Nijhawan v. Atty Gen USA

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

5-2-2008

Nijhawan v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 06-3948

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 06-3948

__________

MANOJ NIJHAWAN,

Petitioner

v.

ATTORNEY GENERAL

OF THE UNITED STATES,

Respondent

__________

Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(BIA No. A39 075 734)

Immigration Judge: Walter A. Durling

__________

Argued December 11, 2007

Before: RENDELL and STAPLETON, Circuit Judges,

and IRENAS*, District Judge.

(Filed May 2, 2008)

Thomas E. Moseley [ARGUED]

Suite 2600

One Gateway Center

Newark, NJ 07102

Counsel for Petitioner

Michelle G. Latour

Lyle D. Jentzer

Jamie M. Dowd [ARGUED]

U.S. Department of Justice

Office of Immigration Litigation

P. O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

__________

OPINION OF THE COURT

__________

__________________

* Honorable Joseph E. Irenas, Senior Judge of the United

States District Court for the District of New Jersey, sitting by

designation.

2

RENDELL, Circuit Judge.

Manoj Nijhawan appeals from the determination of the

Board of Immigration Appeals (“BIA”) that he had committed

an aggravated felony and was thus removable under 8 U.S.C. §

1101(a)(43)(M)(i) because his conspiracy conviction constituted

an offense involving fraud or deceit in which the loss to the

victims exceeded $10,000. Nijhawan challenges both aspects of

this finding, the “involving fraud” prong as well as the “loss”

aspect. As to the latter, he contends that, in order to satisfy the

qualifying language, the loss amount had to have been

adjudicated as part of his conviction, and was not. We reject

both challenges and will proceed to address each in turn.

The indictment involved a scheme by individuals who, it

was alleged, set out to deprive their victims, major banks, of

“hundreds of millions of dollars.” A.R. 229. Through a series

of misrepresentations, the banks were induced to make a number

of loans to the defendants’ companies, among them Allied

Deals, Inc. Nijhawan, who was the Deputy General Manager of

Allied Deals, Inc., was listed in Count 1, the overall conspiracy

count that contained the general loss allegation as to the entire

fraud scheme and involved conspiracy to commit bank fraud,

mail fraud, and wire fraud in violation of 18 U.S.C. § 371, and

in Count 30, which alleged conspiracy to commit money

laundering in violation of 18 U.S.C. § 1956(h). The remaining

counts were fraud counts implicating one or more of the other

defendants in specific fraudulent loans ranging from $163,441

to $2,568,526. The case was tried before a jury, which

convicted Nijhawan of all of the counts against him in the

indictment. The jury was not asked to, nor did it, determine the

3

amount of the loss attributable to any defendant.

Nijhawan entered into a stipulation for sentencing

purposes in which he agreed that, “because the loss from the

offense exceeds $100 million, the offense level is increased 26

levels.” A.R. 264. In entering the judgment of conviction, the

trial judge filled in the space for “loss” with the amount

“$683,632,800.23.” A.R. 281. The form footnoted the fact that

“findings for the total amount of losses are required under

Chapters 109A, 110, 110A, and 113A of Title 18.” A.R. 281.

Nijhawan was sentenced to 41 months of imprisonment and

ordered to pay restitution in the amount of $683,632,800.23. No

appeal was taken.

While Nijhawan was serving his sentence, he was

charged with removability under 8 U.S.C. § 1101(a)(43)(D) for

conviction of a money laundering offense under 18 U.S.C. §

1956 for which the amount laundered exceeded $10,000 and

under 8 U.S.C. § 1101(a)(43)(M)(i) for conviction of a crime

involving fraud or deceit in which loss to the victims exceeded

$10,000. The IJ sustained both charges, relying primarily on the

§ 1101(a)(43)(D) charge, and entered an order of removal on

February 22, 2006.

On appeal, the BIA rested its decision solely on the 8

U.S.C. § 1101(a)(43)(M)(i) charge. A.R. 2 (“We will affirm the

decision of the Immigration Judge insofar as he found the

respondent removable as an alien convicted of an aggravated

felony as defined in sections 101(a)(43)(M)(i) and (U) of the

Immigration and Nationality Act”). The BIA rejected

Nijhawan’s argument that fraud in the Immigration and

4

Nationality Act (“INA”) should be congruent with the common

law meaning of the term. As to the loss determination, the BIA

agreed that loss was not a necessary element of the offense for

which he was convicted, noting that the loss requirement “was

used as a qualifier, in a way similar to length of sentence

provisions in other aggravated felony subsections.” A.R. 4

(citing Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004)). It

reasoned that, although the jury had not found a specific dollar

amount in rendering its guilty verdict, the IJ could properly find

loss based on the stipulation of facts for sentencing and the

judgment of conviction stating that the loss involved is

$683,632,800.23, jointly and severally. A.R. 4-5. The BIA held

that the stipulation, judgment of conviction, and restitution order

were “sufficient to establish that the respondent’s conviction

renders him removable.” A.R. 5.

Nijhawan timely filed a petition for review, appealing the

BIA’s decision.1 On appeal, Nijhawan argues (1) that his

offense of conviction does not involve fraud or deceit as those

terms are used in the INA; and (2) that his conviction did not

establish that loss to his victims exceeded $10,000.

1. Did the offense “involve fraud”

1

After serving his sentence, Nijhawan risked being

immediately removed from the United States by United States

Immigration and Customs Enforcement. He, therefore, filed a

motion for a stay of removal, which we granted pending the

resolution of the present appeal.

5

Nijhawan was convicted of conspiracy to commit fraud

in violation of 18 U.S.C. § 371. The INA provision under which

Nijhawan was charged with removability provides:

(43) The term “aggravated felony” means--

...

(M) an offense that--

(i) 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). Nijhawan contends that the

“fraud” and “deceit” in this provision should be given their

common law meaning, which requires actual reliance upon

allegedly fraudulent statements made and harm from that

reliance. Because actual reliance and harm from reliance are

not necessary legal elements of the federal fraud statutes under

which he was convicted, Neder v. United States, 527 U.S. 1

(1999), his conviction, Nijhawan urges, was not an aggravated

felony. We can easily dispense with this argument.

In Valansi v. Ashcroft, we examined the very section of

the INA at issue here and interpreted the language broadly. 278

F.3d 203 (3d Cir. 2002). We said:

we determine whether the phrase “offense

that-involves fraud or deceit” has a plain

meaning. The word “involves” means “to

6

have within or as part of itself” or “to

require as a necessary accompaniment.”

Webster’s Third New International

Dictionary at 1191. Thus, an offense that

“involves fraud or deceit” is most naturally

interpreted as an offense that includes

fraud or deceit as a necessary component

or element. It does not require, however,

that the elements of the offense be

coextensive with the crime of fraud.

