Nijhawan v. Holder

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NIJHAWAN v. HOLDER, ATTORNEY GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 08–495. Argued April 27, 2009—Decided June 15, 2009

An alien “convicted of an aggravated felony any time after admission is

deportable.” 8 U. S. C. §1227(a)(2)(A)(iii). An “aggravated felony” in

cludes “an offense that . . . involves fraud or deceit in which the loss

to the . . . victims exceeds $10,000.” §1101(a)(43)(M)(i). Petitioner,

an alien, was convicted of conspiring to commit mail fraud and re

lated crimes. Because the relevant statutes did not require a finding

of loss, the jury made no such finding. However, at sentencing, peti

tioner stipulated that the loss exceeded $100 million. He was sen

tenced to prison and required to make $683 million in restitution.

The Government subsequently sought to remove him from the United

States, claiming that he had been convicted of an “aggravated fel

ony.” The Immigration Judge found that petitioner’s conviction fell

within the “aggravated felony” definition. The Board of Immigration

Appeals agreed, as did the Third Circuit, which held that the Immi

gration Judge could inquire into the underlying facts of a prior fraud

conviction for purposes of determining whether the loss to the victims

exceeded $10,000.

Held: Subparagraph (M)(i)’s $10,000 threshold refers to the particular

circumstances in which an offender committed a fraud or deceit crime

on a particular occasion rather than to an element of the fraud or de

ceit crime. Pp. 3–13.

(a) Words such as “crime,” “felony, and “offense” sometimes refer to

a generic crime (a “categorical” interpretation), and sometimes refer

to the specific acts in which an offender engaged (“circumstance

specific” interpretation). The basic argument favoring the “categori

cal” interpretation rests upon Taylor v. United States, 495 U. S. 575,

Chambers v. United States, 555 U. S. ___, and James v. United

States, 550 U. S. 192. These cases concerned the Armed Career

2 NIJHAWAN v. HOLDER

Syllabus

Criminal Act (ACCA), which enhances the sentence for firearm-law

offenders who have prior “violent felony” convictions, 18 U. S. C.

§924(e). The Court held that the word “felony” refers to a generic

crime as generally committed. Thus, for example, in James, the

Court applied the “categorical method” to determine whether an “at

tempted burglary” was a “violent felony.” That method required the

Court to examine “not the unsuccessful burglary . . . attempted on a

particular occasion, but the generic crime of attempted burglary.”

550 U. S., at 204–206. Pp. 3–5.

(b) Contrary to petitioner’s arguments, the “$10,000 loss” provision

at issue calls for a “circumstance-specific” interpretation, not a “cate

gorical” one. The “aggravated felony” statute of which it is a part dif

fers from ACCA in general, and the “$10,000 loss” provision differs

specifically from ACCA’s provisions. Pp. 6–10.

(1) The “aggravated felony” statute at issue resembles ACCA

when it lists several “offenses” in language that must refer to generic

crimes. But other “offenses” are listed using language that almost

certainly refers to specific circumstances. Title 8 U. S. C.

§1101(a)(43)(P), for example, after referring to “an offense” that

amounts to “falsely making, forging, counterfeiting, mutilating, or al

tering 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.” The language about “forging . . . passport[s]” may well refer

to a generic crime, but the exception cannot possibly refer to a generic

crime, because there is no criminal statute that contains any such ex

ception. Subparagraph (M)(ii), which refers to an offense “described

in [26 U. S. C. §7201] (relating to tax evasion) in which the revenue

loss to the government exceeds $10,000,” provides another example.

Because no §7201 offense has a specific loss amount as an element,

the tax-evasion provision would be pointless, unless the “revenue

loss” language calls for circumstance-specific application. Here, the

question is to which category subparagraph (M)(i) belongs. Pp. 6–8.

(2) Subparagraph (M)(i)’s language is consistent with a circum

stance-specific approach. The words “in which” (modifying “offense”)

can refer to the conduct involved “in” the commission of the offense of

conviction, rather than to the elements of the offense. Moreover,

subparagraph (M)(i) appears just prior to subparagraph (M)(ii), the

tax-evasion provision, and their structures are identical. Where, as

here, Congress uses similar statutory language and similar statutory

structure in two adjoining provisions, it normally intends similar in

terpretations. IBP, Inc. v. Alvarez, 546 U. S. 21, 34. Additionally,

applying a categorical approach would leave subparagraph (M)(i)

with little, if any, meaningful application. Only three federal fraud

Cite as: 557 U. S. ____ (2009) 3

Syllabus

statutes appear to contain a relevant monetary loss threshold. And

at the time the $10,000 threshold was added, only eight States had

fraud and deceit statutes in respect to which that threshold, as cate

gorically interpreted, would have full effect. Congress is unlikely to

have intended subparagraph (M)(i) to apply in such a limited and

haphazard manner. Pp. 8–10.

