IMMIGRATION
L ITIGATION; L IZA S. MURCIA, A TTORNEY,
U NITED S TATES D EPARTMENT OF JUSTICE,
WASHINGTON, D.C., FOR THE RESPONDENT .
D ENNIS JACOBS , Circuit Judge:
Petitioner Aleksandr Eduardovich Barikyan, a native and citizen of Russia,
petitions for review of a 2017 order of the Board of Immigration (the “BIA”)
affirming a 2016 decision of an Immigration Judge (the “IJ”) ordering his
removal. Barikyan entered the United States on a temporary visa in December
1996, and became a lawful permanent resident in December 2008. In February
2016, Barikyan was convicted, pursuant to a guilty plea, of conspiracy to commit
money laundering in violation of 18 U.S.C. § 1956(h). He was sentenced to three
years’ probation, and ordered to forfeit $120,000.
Based on this conviction, the Department of Homeland Security (“DHS”)
charged Barikyan as an aggravated felon under 8 U.S.C. § 1101(a)(43)(D), and
placed him in removal proceedings in July 2016. On December 26, 2017, the IJ
found Barikyan removable as an aggravated felon. The BIA affirmed the IJ’s
removal order.
Barikyan timely petitioned this Court for review. On appeal, he argues (i)
that his conviction for conspiracy to commit money laundering under § 1956(h)
is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(D), and (ii) that the
Government did not show by clear and convincing evidence that he laundered
more than $10,000, as required for his removal. For the following reasons, the

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petition for review is denied.
I.
We review the IJ’s decision as supplemented by the BIA.
See Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007). Our review is limited to
constitutional claims and questions of law, 8 U.S.C. § 1252(a)(2)(C) & (D);
whether a conviction is an aggravated felony is a question of law over which we
retain jurisdiction, Santana v. Holder, 714 F.3d 140, 143 (2d Cir. 2013). “While
this Court gives substantial deference to the BIA’s interpretation of the
[Immigration and Nationality Act], a statute it is charged with administering, we
review de novo its interpretation of state and federal criminal laws.” Id.; see
Chevron, U.S.A, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842‐44
(1984). Unpublished BIA decisions, such as the one in this case, are not entitled
to Chevron deference; we generally review such decisions de novo.
Varughese v. Holder, 629 F.3d 272, 274 (2d Cir. 2010).
II.
Barikyan argues that conspiracy to commit money laundering pursuant to
18 U.S.C. § 1956(h) is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(D),
the provision under which he was charged as removable.
“Statutory analysis necessarily begins with the plain meaning of a law’s
text and, absent ambiguity, will generally end there. In conducting such an
analysis, we review the statutory text, considering the ordinary or natural
meaning of the words chosen by Congress, as well as the placement and purpose
of those words in the statutory scheme.” Cruz‐Miguel v. Holder, 650 F.3d 189,
195 (2d Cir. 2011) (internal quotation marks and citations omitted) (quoting
Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir. 2010)).
Section 1101(a)(43)(D) defines an aggravated felony to include “an offense
described in section 1956 of Title 18 (relating to money laundering of monetary
instruments) . . . if the amount of the funds exceeded $10,000.” Subsection (h) of
§ 1956 criminalizes conspiracy to commit money laundering. See 18 U.S.C.
§ 1956(h) (“Any person who conspires to commit any offense defined in this
section . . . shall be subject to the same penalties as those prescribed for the
offense the commission of which was the object of the conspiracy.”). The plain

