UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ARMAN AKOPOVICH No. 21-70909 KHALULYAN, AKA Armen Khalulyan, Agency No. A071-083-833 Petitioner,

v. OPINION MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted January 27, 2023 San Francisco, California

Filed March 30, 2023

Before: Ronald M. Gould, Johnnie B. Rawlinson, and Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress 2 KHALULYAN V. GARLAND

SUMMARY *

Immigration

Dismissing in part and denying in part Arman Khalulyan’s petition for review of a decision of the Board of Immigration Appeals that found him removable for having been convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i), which describes an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” the panel held that: (1) in evaluating whether the government has satisfied the “exceed[ing] $10,000” requirement, the relevant loss amount for a conspiracy conviction is the loss associated with the conspiracy; and (2) the agreed-upon sentencing enhancement in Khalulyan’s plea agreement was sufficient to prove that his offense of conviction involved more than $10,000 in losses. Khalulyan and several others were charged in a 20- count indictment. Count one charged the defendants with conspiracy to possess fifteen or more unauthorized access devices (credit and debit cards), in violation of 18 U.S.C. § 1029(b)(2). The indictment alleged that the defendants installed “skimming devices” on gas pump credit card readers, enabling the defendants to make off with the credit card numbers of customers. Khalulyan pleaded guilty to count one, and the other charges were dismissed. An Immigration Judge later ordered Khalulyan removed, * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. KHALULYAN V. GARLAND 3

finding that his conspiracy conviction rendered him removable and that he was not entitled to relief from removal. The BIA dismissed Khalulyan’s appeal. Khalulyan did not dispute that his conspiracy conviction categorically qualified as a crime involving fraud or deceit under § 1101(a)(43)(M)(i). The disagreement instead related to the requirement that the offense be one “in which the loss to the victim or victims exceeds $10,000.” On this point, courts employ a “circumstance-specific” approach, under which the court looks to the particular circumstances in which an offender committed a fraud or deceit crime on a particular occasion. Under this approach, courts are generally free to consider any admissible evidence relevant to the loss amount. The Supreme Court has instructed, however, that the loss to the victims must be tethered to the offense of conviction and cannot be based on acquitted or dismissed counts. Khalulyan’s principal argument was that the IJ and BIA never determined how much loss he personally caused. And he pointed out that there was no record evidence that the district court in his criminal case made any such findings, which are also not reflected in his plea agreement. Khalulyan thus contended that the government did not meet its burden of proof on the loss threshold. The panel concluded that the problem with Khalulyan’s argument was that he was convicted of conspiracy and, under the basic law of conspiracy, the amount of loss tethered to a conviction is the loss associated with the conspiracy itself because all co-conspirators are criminally liable for reasonably foreseeable overt acts comm