(c) This Court rejects petitioner’s alternative position that fairness

calls for a “modified categorical approach” requiring a jury verdict or

a judge-approved equivalent to embody a loss-amount determination,

and permitting the subsequent immigration court applying subpara

graph (M)(i) to examine only charging documents, jury instructions,

and any special jury finding, or their equivalents. The Court’s cases

developed the evidentiary list to which petitioner points for a very

different purpose, namely, to determine which statutory phrase (con

tained within a statutory provision covering several different generic

crimes) covered a prior conviction. Additionally, petitioner’s proposal

can prove impractical insofar as it requires obtaining from a jury a

special verdict on a fact that is not an element of the offense. Fur

ther, evidence of loss offered by the Government must meet a “clear

and convincing” standard and the loss must be tied to the specific

counts covered by the conviction. These considerations mean that pe

titioner and others in similar circumstances have at least one and

possibly two opportunities to contest the loss amount, the first at the

earlier sentencing and the second at the deportation hearing. There

was nothing unfair about the Immigration Judge’s reliance on earlier

sentencing-related material here. The defendant’s sentencing stipu

lation and the court’s restitution order show that the conviction in

volved losses considerably greater than $10,000. Absent any conflict

ing evidence, this evidence is clear and convincing. Pp. 10–12.

523 F. 3d 387, affirmed.

BREYER, J., delivered the opinion for a unanimous Court.

Cite as: 557 U. S. ____ (2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–495

_________________

MANOJ NIJHAWAN, PETITIONER v. ERIC H.

HOLDER, JR., ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[June 15, 2009]

JUSTICE BREYER delivered the opinion of the Court.

Federal immigration law provides that any “alien who is

convicted of an aggravated felony at any time after admis

sion is deportable.” 8 U. S. C. §1227(a)(2)(A)(iii) (emphasis

added). 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.” §1101(a)(43)(M)(i)

(emphasis added). See Appendix A. The question before

us is whether the italicized language refers to an element

of the fraud or deceit “offense” as set forth in the particu

lar fraud or deceit statute defining the offense of which the

alien was previously convicted. If so, then in order to

determine whether a prior conviction is for the kind of

offense described, the immigration judge must look to the

criminal fraud or deceit statute to see whether it contains

a monetary threshold of $10,000 or more. See Taylor v.

United States, 495 U. S. 575 (1990) (so interpreting the

Armed Career Criminal Act). We conclude, however, that

the italicized language does not refer to an element of the

fraud or deceit crime. Rather it refers to the particular

2 NIJHAWAN v. HOLDER

Opinion of the Court

circumstances in which an offender committed a (more

broadly defined) fraud or deceit crime on a particular

occasion.

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.

18 U. S. C. §§371, 1341, 1343, 1344, 1956(h). 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 sentenc

ing petitioner stipulated that the loss exceeded $100 mil

lion. The court then imposed a sentence of 41 months in

prison and required restitution of $683 million.

In 2005 the Government, claiming that petitioner had

been convicted of an “aggravated felony,” sought to remove

him from the United States. The Immigration Judge

found that petitioner’s conviction was for crimes of fraud

and deceit; that the sentencing stipulation and restitution

order showed that the victims’ loss exceeded $10,000; and

that petitioner’s conviction consequently fell within the

immigration statute’s “aggravated felony” definition. See

8 U. S. C. §§1101(a)(43)(M)(i), (U) (including within the

definition of “aggravated felony” any “attempt or conspir

acy to commit” a listed “offense”). The Board of Immigra

tion Appeals agreed. App. to Pet. for Cert. 44a–51a. So

did the Third Circuit. 523 F. 3d 387 (2008). The Third

Circuit noted that the statutes of conviction were silent as

to amounts, but, in its view, the determination of loss

amounts for “aggravated felony” purposes “requires an

inquiry into the underlying facts of the case.” Id., at 396

(internal quotation marks omitted).

The Courts of Appeals have come to different conclu

sions as to whether the $10,000 threshold in subpara

graph (M)(i) refers to an element of a fraud statute or to

Cite as: 557 U. S. ____ (2009) 3

Opinion of the Court

the factual circumstances surrounding commission of the

crime on a specific occasion. Compare Conteh v. Gonzales,

461 F. 3d 45, 55 (CA1 2006) (fact-based approach); 523

F. 3d 387 (same) (case below); Arguelles-Olivares v. Mu

kasey, 526 F. 3d 171, 178 (CA5 2008) (same), with Dulal-

Whiteway v. United States Dept. of Homeland Security,

501 F. 3d 116, 131 (CA2 2007) (definitional approach);

Kawashima v. Mukasey, 530 F. 3d 1111, 1117 (CA9 2008)

(same); Obasohan v. United States Atty. Gen., 479 F. 3d

785, 791 (CA11 2007) (same). We granted certiorari to

decide the question.

II

The interpretive difficulty before us reflects the linguis

tic fact that in ordinary speech words such as “crime,”

“felony, “offense,” and the like sometimes refer to a generic

crime, say, the crime of fraud or theft in general, and

sometimes refer to the specific acts in which an offender

engaged on a specific occasion, say, the fraud that the

defendant planned and executed last month. See Cham

bers v. United States, 555 U. S. ___, ___ (2009) (slip op., at

3). The question here, as we have said, is 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.

A

The basic argument favoring the first—i.e., the “generic”

4 NIJHAWAN v. HOLDER

Opinion of the Court

or “categorical”—interpretation rests upon Taylor, Cham

bers, and James v. United States, 550 U. S. 192 (2007).

Those cases concerned the Armed Career Criminal Act

(ACCA), a statute that enhances the sentence imposed

upon certain firearm-law offenders who also have three

prior convictions for “a violent felony.” 18 U. S. C. §924(e).

See Appendix B, infra. ACCA defines “violent felony” to

include, first, felonies with elements that involve the use

of physical force against another; second, felonies that

amount to “burglary, arson, or extortion” or that involve

the use of explosives; and third, felonies that “otherwise

involv[e] conduct that presents a serious potential risk of

physical injury to another.” §924(e)(2)(B).

