# Nijhawan v. Attorney General of the United States

> Court of Appeals for the Third Circuit · May 2, 2008 · 523 F.3d 387

URL: https://www.frixlaw.com/law-library/cases/9631691

## Case

- **Full name:** Manoj NIJHAWAN, Petitioner, v. ATTORNEY GENERAL OF the UNITED STATES, Respondent
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** May 2, 2008
- **Citations:** 523 F.3d 387; 2008 U.S. App. LEXIS 9567; 2008 WL 1914756
- **Precedential status:** Published
- **Opinion:** Dissent by Stapleton
- **Judges:** Rendell and Stapleton, Circuit Judges, and Irenas
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9631691

## How later opinions describe it (automated extraction)

- stating that the modified categorical approach typically "involve[s] ‘divisible’ statutes, where the prior criminal offense, by statute, includes a wide range of activity but the requisite enhancing provision ... requires one or more particular elements that may or may not hav…
- holding that a conviction for conspiracy to commit fraud in violation of 18 U.S.C. § 371 is categorically a crime involving fraud or deceit
- holding that consideration of a judgment order was permissible under a Shepard analysis
- noting that the modified categorical approach applies to cases involving “divisible” statutes of conviction

## Opinion text

STAPLETON, Circuit Judge,
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 $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 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), and further explained in Shepard v. United States, 544 U.S. 13 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (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” *400 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 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 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 , 125 S.Ct. 1254 (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 (“ ‘[IJf 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 [ 110 S.Ct. 2143 ]. 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 *401 In sum, I agree with the Court of Appeals 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 ree-ord of conviction at all? Absent the conviction requirement, the standards become arbitrary. 15
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 estab *402 lish “that a prior conviction ‘necessarily’ involved ([or] a prior plea necessarily admitted) facts equating to [the generic offense in the INA statute].” Shepard, 544 U.S. at 24 , 125 S.Ct. 1254 . 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 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.
Dulalr-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 *403 order restitution 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 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 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. Ash *404 croft, 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 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,
“[ujnder 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 , 110 S.Ct. 2143 ). 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 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 conclusion that § 1101(a)(43)(M)(i) invites further inquiry *405 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 , 125 S.Ct. 1254 . 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 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
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 máy 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 *406 § 1227 conviction requirement applies to the “fraud or deceit” component of § 1101(a)(43)(M)(i), but that the loss 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 convicted of any particular loss, I would grant the petition for review.
. 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).
. See Conteh v. Gonzales, 461 F.3d 45 (1st Cir.2006).
.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 consti *401 tutional 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 the INA before Shepard articulated its Sixth Amendment rationale. Dulal-Whiteway, 501 F.3d at 132-33 . See Shepard, 544 U.S. at 20 , 125 S.Ct. 1254 ("certainly, 'the practical difficulties and potential unfairness of a factual approach are daunting,’ no less in pleaded than in litigated cases”) (internal citation omitted).
. 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-sen-tence investigation report (“PSI”), or to facts in a police report, or to select evidence presented in 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 testimony presented in the removal hearing: the Court reasoned that restitution orders (memorialized in the final judgment) were part of the "record of conviction,” *402 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.
. 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.
. 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 .
. Singh recognized that either (1) a statute of conviction containing a disjunctive element under which one part of the 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 .
.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 defendant upon entering the plea,” to determine precisely what conduct the defendant pled guilty to. Shepard, 544 U.S. at 20 , 125 S.Ct. 1254 . 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 *405 had largely focused — but also may undertake an analogous inquiry, looking to “charging documentsf] and jury instructions to determine whether an earlier conviction after trial was for [the generic enumerated offense].’’ Shepard, 544 U.S. at 16 , 125 S.Ct. 1254 . 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 , 125 S.Ct. 1254 .
. 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 that case.
. 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.
. 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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9631691. Public record. Not legal advice.