Nijhawan v. Holder (U.S Supreme Court)

In this case, the U.S. Supreme Court settled a longstanding conflict among the federal circuit courts as to the significance of the monetary threshold of $10,000 for the fraud and deceit offense that is listed as one of the aggravated felonies in 8 U.S.C. § 1227(a)(2)(A)(iii). The primary question the Court considered was whether the $10,000 threshold was a necessary element of the crime of fraud and deceit which a prosecutor must prove in the underlying criminal case in order for an alien to become deportable, or did the $10,000 threshold refer to the general circumstances of a crime involving fraud and deceit which may be established with extrinsic evidence? The Court decided that the latter, a circumstance-specific approach, was appropriate to determine whether an alien was deportable for having committed an aggravated felony.

The Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) provides that an alien “convicted of an aggravated felony any time after admission is deportable.” 8 U.S.C. 1101(a)(43) lists the types of crimes which would constitute an “aggravated felony.” One such enumerated crime is described as “an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” There were two competing interpretations of the meaning of these provisions. This first is that in order to determine whether a prior conviction is an aggravated felony, the immigration judge must look to the specific criminal fraud or deceit statute to determine whether it contains a threshold of $10,000 or more. That is, did the criminal statute contain a monetary element which is $10,000 or more? This is known as the “categorical approach” to interpretation. The second widely accepted interpretation is that the provisions referred to the specific way in which an offender committed a crime which involved fraud and deceit. Generally, did such crime involve a loss of $10,000 or more to the victim?

The above distinctions are hyper-technical and only a lawyer or judge would even bother parsing such fine lines. However, the consequences are serious because the first interpretation would mean that the government, in prosecuting a deportation case, has a much greater burden of proof in order to prevail. The government would need to show that the offender was convicted of a specific fraud and deceit crime that included as an element of the crime a threshold of $10,000. In simple terms, the convicting jury or judge must have found beyond a reasonable doubt that the offender caused over $10,000 in economic loss to his or her victim. Even if an alien was convicted of a crime involving fraud and deceit, he or she would not be deportable as an aggravated felon unless the prosecutor proved to the jury that the offender caused over $10,000 in loss to the victim. The second interpretation, on the other hand, is less favorable to the alien in a deportation case. The government only need to show that the offender was convicted of a crime involving fraud or deceit, and in the commission of such crime caused at least $10,000 in economic harm to his or her victim. The economic loss could be established with evidence a jury might not have considered (e.g., a plea bargain agreement or other out of court document).

The facts of Nijhawan case best illustrates how the competing theories of interpretation works in favor of the government or alien in a deportation case. Nijhawan immigrated to the U.S. in 1985. In 2002, a jury found him guilty of conspiracy to commit mail fraud, wire fraud, bank fraud, and money laundering in violation of U.S.C. §§ 371, 1341, 1343, 1344, 1956(h). None of the underlying criminal statutes require a finding that the victim suffered any particular amount of loss, so the prosecutor did not prove a specific amount of loss and the jury made no specific finding of the amount of loss. At sentencing, however, Nijhawan stipulated that his criminal activities caused more than $100 million in losses to his victims. Following his conviction, ICE sought to remove him as an aggravated felon. Nijhawan argued that he was not an aggravated felon under 8 U.S.C. 1101(a)(43) because the prosecutor of his criminal case did not prove that he caused more than $10,000 in economic loss. If the Supreme Court had agreed with him and applied the categorical approach as he had urged, he would not have been deportable because he was not, by definition, an aggravated felon.

The Court held otherwise, however, and found that Nijhawan’s admission at the sentencing hearing was sufficient evidence that he caused more than $10,000 in economic loss. For this reason, the government satisfied its burden of proof for his being considered an aggravated felon under the circumstance-specific approach to interpreting the immigration statutes.