In Taylor and James we held that ACCA’s language

read naturally uses the word “felony” to refer to a generic

crime as generally committed. Chambers, supra, at ___

(slip op., at 3) (discussing Taylor, 495 U. S., at 602);

James, supra, at 201–202. The Court noted that such an

interpretation of the statute avoids “the practical difficulty

of trying to ascertain” in a later proceeding, “perhaps from

a paper record” containing only a citation (say, by number)

to a statute and a guilty plea, “whether the [offender’s]

prior crime . . . did or did not involve,” say, violence.

Chambers, supra, at ___ (slip op., at 3).

Thus in James, referring to Taylor, we made clear that

courts must use the “categorical method” to determine

whether a conviction for “attempted burglary” was a con

viction for a crime that, in ACCA’s language, “involved

conduct that presents a serious potential risk of physical

injury to another.” §924(e)(2)(B)(ii). That method re

quired the court to “examine, not the unsuccessful bur

glary the defendant attempted on a particular occasion,

but the generic crime of attempted burglary.” Chambers,

supra, at (slip op., at 3) (discussing James, supra, at 204–

206).

We also noted that the categorical method is not always

Cite as: 557 U. S. ____ (2009) 5

Opinion of the Court

easy to apply. That is because sometimes a separately

numbered subsection of a criminal statute will refer to

several different crimes, each described separately. And it

can happen that some of these crimes involve violence

while others do not. A single Massachusetts statute sec

tion entitled “Breaking and Entering at Night,” for exam

ple, criminalizes breaking into a “building, ship, vessel or

vehicle.” Mass. Gen. Laws, ch. 266, §16 (West 2006). In

such an instance, we have said, a court must determine

whether an offender’s prior conviction was for the violent,

rather than the nonviolent, break-ins that this single five

word phrase describes (e.g., breaking into a building

rather than into a vessel), by examining “the indictment or

information and jury instructions,” Taylor, supra, at 602,

or, if a guilty plea is at issue, by examining the plea

agreement, plea colloquy or “some comparable judicial

record” of the factual basis for the plea. Shepard v. United

States, 544 U. S. 13, 26 (2005).

Petitioner argues that we should interpret the subsec

tion of the “aggravated felony” statute before us as requir

ing use of this same “categorical” approach. He says that

the statute’s language, read naturally as in Taylor, refers

to a generic kind of crime, not a crime as committed on a

particular occasion. He adds that here, as in Taylor, such

a reading avoids the practical difficulty of determining the

nature of prior conduct from what may be a brief paper

record, perhaps noting only a statutory section number

and a guilty plea; or, if there is a more extensive record,

combing through that record for evidence of underlying

conduct. Also, the categorical approach, since it covers

only criminal statutes with a relevant monetary threshold,

not only provides assurance of a finding on the point, but

also assures that the defendant had an opportunity to

present evidence about the amount of loss.

6 NIJHAWAN v. HOLDER

Opinion of the Court

B

Despite petitioner’s arguments, we conclude that the

“fraud and deceit” provision before us calls for a “circum

stance-specific,” not a “categorical,” interpretation. The

“aggravated felony” statute of which it is a part differs in

general from ACCA, the statute at issue in Taylor. And

the “fraud and deceit” provision differs specifically from

ACCA’s provisions.

1

Consider, first, ACCA in general. That statute defines

the “violent” felonies it covers to include “burglary, arson,

or extortion” and “crime[s]” that have “as an element” the

use or threatened use of force. 18 U. S. C. §§924(e)(2)

(B)(i)–(ii). This language refers directly to generic crimes.

The statute, however, contains other, more ambiguous

language, covering “crime[s]” that “involv[e] conduct that

presents a serious potential risk of physical injury to

another.” Ibid. (emphasis added). While this language

poses greater interpretive difficulty, the Court held that it

too refers to crimes as generically defined. James, supra,

at 202.

Now compare the “aggravated felony” statute before us.

8 U. S. C. §1101(a)(43). We concede that it resembles

ACCA in certain respects. The “aggravated felony” statute

lists several of its “offenses” in language that must refer to

generic crimes. Subparagraph (A), for example, lists

“murder, rape, or sexual abuse of a minor.” See, e.g.,

Estrada-Espinoza v. Mukasey, 546 F. 3d 1147, 1152 (CA9

2008) (en banc) (applying the categorical approach to

“sexual abuse”); Singh v. Ashcroft, 383 F. 3d 144, 164 (CA3

2004) (same); Santos v. Gonzales, 436 F. 3d 323, 324 (CA2

2005) (per curiam) (same). Subparagraph (B) lists “illicit

trafficking in a controlled substance.” See Gousse v.

Ashcroft, 339 F. 3d 91, 95–96 (CA2 2003) (applying cate

gorical approach); Fernandez v. Mukasey, 544 F. 3d 862,

Cite as: 557 U. S. ____ (2009) 7

Opinion of the Court

871–872 (CA7 2008) (same); Steele v. Blackman, 236 F. 3d

130, 136 (CA3 2001) (same). And subparagraph (C) lists

“illicit trafficking in firearms or destructive devices.”

Other sections refer specifically to an “offense described

in” a particular section of the Federal Criminal Code. See,

e.g., subparagraphs (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, counter

feiting, 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 ex

ample) “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 circum

stances in which an offender committed the crime on a

particular occasion. See also subparagraph (N) (similar

exception).

