BABAISAKOV

Cite as 24 I&N Dec. 306 (BIA 2007) Interim Decision #3585

In re Yuriy Il Yavmaniyevich BABAISAKOV, Respondent

File A71 416 447 - York

Decided September 28, 2007

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) A single ground for removal may require proof of a conviction tied to the statutory

elements of a criminal offense, as well as proof of an additional fact or facts that are not

tied to the statutory elements of any such offense.

(2) When a removal charge depends on proof of both the elements leading to a conviction

and some nonelement facts, the nonelement facts may be determined by means of

evidence beyond the limited “record of conviction” that may be considered by courts

employing the “categorical approach,” the “modified categorical approach,” or a

comparable “divisibility analysis,” although the record of conviction may also be a

suitable source of proof, depending on the circumstances.

(3) Section 101(a)(43)(M)(i) of the Immigration and Nationality Act, 8 U.S.C.

§ 1101(a)(43)(M)(i) (2000), which defines the term “aggravated felony” to mean “an

offense that involves fraud or deceit in which the loss to the victim or victims exceeds

$10,000,” depends on proof of both a conviction having an element of fraud or deceit and

the nonelement fact of a loss exceeding $10,000 that is tied to the conviction.

(4) Because the phrase “in which the loss to the victim or victims exceeds $10,000” is not

tied to an element of the fraud or deceit offense, the loss determination is not subject to

the limitations of the categorical approach, the modified categorical approach, or a

divisibility analysis and may be proved by evidence outside the record of conviction,

provided that the loss is still shown to relate to the conduct of which the person was

convicted and, for removal purposes, is proven by clear and convincing evidence.

(5) The Immigration Judge erred in declining to consider a presentence investigation report

as proof of victim loss because of his mistaken belief that he was restricted to

consideration of the respondent’s record of conviction.

FOR RESPONDENT: Thomas M. Griffin, Esquire, Philadelphia, Pennsylvania

FOR THE DEPARTMENT OF HOMELAND SECURITY: Rhonda M. Dent, Appellate

Counsel

BEFORE: Board Panel: OSUNA, Acting Chairman; FILPPU and PAULEY, Board

Members.

FILPPU, Board Member:

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This case concerns the scope of the evidence that an Immigration Judge may

consider in removal proceedings to determine whether a conviction for an

offense involving fraud or deceit was one “in which the loss to the victim or

victims exceeds $10,000,” as required by section 101(a)(43)(M)(i) of the

Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2000). We

hold that an Immigration Judge is not restricted to “record of conviction”

evidence but may consider any evidence admissible in removal proceedings

bearing on the loss to the victim. Consequently, we will sustain the appeal of

the Department of Homeland Security (“DHS”) from the Immigration Judge’s

March 6, 2006, decision dismissing the aggravated felony charge against the

respondent and terminating the removal proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent, a native and citizen of Uzbekistan, has been a lawful

permanent resident since 1998. In 2003, the respondent and various

codefendants were indicted in the United States District Court for the Southern

District of New York on four criminal counts arising from a scheme to defraud

insurance companies, between July 2002 and January 2003, by staging

automobile accidents, receiving unnecessary medical treatment, and submitting

false and fraudulent claims for insurance benefits. On January 21, 2005, the

respondent was convicted on a guilty plea of the offenses set forth in counts

one and three of the indictment, charging him with conspiracy and mail fraud,

respectively, under 18 U.S.C. §§ 371 and 1341 (2000). He was sentenced to

a term of imprisonment of 10 months, followed by 3 years of supervised

release, and was ordered to pay $19,850 in restitution pursuant to 18 U.S.C.

§ 3663 et seq.

The DHS has pursued charges of deportability against the respondent under

section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), as an

alien convicted of an “aggravated felony.” Specifically, the DHS alleged that

the respondent was convicted of an offense that “involves fraud or deceit in

which the loss to the victim or victims exceeds $10,000” under section

101(a)(43)(M)(i) of the Act, and of an attempt or conspiracy to commit such

an offense under section 101(a)(43)(U). In support of the charge, the DHS

submitted the criminal judgment, indictment, statement of reasons (“SOR”) by

the sentencing judge, and presentence investigation report (“PSR”) into

evidence.

The Immigration Judge dismissed the charge and terminated proceedings.

There is no dispute that the respondent’s offenses involved “fraud or deceit.”

See Valansi v. Ashcroft, 278 F.3d 203, 210 (3d Cir. 2002). The Immigration

Judge found, however, that the DHS had failed to offer clear and convincing

evidence that the offense involved more than $10,000 in loss to the victim.

The Immigration Judge noted that neither the criminal statutes under which the

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respondent was convicted nor the counts of the indictment made any loss a

prerequisite to a finding of guilt.

The criminal judgment does identify the “total loss” arising from the

respondent’s offenses as $19,850, the amount of restitution ordered, but it does

not reflect how the trial court calculated this loss amount. However, the same

figure appears in the PSR as the amount allegedly paid out in fraudulent

claims, and, as indicated in the SOR, the trial court expressly adopted the PSR

without change. Nevertheless, the Immigration Judge observed that the

amount of restitution ordered is a “post-guilt calculus” aimed at making a

victim whole and is not necessarily representative of actual loss arising from

the offenses of conviction. The Immigration Judge further found that

consulting a PSR to determine the amount of loss would not comport with the

“categorical approach” to statutory interpretation set forth in the Supreme

Court’s decisions in Taylor v. United States, 495 U.S. 575 (1990), and Shepard

v. United States, 544 U.S. 13 (2005). See also Gonzales v. Duenas-Alvarez,

127 S. Ct. 815 (2007) (discussing the categorical approach as applied to

aggravated felony determinations under the immigration law). Finally, the

Immigration Judge emphasized that the record contains no evidence, such as

a plea agreement or plea colloquy transcript, reflecting that the respondent

admitted that his criminal conduct resulted in any particular amount of loss.