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statutory language renders Barikyan’s conviction for conspiracy under § 1956(h)
an aggravated felony under § 1101(a)(43)(D) because it is “an offense described
in section 1956 of Title 18.”
Barikyan argues that the only subsection under which he could have been
properly charged is § 1101(a)(43)(U), which provides that “an attempt or
conspiracy to commit an offense described in this paragraph” is an aggravated
felony, because reading § 1101(a)(43)(D) to include conspiracy to commit money
laundering as an aggravated felony would render § 1101(a)(43)(U) superfluous.
True, § 1101(a)(43)(U) may have no bearing on conspiracies to commit money
laundering, because they are also covered by § 1101(a)(43)(D); but
§ 1101(a)(43)(U) nevertheless retains vitality and effect. For example,
§ 1101(a)(43)(A) defines “murder, rape, or sexual abuse of a minor” as an
aggravated felony, and it is only by virtue of § 1101(a)(43)(U) that conspiracies to
murder, rape, or sexually abuse a minor are also defined as aggravated felonies
(and thus removable offenses).
Barikyan argues that this case is controlled by Matter of Richardson, 25 I.
& N. Dec. 226 (BIA 2010), which he characterizes as requiring that a conspiracy to
commit money laundering be charged under § 1101(a)(43)(U). However, Matter
of Richardson did not consider § 1101(a)(43)(D), the provision at issue in this
case. To the extent any observation in Richardson could be read to suggest that
§ 1101(a)(43)(D) cannot be used to charge Barikyan as removable, it cannot
overcome the plain and unambiguous wording of § 1101(a)(43)(D), which defines
conspiracy to commit money laundering as an aggravated felony.
Lastly, Barikyan argues that the word “offense” in § 1101(a)(43)(D) refers
only to substantive offenses, not to conspiracy. He relies on § 1956(h), which
states that “[a]ny person who conspires to commit any offense defined in [§ 1956]
is subject to the same penalties as those prescribed for the offense the
commission of which was the object of the conspiracy.” Because “offense” in
this provision refers to substantive offenses set forth elsewhere in § 1956,
Barikyan argues that “offense” in § 1101(a)(43)(D) must also refer only to
substantive offenses. But the contrived meaning of “offense” in a single
sentence in § 1956 should not be imported into the definition of “offense” in §
1101(a)(43)(D). An “offense” is defined as a “violation of the law,” see Black’s
Law Dictionary (10th ed. 2014), and can reference substantive and conspiracy

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offenses alike. Section 1956(h) does not limit the meaning of “offense” in
§ 1101(a)(43)(D).
Accordingly, under the plain language of § 1101(a)(43)(D), conspiracy to
commit money laundering under § 1956(h) is an aggravated felony, and Barikyan
is removable under that provision.
III.
Conspiracy to commit money laundering is an aggravated felony only “if
the amount of the funds exceeded $10,000.” § 1101(a)(43)(D). Barikyan argues
that the IJ and the BIA incorrectly concluded that the Government demonstrated
by clear and convincing evidence that he laundered more than $10,000.
Barikyan seeks a remand on the ground that the BIA improperly applied
the clear error standard of review to the IJ’s amount‐of‐funds determination,
which he argues is a legal conclusion that the BIA should review de novo. See
8 C.F.R. § 1003.1(d)(3)(i) (factual findings reviewed by the BIA for clear error);
8 C.F.R. § 1003.1(d)(3)(ii) (questions of law reviewed by the BIA de novo).
The parties do not dispute that the “circumstance‐specific” approach
applies to the amount‐of‐funds determination, and therefore that the IJ and BIA
were permitted to review Barikyan’s record of conviction for evidence of the
amount of money that he laundered. See Varughese, 629 F.3d at 274‐75. The IJ
duly consulted the record of conviction and the forfeiture order to determine
whether Barikyan laundered more than $10,000. This unremarkable exercise of
fact‐finding did not entail the decision of any legal question,2 or the application
of a factual finding to a legal standard.3 Therefore, the amount‐of‐funds
2 An amount‐of‐funds determination might require the court to resolve a question of
law if, for example, the petitioner argued that some funds were not “laundered,” as that
term is defined under the law. No such argument is made in this petition.
3 For this reason, our recent decision in Alom v. Whitaker, 910 F.3d 708 (2d Cir. 2018), is
distinguishable. In Alom, the IJ was required to find facts from the evidence (the
circumstances of a marriage) and also to determine whether those facts satisfied a legal
standard (whether such a marriage was entered in “good faith,” as that term is defined
by the law). We concluded that de novo review applied to that determination. See
id. at 712‐14. Here, the IJ’s factual determination as to the amount‐of‐funds laundered

