Nijhawan v. Atty Gen'l (3d Cir. 5/4/08)

RENDELL, Arenas (DCt), Stapleton (dissenting)

The 3d Cir held that the 10K loss provisions of 1101(a)(43)(M) need not be elements of the conviction, but can be proven by other evidence like a restitution order.  Judge Stapleton, dissenting, would have applied Taylor / Shephard to the 10K analysis.

Read opinion here: 

1.  Rejects the argument that his conviction did not "involve fraud" because it doesn't match up with the common law definition; Court said that the term "involves" makes it a broader definition.  Accord, Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002); Conteh v. Gonzales, 461 F.3d 45, 59 (1st Cir. 2006) (“We agree with the Third Circuit. . . . An offense with a scienter element of either intent to defraud or intent to deceive categorically qualifies as an offense involving fraud or deceit.”); James v. Gonzales, 464 F.3d 505, 508 (5th Cir. 2006) (noting that “[w]e recognize that ‘[w]hether an offense “involves” fraud is a broader question than whether it constitutes fraud’” and concluding that “[t]he plain language of § 1344 . . . provides that a violation of either subsection necessarily entails fraud or deceit”).

2.  Contrary reading would lead to an absurd result, as most fraud crimes don't have a 10K element.

   We conclude that the language of § 101(a)(43)(M)(i) does not require a jury to have determined that there was a loss in excess of $10,000. To read the “in which” language as requiring that what follows must have been proven as an element of the crime would bring about an absurd result. Clearly, the phrase is, as the BIA found, qualifying and does not constitute a provable element. For example, what if the language were “in which the victims were elderly” or “in which three or more banks suffered losses”? Would the facts of these qualifying phrases have to have been proven as part of the offense? We suggest not. * * * *

   [I]nsistence on loss as part of the conduct would render § 1101(a)(43)(M)(i) largely inoperative, for rarely will a defendant be convicted of a fraud offense with loss as an element found by the jury or explicitly admitted to in a guilty plea. Under the rule adopted in Dulal-Whiteway which the dissent embraces, a finding beyond a reasonable doubt would be required, not merely the allegation of a specific loss amount in a criminal indictment. A jury would have to be charged as to loss amount and make a specific and additional finding. 

3.  CtApp is not abandoning Taylor; it's simply not applicable to the amount language in the fraud ground.

   Cases in which a court has recourse to the modified categorical approach generally involve “divisible” statutes, where the prior criminal offense, by statute, includes a wide range of activity but the requisite enhancing provision – such as violent felony or aggravated felony – requires one or more particular elements that may or may not have been found as part of the conviction. The modified categorical approach entails scrutiny of the nature of the conviction itself and those elements that the jury necessarily found through an examination of judicial record evidence. If the jury did not necessarily find that element, the “conviction” will not fit within the enhanced category. Taylor-Shepard is thus implicated.

   On the other hand, the instant enhancing provision is different. The language does not state “convicted of a $10,000 fraud.” Rather, it reads, “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). As Judge Becker specifically stated, the provision before us here invites inquiry into “the underlying facts of the case.” There is no issue here regarding which crime was committed by the petitioner under a divisible statute, in which event we would be limited to an examination of the “specifics of the conviction” and would employ the modified categorical approach of Taylor and Shepard.

   We should note that neither we nor these other courts have abandoned the Taylor-Shepard approach. Indeed, we still resort to it at the initial phase of our analysis because § 101(a)(43)(M)(i) instructs us to decide whether the alien has been convicted of a crime involving fraud or deceit. Employing the formal categorical approach and looking to the statute of conviction, we determined that Nijhawan’s conviction involved fraud or deceit and thus was a proper predicate offense within the “aggravated felony” definition. Once this conclusion is reached, our case law then requires an “inquiry into the underlying facts of the case” to ascertain whether the “in which” qualifying loss provision is satisfied. 

3.  Distinguishes cases where a plea agreement was to less than 10K in loss.

Stapleton, dissenting:

1.  Only removable if "convicted" of an AggFel.

2.  Notes that Taylor approach is practical and fair.

3.  Majority's test that loss must be "tethered" to the fraud places no limits on type of evidence that can be considered.

   The Court concludes that the loss must merely be found by the Immigration Judge and BIA under their “clear and convincing evidence” standard and be “tethered” to the conviction. The Court does not define the “tethered” test further but merely holds that it is satisfied by the facts of this case. The holding provides no guidance to the Immigration Judges who will apply Sections 1227(a)(2)(A)(iii) and 1101(a)(43)(M)(i). Under the standard the Court adopts, for example, would a future IJ be permitted to conclude (under its clear and convincing evidence standard) that the $10,000 loss is established, and is “tethered” to the alien’s conviction, by looking to facts in a pre-sentence investigation report (“PSI”), or to facts in a police report, or to select evidence presented in the criminal trial, or to new testimony or documents introduced at the removal hearing? The task of defining the “tethered” inquiry will fall to future panels of this Court, and with the loss element divorced from the conviction requirement, the task will not be an easy one.

   The First Circuit, the only other court to have deviated from the modified categorical approach, sought to provide answers to these questions in Conteh, but that opinion demonstrates the analytical difficulty of defining the loss inquiry once it is divorced from the conviction requirement. Conteh made two fundamental rulings regarding the loss inquiry. Conteh first ruled, as does the Court today, that the INA does not require a convicted loss but rather merely a determination by the IJ, under its ordinary clear and convincing evidence standard, that the loss requirement is satisfied. Conteh, 461 F.3d at 55-56. This ruling allowed it to conclude that the IJ did not err by relying on a restitution order, which could have included “relevant” but un-convicted conduct and facts found by a mere preponderance of the evidence. Id. at 59. Conteh next, however, joined every Court of Appeals to have addressed this issue by ruling that the inquiry is limited to the “record of conviction.” Id. at 57. In reaching this latter ruling the Court “emphasize[d] that the difference between [its] approach and that of the Ninth Circuit [which the Second Circuit subsequently joined] is only a matter of degree,” id. at 56, and it agreed that “because the BIA may not adjudicate guilt or mete out criminal punishment, it must base removal orders on convictions, not on conduct alone.” Id. Based on this second ruling, the Court concluded that the IJ did err by looking to a PSI

Atty: Thomas Moseley

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