In its appellate brief, the DHS argues that the award of $19,850 in restitution

is clear and convincing evidence that the offenses of which the respondent was

convicted occasioned losses of more than $10,000 to his victims. The DHS

also argues that the PSR is admissible to prove the amount of loss, even under

Taylor and Shepard, because the district court judge affirmatively adopted it

when imposing the sentence. At oral argument, the DHS further contended

that the amount of loss arising from a fraud or deceit offense need not be

established categorically, by reference to documents conventionally understood

as constituting the “record of conviction,” but may instead be proven by

reference to any evidence that is otherwise admissible, including the testimony

of witnesses or the admissions of the respondent taken by the Immigration

Judge during the removal proceedings. Noting that it has been unable to

identify any State or Federal fraud statute that includes as an element the

requirement that a victim sustain losses exceeding $10,000, the DHS claims

that the categorical approach embodied in Taylor and Shepard is simply

unworkable as applied to the loss calculation required by section

101(a)(43)(M)(i) of the Act.

The respondent, in both his appellate brief and at oral argument, claimed that

the restitution award is not evidence of the actual loss that he was convicted of

causing to his victims because that award included losses that arose from other

conduct as well. Moreover, the respondent contends that the district court’s

findings as to victim loss in the sentencing context are not sufficiently reliable

to establish deportability because those findings need only have been supported

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by a preponderance of the evidence, rather than the “clear and convincing”

evidence needed for deportability.1

II. ANALYSIS

A. Introduction and Summary

The questions before us turn in large measure on the nature of the

determinations that section 101(a)(43)(M)(i) requires and on whether an

Immigration Judge must apply the so-called “categorical” approach when

seeking to ascertain the amount of loss arising from a conviction for an offense

that “involves fraud or deceit.” The court of appeals case law addressing the

“categorical” and “modified categorical” approaches contains conflicting views

over the scope and applicability of these concepts. In the end, however, we

believe a very basic principle governs.

Simply put, the categorical and modified categorical approaches, as we

understand Taylor and Shepard, properly apply only when the statute currently

being implemented or administered demands a focus exclusively on the

elements of a prior conviction. Further, neither Taylor nor Shepard demands

the use of the categorical or the modified categorical approach to any currently

required determination that is not tied to an element of a prior conviction.

Here, the removal provision demands a prior conviction for fraud or deceit.

But, as we explain, the statute also requires a separate finding as to loss that is

not tied to the elements of any State or Federal criminal statute. The

categorical and modified categorical approaches properly govern the

assessment as to whether the elements of the conviction for fraud or deceit are

present, but they do not apply when assessing the additional “nonelement”

factor of victim loss.

The proper focus is on the nature of the findings that must be made to

resolve a removal charge. Reliance exclusively on the categorical and

modified categorical approaches is both necessary and proper if the removal

charge is tied solely to the elements of an earlier conviction. But if something

1

We also understand the respondent to argue that Matter of Eslamizar, 23 I&N Dec. 684

(BIA 2004), requires that all aspects of a removal charge predicated on the existence of a

“conviction” be proved beyond a reasonable doubt during the criminal proceedings. There

is no dispute that the respondent’s Federal criminal conviction arose from a proceeding in

which each element of the crimes of conspiracy and mail fraud had to be proved beyond a

reasonable doubt. He stands “convicted” of his crimes for immigration purposes. As

explained below, a loss exceeding $10,000 need not be an element of the criminal statute,

and hence can be shown by evidence beyond that needed to obtain a conviction for a crime

of fraud or deceit.

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more is demanded by the terms of the removal provision at issue, then the

categorical and modified categorical approaches will not apply to this

additional aspect of the removal statute.

Substantial confusion has arisen, however, from both the case law and the

multiple evidentiary purposes that can be served by conviction records. For

example, some nonelement determinations are easily and appropriately made

from records of conviction, such as the length of sentence the defendant

received after being found guilty of all the elements of the crime. The proper

use of the conviction record to assess nonelement factors, such as length of

sentence, mimics a categorical or modified categorical approach as set forth in

Taylor and Shepard. However, it is really a look at the conviction record as a

piece of ordinary evidence that discloses the length of sentence and is not an

inquiry into what the trier of fact was required to find to determine guilt or

innocence.2

B. Supreme Court’s Categorical Approach

Under the Supreme Court’s categorical approach, an adjudicator seeking to

determine whether a defendant’s prior “convictions” justify an enhanced

sentence on a new conviction “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 [the]

convictions.” Taylor v. United States, supra, at 600 (addressing the meaning

of “burglary” as defined in 18 U.S.C. § 924(e)(2)(B)(ii)). Thus, the categorical

approach focuses on “whether the elements of the offense are of the type that

would justify its inclusion” within the scope of a federally listed term, “without

inquiring into the specific conduct of this particular offender.” James v. United

States, 127 S. Ct. 1586, 1594 (2007); see also Shepard v. United States, supra,

2

In this context, we understand the term “element” to mean a “fact necessary to constitute

the crime.” See In re Winship, 397 U.S. 358, 364 (1970) (emphasis added); see also

Mullaney v. Wilbur, 421 U.S. 684, 697-99 (1975); Black’s Law Dictionary 520 (6th ed.