The statute has other provisions that contain qualifying

language that certainly seems to call for circumstance

specific application. Subparagraph (K)(ii), for example,

lists “offense[s] . . . described in section 2421, 2422, or

2423 of title 18 (relating to transportation for the purpose

of prostitution) if committed for commercial advantage”

(emphasis added). Of the three specifically listed criminal

statutory sections only one subsection (namely, §2423(d))

says anything about commercial advantage. Thus, unless

the “commercial advantage” language calls for circum

8 NIJHAWAN v. HOLDER

Opinion of the Court

stance-specific application, the statute’s explicit references

to §§2421 and 2422 would be pointless. But see Gertsen

shteyn v. United States Dept. of Justice, 544 F. 3d 137,

144–145 (CA2 2008).

Subparagraph (M)(ii) provides yet another example. It

refers to an offense “described in section 7201 of title 26

(relating to tax evasion) in which the revenue loss to the

Government exceeds $10,000” (emphasis added). There is

no offense “described in section 7201 of title 26” that has a

specific loss amount as an element. Again, unless the

“revenue loss” language calls for circumstance-specific

application, the tax-evasion provision would be pointless.

The upshot is that the “aggravated felony” statute,

unlike ACCA, contains some language that refers to ge

neric 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 cate

gory subparagraph (M)(i) belongs.

2

Subparagraph (M)(i) refers to “an offense that . . . in

volves fraud or deceit in which the loss to the victim or

victims exceeds $10,000” (emphasis added). The language

of the provision is consistent with a circumstance-specific

approach. The words “in which” (which modify “offense”)

can refer to the conduct involved “in” the commission of

the offense of conviction, rather than to the elements of

the offense. Moreover, subparagraph (M)(i) appears just

prior to subparagraph (M)(ii), the internal revenue provi

sion we have just discussed, and it is identical in structure

to that provision. Where, as here, Congress uses similar

statutory language and similar statutory structure in two

adjoining provisions, it normally intends similar interpre

tations. IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005).

Moreover, to apply a categorical approach here would

leave subparagraph (M)(i) with little, if any, meaningful

Cite as: 557 U. S. ____ (2009) 9

Opinion of the Court

application. We have found no widely applicable federal

fraud statute that contains a relevant monetary loss

threshold. See, e.g., 18 U. S. C. §§1341 (mail fraud), 1343

(wire fraud), 1344 (bank fraud), 371 (conspiracy to defraud

the United States), 666 (theft in federally funded pro

grams), 1028 (fraud in connection with identification

documents), 1029 (fraud in connection with access de

vices), 1030 (fraud in connection with computers), 1347

(health care fraud), and 1348 (securities fraud). Petitioner

has found only three federal fraud statutes that do so, and

those three contain thresholds not of $10,000, but of

$100,000 or $1 million, §§668 (theft by fraud of an artwork

worth $100,000 or more), 1031(a) (contract fraud against

the United States where the contract is worth at least $1

million), and 1039(d) (providing enhanced penalties for

fraud in obtaining telephone records, where the scheme

involves more than $100,000). Why would Congress in

tend subparagraph (M)(i) to apply to only these three

federal statutes, and then choose a monetary threshold

that, on its face, would apply to other, nonexistent stat

utes as well?

We recognize, as petitioner argues, that Congress might

have intended subparagraph (M)(i) to apply almost exclu

sively to those who violate certain state fraud and deceit

statutes. So we have examined state law. See Appendix

C, infra. We have found, however, that in 1996, when

Congress added the $10,000 threshold in subparagraph

(M)(i), see Illegal Immigration Reform and Immigrant

Responsibility Act §321(a)(7), 110 Stat. 3009–628, 29

States had no major fraud or deceit statute with any

relevant monetary threshold. In 13 of the remaining 21

States, fraud and deceit statutes contain relevant mone

tary thresholds but with amounts significantly higher

than $10,000, leaving only 8 States with statutes in re

spect to which subparagraph (M)(i)’s $10,000 threshold, as

categorically interpreted, would have full effect. We do

10 NIJHAWAN v. HOLDER

Opinion of the Court

not believe Congress would have intended (M)(i) to apply

in so limited and so haphazard a manner. Cf. United

States v. Hayes, 555 U. S. ___, ___ (2009) (slip op., at 10–

11) (reaching similar conclusion for similar reason in

respect to a statute referring to crimes involving “domestic

violence”).

Petitioner next points to 8 U. S. C. §1326, which crimi

nalizes illegal entry after removal and imposes a higher

maximum sentence when an alien’s removal was “subse

quent to a conviction for commission of an aggravated

felony.” §1326(b)(2). Petitioner says that a circumstance

specific approach to subparagraph (M)(i) could create

potential constitutional problems in a subsequent criminal

prosecution under that statute, because loss amount

would not have been found beyond a reasonable doubt in

the prior criminal proceeding. The Government, however,

stated in its brief and at oral argument that the later jury,

during the illegal reentry trial, would have to find loss

amount beyond a reasonable doubt, Brief for Respondent

49–50; Tr. of Oral Arg. 39–40, eliminating any constitu

tional concern. Cf. Hayes, supra, at ___ (slip op., at 10).

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 of

fender’s commission of a fraud and deceit crime on a spe

cific occasion.