Id. at 209-10 (emphasis added); see also Bobb v. Att’y Gen., 458

F.3d 213, 218 (3d Cir. 2006) (“[W]e have held that subsection

(M)(i) covers all offenses that have as an essential element an

intent to defraud or deceive.”); Ki Se Lee v. Ashcroft, 368 F.3d

218, 222 (3d Cir. 2004) (“Subsection (M)(i) has a general

application–the gamut of state and federal crimes involving

fraud and deceit causing losses over $10,000.”).

Other circuits have followed our lead. See 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”).

Here, the criminal statutes under which Nijhawan was

7

convicted require that fraud or false or fraudulent pretenses be

employed (mail fraud, wire fraud, and bank fraud). They

therefore “involve” fraud or deceit for the purposes of the INA.

Clearly, Nijhawan’s arguments to the contrary are foreclosed by

our precedent.

2. Was Nijhawan convicted of a fraud “in which

the loss to the victims exceeded $10,000”?

Nijhawan was convicted of conspiracy to commit fraud

and therefore is subject to removal under 8 U.S.C. §

1101(a)(43)(U), which provides that “an attempt or conspiracy

to commit” another aggravated felony constitutes an aggravated

felony. The precise aggravated felony provision at issue here

defines an aggravated felony as an offense that “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 we have noted above, the “involves fraud” language

of this provision permits the range of actual offenses to be

broader than common law fraud. The issue remains, however,

whether the language “in which the loss to the victim or victims

exceeds $10,000” requires that a jury have actually convicted

defendant of a loss in excess of $10,000, as Nijhawan contends,

or permits resort to the prior criminal record in order to

determine what loss was in fact occasioned by or attributable to

the offense of conviction.

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

8

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.

To hold to the contrary would essentially gut every

deportability standard containing the “in which” or other

analogous qualifying language,2 for we cannot imagine previous

2

8 U.S.C. § 1101(a)(43)(M)(ii) (conviction for an offense

“that is described in section 7201 of Title 26 (relating to tax

evasion) in which the revenue loss to the Government exceeds

$10,000”); see also id. § 1101(a)(43)(D) (“an offense described

in section 1956 of Title 18 (relating to laundering of monetary

instruments) or section 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”).

As we noted in Singh, analogous provisions include all

subsections that limit convictions to those “for which the term

of imprisonment is at least one year.” Id. §§ 1101(a)(43)(F),

(G), (J), (P), (R), & (S). Also relevant are subsections that

exempt from the definition of aggravated felony “the case of a

first offense for which the alien has affirmatively shown that the

alien committed the offense for the purpose of assisting,

abetting, or aiding only the alien’s spouse, child, or parent (and

9

convictions in which an aspect of the crime that is not an

element has been proven by the jury. To hold to the contrary

would impose a totally impractical standard.

Notwithstanding our belief that reasonable minds could

not differ on this issue, we acknowledge that other courts of

appeals, and, indeed, Judge Stapleton, have reached a contrary

conclusion. They have done so based upon the very argument

that Nijhawan makes here, namely that the Taylor v. United

States, 495 U.S. 575 (1990), and Shepard v. United States, 544

U.S. 13 (2005), line of cases require it. We suggest that this

reasoning is flawed. The “in which” qualifying language

renders the analysis under § 101(a)(43)(M)(i) different from the

approach in Taylor and Shepard. In fact, we have already so

stated.

In Singh v. Ashcroft, Judge Becker explored the contours

of the applicability of the Taylor-Shepard approach to the

concept of “aggravated felony” in the INA. 383 F.3d 144 (3d

Cir. 2004). Both Taylor and Shepard involved the question of

which court documents or records can be consulted to determine

whether a prior conviction qualifies for a sentencing

enhancement in a subsequent criminal proceeding.3 These cases

no other individual) to violate a provision of this chapter.” Id.

§§ 1101(a)(43)(N) & (P).

3

In Taylor v. United States, the Supreme Court held that

an enhancement for a prior conviction for “burglary” under

§ 924(e) required that either the statutory definition substantially

10

set forth what have become known as the “categorical” and

“modified categorical” approaches to determining the crime of

which the defendant was previously convicted. The categorical

approach looks at the statute of conviction, comparing elements

of the offense to the requirements of the enhancing provision.

When the formal categorical approach of Taylor does not yield

an answer, two different types of inquiry may be called into

play. Judge Becker reviewed our jurisprudence and reasoned as

follows regarding the precise issue before us:

Our jurisprudence in the aggravated

felony area – twelve cases in all – is

not a seamless web. In order to

correspond to “generic” burglary or the record demonstrate that

the jury necessarily found all of the elements of generic burglary

in order to convict the defendant. 495 U.S. 575 (1990).

In Shepard v. United States, the issue was whether the

defendant’s prior plea of guilty to burglary, under a statute that

included generic burglary as well as nongeneric burglary such

as burglary of a boat or motor vehicle, was a conviction for the

violent felony of generic burglary under the Armed Career

Criminal Act. 544 U.S. 13 (2005). The Supreme Court

rejected the notion that police reports or complaint applications

could be used to show that the defendant had necessarily pled to

the qualifying type of burglary, ruling instead that the sentencing

court must look only at the “statutory definition, charging

document, written plea agreement, transcript of plea colloquy,

and any explicit factual finding by the trial judge to which the

defendant assented.” Id. at 16.

11

resolve the appeal we have found it

necessary to analyze and synthesize

this body of case law, and we do so

at length. . . . As will appear, a

pattern emerges, causing us to

conclude that, while the formal

categorical approach of Taylor

presumptively applies in assessing

whether an alien has been

convicted of an aggravated felony,

in some cases the language of the

particular subsection of 8 U.S.C.

§ 1101(a)(43) at issue will invite

inquiry into the underlying facts of

the case, and in some cases the

disjunctive phrasing of the statute

of conviction will similarly invite

inquiry into the specifics of the

conviction.

Singh, 383 F.3d at 148 (emphasis added). Judge Becker thus

correctly drew the crucial distinction between deportability

language that, on the one hand, calls Taylor and Shepard into

play, inviting inquiry into the specifics of the conviction, and, on

the other, is essentially qualifying language not demanding a

categorical analysis, but requiring, instead, inquiry into the

underlying facts. 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

12

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.

Addressing the analysis required under the very provision

at issue here, Judge Becker made clear that:

[A] departure from the formal

categorical a pproach seem s

warranted when the terms of the

statute invite inquiry into the facts

underlying the conviction at issue.

The qualifier “in which the loss to

the victim or victims exceeds

$10,000” in 8 U.S.C.

13

§ 1101(a)(43)(M )(i) is the

prototypical example – it expresses

such a specificity of fact that it

almost begs an adjudicator to

examine the facts at issue. This

principle explains our holdings in

Nugent and Munroe. Another

example would be an enumerating

statute specifying crim es

“committed within the last two

years.” Such a statute could not be

read to cover only crimes which

have “within the last two years” as

an element; instead a court would

read “within the last two years” as

a limiting provision on crimes that

would otherwise qualify.