1990) (defining “[e]lements of crime” as “[t]hose constituent parts of a crime which must be

proved by the prosecution to sustain a conviction”). In sentencing cases, the Supreme Court

has concluded that any fact, other than a prior conviction, that is necessary to support a

punishment must be admitted by the defendant or proven to a jury beyond a reasonable

doubt. Cunningham v. California, 127 S. Ct. 856 (2007); United States v. Booker, 543 U.S.

220 (2005); Blakely v. Washington, 542 U.S. 296 (2004); Apprendi v. New Jersey, 530 U.S.

466 (2000). We are not now treating sentencing facts that are outside the statutory definition

of the crime as “elements,” although we acknowledge that there may be reasons for deeming

sentencing factors found in accordance with Apprendi to be part of the elements leading to

punishment.

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at 19 (stating that “the categorical approach . . . refers to predicate offenses in

terms not of prior conduct but of prior ‘convictions’ and the ‘element[s]’ of

crimes” (quoting Taylor v. United States, supra, at 600-01)).

The Supreme Court nonetheless indicated that the “categorical approach . . .

may permit the sentencing court to go beyond the mere fact of conviction in a

narrow range of cases where a jury was actually required to find all the

elements” of the currently relevant offense, such as generic burglary at issue

in Taylor. Taylor v. United States, supra, at 602. The Supreme Court has

noted that some lower courts refer to this second “step of the Taylor inquiry,”

pertaining to which elements of an overly broad statute led to conviction, “as

a ‘modified categorical approach.’” Gonzales v. Duenas-Alvarez, supra, at

819. Yet some courts have also considered the “modified categorical

approach” to include a search for criminal record facts that do not pertain to the

“elements” of the predicate offense but that can nonetheless be deemed reliably

established by the conviction record. However, both Taylor and Shepard

confine a review of the conviction record to such items as charging documents,

jury instructions, “the terms of a plea agreement or transcript of colloquy

between judge and defendant in which the factual basis for the plea was

confirmed by the defendant, or to some comparable judicial record of this

information,” and do so as part of a search for the elements that led to a prior

conviction, not the facts that were involved in the crime. Shepard v. United

States, supra, at 26.

Similar to the sentence enhancements at issue in Taylor and Shepard,

deportability under section 237(a)(2)(A)(iii) of the Act depends on the

existence of a “conviction” for a federally defined category of offenses, i.e.,

“aggravated felonies.” Hence, the courts of appeals have a long-standing

practice of applying the categorical approach to aggravated felony

determinations under the immigration law, a practice acknowledged in

Gonzales v. Duenas-Alvarez, supra, at 818-19. We have also traditionally

applied an analysis that closely resembles the categorical approach to

determine whether an alien has a “conviction” that falls within a federally

defined category of crimes leading to deportation. See Matter of

Gertsenshteyn, 24 I&N Dec. 111, 112 (BIA 2007); Matter of Sweetser, 22 I&N

Dec. 709, 715 (BIA 1999); Matter of Pichardo, 21 I&N Dec. 330, 335 (BIA

1996); Matter of Madrigal, 21 I&N Dec. 323, 327 (1996); Matter of Ghunaim,

15 I&N Dec. 269, 270 (BIA 1975), modified on other grounds, Matter of

Franklin, 20 I&N Dec. 867 (BIA 1994); Matter of S-, 2 I&N Dec. 559 (C.O.,

BIA 1946; A.G. 1947); Matter of S-, 2 I&N Dec. 353, 357 (BIA, A.G. 1945);

Matter of N-, 1 I&N Dec. 181 (BIA 1941). Indeed, in Matter of Sweetser,

supra, at 715, we characterized our approach to “divisible” statutes as being

“identical to how the federal courts have applied the categorical approach.”

Our unpublished cases undoubtedly include decisions in which we applied a

“modified categorical approach” to search for conviction record “facts” that

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may not have been “elements” necessary for conviction under the pertinent

criminal statute. However, our published law applies either a categorical or a

divisibility analysis, where the actual elements leading to conviction are the

determining factor for removal charges hinging on a conviction for a crime.

See Matter of Pichardo, supra, at 335 (emphasizing that it is the elements of

the crime an alien is actually convicted of, and not the crime he or she may

have committed, that is determinative of deportability).

Yet, as recognized by the United States Court of Appeals for the Third

Circuit, in which this case arises, the applicability of the categorical approach

in the aggravated felony context necessarily depends on the language of both

the statute of conviction and the particular aggravated felony category to which

that approach might be applied. Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir.

2004) (stating that while Taylor’s “formal categorical approach presumptively

applies in comparing [predicate offenses and aggravated felony categories],

under certain conditions, both the enumerating statute and the statute of

conviction can require a departure from the formal categorical approach”).