III

Petitioner, as an alternative argument, says that we

should nonetheless borrow from Taylor what that case

called a “modified categorical approach.” He says that, for

reasons of fairness, we should insist that a jury verdict, or

a judge-approved equivalent, embody a determination that

the loss involved in a prior fraud or deceit conviction

Cite as: 557 U. S. ____ (2009) 11

Opinion of the Court

amounted to at least $10,000. To determine whether that

is so, petitioner says, the subsequent immigration court

applying subparagraph (M)(i) should examine only charg

ing documents, jury instructions, and any special jury

finding (if one has been requested). If there was a trial

but no jury, the subsequent court should examine the

equivalent judge-made findings. If there was a guilty plea

(and no trial), the subsequent court should examine the

written plea documents or the plea colloquy. To authorize

any broader examination of the prior proceedings, peti

tioner says, would impose an unreasonable administrative

burden on immigration judges and would unfairly permit

him to be deported on the basis of circumstances that were

not before judicially determined to have been present and

which he may not have had an opportunity, prior to con

viction, to dispute.

We agree with petitioner that the statute foresees the

use of fundamentally fair procedures, including proce

dures 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 we do not agree that

fairness requires the evidentiary limitations he proposes.

For one thing, we have found nothing in prior law that

so limits the immigration court. Taylor, James, and

Shepard, the cases that developed the evidentiary list to

which petitioner points, developed that list for a very

different purpose, namely that of determining which

statutory phrase (contained within a statutory provision

that covers several different generic crimes) covered a

prior conviction. See supra, at 5; Taylor, 495 U. S., at 602;

Shepard, 544 U. S., at 26. For another, petitioner’s pro

posal itself can prove impractical insofar as it requires

obtaining from a jury a special verdict on a fact that (given

our Part II determination) is not an element of the offense.

Further, a deportation proceeding is a civil proceeding

in which the Government does not have to prove its claim

12 NIJHAWAN v. HOLDER

Opinion of the Court

“beyond a reasonable doubt.” At the same time the evi

dence that the Government offers must meet a “clear and

convincing” standard. 8 U. S. C. §1229a(c)(3)(A). And, as

the Government points out, the “loss” must “be tied to the

specific counts covered by the conviction.” Brief for Re

spondent 44; see, e.g., Alaka v. Attorney General of United

States, 456 F. 3d 88, 107 (CA3 2006) (loss amount must be

tethered to offense of conviction; amount cannot be based

on acquitted or dismissed counts or general conduct);

Knutsen v. Gonzales, 429 F. 3d 733, 739–740 (CA7 2005)

(same). And the Government adds that the “sole purpose”

of the “aggravated felony” inquiry “is to ascertain the

nature of a prior conviction; it is not an invitation to reliti

gate the conviction itself.” Brief for Respondent 44 (inter

nal quotation marks omitted). Finally, the Board of Im

migration Appeals, too, has recognized that immigration

judges must assess findings made at sentencing “with an

eye to what losses are covered and to the burden of proof

employed.” In re Babaisakov, 24 I. & N. Dec. 306, 319

(2007).

These considerations, taken together, mean that peti

tioner and those in similar circumstances have at least

one and possibly two opportunities to contest the amount

of loss, the first at the earlier sentencing and the second at

the deportation hearing itself. They also mean that, since

the Government must show the amount of loss by clear

and convincing evidence, uncertainties caused by the

passage of time are likely to count in the alien’s favor.

We can find nothing unfair about the immigration

judge’s having here relied upon earlier sentencing-related

material. The defendant’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.

Cite as: 557 U. S. ____ (2009) 13

Opinion of the Court

The Court of Appeals concluded that petitioner’s prior

federal conviction consequently falls within the scope of

subparagraph (M)(i). And we affirm its judgment.

It is so ordered.

14 NIJHAWAN v. HOLDER

Appendix A to opinionCourt Court

Opinion of the of the

APPENDIXES

A

Section 101(a)(43) of the Immigration and Nationality

Act, as set forth in 8 U. S. C. 1101(a)(43), provides:

“The term ‘aggravated felony’ means—

“(A) murder, rape, or sexual abuse of a minor;

“(B) illicit trafficking in a controlled substance (as

defined in section 802 of title 21), including a drug traf

ficking crime (as defined in section 924(c) of title 18);

“(C) illicit trafficking in firearms or destructive devices

(as defined in section 921 of title 18) or in explosive mate

rials (as defined in section 841(c) of that title);

“(D) an offense described in section 1956 of title 18

(relating to laundering of monetary instruments) or sec

tion 1957 of that title (relating to engaging in monetary

transactions in property derived from specific unlawful

activity) if the amount of the funds exceeded $10,000;

“(E) an offense described in—

“(i) section 842(h) or (i) of title 18, or section 844(d),

(e), (f), (g), (h), or (i) of that title (relating to explosive

materials offenses);

“(ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o),

(p), or (r) or 924(b) or (h) of title 18 (relating to firearms

offenses); or

“(iii) section 5861 of title 26 (relating to firearms

offenses);

“(F) a crime of violence (as defined in section 16 of title

18, but not including a purely political offense) for which

the term of imprisonment at least one year;

“(G) a theft offense (including receipt of stolen property)

or burglary offense for which the term of imprisonment at

least one year;

“(H) an offense described in section 875, 876, 877, or

1202 of title 18 (relating to the demand for or receipt of

ransom);

Cite as: 557 U. S. ____ (2009) 15

Appendix A to opinionCourt Court

Opinion of the of the

“(I) an offense described in section 2251, 2251A, or 2252

of title 18 (relating to child pornography);