In contrast, cases interpreting

relatively unitary categorical

concepts – like “forgery” (Drakes),

“burglary” (Taylor itself) or “crime

of violence” (Francis and Bovkun)

– do not look to underlying facts

because the enumerating statute

does not invite any such inquiry.

Likewise, the hypothetical federal

felony trilogy (Steele, Gerber, and

Wilson) asks only whether the

elements of a federal criminal

statute can be satisfied by reference

14

to the actual statute of conviction;

this presents no invitation to depart

from Taylor’s formal categorical

approach an d ex am ine the

underlying facts.

383 F.3d at 161 (emphasis added). Accordingly, our Court’s

precedent directs us to “examine the facts at issue,” because the

amount of loss is a “qualifier,” not an element.4

Our case law has consistently treated the amount of loss

as a qualifier rather than an element of the crime. In 2003 in

Munroe v. Ashcroft, we did not require that the defendant have

specifically pled guilty to a loss amount. 353 F.3d 225 (3d Cir.

2003). To the contrary, we stated that “the indictment alleged

that the loss exceeded this amount, and Munroe does not claim

that when he pled guilty, he admitted to only a lesser loss. Nor

is there any suggestion that the Superior Court ever found that

the amount of the loss was less than $10,000.” Id. at 227. For

the purposes of § 101(a)(43)(M)(i), we looked to the indictment,

which contained an averment as to loss in excess of $10,000,

4

Our Court’s view regarding the meaning of, and inquiry

permitted by, 8 U.S.C. § 1101(a)(43) has been referenced

approvingly by other courts. See, e.g., James v. Gonzales, 464

F.3d 505, 510 n. 26 (5th Cir. 2006); Conteh v. Gonzales, 461

F.3d 45, 55 (1st Cir. 2006). We have also applied its rationale

in interpreting other provisions of the INA. See Joseph v. Att’y

Gen., 465 F.3d 123, 127 (3d Cir. 2006); Knapik v. Ashcroft, 384

F.3d 84, 92 n. 8 (3d Cir. 2004).

15

rather than an amended restitution order, which reduced

defendant’s restitution to $9,999.5 However, we decided that

the amount of loss in a restitution order, which by its nature is

neither found by a jury nor specifically pled to by a defendant,

could be considered. Id. at 227 (“[T]he amount of restitution

ordered as a result of a conviction may be helpful to a court’s

inquiry into the amount of loss to the victim if the plea

agreement or indictment is unclear as to the loss suffered.”).

Nijhawan contends that more recent authority, namely,

our opinion in Alaka v. Attorney General, 456 F.3d 88 (3d Cir.

2006), contradicts Singh and Munroe and requires conviction of

the requisite amount of loss. In Alaka, the total loss averred in

the indictment as to the overall scheme exceeded $10,000.

However, Alaka pled guilty only to a single count in a plea

agreement that referenced a loss to the victim of $4,716.68. Id.

at 92. The other counts against Alaka were dismissed. We

concluded that Alaka’s offense did not qualify for treatment as

5

The dissent states that the holding in Munroe was based on

a loss amount “admitted in the plea agreement.” This is

incorrect as the district court’s opinion in that case makes clear.

Munroe v. Ashcroft, No. Civ. A. 02-2256, 2003 WL 21048961

(E.D. Pa. Jan. 16, 2003) (“In this case, the indictment stated that

the fraud involved caused a loss to the victim in excess of

$10,000.00. There is no evidence that the defendant pled guilty

to any facts other than as alleged in the indictment.”). The

holdings of both our court and the district court relied on the

amount alleged in the indictment and found by the sentencing

court, not an amount in the plea agreement.

16

an aggravated felony. Id. at 108.

Nijhawan urges that Alaka stands for the proposition that

the loss amount is an element to which the defendant must

plead, or of which the defendant must be convicted. We

disagree. To the contrary, Alaka stands for the unremarkable

proposition that one who has admitted to a loss of less than

$10,000 as part of a guilty plea cannot later be said to have been

convicted of an offense involving fraud in which the loss to the

victim exceeds $10,000. Where there is a plea agreement that

sets forth the loss it is to that agreement we must look to

determine the loss. Alaka does not require that the defendant

plead to a specific loss amount; it requires only that, if he has,

that amount is controlling. Alaka does not limit the inquiry if

no loss is stated in a plea agreement or submitted to a jury. In

fact, in Alaka we concluded that “the IJ properly considered the

factual finding in the sentencing report.” Id. at 105, 106. Alaka

requires only that we “focus narrowly on the loss amounts that

are particularly tethered to the convicted counts.” Id. at 107

(quoting Knutsen v. Gonzales, 429 F.3d 733, 739-40 (7th Cir.

2005)).

The only real issue in the case before us is whether the

“tether” of a loss in excess of $10,000 to Count 1, the count of

conviction, is sufficiently strong. We have not previously

opined as to the nature of the nexus required, or the breadth of

the inquiry into the facts as authorized by Singh, and, here, we

need only determine whether the record is sufficiently clear that

the loss resulting from the convicted conduct exceeds $10,000.

Here, Count 1 of the indictment charged a conspiracy,

17

alleging that defendants “engaged in a fraudulent scheme to

obtain millions of dollars in loans” from the victim banks and

setting forth the scheme and roles of the co-conspirators.

Nijhawan was convicted of Count 1, but the jury did not, and

was not asked to, determine the amount of loss to the victims.

However, in a stipulation for the purposes of sentencing on

Count 1, Nijhawan agreed that the loss exceeded $100 million.

And, in entering the judgment of conviction, the District Court

made a finding of “Total Loss” in the amount of

$683,632,800.23. As in Munroe, here we have no argument, let

alone anything in the record, that Nijhawan was convicted of an

offense involving less than $10,000. This is not a case where

the jury’s findings contradict the restitution order or loss was

calculated on the basis of uncharged or unconvicted conduct.

All the documents and admissions support a finding that the loss

amounted to hundreds of millions of dollars.

We need not decide whether any of the “facts” here,

standing alone, would suffice as a “tether,” as we conclude that,

taken together, the indictment, judgment of conviction, and

stipulation provide clear and convincing evidence that the

requisite loss was tied to Nijhawan’s offense of conviction.

We note that we are not the only court of appeals to have

viewed the inquiry into the record of conviction to permit

examination of loss not specifically admitted in the plea

colloquy or agreement or found by a jury as part of the

18

conviction.6 The Court of Appeals for the First Circuit also has

indicated that a court should look to loss occasioned by the

conviction, rather than loss as an element found by the jury or

explicitly incorporated in the plea agreement. Conteh v.

