Nijhawan v. Holder

Background

An immigrant was convicted by a jury of conspiracy to commit mail, wire, bank fraud, and related crimes. The criminal statutes did not require a monetary loss finding, so the jury made none. At sentencing the defendant admitted losses exceeded $100 million and the court ordered $683 million in restitution. The Government later sought to deport him under the immigration law that treats certain frauds with victim losses over $10,000 as “aggravated felonies.” The Immigration Judge, the Board of Immigration Appeals, and the Third Circuit all treated sentencing materials as showing loss over $10,000.

Reasoning

The Court asked whether the $10,000 threshold is an element of the underlying fraud crime (requiring a review only of the criminal statute) or instead refers to the particular circumstances of a specific offense (allowing inquiry into the facts). Comparing the immigration statute to other federal laws and nearby provisions (including a tax-loss clause), the Court held the language calls for a circumstance-specific approach. The Court rejected the proposed “modified categorical” rule that would limit inquiry only to charging papers or jury instructions. It emphasized that deportation proceedings are civil, the Government must prove loss by clear and convincing evidence, and loss must be tied to the specific counts of conviction.

Real world impact

Immigration judges may consider sentencing stipulations and restitution orders to determine whether a prior fraud involved more than $10,000 in loss. Defendants have at least one opportunity to contest loss at sentencing and again in deportation proceedings, and uncertainty over older records must be resolved under the clear-and-convincing standard.