“(J) an offense described in section 1962 of title 18

(relating to racketeer influenced corrupt organizations), or

an offense described in section 1084 (if it is a second or

subsequent offense) or 1955 of that title (relating to gam

bling offenses), for which a sentence of one year impris

onment or more may be imposed;

“(K) an offense that—

“(i) relates to the owning, controlling, managing, or

supervising of a prostitution business;

“(ii) is described in section 2421, 2422, or 2423 of title

18 (relating to transportation for the purpose of prosti

tution) if committed for commercial advantage; or

“(iii) is described in any of sections 1581–1585 or

1588–1591 of title 18 (relating to peonage, slavery, in

voluntary servitude, and trafficking in persons);

“(L) an offense described in—

“(i) section 793 (relating to gathering or transmitting

national defense information), 798 (relating to disclo

sure of classified information), 2153 (relating to sabo

tage) or 2381 or 2382 (relating to treason) of title 18;

“(ii) section 421 of title 50 (relating to protecting the

identity of undercover intelligence agents); or

“(iii) section 421 of title 50 (relating to protecting the

identity of undercover agents);

“(M) an offense that—

“(i) involves fraud or deceit in which the loss to the

victim or victims exceeds $10,000; or

“(ii) is described in section 7201 of title 26 (relating to

tax evasion) in which the revenue loss to the Govern

ment exceeds $10,000;

“(N) an offense described in paragraph (1)(A) or (2) of

section 1324(a) of this title (relating to alien smuggling),

except in the case of a first offense for which the alien has

affirmatively shown that the alien committed the offense

16 NIJHAWAN v. HOLDER

Appendix A to opinionCourt Court

Opinion of the of the

for the purpose of assisting, abetting, or aiding only the

alien's spouse, child, or parent (and no other individual) to

violate a provision of this chapter

“(O) an offense described in section 1325(a) or 1326 of

this title committed by an alien who was previously de

ported on the basis of a conviction for an offense described

in another subparagraph of this paragraph;

“(P) an offense (i) which either is falsely making, forg

ing, counterfeiting, mutilating, or altering a passport or

instrument in violation of section 1543 of title 18 or is

described in section 1546(a) of such title (relating to docu

ment fraud) and (ii) for which the term of imprisonment is

at least 12 months, except in the case of a first offense for

which the alien has affirmatively shown that the alien

committed the offense for the purpose of assisting, abet

ting, or aiding only the alien's spouse, child, or parent (and

no other individual) to violate a provision of this chapter;

“(Q) an offense relating to a failure to appear by a

defendant for service of sentence if the underlying offense

is punishable by imprisonment for a term of 5 years or

more;

“(R) an offense relating to commercial bribery, counter

feiting, forgery, or trafficking in vehicles the identification

numbers of which have been altered for which the term of

imprisonment is at least one year;

“(S) an offense relating to obstruction of justice, perjury

or subornation of perjury, or bribery of a witness, for

which the term of imprisonment is at least one year;

“(T) an offense relating to a failure to appear before a

court pursuant to a court order to answer to or dispose of a

charge of a felony for which a sentence of 2 years’ impris

onment or more may be imposed; and

“(U) an attempt or conspiracy to commit an offense

described in this paragraph.

“The term applies to an offense described in this para

graph whether in violation of Federal or State law and

Cite as: 557 U. S. ____ (2009) 17

Appendix B to opinionCourt Court

Opinion of the of the

applies to such an offense in violation of the law of a for

eign country for which the term of imprisonment was

completed within the previous 15 years. Notwithstanding

any other provision of law (including any effective date),

the term applies regardless of whether the conviction was

entered before, on, or after September 30, 1996.” (Foot

notes omitted.)

B

Armed Career Criminal Act, 18 U. S. C. 924(e), provides:

“(1) In the case of a person who violates section 922(g)

of this title and has three previous convictions by any

court referred to in section 922(g)(1) of this title for a

violent felony or a serious drug offense, or both, committed

on occasions different from one another, such person shall

be fined under this title and imprisoned not less than

fifteen years, and, notwithstanding any other provision of

law, the court shall not suspend the sentence of, or grant a

probationary sentence to, such person with respect to the

conviction under section 922(g).

“(2) As used in this subsection—

“(A) the term ‘serious drug offense’ means—

“(i) an offense under the Controlled Substances Act

(21 U. S. C. 801 et seq.), the Controlled Substances

Import and Export Act (21 U. S. C. 951 et seq.), or

chapter 705 of title 46, for which a maximum term of

imprisonment of ten years or more is prescribed by

law; or

“(ii) an offense under State law, involving manufac

turing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance (as

defined in section 102 of the Controlled Substances

Act (21 U. S. C. 802)), for which a maximum term of

imprisonment of ten years or more is prescribed by

law;

“(B) the term ‘violent felony’ means any crime pun

18 NIJHAWAN v. HOLDER

Appendix C to opinionCourt Court

Opinion of the of the

ishable by imprisonment for a term exceeding one year, or

any act of juvenile delinquency involving the use or carry

ing of a firearm, knife, or destructive device that would be

punishable by imprisonment for such term if committed by

an adult, that—

“(i) has as an element the use, attempted use, or

threatened use of physical force against the person of

another; or

“(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that pre

sents a serious potential risk of physical injury to an

other; and

“(C) the term ‘conviction’ includes a finding that a

person has committed an act of juvenile delinquency in

volving a violent felony.”