Gonzales, 461 F.3d 45 (1st Cir. 2006). Exercising care in

interpreting the “loss exceeds” language in § 1101(a)(43)(M)(i),

the court recognized that “the distinction between conviction for

and commission of an aggravated felony is an important one;

because the BIA may not adjudicate guilt or mete out criminal

punishment, it must base removal orders on convictions, not on

conduct alone.” Id. at 56. Thus, the court found it improper for

the BIA to rely on a narrative statement in the PSI report, but did

approve the BIA’s reliance on the indictment, which alleged

specific losses exceeding $10,000, and the final judgment,

which included a finding of loss and restitution order. Id. at 59

(quoting Shepard, 544 U.S. at 21). As here, an indictment and

judgment, indicating loss and restitution, were available and

were a sufficiently reliable indication of the loss of which the

petitioner had been convicted.

6

Other courts permit a broader inquiry and have allowed

loss amount to be established by reference to conduct that

formed part of the same conspiracy as the convicted conduct, a

broader inquiry than that we have here. See Khalayleh v. INS,

287 F.3d 978 (10th Cir. 2002) (where alien pleaded guilty to one

count of the indictment which listed a check in the amount of

$9,308 but agreed to pay restitution as determined by the

sentencing court, the loss from the total scheme to defraud

involving other checks could be counted); see also James, 464

F.3d at 511-12 (following Khalayleh).

19

In Knutsen v. Gonzales, a case upon which we relied in

Alaka, the Court of Appeals for the Seventh Circuit similarly

reasoned that “consistent with the statute . . . the court should

focus narrowly on the loss amounts that are particularly

tethered to convicted counts alone.” 429 F.3d 733, 739-40 (7th

Cir. 2005) (emphasis added). In that case, the petitioner had

pled guilty to one count of a multi-count indictment, which

listed a loss amount less than $10,000; for the purposes of the

Sentencing Guidelines, however, he entered into a stipulation

with the government in which he acknowledged that “the total

loss from the offense of conviction and relevant conduct

exceeded $20,000.” Id. at 736. Because the stipulation included

relevant conduct and was not limited to the loss connected to or

caused by the offense of conviction, the court found that the IJ

erred by relying on it, but did not require the plea colloquy to

have included the specific loss. Id. at 739. The loss was not

sufficiently “tethered” to the offense of conviction so as to

constitute clear and convincing evidence that the petitioner had

been convicted of an aggravated felony under §

1101(a)(43)(M)(i).

The decision of the Court of Appeals for the Eleventh

Circuit in Obasohan v. Attorney General further substantiates

our interpretation of this provision. 479 F.3d 785 (11th Cir.

2007). In that case, the petitioner had been ordered to pay

restitution, due to fraudulent charges on other credit cards that

were not the subject of the indictment or the plea agreement. Id.

at 789-90. The court found it particularly significant that the

petitioner objected to the PSI’s assertion of loss due to

additional conduct and “therefore did not admit, adopt, or assent

to the factual findings that formed the basis of the restitution

20

order.” Id. at 790. Given that the restitution order was based

entirely on other unconvicted conduct, was not admitted by the

petitioner, and was the only evidence that such loss had

occurred, the IJ could not find loss by clear and convincing

evidence. Id. at 790 (gathering cases and citing Knutsen,

Munroe, and Conteh with approval). A restitution order could

be evidence of the loss amount, but only if it was “based on the

conspiracy charge to which Obasohan pled guilty, []or on the

overt acts to which Obasohan admitted by pleading guilty,” not

“on additional conduct that was alleged only in the PSI.” Id. at

789-90.

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.

Nijhawan urges that we should depart from our case law

and follow those courts of appeals that have interpreted the loss

requirement in INA § 101(a)(43)(M)(i) in a more restrictive

way. In particular, he urges that we should adopt the reasoning

of the Court of Appeals for the Second Circuit, which has set

forth a rule that the loss requirement must be established by

21

“facts actually and necessarily found beyond a reasonable doubt

by a jury or judge in order to establish the elements of the

offense, as indicated by a charging document or jury

instructions.” Dulal-Whiteway v. U.S. Dep’t of Homeland Sec.,

501 F.3d 116, 131 (2d Cir. 2007).7 There, the court determined

that, because restitution was not necessarily found by the jury,

a restitution order was insufficient to establish that the fraud

conviction was one “in which the loss to the victims exceeds

$10,000.” Id. at 130. The Court of Appeals for the Ninth

Circuit also applied the “modified categorical” approach to the

loss requirement in Li v. Ashcroft and found that it was improper

to rely on the charging document, which described specific loss

amounts, and the judgment of conviction for those counts,

because it had “in the record no jury instructions, verdict form,

or other comparable document suggesting that the jury actually

was called on to decide, for example, that Petitioner’s false

claims were for a particular amount.” 389 F.3d 892, 898 (9th

Cir. 2004) (expressing no opinion however “as to whether a

defendant’s admission of a specific sentencing fact would

suffice”). As we noted above, we conclude that this treatment

of the qualifying language as setting forth an element of the

offense is uncalled for and makes little sense. While our

dissenting colleague urges that express conviction of the loss

amount will lend certainty and ease to the analysis, we do not

7

In the case of pleas of guilty, the dissent’s rule restricts

inquiry to “facts to which a defendant actually and necessarily

pleaded in order to establish the elements of the offense, as

indicated by a charging document, written plea agreement, or

plea colloquy transcript.” 501 F.3d at 131.

22

think this justifies our embracing an interpretation of the

language that will render the provision toothless.

Moreover, our case law clearly rejects the restrictive

interpretation of INA § 101(a)(43)(M)(i)’s loss requirement

adopted by the Second Circuit in Dulal-Whiteway and the Ninth

Circuit in Li. Munroe, Singh, and Alaka make clear that the loss

amount need not be found specifically by the jury or set forth in

the plea agreement or colloquy.8 Rather, as we have said, the

loss requirement invites further inquiry into the facts underlying

the conviction, and that inquiry is satisfied if the amount of loss

is sufficiently tethered to the fraud conviction.

Had our prior precedent not compelled our conclusion,

we still would firmly disagree with the restrictive interpretation.

For, our decision actually fosters the principles the Second

Circuit identified in Dulal-Whiteway and best comports with the

text and purpose of the INA’s aggravated felony provision. In

Dulal-Whiteway, the Second Circuit noted that the words of the

INA provision render deportable one who has been convicted of

an aggravated felony, not one who has committed an aggravated

felony. Id. at 132. We do not disagree with this and, much like

the Court of Appeals for the First Circuit in Conteh, we endorse

careful consideration of the record to determine whether it is

sufficiently clear that the loss connected to the crime of

conviction exceeded $10,000. As Judge Becker noted in Singh,

8

In order to reach a contrary result, the dissent labels salient

portions of our prior precedent “dicta.” See dissenting op., n. 9

& 11.

