Nijhawan v. Holder (SupCt June 15, 2009)

BREYER for a unanimous court

The Supreme Court held that the requirement of a $10,000 loss in aggravated felony fraud definition at 101(a)(43)(M) was not a required element, and thus could be proved by facts presented in immigration court.  "We conclude that Congress did not intend subparagraph(M)(i)’s monetary threshold to be applied categorically, i.e., to only those fraud and deceit crimes generically defined to include that threshold. Rather, the monetary threshold applies to the specific circumstances surrounding an offender’s commission of a fraud and deceit crime on a specific occasion."

In re Babaisakov, 24 I. & N. Dec. 306, 319 (2007), endorsed.  Accord, Conteh v. Gonzales, 461 F. 3d 45, 55 (CA1 2006); Nijhawan v. Holder, 523 F. 3d 387; Arguelles-Olivares v. Mu-kasey, 526 F. 3d 171, 178 (CA5 2008); contra Dulal-Whiteway v. United States Dept. of Homeland Security, 501 F. 3d 116, 131 (CA2 2007); Kawashima v. Mukasey, 530 F. 3d 1111, 1117 (CA9 2008); Obasohan v. United States Atty. Gen., 479 F. 3d 785, 791 (CA11 2007).

1.  The question, as posed by Breyer, was:

whether the italicized statutory words “offense that involves fraud or deceit in which the loss to the . . . victims exceeds $10,000” should be interpreted in the first sense (which we shall call “categorical”), i.e., as referring to a generic crime, or in the second sense (which we shall call “circumstance-specific”), as referring to the specific way in which an offender committed the crime on a specific occasion. If the first, we must look to the statute defining the offense to determine whether it has an appropriate monetary threshold; if the second, we must look to the facts and circumstances underlying an offender’s conviction.

2.  The Court first held, as a general proposition, that the AggFel definition contains some elements that are like the ACCA, and must be proven by a categorical test, whereas others are not.

[T]he “aggravated felony” statute ... resembles ACCA in certain respects. The “aggravated felony” statute lists several of its “offenses” in language that must refer to generic crimes.... [citing 101(a)(43)(A), (B), (C), (E), (H), (I), (J), (L)]

More importantly, however, the “aggravated felony” statute differs from ACCA in that it lists certain other “offenses” using language that almost certainly does not refer to generic crimes but refers to specific circumstances. For example, subparagraph (P), after referring to “an offense” that amounts to “falsely making, forging, counterfeiting, mutilating, or altering a passport,” adds, “except in the case of a first offense for which the alien . . . committed the offense for the purpose of assisting . . . the alien’s spouse, child, or parent . . . to violate a provision of this chapter” (emphasis added). The language about (for example) “forging . . . passport[s]” may well refer to a generic crime, but the italicized exception cannot possibly refer to a generic crime. That is because there is no such generic crime; there is no criminal statute that contains any such exception. Thus if the provision is to have any meaning at all, the exception must refer to the particular circumstances in which an offender committed the crime on a particular occasion. See also subparagraph (N) (similar exception).

* * *

The upshot is that the “aggravated felony” statute, unlike ACCA, contains some language that refers to generic crimes and some language that almost certainly refers to the specific circumstances in which a crime was committed. The question before us then is to which category subparagraph (M)(i) belongs.

3.  Applying this analysis to (M)(i), the Court noted that the "in which" languge of the statute could apply to the facts, rather than to the particular offense.  It also noted that (M)(ii) was textually related to (M)(i), and wouldn't really make sense if the 10K loss was a required element. 

4.  The Court then looked to state law to see whether an elements-based approach would have made sense in 1996.  Only 8 states had fraud statutes including a 10K loss requirement.  This also influenced the Court's analysis: "[w]e do not believe Congress would have intended (M)(i) to apply in so limited and so haphazard a manner."

5.  Nijhawan argued that this would be constitutionally problematic, because of illegal reentry prosecutions.  But the Court agreed with Govt's response: that the fraud loss amount would have to be proven beyond a reasonable doubt to a jury. 