C

We examined state statutes involving fraud or deceit in

effect in 1996, when Congress added the $10,000 threshold

in subparagraph (M)(i). See Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, §321(a)(7), 110

Stat. 3009–628. While perhaps questions could be raised

about whether certain of the statutes listed below involve

“fraud or deceit” as required by subparagraph (M)(i), we

give petitioner the benefit of any doubt and treat the

statute as relevant.

1

In 29 States plus the District of Columbia, the main

statutes in effect in 1996 involving fraud and deceit either

did not have any monetary threshold or set a threshold

lower than $10,000 even for the most serious grade of the

offense. Alabama: see, e.g., Ala. Code §§13A–8–2, 13A–8–

3, 13A–9–14, 13A–9–14.1, 13A–9–46, 13A–9–47, 13A–9–

73 (1996). Arkansas: see, e.g., Ark. Code Ann. §§5–36–

103, 5–37–203, 5–37–204, 5–37–207, 5–37–211 (1996).

Cite as: 557 U. S. ____ (2009) 19

Appendix C to opinionCourt Court

Opinion of the of the

California: see, e.g., Cal. Penal Code Ann. §§484, 487,

502.7 (West 1996). District of Columbia: see, e.g., D. C.

Code §§22–3821, 22–3823 (1996). Georgia: see, e.g., Ga.

Code Ann. §§16–8–3, 16–8–12, 16–9–33 (1996). Idaho:

see, e.g., Idaho Code §§18–2403, 18–2407 (Lexis 1996).

Kentucky: see, e.g., Ky. Rev. Stat. Ann. §514.040 (West

1996). Louisiana: see, e.g., La. Stat. Ann. §§14:67,

14:67.11, 14:70.1, 14:70.4, 14:71, 14:71.1 (West 1996).

Maryland: see, e.g., Md. Ann. Code, Art. 27, §§340, 342,

145, 230A, 230C, 230D (Lexis 1996). Massachusetts: see,

e.g., Mass. Gen. Laws, ch. 266, §§30, 37C (West 1996).

Michigan: see, e.g., Mich. Comp. Laws §§750.218, 750.271,

750.280, 750.219a, 750.356c (West 1996). Mississippi: see,

e.g., Miss. Code Ann. §§97–19–21, 97–19–35, 97–19–39,

97–19–71, 97–19–83 (1996). Missouri: see, e.g., Mo. Rev.

Stat. §§570.030, 570.120, 570.130, 570.180 (1996). Mon

tana: Mont. Code Ann. §§45–6–301, 45–6–313, 45–6–315,

45–6–317 (1996). Nebraska: see, e.g., Neb. Rev. Stat. Ann.

§§28–512, 28–518, 28–631 (1996). Nevada: see, e.g., Nev.

Rev. Stat. §§205.0832, 205.0835, 205.370, 205.380 (1996).

New Hampshire: see, e.g., N. H. Rev. Stat. Ann. §§637:4,

637:11, 638:5, 638:20 (1996). North Carolina: see, e.g.,

N. C. Gen. Stat. Ann. §§14–100, 14–106, 14–113.13 (1996).

Oklahoma: see, e.g., Okla. Stat., Tit. 21, §§1451, 1462,

1541.1, 1541.2, 1541.3, 1541.4, 1550.2, 1662, 1663 (West

1996). Pennsylvania: see, e.g., 18 Pa. Cons. Stat. §§3903,

3922, 4110, 4111, 4117 (1996); but see §4105 (bad check

statute amended 1996 to introduce $75,000 threshold).

Rhode Island: see, e.g., R. I. Gen. Laws §§11–18–6, 11–18–

7, 11–18–8, 11–18–9, 11–41–4, 11–41–5, 11–41–29, 11–

41–30 (1996). South Carolina: see, e.g., S. C. Code Ann.

§16–13–240 (1996). South Dakota: see, e.g., S. D. Codified

Laws §§22–30A–3, 22–30A–10, 22–30A–17 (1996). Utah:

see, e.g., Utah Code Ann. §§76–6–405, 76–6–412, 76–6–

521, 76–10–1801 (Lexis 1996). Vermont: see, e.g., Vt. Stat.

Ann., Tit. 13, §§2001, 2002, 2024, 2531, 2582 (1996).

20 NIJHAWAN v. HOLDER

Appendix C to opinionCourt Court

Opinion of the of the

Virginia: see, e.g., Va. Code Ann. §§18.2–178, 18.2–95,

18.2–195 (Lexis 1996). Washington: see, e.g., Wash. Rev.

Code §§9A.56.020, 9A.56.030 (1996). West Virginia: see,

e.g., W. Va. Code Ann. §61–3–24 (Lexis 1996). Wisconsin:

see, e.g., Wis. Stat. §§943.20, 943.395, 943.41 (1996).

Wyoming: see, e.g., Wyo. Stat. Ann. §§6–3–407, 6–3–607,

6–3–802 (1996).

2

In 13 States, conviction under the main fraud and deceit

statutes in effect in 1996 could categorically qualify under

subparagraph (M)(i). But the relevant monetary thresh

olds for these offenses—that is, the thresholds such that

conviction categorically would satisfy the monetary re

quirement of subparagraph (M)(i)—were significantly

higher than $10,000. Additionally, a number of these

States had statutes targeted at particular kinds of fraud

without any relevant monetary threshold. Alaska: see,

e.g., Alaska Stat. §§11.46.120, 11.46.180 (1996) ($25,000);

but see, e.g., §11.46.285 (fraudulent use of a credit card, no

relevant monetary threshold). Arizona: see, e.g., Ariz.