23

the specific words “in which the loss to the victims exceeds

$10,000” suggest just such an inquiry into the facts underlying

the conviction. The requirement that we set forth today that the

loss amount be sufficiently tied or tethered to the offense of

conviction both responds to the Second Circuit’s concern that a

restitution order based upon conduct of which the defendant was

not convicted should not be relied on, and does not arbitrarily

cabin the inquiry.9

The difficulty in saying that the court will limit inquiry to

the precise “record of conviction” used in the Armed Career

Criminal context for purposes of determining loss under §

101(a)(43)(M)(i) is made manifest in the decisions of the Court

of Appeals for the Ninth Circuit. That court appears to adopt

9

The dissent posits that our opinion permits consideration

of loss caused by “relevant conduct” rather than the conduct of

conviction. This is not correct. By requiring that loss be

tethered to the convicted conduct, we are excluding

consideration of relevant conduct, as did the Court of Appeals

for the Seventh Circuit in Knutsen and the Court of Appeals for

the Eleventh Circuit in Obasohan. In fact, we use the word

“relevant” only in discussing these courts’ opinions.

Furthermore, there is no conduct in this case other than

that underlying the conviction. The dissent incorrectly states

that the conduct in Nijhawan’s sentencing stipulation pertinent

to the Guidelines enhancement and the restitution order includes

relevant, as well as convicted conduct, as in Obasohan. It does

not. In fact, this very clearly distinguishes Obasahan and

Knutsen, cases with which we agree.

24

the requirement that the petitioner had to have been convicted of

the loss, but then looks beyond what the jury found in order to

determine loss amount. For example, in Ferreira v. Ashcroft,

the court cited our decision in Munroe with approval and

reasoned that there was no rule prohibiting immigration judges

from looking to a restitution order to determine loss amount.

390 F.3d 1091 (9th Cir. 2004) (relying on Munroe and Chang v.

INS, 307 F.3d 1185 (9th Cir. 2002)). Although the court has

insisted that it is using the modified categorical approach, it has

actually engaged in a broader inquiry.

Our holding today is consistent with the different

evidentiary standards used in criminal, sentencing, and

immigration proceedings, respectively. In Dulal, the Court of

Appeals for the Second Circuit criticized the approach we

endorse because, it believed, it “would permit the government

to order an alien removed in the absence of the clear,

unequivocal and convincing evidence required by [immigration]

law.” 501 F.3d at 132. However, its holding raises the standard

of proof to beyond a reasonable doubt while our holding actually

adheres to the “clear and convincing” standard. Accord Conteh,

461 F.3d at 56 (rejecting “the implicit proposition that the INA’s

use of the word “convicted” in 8 U.S.C. § 1227(a)(2)(A)(iii)

elevates the government’s burden in aggravated felony cases

from clear and convincing evidence to proof beyond a

reasonable doubt (that is, proof that facts were necessarily found

by a criminal jury or admitted by the alien qua criminal

defendant)”).

Most fraud statutes, including the federal statutes at issue

here, do not contain loss as an element or require that a jury find

25

loss or a defendant plea to a specific loss amount. As we noted

above, insistence 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.10 A jury would have to be charged as to loss amount

and make a specific and additional finding.11

Unlike the Second Circuit, we find no “‘daunting’

practical difficulties” associated with looking to a wider array of

records that possess a high indicia of reliability. It is well within

the competence of a court to examine the record for clear and

convincing evidence of loss caused by the conduct of

10

In fact, Li, upon which the dissent relies, did not consider

the charging document which listed specific loss amounts and

the judgment of conviction on those counts to be sufficient to

prove the loss amount precisely because the jury was not

required to find a loss amount to a guilty verdict. 389 F.3d at

898. Here the prosecutor did in fact include the loss amount in

the criminal indictment.

11

It would necessarily be the prosecutor who would request

this charge, for, if the rule espoused in Dulal-Whiteway applies,

defense counsel would be content not to have the loss found by

the jury. We must wonder why the prosecutor would ever ask

the jury to find a fact not relevant to the conviction.

26

conviction. Indeed, we believe there are far greater practical

difficulties inherent in attempting to bend the “modified

categorical approach” of Taylor and Shepard to apply to a

finding of the requisite minimum loss caused by fraud or deceit,

which is rarely found by a jury or explicitly included in the plea

agreement, because it is a qualifier, not an element of the

offense. Moreover, we should not raise an aspect of an

immigration statute to the level of an element of a criminal

offense, as the dissent urges, merely because requiring that it be

a part of the conviction eases a court’s decision-making process.

Accordingly, because the petitioner was previously

convicted of conspiracy to commit “an offense that involves

fraud or deceit in which the loss to the victim or victims exceeds

$10,000,” he committed an aggravated felony, and we will deny

his petition for review.

27

Nijhawan v. Attorney General – No. 06-3948

STAPLETON, J., dissenting:

I agree with the Court that Nijhawan’s conviction for

conspiracy to commit bank fraud, mail fraud and wire fraud

constituted a conviction for conspiracy to commit an offense

“that involves fraud or deceit” as defined by the INA. I

therefore join Section 1 of the Court’s opinion. I disagree,

however, with the Court’s conclusion that prior decisions of this

Court compel the approach to the § 1101(a)(43)(M)(i) loss

element that the Court adopts, and I believe that our Court

should retain the INA’s conviction requirement for that element.

I would therefore grant the petition for review.

Under the Immigration and Naturalization Act (“INA”),

“[a]ny alien who is convicted of an aggravated felony at any

time after admission is deportable.” 8 U.S.C. §

1227(a)(2)(A)(iii) (emphasis added). The term “aggravated

felony” is defined in 8 U.S.C. § 1101(a)(43) to include, inter

alia, “an attempt or conspiracy to commit” “an offense that -- (i)

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

victims exceeds $10,000.” Id. at §§ 1101(a)(43)(M)(i),

1101(a)(43)(U). Therefore, under the plain language of the

INA, petitioner is removable only if he was “convicted” of a

conspiracy to commit “an offense that . . . involves fraud or

deceit in which the loss to the victim or victims exceeds

28

$10,000.” Id.