Moreover, according to Singh, the reference in section 101(a)(43)(M)(i) of the

Act to $10,000 in loss to the victims is the “prototypical example” of such a

nonelement qualifier that would “invite inquiry into the facts underlying the

conviction at issue,” because “it expresses such a specificity of fact that it

almost begs an adjudicator to examine the facts at issue.” Id.

We, too, have recognized that application of the categorical approach

depends on the nature of the determinations required by the statute in the

aggravated felony context. For example, in Matter of Gertsenshteyn, supra,

we considered section 101(a)(43)(K)(ii) of the Act, which provides aggravated

felony treatment for an offense “described in section 2421, 2422, or 2423 of

title 18, United States Code (relating to transportation for the purpose of

prostitution) if committed for commercial advantage.” Because only one of the

three enumerated statutes employs the phrase “commercial advantage” as an

element (and none had done so at the time of enactment of section

101(a)(43)(K)(ii)), we determined that a strict application of the categorical or

modified categorical approach would likely render the provision a nullity.

Concluding that such an eventuality was inconsistent with legislative intent,

we held that the parties could offer evidence outside the limits of a “record of

conviction” in proving the “committed for commercial advantage” component

of that aggravated felony charge.3 Id. at 115-16.

3

In Matter of Gertsenshteyn, supra, we explained that the “commercial advantage”

component of a section 101(a)(43)(K)(ii) aggravated felony was neither an element nor a

sentence enhancement factor for the underlying Federal crime. Victim loss is more likely

to be a sentencing factor. Prior to Apprendi v. New Jersey, supra, and its progeny, we had

(continued...)

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The extent to which the categorical approach applies to the determination

of loss arising from a conviction for an offense that “involves fraud or deceit”

under section 101(a)(43)(M)(i) of the Act thus depends on whether this

immigration provision envisions loss as an element of the criminal offense or

as a separate factor for assessment in relation to removability. To answer this

question, we look to the statute.

C. Section 101(a)(43)(M)(i) of the Act

We begin with the statutory language. INS v. Cardoza-Fonseca, 480 U.S.

421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984). Section

101(a)(43)(M) of the Act provides that an aggravated felony includes

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 the Internal Revenue Code of 1986 (relating to

tax evasion) in which the revenue loss to the Government exceeds $10,000.4

Viewed in isolation, the “loss to the victim” language of section

101(a)(43)(M)(i) could refer to an “element” of the underlying fraud offense.

On the other hand, the victim loss aspect of that section can be considered as

a “limiting” fact, unrelated to the statutory elements of the underlying offense,

that excludes less serious fraud crimes from being aggravated felonies. When

viewed in context, however, it is evident that the victim loss aspect of the

statute was not intended to refer to an “element” of any underlying fraud

offense.

Many of the aggravated felony provisions within section 101(a)(43) of the

Act identify some limiting fact that excludes otherwise-qualifying crimes from

the scope of the definition. For example, in sections 101(a)(43)(J), (Q), and

(...continued)

rejected sentence enhancements as constituting part of the crime of which an alien could be

deemed to have been “convicted” if the enhancement was not treated as a separate crime

leading to conviction within the prosecuting jurisdiction. Matter of Rodriguez-Cortes,

20 I&N Dec. 587 (BIA 1992). We are not now required to reassess Rodriguez-Cortes,

because we find that loss to the victim is not an element that must be present in the

underlying crime. Nevertheless, as we explain later, a sentencing factor that is found under

Apprendi standards will suffice to show victim loss for removal purposes.

4

Section 101(a)(43)(M) was added to the Act by section 222(a) of the Immigration and

Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, 108 Stat. 4305, 4322.

The original loss threshold for both clauses was $200,000. That amount was lowered to

$10,000 in 1996 by section 321(a)(7) of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628.

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(T), which provide that an offense is an aggravated felony only if a certain

minimum sentence may be imposed for the crime, the qualifier is the statutory

penalty available for the offense of conviction. A number of other provisions

limit crimes based on facts relating to the particular conviction at issue, rather

than to the generic offense of conviction. Specifically, sections 101(a)(43)(F),

(G), (P), (R), and (S) exclude crimes from the aggravated felony definition

where the actual sentence imposed was too short (regardless of the sentence

that could have been imposed), while sections 101(a)(43)(K)(ii), (N), and (P)

provide that convictions are included in, or excluded from, the aggravated

felony definition based on the particular offender’s motivation for committing

the crime.5 In Matter of Gertsenshteyn, supra, we noted that Congress used the

length of sentence as one of the “aggravating” factors to distinguish ordinary

crimes from aggravated felonies, even though the sentence resulting from a

conviction is not an element of the crime itself.

Three other provisions–including the one at issue here–provide that an

offense is an aggravated felony only if the financial implications of the crime

were sufficiently far-reaching. See sections 101(a)(43)(D), (M)(i), (M)(ii) of

the Act (covering, respectively, money laundering offenses or offenses

involving the proceeds of specified unlawful activity in which “the amount of

the funds exceeded $10,000,” offenses involving fraud or deceit “in which the

loss to the victim or victims exceeds $10,000,” and tax evasion offenses “in

which the revenue loss to the Government exceeds $10,000”).

