Hamilton v. Holder, No. 09-9505 (10th Cir., October 27, 2009)
Shawn James Hamilton is a Canadian citizen who became a permanent lawful resident of the U.S. in 1993. In 2006, at a removal hearing, Hamilton admitted to a conviction for conspiracy to commit mail fraud, stemming from a scheme between Hamilton and a co-conspirator where the pair burned the co-conspirator’s car to collect insurance. Hamilton sought cancellation of removability, which under 8 USC 1229b(a)(3) required him to show that he had not been convicted of an aggravated felony. The statute criminal statute at issue, 8 U.S.C. 1101(a)(43)(M)(i), defined an aggravated felony as “an offense that… involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” Hamilton argued that the loss fell below this threshold, as the restitution order limited the victims’ loss to $9,900.
Feeling the record was lacking in regard to the amount of loss, the judge allowed both sides to submit additional evidence. Over Hamilton’s objection, the government submitted evidence which included a presentence investigation report, which reported that the insurance claim amounted to $22,240. Relying on this evidence, the Immigration Judge concluded that the amount of loss was over $10,000 and denied relief. The Board of Immigration Appeals affirmed, holding that the amount of loss may be proven through evidence outside the record, as the amount of loss is not an element of the crime.
The Court of Appeals framed the issue narrowly: whether the Immigration Judge properly used the information in the presentence investigation report to determine the amount of loss. The court agreed with the Board of Immigration Appeals that the compensation award was not determinative of the amount of loss, and that the information and judgment of conviction lacked the amount of loss. As a result, the report was properly received as it, in the Board of Immigration Appeals' words, "provided reliable evidence of the victim's loss."
Hamilton argued that a categorical approach should be applied, that the Immigration Judge and Board of Immigration Appeals were limited in the types of evidence that it could consider, and that the report fell outside of this type of evidence. The Court of Appeals found that petitioner's argument had been foreclosed by a recently decided case, Nijhawan v. Holder. Casting aside a categorical approach, the Supreme Court in Nijhawan found that 8 U.S.C. 1101(a)(43)(M)(i) required a circumstance-specific approach to determining loss, as the statutory language regarding the amount of loss was not an element of the crime, but rather to “particular circumstances in which an offender committed a (more broadly defined) fraud or deceit crime on a particular occasion.” The circumstance-specific approach allows what normally is sentencing-related evidence to prove amount of loss. As Hamilton failed present evidence to rebut the report, he failed to show he had not been convicted of an aggravated felony. The Court of Appeals denied his petition for review.