Several Courts of Appeals, including ours, presumptively

apply some variant of the “categorical approach” first articulated

by the Supreme Court in Taylor v. United States, 495 U.S. 575

(1990), and further explained in Shepard v. United States, 544

U.S. 13 (2005), to determine whether an alien’s prior conviction

qualifies as an “aggravated felony.” Courts of Appeals have

diverged, however, regarding how a reviewing court should

determine whether an alien’s prior conviction satisfies the

$10,000 loss requirement of § 1101(a)(43)(M)(i). Although all

Courts of Appeals permit the reviewing court to look beyond

Taylor’s “formal” version of the categorical approach – a simple

comparison of the elements of the prior statute of conviction to

the INA definition – and allow recourse to the “record of

conviction” to some degree, courts disagree regarding the

precise nature of that further inquiry. The Courts of Appeals for

the Second and Ninth Circuits, and, as I read its precedent, the

Eleventh Circuit, have adopted a “modified categorical

approach” in which the reviewing court looks to the record of

conviction in order to determine the facts upon which the

petitioner’s prior conviction actually and necessarily rested.12 In

contrast, the Court of Appeals for the First Circuit allows a

12

Dulal-Whiteway v. U.S. Dep’t of Homeland Security, 501

F.3d 116, 128 (2nd Cir. 2007); Li v. Ashcroft, 389 F.3d 892,

895-98 (9th Cir. 2004); Obasohan v. Attorney General, 479

F.3d 785, 788-89 (11th Cir. 2007).

29

broader inquiry under which immigration courts may scrutinize

other facts, gleaned from the alien’s record of conviction, to

independently determine, by clear and convincing evidence,

whether the crime resulted in a loss greater than $10,000.13 I

find the approach of the Courts of Appeals for the Second and

Ninth Circuits to be the better reasoned approach.

The Supreme Court articulated the Taylor-Shepard

categorical approach when reviewing 18 U.S.C. § 924(e), which

provides for a sentencing enhancement if a defendant has been

convicted of certain enumerated prior offenses. The Courts of

Appeals have transplanted that categorical approach into the

INA because of obvious similarities between the two inquiries.

The plain language of the INA, like § 924(e), mandates that the

alien was “convicted” of the prior offense designated in the INA

as an “aggravated felony.” It is not sufficient for the BIA to

independently conclude that the alien “has committed” that prior

offense. Therefore, the INA, like § 924(e), requires a

comparison of the prior conviction to the generic definition of

the pertinent aggravated felony – in this case, §§

1101(a)(43)(M)(i) and (U).

The rationale is not just a textual one, however. Courts

have adopted categorical approaches for the INA also because

13

See Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006).

30

the INA inquiry involves the same sorts of practical difficulties

and fairness concerns underlying the Supreme Court’s decisions

in Taylor and Shepard. As the Second Circuit explained, “the

BIA and reviewing courts are ill-suited to readjudicate the basis

of prior criminal convictions.” Dulal-Whiteway, 501 F.3d at

132. See also id. (“we decline the invitation to piece together an

underlying attempt conviction by weighing evidence and

drawing conclusions in a manner appropriate only for a criminal

jury”) (quoting Sui v. I.N.S., 250 F.3d 105, 119 (2nd Cir. 2001));

Shepard, 544 U.S. at 23 (a purpose of the categorical approach

is the “avoidance of collateral trials”). As the Second Circuit

also recognized, the categorical approach promotes basic

precepts of fairness. Id. at 133 (“‘[I]f the guilty plea to a lesser,

[non-removable] offense was the result of a plea bargain, it

would seem unfair to [order removal] as if the defendant had

pleaded guilty to [a removable offense].’ [Taylor, 495 U.S.] at

601-02. By permitting the BIA to remove only those aliens who

have actually or necessarily pleaded to the elements of a

removable offense, our holding promotes the fair exercise of the

removal power”).14 In sum, I agree with the Court of Appeals

14

The Court of Appeals for First Circuit found such fairness

concerns less than compelling because Shepard had emphasized

that, in the context of sentencing enhancements under § 924(e),

those concerns also raise Sixth Amendment problems, and such

constitutional concerns are inapplicable in civil removal

proceedings. Conteh, 461 F.3d at 55. However, Taylor and

Shepard were rooted in basic notions of fairness that extend

beyond the protections of the Sixth Amendment, and we, like

the Second Circuit, began to adopt categorical approaches for

31

for the Second Circuit that the same practical and fairness

difficulties identified by Taylor and Shepard would attend an

interpretation of the INA that allowed immigration courts to

reopen the factual record of prior criminal convictions and

undertake new factual findings, utilizing a different standard of

proof, to determine whether a required element (a $10,000 loss)

was met. Indeed, if the loss requirement is not subject to the

conviction requirement, why limit the evidentiary net to the

prior record of conviction at all? Absent the conviction

requirement, the standards become arbitrary.15

the INA before Shepard articulated its Sixth Amendment

rationale. Dulal-Whiteway, 501 F.3d at 132-33. See Shepard,

544 U.S. at 20 (“certainly, ‘the practical difficulties and

potential unfairness of a factual approach are daunting,’ no less

in pleaded than in litigated cases”) (internal citation omitted).

15

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

32

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 and to

33

Because of the plain language of the INA, as well as the

practical and fairness concerns that I have discussed, I am wary

of permitting immigration courts to undertake de novo factual

inquiries, under the “clear and convincing evidence” standard,

into facts merely “relevant to,” or “tethered to,” an alien’s prior

conviction. I would permit immigration courts to look to the

record of conviction, but only to establish “that a prior

conviction ‘necessarily’ involved ([or] a prior plea necessarily

testimony presented in the removal hearing: the Court reasoned

that restitution orders (memorialized in the final judgment) were

part of the “record of conviction,” but that the other two types

of evidence were not. Id. at 57-59. The Court allowed recourse

to restitution orders by ruling, as does the Court today, that the

alien need not have been actually convicted of a loss; however,

the Court rejected the IJ’s other two sources of evidence because

they fell outside of the “record of conviction” as that Court

defined it, a limit which must derive from the conviction

requirement. In other words, the Court found that the INA’s

conviction requirement applies to the loss inquiry in some

respects but does not apply to it in other respects. Certainly no

such line appears in § 1101(a)(43)(M)(i). I also note that

allowing unqualified reliance upon restitution orders would

allow future IJs to look to facts a prior sentencing court may

have found by a mere preponderance of the evidence and to

elevate those facts to the higher “clear and convincing evidence”

standard, without the benefit of having the underlying evidence

before it.