Most importantly, both sections 101(a)(43)(M)(i) and (ii) depend in part on

the “loss” occasioned by the offense of conviction. Yet section 7201 of the

Internal Revenue Code, 26 U.S.C. § 7201, referenced in clause (ii), contains

no element pertaining to revenue loss to the Government. Consequently, no

violation of section 7201 itself could ever be an aggravated felony if

deportability under clause (ii) depended on a showing that the revenue loss to

the Government was an element of the crime, which is an absurd result. The

sensible reading of section 101(a)(43)(M)(ii), then, is that the amount of

revenue loss to the Government is an aggravating factor, similar to the length

of sentence or the “commercial advantage” requirement at issue in Matter of

Gertsenshteyn, supra, that may be proven by reference to evidence unrelated

to the statutory elements of the tax evasion offense. In our view, the reference

to victim loss in clause (i) serves the same purpose as the “revenue loss” aspect

of clause (ii). Our conclusion is bolstered by the fact that we have been unable

5

Sections 101(a)(43)(K)(ii), (N), and (P) of the Act cover, respectively, offenses relating to

transportation for the purposes of prostitution “if committed for commercial advantage” and

alien smuggling and document fraud offenses, except for a “first offense” where the alien has

affirmatively shown that he committed the offense “for the purpose” of assisting close family

members only.

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to identify, despite an extensive (if not exhaustive) inquiry, any Federal or

State fraud statute that contains an element requiring loss to the victims

exceeding $10,000.6

Furthermore, our review of the legislative history of section 101(a)(43)(M)

has uncovered nothing that would lead us to conclude that Congress

understood the loss amount to be a required element of the predicate offense,

as opposed to a limiting provision or an aggravating factor. Similarly, we have

found nothing in the legislative history accompanying the 1996 change from

the original $200,000 figure to the current $10,000 figure that suggests the

newer figure was intended to be tied to the statutory elements of fraud or deceit

convictions. See generally H.R. Conf. Rep. No.104-828 (1996), available at

1996 WL 563320.

The Federal courts of appeals, including the Third Circuit, have found other

aspects of section 101(a)(43)(M) to be plain and unambiguous. See Alaka v.

Att’y Gen., 456 F.3d 88, 106 (3d Cir. 2006) (stating that the statute was plain

and unambiguous in relation to the need to predicate “‘removal on a convicted

offense resulting in losses greater than $10,000,’” as opposed to looking to

losses arising from additional fraudulent activity that did not result in

conviction (quoting Knutsen v. Gonzales, 429 F.3d 733, 736 (7th Cir. 2005))).

Moreover, the circuits have consistently applied some form of categorical

analysis when seeking to ascertain whether the offense in question had “fraud

or deceit” as an element. E.g., Valansi v. Ashcroft, supra, at 214.

But we are not aware of any precedential majority opinion declaring that the

victim impact aspect of the statute, i.e., a loss exceeding $10,000, must

6

The decision in Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. 2004), involved a State fraud

offense requiring that the offender obtain government benefits of more than $400, while

18 U.S.C. § 1029(a)(2) requires proof of a minimum loss to the victim of $1,000. Thus,

while there are fraud statutes containing loss elements, we have not found any in which the

relevant loss threshold corresponds to the $10,000 figure in section 101(a)(43(M)(i) of the

Act. Under 18 U.S.C. § 1039(d), certain fraud crimes can be subject to an enhanced

statutory penalty if committed “as part of a pattern of any illegal activity involving more than

$100,000.” This $100,000 figure need not relate to victim loss, however, nor does the

existence of a pattern of illegal activity involving more than $100,000 constitute a statutory

element of the underlying fraud crime. Instead, it is a sentencing factor, which resembles

a statutory element in the sense that it must either be admitted by the defendant or proven to

a jury beyond a reasonable doubt.

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correspond to a loss element in the criminal statute.7 See Li v. Ashcroft,

389 F.3d 892, 899-901 (9th Cir. 2004) (Kozinski, J., concurring) (arguing that

the lack of an element in the criminal statute requiring a loss exceeding

$10,000 should preclude a finding of an aggravated felony conviction under

section 101(a)(43)(M)(i)). Indeed, most published court of appeals rulings

seem to accept that a loss exceeding $10,000 need not be a formal element of

the criminal offense. And as reflected above, our own construction of the

statute is that the $10,000 loss threshold is a limiting or aggravating factor that

need not be tied to an element of any criminal statute.

D. Modified Categorical Approach Under Circuit Law

Our conclusion that the $10,000 loss figure in section 101(a)(43)(M)(i) of

the Act was not intended to describe an “element” of a “fraud or deceit” crime

takes this victim loss aspect of the statute outside the scope of the categorical

approach of Taylor and Shepard. Nevertheless, the weight of authority at the

circuit court level is that proof of such loss must be derived from the same

types of evidence (such as the charging instrument or plea agreements) that are

typically consulted under the “modified categorical approach” by a court

seeking to identify the elements of an offense defined by an overbroad statute.

