Law School Case Brief
Nijhawan v. Holder - 557 U.S. 29, 129 S. Ct. 2294 (2009)
Federal immigration law provides that any alien who is convicted of an aggravated felony at any time after admission is deportable. 8 U.S.C.S. § 1227(a)(2)(A)(iii). A related statute defines "aggravated felony" in terms of a set of listed offenses that includes an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $ 10,000. 8 U.S.C.S. § 1101(a)(43)(M)(i).
Petitioner, an alien, immigrated to the United States in 1985. In 2002 he was indicted for conspiring to commit mail fraud, wire fraud, bank fraud, and money laundering. A jury found him guilty. But because none of these statutes requires a finding of any particular amount of victim loss, the jury made no finding about the amount of the loss. At sentencing petitioner stipulated that the loss exceeded $100 million. The court then imposed a sentence of 41 months in prison and required restitution of $683 million. The Government subsequently sought to remove him from the United States, claiming that he had been convicted of an "aggravated felony." The Immigration Judge found that petitioner's conviction fell within the "aggravated felony" definition. The alien argued that removal based on an aggravated felony of fraud in which the loss to the victim exceeded $ 10,000 was improperly applied to the alien, because the amount of loss was not an element of the alien's offenses. The U.S. Supreme Court unanimously held that the $ 10,000 threshold set out in § 1101(a)(43)(M)(i) referred to the particular circumstances in which the alien committed the fraud crime on the particular occasion, rather than to an element of the fraud crime. The language of the definition referred to conduct involved in an offense of conviction, rather than to elements of the offense, and the statutory amount of loss would otherwise have little, if any, meaningful application in view of the minimal fraud statutes with a monetary loss threshold as an element. Further, the removal tribunal was not required to find the amount of loss beyond a reasonable doubt, and it was not unfair to rely on the clear and convincing evidence of loss based on the alien's sentencing stipulation.
Did the loss to the victims exceed $10,000?
The Court found nothing unfair about the immigration judge's having here relied upon earlier sentencing-related material. Petitioner's own stipulation, produced for sentencing purposes, shows that the conviction involved losses considerably greater than $10,000. The court's restitution order shows the same. In the absence of any conflicting evidence (and petitioner mentions none), this evidence is clear and convincing. The Court unanimously held that the $10,000 threshold set out in § 11101(a)(43)(M)(1) referred to the particular circumstances in which the alien committed the fraud crime on the particular occasion, rather than to an element of the fraud crime.
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