Rev. Stat. Ann. §§13–1802 (West 1989), 13–2109 (West

2000) ($25,000); but see, e.g., §§13–2103 (receipt of any

thing of value by fraudulent use of a credit card), 13–2204

(defrauding secured creditors), 13–2205 (defrauding judg

ment creditors), 13–2206 (West 1989) (fraud in insol

vency), all with no relevant monetary threshold. Colo

rado: see, e.g., Colo. Rev. Stat. Ann. §18–4–401 (Supp.

1996) ($15,000), but see, e.g., §§18–5–205 (fraud by check),

18–5–207 (1986) (purchase on credit to defraud), both with

no relevant monetary threshold. Delaware: see, e.g., Del.

Code Ann., Tit. 11, §§841, 843 (1995) ($50,000); but see,

e.g., §§903 (unlawful use of credit card), 913 (insurance

fraud), 916 (home improvement fraud), all with no rele

vant monetary threshold. Hawaii: see, e.g., Haw. Rev.

Stat. §§708–830, 708–830.5 (Lexis 1994) ($20,000); but

Cite as: 557 U. S. ____ (2009) 21

Appendix C to opinionCourt Court

Opinion of the of the

see, e.g., §§708–873 (defrauding secured creditors), 708–

8100 (fraudulent use of a credit card), 708–8100.5 (fraudu

lent encoding of a credit card), 708–8103 (credit card fraud

by a provider of goods or services), all with no relevant

monetary threshold. Indiana: see, e.g., Ind. Code §§35–

43–4–1 (West 1993), 35–43–4–2 ($100,000), 35–43–5–7.1

(West Supp. 1996) ($50,000); but see, e.g., §§35–43–5–3

(deception), 35–43–5–4 (West 1993) (insurance and credit

card fraud), 35–43–5–7 (welfare fraud), 35–43–5–8 (fraud

on financial institutions), all with no relevant monetary

threshold. Kansas: see, e.g., Kan. Stat. Ann. §§21–3701

(1995), 21–3707 (Supp. 1996), 21–3729 (1995), 21–3846

(Supp. 1996) ($25,000). Minnesota: see, e.g., Minn. Stat.

§609.52 (1996) ($35,000). New Jersey: see, e.g., N. J. Stat.

Ann. §§2C:20–2, 2C:20–4, 2C:21–13, 2C:21–17 (West 1995)

($75,000); but see, e.g., §§2C:21–6 (credit cards), 2C:21–12

(defrauding secured creditors), both without a relevant

monetary threshold. New Mexico: see, e.g., N. M. Stat.

Ann. §§30–16–6, 30–33–13, 30–44–7, 30–50–4 (1996)

($20,000); but see, e.g., §30–16–33 (credit card fraud, no

relevant monetary threshold). New York: see, e.g., N. Y.

Penal Law Ann. §§155.05 (West 1988), 155.40, 158.20

(West Supp. 1998), 176.25 ($50,000); but see, e.g., §§190.65

(scheme to defraud), 185.00 (fraud in insolvency), 185.05

(fraud involving security interest), all with no relevant

monetary threshold. Ohio: see, e.g., Ohio Rev. Code Ann.

§§2913.02, 2913.11, 2913.21, 2913.40, 2913.45, 2913.47,

2913.48 (Lexis 1996) ($100,000). Texas: see, e.g., Tex.

Penal Code Ann. §§31.02 (West 1994), 31.03, 35.02 (West

Supp. 2003) ($20,000); but see, e.g., §32.31 (credit card or

debit card abuse, no relevant monetary threshold).

3

In eight States, the main fraud and deceit statutes in

effect in 1996 had relevant monetary thresholds of

$10,000. However, a number of these States also had

22 NIJHAWAN v. HOLDER

Appendix C to opinionCourt Court

Opinion of the of the

statutes targeted at particular kinds of fraud without any

relevant monetary threshold. Connecticut: see, e.g., Conn.

Gen. Stat. §§53a–119, 53a–122 (1996); but see, e.g., §§53a–

128c, 53a–128i (credit card crimes, no relevant monetary

threshold). Florida: see, e.g., Fla. Stat. §§812.012, 812.014

(1996); but see, e.g., §§817.234 (insurance fraud), 817.61

(fraudulent use of credit cards) (1996), both without a

relevant monetary threshold. Illinois: see, e.g., Ill. Comp.

Stat., ch. 720, §5/16–1 (West 1996); but see, e.g., §§5/17–6

(state benefits fraud), 5/17–9 (public aid wire fraud), 5/17–

10 (public aid mail fraud), 5/17–13 (fraudulent land sales),

all without a relevant monetary threshold. Iowa: see, e.g.,

Iowa Code §§714.1, 714.2, 714.8, 714.9 (1996). Maine: see,

e.g., Me. Rev. Stat. Ann., Tit. 17A, §§354, 362 (1996); but

see, e.g., §§902 (defrauding a creditor), 908 (home repair

fraud), both without relevant monetary thresholds. North

Dakota: see, e.g., N. D. Cent. Code Ann. §§12.1–23–02,

12.1–23–05 (1996). Oregon: see, e.g., Ore. Rev. Stat.

§§164.085, 164.057; but see, e.g., §§165.055 (fraudulent

use of a credit card), 165.692, 165.990 (false claims for

health care payments), both without a relevant monetary

threshold. Tennessee: see, e.g., Tenn. Code Ann. §39–14–

101, 39–14–105, 39–14–118, 39–14–133 (1996).