E.g., Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., No. 05-3098-ag, 2007

WL 2712941 (2d Cir. Sept. 19, 2007) (holding that a loss of more than $10,000

may be shown only by information appearing in a record of conviction that

would be permissible under Taylor and Shepard); Kawashima v. Gonzales,

Nos. 04-74313, 05-74408, 2007 WL 2702330 (9th Cir. Sept. 18, 2007)

(holding that the modified categorical approach limits the scope of review to

the record of conviction in relation to a loss exceeding $10,000 where there

was no element of loss in the criminal statute); Conteh v. Gonzales, 461 F.3d

45 (1st Cir. 2006) (requiring clear and convincing evidence derived solely from

the criminal record of the aggravated felony charge, even if the criminal statute

lacked a “loss” element); Alaka v. Att’y Gen., supra, at 107-08 (stating, in

relation to the conduct resulting in conviction, that “[b]ecause our

consideration is limited to the offense of conviction, we look only to the

charges to which the [alien] pled guilty, and not to conduct that was neither

7

Portions of the decision in Obasohan v. U.S. Att’y Gen., 479 F.3d 785 (11th Cir. 2007), can

be read to require a conviction with criminal elements covering all aspects of the aggravated

felony definition in section 101(a)(43)(M)(i). However, such a reading would conflict with

the court’s extensive discussion regarding the adequacy (or inadequacy) of conviction record

evidence, unrelated to any element of the criminal statute, bearing on the $10,000 loss

question.

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admitted nor proven beyond a reasonable doubt”);8 see also Tokatly v.

Ashcroft, 371 F.3d 613, 622 (9th Cir. 2004) (describing the categorical and

modified categorical approaches as being based “on the nature of the alien’s

conviction, rather than on the alien’s actual conduct,” but then requiring that

conviction-related facts that are not elements of the underlying criminal

statutes nonetheless be established by reference to the “record of conviction”).

Despite the rulings in cases such as Dulal-Whiteway, Conteh, and Tokatly,

we do not believe there is any sound legal principle that constrains inquiry to

the record of conviction if the search involves aspects of the crime that go

beyond the elements of the offense. In Tokatly, the Ninth Circuit specifically

rejected the Government’s argument that the ground of removal pertaining to

crimes of domestic violence, section 237(a)(2)(E)(i) of the Act, required a

bifurcated evidentiary approach. The Government acknowledged that proof

of a “conviction” for a “crime of violence,” with all its attendant “elements,”

was required. On the other hand, the Government maintained that the

existence of a “domestic” relationship between the offender and the victim was

not understood by Congress as describing an element of the predicate offense

but was instead a separate “immigration fact” that should have been subject to

independent proof–outside the “record of conviction” if necessary. See Tokatly

v. Ashcroft, supra, at 620. The Ninth Circuit rejected this approach, describing

it as a “somewhat convoluted and bipolar methodology to the statutory

inquiry.” Id. The principal grounds for rejection, however, were the Ninth

Circuit’s Taylor-related approach to assessing convictions and our adherence

to a comparable approach in cases such as Matter of Pichardo, supra, and

Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996).

We have a different perspective. We accept that a “categorical” approach

is to be applied with respect to any aspect of a removal charge that depends on

a conviction under a criminal statute containing elements that must be shown

to establish removability. The situation is much different, however, if the

removal charge requires proof of some fact that is not an element of the

predicate offense. For example, a finding of removability under section

237(a)(2)(A)(i) of the Act requires proof of a conviction for a crime involving

moral turpitude that was committed within 5 years after admission. In

implementing this statute we do not look to the conviction record to determine

the date when an alien was admitted to the United States under the immigration

laws because the date of admission is not an element of any criminal offense,

8

This reasoning would not allow independent evidence of loss during a removal hearing, but

such was not Alaka’s holding, in a sense that would preclude our ruling today. On the

evidentiary issue of determining loss, the holding in Alaka was that the alien’s plea

agreement controlled and could not be superseded by a loss calculation for sentencing and

restitution purposes.

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except perhaps in the rarest of cases. Similarly, although the precise date an

offense was committed may be relevant in a criminal prosecution to provide

a defendant with adequate notice of charges or to rebut a statute of limitations

or ex post facto defense, it is not an element of the crime or an aspect of

convicted conduct that must necessarily be established in removal proceedings

by reference to the conviction record.9

As to crimes of moral turpitude committed within 5 years after an alien’s

admission, the statute clearly combines the need for a qualifying “conviction”

with other requirements bearing both on the crime and on the alien’s

immigration history. It may be awkward from the perspective of the

“categorical” or “modified categorical” approach for a particular removal

statute to include both “offense-element” facts and other “nonelement” facts

pertaining either to the conviction (e.g., length of sentence or the date the

offense was committed) or the impact of the crime on the victim. But when

deportability depends in part on proof of nonelement aspects of a crime, we do

not understand how the inquiry into those facts can automatically be

constrained by rules that have been developed solely to ascertain the elements

of the crime. By definition, the inquiry must go beyond the elements in such

cases. The question, then, is whether the conviction record is an adequate

source for the information demanded by the removal statute.

E. “Record of Conviction” Evidence To Assess “Loss” to the Victim

A conviction record may serve as the best source of information for

nonelement facts about a crime. But this will depend on the nature of the

nonelement information. No wooden rule, denominated as a “categorical” or

“modified categorical” approach derived from Taylor and Shepard, or

employed by Pichardo, can answer that question in advance.

The length of sentence is a nonelement fact for some aggravated

felonies that can be readily ascertained from the record of conviction, and it

would not make sense to invite other proof, absent a scrivener’s error. On the

other hand, in Matter of Gertsenshteyn, supra, we found that independent

proof as to the “committed for commercial advantage” component of section

101(a)(43)(K)(ii) aggravated felonies should be allowed in order to give life

9

Conviction records may well reveal the date when a criminal offense was committed, and

the trier of fact may appropriately consider such records in removal proceedings. The point,

however, is that in the section 237(a)(2)(A)(i) context, an Immigration Judge consults such

documents not as a component of a “modified categorical” inquiry, but as primary evidence

of the date itself.