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determination in this case was a factual finding, and the BIA properly reviewed
the IJ’s determination for clear error.
Alternatively, Barikyan argues that the BIA failed to require proof by
clear and convincing evidence. To grant the petition on this basis, we “must
find that any rational trier of fact would be compelled to conclude that the proof
did not rise to the level of clear and convincing evidence.” Francis v. Gonzales,
442 F.3d 131, 138‐39 (2d Cir. 2006).
Barikyan has not challenged the reliability of the $120,000 forfeiture order
(which the agency was permitted to rely on under the circumstance‐specific
approach); nor has he pointed to any evidence that conflicts with the order.
Instead, he argues that the forfeiture order cannot be relied upon as a measure of
the funds that were actually laundered, because the criminal forfeiture statute
sometimes requires forfeiture of legitimate funds. See 18 U.S.C. § 982(a)(1)
(requiring forfeiture of all property traceable to, or commingled with, laundered
funds). Barikyan posits that some of the forfeited funds could have been
proceeds of an investment he made with laundered funds, or legitimate funds
that were commingled with tainted cash. But Barikyan offers no evidence that
these hypotheticals came to pass in his case. Under these circumstances, it was
not clear error for the agency to find that at least $10,000 of the $120,000
forfeiture amount (less than 10%) reflected funds that were actually laundered.4
Barikyan points out that a forfeiture order need only be supported by a
preponderance of the evidence, and argues that the IJ and BIA improperly relied
on the amount‐of‐funds determination in the forfeiture order to satisfy the clear
and convincing evidence standard required for removal. The BIA considered
this argument in Matter of Babaisakov, 24 I. & N. Dec. 306 (B.I.A. 2007), and
was not tested under any legal standard.
4 Barikyan conceded in his sentencing submission that he was “responsible for a loss
amount of $1,453,251.” Joint App’x 274. While not relied on by the IJ, this concession
reinforces the agency’s conclusion that Barikyan laundered more than $10,000.
Nijhawan v. Holder, 557 U.S. 29, 42‐43 (2009) (concluding that there was “nothing
unfair” about the IJ relying on the petitioner’s “own stipulation, produced for
sentencing purposes,” and on the sentencing court’s restitution order to find the
requisite loss amount).

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concluded that, under some circumstances, “[f]acts found by a preponderance
may also meet more stringent evidentiary tests.” Id. at 319‐20. The BIA
acknowledged that facts “must be assessed with an eye to . . . the burden of proof
employed,” id. at 319, but offered examples of circumstances under which a
higher evidentiary test nevertheless may be met: “[A] defendant’s failure to
contest, during the criminal proceedings, a fact found by a preponderance would
bear on whether that fact was reliable for removal purposes as well, especially in
the absence of any showing in removal proceedings that there was error in the
criminal proceedings respecting that fact,” id. at 320. “Similarly, the degree by
which a loss is found to exceed $10,000 may also bear on whether the evidence
derived from a restitution order or PSR could carry the burden in removal
proceedings.” Id. at 320 n.11.
Applying those considerations, we conclude that the IJ did not err in
finding that the forfeiture order constituted clear and convincing evidence that
Barikyan laundered more than $10,000. Barikyan advances no reason to
undermine this finding: he failed to contest the forfeiture order in the criminal
proceedings or show that there was an error in those proceedings; and the order
required forfeiture of an amount that far exceeded $10,000. Accordingly, the IJ’s
reliance on the forfeiture order was appropriate, and the IJ did not commit clear
error in finding that the Government had established that Barikyan laundered
more than $10,000 by clear and convincing evidence.
*****
For the foregoing reasons, the petition for review is DENIED. As we have
completed our review, any stay of removal that the Court previously granted in
this petition is VACATED, and any pending motion for a stay of removal in this
petition is DISMISSED as moot.

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