34

admitted) facts equating to [the generic offense in the INA

statute].” Shepard, 544 U.S. at 24. See also Dulal-Whiteway,

501 F.3d at 128 (“while the issue of statute divisibility and

reliance upon the record of conviction are theoretically

separable, in practice they demand a single inquiry: has an alien

been actually and necessarily convicted of a removable

offense?”); Li, 389 F.3d at 895-98. The “necessarily” pleaded

or convicted requirement explains and defines the “record of

conviction” inquiry: once the court determines that the statute

of conviction proscribes both conduct that would constitute an

“aggravated felony” and conduct that would not, the court

consults the record of conviction to determine the type of

conduct the conviction necessarily includes. Dulal-Whiteway,

501 F.3d at 131; Li, 389 F.3d at 895-96.

In this case, loss was not an element of the crime of

conviction. The conspiracy count of the indictment did assert a

fraudulent scheme to obtain “hundreds of millions of dollars” in

loans from major banks, but the Court in petitioner’s criminal

trial instructed the jury that it need not find any loss in order to

convict. A.R. at 150, 156, 158. We thus know that despite the

averment of the indictment, the jury’s verdict does not establish

that petitioner was convicted by it of conspiracy to commit fraud

occasioning any particular amount of loss. The BIA and our

Court acknowledge as much. As a result, they point not to the

indictment and verdict to support their conclusion, but rather the

record of the subsequent sentencing proceedings. Specifically,

they focus attention on (1) the sentencing judge’s order that all

defendants be jointly and severally liable for restitution in

35

excess of $10,000; and (2) the petitioner’s stipulation with the

government that a correct application of the U.S. Sentencing

Guideline to petitioner’s convictions on Counts 1 (conspiracy to

commit fraud) and 30 (conspiracy to commit money laundering)

produced a base offense level of 38, an offense level including

an enhancement “[b]ecause the loss from the offense exceeds

$100,000,000.” A.R. at 264. Neither portion of the sentencing

record, however, establishes that petitioner has been “convicted”

of causing a $10,000 loss.

With respect to the sentencing judge’s restitution order,

I agree with the Second and Eleventh Circuits that it does not

support a conclusion of removability. As the Dulal-Whiteway

Court put it in the context of a guilty plea case:

The restitution set by a judge is based on a

loss amount established by a preponderance of the

evidence and need not be tied to the facts

admitted by defendant’s plea. . . . In other words,

the amount of the restitution is not constrained by

facts upon which the plea “necessarily” rested.

Dulal-Whiteway, 501 F.3d at 130. See also Obasohan v.

Attorney General, 479 F.3d 785 (11th Cir 2007) (“[W]hile a

sentencing court in the criminal context may order restitution

36

not only for convicted conduct but also for a broad range of

relevant conduct, the plain language of the INA requires that an

alien have been convicted of an aggravated felony to be

removable.”). I also agree with those courts that a contrary

conclusion would put one facing removal and lifetime exclusion

in a difficult and unfair position.

We note that if the immigration court were

authorized to base a finding of an aggravated

felony on conduct and victim losses that were not

charged, proven or admitted, it would be

impossible for a criminal defendant to evaluate

the immigration consequences of a guilty plea at

the time of entering that plea, because those

consequences would be known only at the time of

sentencing. Where loss amounts are charged and

proven or admitted, however . . . no such concern

arises.

Obasohan, 479 at 791, n.12.

For much the same reasons, I would reach the same

conclusion with respect to the propriety of the BIA consulting

the sentencing stipulation of the parties in this case. The

stipulation with respect to the application of the Sentencing

37

Guidelines in this case is not the equivalent of a plea or plea

agreement admitting to an element of the offense of conviction.

This stipulation came both after petitioner’s conviction and in

the context of a sentencing regime that requires consideration of

losses from relevant as well as convicted conduct.16

It is true, as the Court stresses, that retention of the

convicted conduct requirement will result in the BIA being able

to remove fewer aliens on the ground that they have been

convicted of an aggravated felony. I do not find that

problematic because that appears consistent with the

Congressional intent reflected in 8 U.S.C. § 1227(a)(2)(A)(iii).

If there is a problem, however, I would reserve it for legislative

correction. Furthermore, the modified categorical approach

does not, as the Court suggests, elevate the government’s burden

16

The Court suggests that neither petitioner’s sentencing

stipulation nor the sentencing court’s restitution order involved

consideration of relevant conduct. It fails to explain, however,

how it knows this to be true. The stipulation was solely for the

purpose of a guideline regime that requires consideration of

losses from relevant as well as convicted conduct and, there

being no limitation to the later, the stipulation clearly applied to

both. See U.S.S.G. § 1B1.3, Application Notes 1-2. The

restitution regime, like the Guidelines, also allows the Court to

consider losses from relevant conduct, and nothing I have found

in the record suggests that petitioner’s sentencing court focused

on the distinction.

38

of proof in immigration cases from “clear and convincing

evidence” to “beyond a reasonable doubt.” It merely requires

the government to prove, by clear and convincing evidence, that

the alien was actually “convicted” of the asserted “aggravated

felony.” See Obasohan v. Attorney General, 479 F.3d 785, 790

(11th Cir. 2007) (“There was no basis in this record from which

the IJ could have found by ‘clear, unequivocal and convincing’

evidence that the restitution order was based on convicted or

admitted conduct.”).

This Court has never before found an alien deportable for

conduct the alien was neither convicted of nor pled guilty to; the

Court’s approach, therefore, will significantly expand the reach

of the INA’s “aggravated felony” provisions in this Circuit. As

the Court emphasizes, in Singh v. Ashcroft, 383 F.3d 144 (3d

Cir. 2004), we reviewed our “aggravated felony” jurisprudence

and concluded that we had failed to follow the “formal”

categorical approach in three cases, all of which applied §

1101(a)(43)(M)(i).17 That provision, the Court stated, “begs an

adjudicator to examine the facts at issue.” Id. at 161. Singh did

not explain precisely which facts were “at issue.” However, it

suggested a “further inquiry” much like the one I would adopt.

Singh was decided prior to the Supreme Court’s opinion in

17

Singh itself merely held that, when applying a different

“aggravated felony” definition, “sexual abuse of a minor,” 8

U.S.C. § 1101(a)(43)(A), this Court should follow the strict

categorical approach. Singh, 383 F.3d at 163-64.

39

Shepard, and the Court reviewed our prior case law only to

determine when we had applied the “formal” version of the

categorical approach described in Taylor. As the Singh Court

explained,

“[u]nder that approach, an adjudicator ‘must look

only to the statutory definitions of the prior

offenses,’ and may not ‘consider other evidence

concerning the defendant’s prior crimes,’

including, ‘the particular facts underlying [a]

conviction.”

Singh, 383 F.3d at 148 (quoting Taylor, 495 U.S. at 600). That

“formal” approach is essentially the first step of the two-step

inquiry of the Courts of Appeals for the Second and Ninth

Circuits. The Singh Court concluded that “a departure from the

formal categorical approach seems warranted when the terms of

the [INA’s definition of an “aggravated felony”] invite inquiry

into the facts underlying the conviction,” Singh, 383 F.3d at 148

(emphasis added), and that § 1101(a)(43)(M)(i) is such a statute.