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to the statute, as evidence of this aspect of a crime would not likely be found

in records of conviction.

The loss threshold of section 101(a)(43)(M)(i) falls between these extremes.

Some criminal complaints may allege specific loss amounts, despite the

absence of “loss” elements in the criminal statutes. Restitution is frequently

included in criminal judgments, and the amount of loss may be discussed

during a plea colloquy or included in the sentencing court’s SOR. Indeed, the

respondent concedes that a conviction record can establish “loss to the victim,”

but only if the alien admitted the amount of loss during the criminal

proceedings. In this respect, he argues that restitution orders are based on

calculations that do not necessarily match the “loss to the victim” focus of the

removal statute, and that such orders, as well as a PSR (even if adopted by the

court without change), do not establish the quantum of loss by “clear and

convincing evidence” because they need only have been found by a

“preponderance of the evidence.”10

Accordingly, even if a criminal court judge’s finding as to loss is clear from

the record, there may be grounds for questioning whether such a finding,

standing alone, is sufficient to prove the amount of loss by the “clear and

convincing evidence” standard that applies in removal proceedings. Obasohan

v. U.S. Att’y Gen., 479 F.3d 785, 790-91 (11th Cir. 2007). However,

restitution orders have served as evidence in some removal cases, even when

challenged. See James v. Gonzales, 464 F.3d 505 (5th Cir. 2006) (rejecting

specific challenges to use of the restitution order); Ferreira v. Ashcroft, 390

F.3d 1091 (9th Cir. 2004) (finding a California State court order of restitution

reliable in part because California law, unlike Federal law, limited restitution

to the actual loss suffered by the Government agency victim). The Third

Circuit has stated that a restitution order “may be helpful” in determining loss

to the victim if the plea agreement or indictment is unclear as to loss. Munroe

v. Ashcroft, 353 F.3d 225, 227 (3d Cir. 2003).

We conclude that restitution orders can be sufficient evidence of loss to the

victim in certain cases, but they must be assessed with an eye to what losses

are covered and to the burden of proof employed. We do not agree with the

respondent that restitution orders and presentence reports can never suffice if

a preponderance of the evidence standard was employed in entering the order

or developing the report. Facts found by a preponderance may also meet more

10

The United States Sentencing Guidelines were rendered advisory pursuant to the remedial

portion of the Supreme Court’s decision in United States v. Booker, supra. Thus, sentencing

judges in the Federal system retain authority to find the facts justifying a sentence under the

Guidelines by a preponderance of the evidence, notwithstanding the Sixth Amendment

concerns that prompted the Court to declare mandatory application of the Guidelines

unconstitutional. See, e.g., United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007) (en

banc); see also Rita v. United States, 127 S. Ct. 2456 (2007).

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stringent evidentiary tests. For example, a defendant’s failure to contest,

during the criminal proceedings, a fact found by a preponderance would bear

on whether that fact was reliable for removal purposes as well, especially in the

absence of any showing in removal proceedings that there was error in the

criminal proceedings respecting that fact.11

Further, a defendant’s admission during the criminal proceeding as to the

amount of loss will suffice to meet a clear and convincing showing in removal

proceedings, if the admission pertained to losses arising from the conduct in

the particular charges or criminal counts covered by the conviction. This most

likely includes a plea to a criminal count alleging a fraudulent transaction in

excess of $10,000, unless the convicting jurisdiction treats the plea as only an

admission of the bare elements of the crime. E.g., Bobb v. Att’y Gen., 458 F.3d

213 (3d Cir. 2006) (finding that a guilty plea to passing a forged check in an

amount of $13,277 confirmed that the amount of loss was greater than

$10,000, despite no “loss” element in the criminal statute). In addition,

conviction record evidence as to loss generally may be sufficient if the record

in question arose in a jurisdiction that has adapted to Apprendi and its progeny

by requiring sentencing factors to be proven to the jury beyond a reasonable

doubt. However, even a plea to a fraudulent transaction exceeding $10,000,

or a sentencing fact found beyond a reasonable doubt, may be suspect if the

admission or sentencing factor covered losses associated with transactions

outside the particular count or counts covered by the conviction. See Alaka v.

Att’y Gen., supra (holding that losses arising from fraudulent activity

outside the actual offense of conviction could not be included for section

101(a)(43)(M)(i) aggravated felony purposes).

F. Independently Assessing “Loss”

While reliance on the criminal “record of conviction” is still possible in

many cases, the record of conviction is an uncertain source of reliable

information on loss to the victim. The statutory $10,000 threshold is not an

element of the crime except, perhaps, in rare cases. The information generated

on loss is routinely done for sentencing purposes, not for “conviction”

purposes, and may have been assessed against a “preponderance of the

evidence” standard. Admissions by defendants should suffice in many cases,

but even a plea colloquy need not actually focus on the loss stemming from a

particular count in an indictment, if there is no loss element needed to prove

11

Similarly, the degree by which a loss is found to exceed $10,000 may also bear on

whether evidence derived from a restitution order or PSR could carry the burden in removal

proceedings.

