
    Jeromi Horns BAZUAYE, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
    No. 10-3557.
    United States Court of Appeals, Second Circuit.
    Oct. 17, 2011.
    
      Brian L. Gardner, Sullivan Gardner, PC, New York, N.Y., for Petitioner.
    Kirti Vaidya Reddy, Benjamin H. Torrance (Assistant United States Attorneys, of counsel) for Preet Bharara, United States Attorney for the Southern District of New York, for Respondent.
    Present: JOSEPH M. McLAUGHLIN, ROSEMARY S. POOLER, REENA RAGGI, Circuit Judges.
   SUMMARY ORDER

Petitioner Jeromi Horns Bazuaye (“petitioner”) seeks review of an August 26, 2010 order and decision of the BIA, affirming the April 9, 2009 order and decision of the Immigration Judge (Page, /.), ordering petitioner removed and denying his application for cancellation of removal. The main issue presented by this petition for review is whether the BIA erred in holding that petitioner’s 2004 conviction for violations of 18 U.S.C. §§ 1344 and 1029(a) remained a conviction constituting an aggravated felony under the Immigration and Nationality Act (“INA”) after a June 8, 2005 remand from this court, in which we directed the district court to vacate petitioner’s sentence and resentence him in accordance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

Petitioner contends that this court’s remand for resentencing under Booker compels the conclusion that his 2004 conviction does not constitute a conviction under the INA. A conviction under the INA does typically require sentence, and so for some period between our remand and the district court’s resentencing, petitioner’s 2004 conviction may not have been a conviction within the meaning of the INA. See Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 331-32 (2d Cir.2007). But whatever the status of petitioner’s conviction in the period between remand and resentencing, it became indisputably final well before the IJ and the BIA made their determinations as to his removability based on that conviction. Petitioner was resentenced by the district court on September 30, 2005, and we affirmed by summary order on April 23, 2008. See United States v. Bazuaye, 311 Fed.Appx. 382 (2d Cir.2008) (summary order). At a minimum, petitioner’s conviction was a conviction within the meaning of the INA after the 2005 resentencing, and it was proper for the IJ and the BIA to find removability based upon it. Petitioner’s due process rights were not violated by the government’s use of 2004 rather than 2005, the more accurate date for INA purposes, on petitioner’s Notice to Appear. Despite any possible error, petitioner was not deprived of the “right to notice of the nature of the charges and a meaningful opportunity to be heard” because the 2005 conviction involved the exact facts and finding of guilt as the 2004 conviction. Pierre v. Holder, 588 F.3d 767, 776 (2d Cir.2009).

Petitioner’s next argument is that the 2004 conviction was not properly deemed an aggravated felony because the IJ and the BIA looked at the specific circumstances of his offense to determine whether he had met the monetary threshold of loss to victims under 8 U.S.C. § 1101(a)(43)(M)(i). This argument is completely foreclosed by the Supreme Court’s decision in Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). Nijhawan holds clearly that the “the monetary threshold [of subparagraph (M)(i) ] applies to the specific circumstances surrounding an offender’s commission of a fraud and deceit crime on a specific occasion.” Id. at 2302. The IJ and the BIA were not only allowed, but indeed required, to make a circumstance-specific inquiry into the amount of loss. In so doing, it was proper for them to rely on the presentence report and restitution order in addition to the record of conviction. See id. at 2303.

Because we affirm the IJ and BIA’s determination that petitioner has committed an aggravated felony, and so is removable and ineligible for cancellation of removal on those grounds alone, we need not and do not address whether petitioner’s convictions constitute crimes involving moral turpitude.

We have examined petitioner’s remaining arguments and find them to be without merit.

We therefore DENY the petition for review. The previously granted stay of deportation is VACATED.

Accordingly, the judgment of the district court hereby is AFFIRMED.  