Singh did not, however, suggest divorcing the §

1101(a)(43)(M)(i) “qualifier” from the INA’s conviction

requirement entirely.18 The Supreme Court offered further

18

Singh recognized that either (1) a statute of conviction

containing a disjunctive element under which one part of the

40

guidance on the categorical approach in Shepard, less than a

year after we decided Singh. Shepard reemphasized that the

inquiry is not limited to a formal comparison of statutory

elements but rather should focus on identifying the facts upon

which the prior conviction “necessarily” rested.19 Singh’s

disjunctive would render the alien removable and one would

not, a statute it termed “divisible,” or (2) an element of the

“generic” definition of the prior offense designated by the INA

as an “aggravated felony,” might force an IJ to look beyond the

“formal” categorical approach. However, I do not read Singh to

say that the former situation invokes Taylor and Shepard, while

the latter authorizes the IJ to undertake a broad factual inquiry.

Singh simply recognized that both are instances where the

statute of conviction sweeps more broadly than the INA’s

definition. A statute of conviction containing a disjunctive

element under which one part of the disjunctive would render

the alien removable and one would not is “divisible,” and

similarly a statute of conviction containing no loss element is

“divisible” under § 1101(a)(43)(M)(i) into (1) convictions for

aggravated felonies where the loss is more than $10,000 and (2)

other convictions where it is less than $10,000. In either

instance, the nature of the inquiry does not change. The Second

Circuit properly interpreted Singh in this manner. Dulal-

Whiteway, 501 F.3d at 127-28.

19

Shepard held that a guilty plea constitutes a “conviction,”

and that a reviewing court may look to a “transcript of plea

colloquy or [the] written plea agreement presented to the court,

or by a record of comparable findings of fact adopted by the

41

conclusion that § 1101(a)(43)(M)(i) invites further inquiry

beyond the formal approach in order to determine “the facts

underlying the conviction” is entirely consistent with Shepard’s

admonition to focus on the facts “a prior conviction

‘necessarily’ involved.” Shepard, 544 U.S. at 24. And, those

inquiries are essentially the “modified” or second step of the

categorical approach of the Courts of Appeals for the Second

and Ninth Circuits.

Our opinion in Munroe v. Ashcroft, 353 F.3d 225, 227

(3d Cir. 2003), also did not abandon the INA’s conviction

requirement for the § 1101(a)(43)(M)(i) loss element. In

Munroe, we merely held that an immigration court should not

rely on the restitution order to establish the loss when the

defendant upon entering the plea,” to determine precisely what

conduct the defendant pled guilty to. Shepard, 544 U.S. at 20.

In so doing the Court reemphasized that, when the conviction

resulted from a jury verdict, the Court is not limited to a

comparison of the statutory elements – the “formal” version of

the categorical approach upon which Taylor had largely focused

– but also may undertake an analogous inquiry, looking to

“charging documents[] and jury instructions to determine

whether an earlier conviction after trial was for [the generic

enumerated offense].” Shepard , 544 U.S. at 16. In either

instance, the inquiry is to determine whether the conviction

“had ‘necessarily’ rested on the fact identifying the [prior crime]

as [the enumerated offense].” Id. at 21.

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convicting court’s original restitution order had been based on

the convicted loss, but the court subsequently reduced the

restitution from just above, to just below, $10,000 only to affect

subsequent deportation proceedings. Munroe, 353 F.3d at 227.

We emphasized that the alien had pled guilty to two counts in

the indictment, each of which specified a precise loss amount,

and we concluded:

“We agree . . . that the amount of loss involved in

that conviction was greater than $10,000. The

indictment alleged that the loss exceeded this

amount, and Munroe does not claim that, when he

pled guilty, he admitted to a lesser loss.”

Id. This holding is based on a convicted loss amount (admitted

in the plea agreement) and is therefore entirely consistent with

cases such as Shepard and Dulal-Whiteway.20

20

Although the Munroe Court opined that, in different

circumstances, the amount of restitution ordered “may be

helpful” to determine the loss amount, id., I do not find that

dicta controlling in this case. The Court’s holding was that the

restitution order should not have been relied upon in that case.

I interpret the Court’s statement as merely declining to adopt

any broad-based rule regarding restitution orders and instead

limiting the Court’s holding to the (somewhat unusual) facts of

43

Our opinion in Alaka v. Attorney General, 456 F.3d 88

(3d Cir. 2006), is also consistent with this approach.21 Alaka

stated that “the formal categorical approach properly may be

abandoned . . . when the terms of the statute on which removal

is based invite inquiry into the facts of the underlying

conviction,” id., and that (M)(i) “invites further inquiry.” Id.

However, much like Singh, Alaka stated that the “further

inquiry” is to identify “the facts underlying the conviction,” id.,

and the Court further explained that “[a] focus on the conduct

that resulted in a conviction is thus our analytical starting point.”

Id. at 107. Indeed, Alaka expressly rejects reliance upon

“relevant” but unconvicted losses calculated for sentencing

purposes; to do so, the Court explained, “would divorce the

$10,000 loss requirement from the conviction requirement . . .

because relevant conduct for sentencing purposes need not be

admitted, charged in the indictment or proven to a jury.” Id. at

108 (internal quotation marks and citations omitted). That is

precisely what the Court’s approach does: the Court finds that

the § 1227 conviction requirement applies to the “fraud or

deceit” component of § 1101(a)(43)(M)(i), but that the loss

that case.

21

As the Court emphasizes, Alaka simply held that, if an alien

pleads guilty to one count in an indictment, he or she cannot be

deported for conduct alleged in a different, unpled and

unconvicted count of the indictment. Id. at 106. However,

Alaka’s reasoning supports the approach I would adopt.

44

element is merely a “qualifier” not subject to that conviction

requirement, thus divorcing the two.22

Because I would join those Courts of Appeals which

require that removability under § 1227 and § 1101(a)(43)(M)(i)

be predicated on convicted conduct, and because the record does

not demonstrate that petitioner was actually and necessarily

22

Although Alaka did state that the IJ could consider factual

findings in the sentencing report, id. at 105, I would not rely on

that dicta because to do so here would be contrary to Alaka’s

clear rationale. Alaka does not explain precisely when a court

may look to facts found in a sentencing report, but the Court’s

holding did not rely on any such facts: the Court emphasized

that, “as was the case with Knutsen and Chang, Alaka

unmistakably pled guilty to one count, and the plea agreement

plainly documented that loss at less than $10,000.” Alaka, 456

F.3d at 108.

Alaka’s reference to the sentence may have been a

recognition that, for “aggravated felonies” other than the one at

issue in this case, the INA expressly directs courts to look to the

sentence, and therefore a per se rule that courts can never look

to facts found in a sentencing report is certainly not appropriate.

See Singh, 383 F.3d at 162 (8 U.S.C. § 1101(a)(43)(G) directs

courts to look to the sentence actually imposed because that

definition states “ a theft offense . . . for which the term of

imprisonment [imposed is] at least one year,” whereas other §

1101(a)(43) definitions include the qualifier “for which a

sentence of one year imprisonment or more may be imposed”)

(bracketed text in original; emphasis added).

45

convicted of any particular loss, I would grant the petition for

review.

46