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guilt, and may instead focus on a broader loss determination relating

exclusively to sentencing or restitution. Because of these limitations on the

probative value of “record of conviction” evidence relating to victim loss, we

discern no sound reason for prohibiting Immigration Judges from considering

other reliable evidence that bears on this question, including but not limited to

the testimonial admissions of the respondent made during the removal hearing.

Furthermore, because we are looking for a fact that was part of the crime,

but not a fact that must have been proved to establish guilt, the independent

assessment of that fact during a removal hearing does not encroach on the

principal purpose of the criminal proceedings, which was the determination of

guilt under the elements of the criminal statute. Hence, we see no legal

objection to the independent resolution of this “victim impact” issue during the

course of a removal hearing. Accordingly, we hold that an Immigration Judge

may consider any evidence, otherwise admissible in removal proceedings,

including witness testimony, bearing on the loss to the victim in an aggravated

felony case involving section 101(a)(43)(M)(i) of the Act.12

III. RESPONDENT’S CASE

In this case, the combination of the counts to which the respondent pled,

including a broad conspiracy charge spanning a period from July 2002 to

January 2003, the order of restitution, and the information in the PSR and SOR

would carry the DHS’s burden to show a loss exceeding $10,000 by clear and

convincing evidence, absent countervailing evidence. Both the conspiracy

count and the individual count alleged a “scheme” that the defendants “did

execute” as part of the conspiracy or, as relates to the individual count, “for the

purpose of executing such scheme . . . caused a bill for unnecessary medical

treatment to be mailed . . . to Liberty Mutual Insurance Company.” The

charges included conduct well beyond a simple agreement to violate the law.13

12

The independent resolution of loss during the respondent’s removal hearing, however,

must take into account the ruling in Alaka v. Att’y Gen., supra, which holds that losses

arising from charges or conduct that did not result in conviction may not be used to calculate

the loss to a victim. Hence, the DHS must prove a connection between the loss and the

specific conduct that led to the respondent’s conviction.

13

The Eleventh Circuit in Obasohan v. U.S. Att’y Gen., supra, at 789 n.8, questions whether

a conspiracy charge can lead to loss, as the convicted conduct in a conspiracy is the

agreement to commit a crime, not the commission of the substantive offense. We are not

required to resolve this issue, but we note that section 101(a)(43)(U) of the Act specifically

covers both attempts and conspiracies involving all other subparagraphs of the aggravated

felony definition. Requiring an actual loss exceeding $10,000 from attempts and

conspiracies would seem to defeat the very purpose behind section 101(a)(43)(U). See

generally Perez v. Elwood, 294 F.3d 552, 557 n.1 (3d Cir. 2002) (observing, in relation to

(continued...)

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The Immigration Judge refused to consider the PSR, however, because he

believed it to be beyond the scope of permissible evidence. We acknowledge

that a PSR may have shortcomings. There can be questions as to the accuracy

of the report, and the information in it may have been assessed against a

“preponderance of the evidence” standard. Thus, the respondent should have

an opportunity to object and to offer evidence of inaccuracies that may not

have had a bearing on the criminal case, but that do have a bearing on the

removal case. Importantly, neither party approached the hearing below with

the understanding that testimonial evidence could be offered directly to the

Immigration Judge. While the respondent did not offer evidence to refute the

DHS’s exhibits, we cannot discount the possibility that he possesses such

evidence. In any event, we are not permitted to make findings of fact for the

first time on appeal. Accordingly, a remand is required.

IV. CONCLUSION

Our ruling today represents a departure from the precepts that have been

presumed to apply in immigration hearings involving aggravated felony

charges arising under section 101(a)(43)(M)(i) of the Act. We leave for

another day any questions that may arise with respect to circuit law that may

be in tension with this decision, as we ordinarily follow circuit law in cases

arising within the particular circuit and the grounds for any departure would

need to be developed in the context of specific cases. See Nat’l Cable &

Telecomms. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005).

Nevertheless, we conclude that the statute governing removal for an

aggravated felony conviction involving fraud or deceit with a loss exceeding

$10,000 demands two types of determinations. The first is a categorical

inquiry into a conviction under a criminal statute with an element of fraud or

deceit. The second is an ordinary evidentiary inquiry into whether the loss

associated with the fraudulent conduct encompassed by the conviction exceeds

$10,000. The second inquiry cannot be confined to the categorical or modified

categorical approach because it does not involve a search for the elements of

the crime, even though conviction record information may suffice in making

this independent “loss” determination.

(...continued)

a money laundering conspiracy conviction charged under sections 101(a)(43)(D) and (U),

that the “amount of money to be laundered in the conspiracy for which [the alien] was

convicted exceeded $10,000”); Matter of Onyido, 22 I&N Dec. 552 (BIA 1999) (rejecting,

in the context of an “attempt” allegation, the contention that section 101(a)(43)(U) requires

that a victim suffer an actual loss exceeding $10,000).

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In this case, the Immigration Judge erred in declining to consult evidence

outside the record of conviction in order to determine the amount of loss

resulting from the respondent’s criminal conduct. Accordingly, we find it

necessary to remand the case to the Immigration Judge so that both parties may

have the opportunity to submit evidence bearing on the question of

removability.

ORDER: The appeal of the Department of Homeland Security is sustained.

FURTHER ORDER: The record is remanded to the Immigration Judge for

further proceedings consistent with the foregoing opinion and for the entry of

a new decision.

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