Agyei Asare Tabi, a citizen of Ghana, faces removal from the United States following a final order issued by the Board of Immigration Appeals. The removal proceedings stemmed from Tabi's 2007 federal conviction for conspiracy to defraud the United States under 18 U.S.C. § 286. In that case, Tabi pleaded guilty to filing at least 550 false tax returns, claiming refunds totaling over $1.3 million, and was sentenced to 30 months in prison plus supervised release. The Department of Homeland Security charged Tabi with removability, arguing his conviction constituted an aggravated felony under the Immigration and Nationality Act because it involved fraud or deceit with a loss exceeding $10,000. Tabi, proceeding pro se, challenged these charges before an Immigration Judge but did not file applications for relief after being warned that failure to do so would result in a waiver of claims. The Immigration Judge denied Tabi's motions and ordered his removal, a decision the BIA upheld in January 2025.
The Third Circuit exercised de novo review over the BIA's determination that Tabi is removable for having been convicted of an aggravated felony. The court addressed two primary legal questions: whether the conviction categorically involved fraud or deceit, and whether the loss amount exceeded the statutory threshold. First, regarding the nature of the offense, the court applied the categorical approach, looking to the elements of the statute of conviction rather than the specific underlying facts. The court noted that 18 U.S.C. § 286 criminalizes conspiracies 'to defraud,' and defined 'defraud' as taking or withholding possession or rights by calculated misstatement or deception. Citing Supreme Court precedent, the court concluded that the elements of an offense under § 286 'necessarily entail fraudulent or deceitful conduct,' satisfying the definition of an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i). Second, regarding the loss amount, the court applied a circumstance-specific approach, which permits consideration of the indictment, judgment, and sentencing materials to determine the actual loss. The court found that the Government proved by clear and convincing evidence that the loss exceeded $10,000, relying on the indictment alleging $1.3 million in fraudulent claims and a sentencing order requiring $161,207.18 in restitution. The court emphasized that the statute predicates removal on a convicted offense resulting in losses greater than $10,000, and Tabi did not meaningfully contest this finding.
The denial of the petition for review leaves the final order of removal against Agyei Asare Tabi in full force. This decision reinforces the Third Circuit's precedent that convictions for conspiracy to defraud the United States under 18 U.S.C. § 286 are categorically aggravated felonies involving fraud. It also confirms that immigration courts may rely on sentencing-related materials, such as restitution orders, to establish the loss amount for immigration removal purposes without requiring a separate factual finding on the specific loss in the immigration proceeding. No further relief is available to Tabi on these grounds, and he remains subject to removal.
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