6.  Nijhawan alternately argued for a modified categorical approach, in the interests of fundamental fairness.  The Court "agree[d] with petitioner that the statute foresees the use of fundamentally fair procedures, including procedures that give an alien a fair opportunity to dispute a Government claim that a prior conviction involved a fraud with the relevant loss to victims" but found no fairness rule requiring the modified categorical approach.  The Taylor/Shepard approach was a statutory one, and there is no clear requirement for that approach in the AggFel context.  Nijhawan's suggestion of a special jury verdict is impractical.

7.  The Court put emphasis on the lower standard (clear and convincing instead of "beyond a reasonable doubt") for removal proceedings.

8.  The Court did find that the “loss” must “be tied to the specific counts covered by the conviction.” (citing Alaka v. Attorney General of United States, 456 F. 3d 88, 107 (CA3 2006); Knutsen v. Gonzales, 429 F. 3d 733, 739–740 (CA7 2005).)

9.  This means that the alien has at least one, maybe two, opportunities - at sentencing and again in imm ct - to cast doubt on the Govt's loss amount theories.  The passage of time will make the Govt's case harder to make.  Here, Nijhawan hasn't offered evidence against the restitution amt ordered by the criminal court, and his stipulation in that case.  In the absence of any conflicting evidence, that constitute clear and convincing evidence of removability.

[CR: Hmm.  The idea that the Govt's case gets harder with the passage of time is flatly wrong - ICE is always able to get police reports, and passage of time just makes it more likely that witnesses will be unavailable for cross-examination, and that other witnesses cannot be located.  The Court didn't touch on the lack of counsel in removal proceedings or the fact that respondents are often detained. Those premises seem flawed. The reasoning in the first part of the opinion is fairly tight, and is narrow; of course, how it gets interpreted, we shall have to see.]

Read decision here:

Scotusblog link to briefs and transcript: 

County of El Paso v. Napolitano (08-751)

Although we haven't previously mentioned this case, we have been watching the cert petition in County of El Paso for some time.  It looks ripe for a summary decision from the Supreme Court.  It has now been scheduled for 8 conferences, without cert having been granted or denied; which points to the probability of a summary decision without oral argument or any further briefing. In addition, construction of the border wall is ongoing, which suggests the utility of a quick decision from the Court.  One factor favoring some SupCt review is that, due to a 60 day limitations period, this case is the last chance the SupCt will have to review the particular DHS waiver in question.

The issue in the case is the waiver issued by DHS Secretary Chertoff, which purports to waive basically all state and federal laws pertaining to the construction of the border wall. 

There were two issues raised in the cert petition. First, the delegation to DHS purports to eliminate judicial review, except for constitutional questions. The Petitioners and amici argue that Chertoff's waiver / preemption is ambiguous and ultra vires to the statute, as well as potentially permanent in length. They want to be able to challenge it, to clarify it, etc.; and the lack of judicial review effectively prevents them from doing so. An ultra vires argument seems more statutory than constitutional; though I do wonder whether one could turn separation of powers into a constitutional claim.  Ergo, the SupCt might be able to duck review of this question.  (Btw, note that IIRIRA permits only DistCt review; there is no CtApp review, only potential SupCt certiorari.)

Second, the case presents issues of preemption of state laws. Notwithstanding the 10th amendment, Congress clearly can preempt state laws; but the question is how clearly Congress has to do that, and whether a general delegation to the secretary of DHS is sufficient to permit DHS to preempt state laws. There were two amicus briefs in support of cert; the brief by Eagle Pass and other border cities argued that the DHS rule was permanent in length, left border localities unclear about their laws - and noted that the wall will place some citizens on the "Mexican side," making fire and police protection more difficult.

It might be worth noting the interesting dissent in Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559 (2007). In that case, Justices Stevens, Scalia, and CJ Roberts dissented in part on grounds that an agency cannot preempt state laws, that only Congress can do so. The majority in Watters expressly declined to address that issue, since holding that the statute itself precluded the state laws from having effect in the banking context. Given federalism issues and the very broad agency language (which seems to go beyond the construction of the wall to encompass maintanence of roads, something that wouldn't seem to have any expiration date), there may be reason to suspect that both wings of the Court would find DHS to have exceeded its authority here.

Link to cert petition and briefs via scotusblog: