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No. 08-495

 

In the Supreme Court of the United States

MANOJ NIJHAWAN, PETITIONER

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

GREGORY G. GARRE
Solicitor General
Counsel of Record
GREGORY G. KATSAS
Assistant Attorney General
DONALD E. KEENER
JENNIFER J. KEENEY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether petitioner's conviction for conspiracy to commit bank fraud, mail fraud, and wire fraud qualifies as a conviction for conspiracy to commit 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) and (U), where petitioner stipulated for sentencing purposes that the victim loss associated with his fraud offense ex ceeded $100 million, and the judgment of conviction and restitution order calculated total victim loss as more than $680 million.

 

 

In the Supreme Court of the United States

No. 08-495

MANOJ NIJHAWAN, PETITIONER

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-43a) is reported at 523 F.3d 387. The decisions of the Board of Immigration Appeals (Pet. App. 44a-51a) and the im migration judge (Pet. App. 54a-61a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on May 2, 2008. A petition for rehearing was denied on July 17, 2008 (Pet. App. 62a-63a). The petition for a writ of certiorari was filed on October 14, 2008. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner is a native and citizen of India who en tered the United States as an immigrant in July 1985. Pet. App. 55a. In 2002, petitioner was arrested and indicted for his involvement in a fraudulent scheme to ob tain "hundreds of millions of dollars" in loans from banks. Id. at 2a (internal quotation marks and citation omitted); see A.R. 283. After a jury trial, petitioner was convicted of conspiracy to commit bank fraud, mail fraud, and wire fraud, in violation of 18 U.S.C. 371, and of conspiracy to commit money laundering, in violation of 18 U.S.C. 1956(h). Pet. App. 2a-3a, 45a.

The federal bank fraud, mail fraud, and wire fraud statutes do not require proof of any particular amount of loss to the victim or victims, see 18 U.S.C. 1344; 18 U.S.C. 1341; 18 U.S.C. 1343, and the jury did not find any particular amount of loss in reaching its verdict, see Pet. App. 3a. For purposes of sentencing, however, peti tioner stipulated that the loss from the fraud conspiracy offense "exceeds $100 million." A.R. 264; see Pet. App. 3a. The judgment of conviction indicated that the total loss associated with the offenses was $683,632,800.23. A.R. 281; see Pet. App. 3a. Petitioner was sentenced to 41 months of imprisonment and ordered, jointly and sev erally with his co-defendants, to pay restitution in the amount of the loss. A.R. 281-282; see Pet. App. 3a, 45a.

2. While petitioner was serving his sentence, the De partment of Homeland Security (DHS) instituted remo val proceedings against him. Pet. App. 3a. DHS alleged that petitioner was removable for, inter alia, having been convicted of offenses that qualify as "aggravated felon[ies]," namely, a money laundering offense in vio lation of 18 U.S.C. 1956 in which the amount of the funds exceeded $10,000, see 8 U.S.C. 1101(a)(43)(D), and an offense involving fraud or deceit in which the loss to the victim or victims exceeded $10,000, see 8 U.S.C. 1101(a)(43)(M)(i). See 8 U.S.C. 1227(a)(2)(A)(iii) (provi ding that an alien who commits an aggravated felony is removable); 8 U.S.C. 1101(a)(43)(U) (providing that con spiracy to commit an offense described in 8 U.S.C. 1101(a)(43) qualifies as an aggravated felony). Contest ing his removability, petitioner filed a motion to termi nate the proceedings. Pet. App. 46a. The immigration judge (IJ) denied petitioner's motion to terminate, con cluding that both of petitioner's offenses qualified as aggravated felonies and thus supported the charges of removability. Id. at 56a-61a. The IJ subsequently or dered petitioner removed to India. Id. at 54a-55a.

3. The Board of Immigration Appeals (BIA) af firmed, based solely on the charge that petitioner had been convicted of an aggravated felony fraud offense as defined in Section 1101(a)(43)(M)(i). Pet. App. 44a-51a. As an initial matter, the BIA concluded that petitioner's conviction for conspiracy to commit bank fraud, mail fraud, and wire fraud qualified as a crime involving fraud or deceit. Id. at 47a. The BIA also concluded, based on the record evidence, that petitioner's convic tion was for an offense "in which the loss to the victim or victims exceed[ed] $10,000," 8 U.S.C. 1101(a)(43)(M)(i). Pet. App. 47a-50a. The BIA rejected petitioner's argu ment that his fraud conspiracy conviction did not qualify as a conviction for an aggravated felony because the jury was not required to find loss exceeding $10,000, reason ing that the loss threshold language is "used as a quali fier, in a way similar to length of sentence provisions in other aggravated felony subsections of [Section 1101(a)(43)]." Id. at 48a. The BIA also noted that, "giv en the breadth of the federal and state fraud statutes," "[t]o read the $10,000 loss requirement as a necessary element of the crime would virtually negate the fraud ground" of removability; Congress, the BIA concluded, "could not reasonably have intended" such a result. Ibid. Looking to petitioner's sentencing stipulation that the loss exceeded $100 million, as well as the judgment of conviction indicating that the loss involved was more than $680 million, the BIA concluded that petitioner had been convicted of an aggravated felony under Section 1101(a)(43)(M)(i). Id. at 50a-51a.

4. The court of appeals affirmed. Pet. App. 1a-43a. The court agreed with the BIA that petitioner's fraud conspiracy conviction was for an offense that "involve[d] fraud," id. at 5a-7a, and that, because petitioner's indict ment, sentencing stipulation, judgment of conviction, and restitution order clearly established that "the loss to the victim or victims exceed[ed] $10,000," the of fense qualified as an aggravated felony under Section 1101(a)(43)(M)(i), id. at 7a-26a.

The court of appeals rejected petitioner's argument that, under this Court's decisions in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), the determination whether his fraud offense involved the requisite loss must be limited to those facts necessarily found by a jury or necessarily admitted by a defendant entering a guilty plea. Pet. App. 9a-26a. The court explained that those decisions, which concerned whether prior state burglary convic tions qualified as convictions for "burglary" under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e), answered the question by employing a "formal categorical approach," under which a sentencing court examines only the statutory definition of the offense to determine whether it contains the elements of generic "burglary" under the ACCA, and a "modified" version of that approach, which looks to other documents to deter mine "the nature of the conviction itself and those ele ments that the jury necessarily found." Pet. App. 9a- 12a. In this case, the court of appeals explained, the loss language of Section 1101(a)(43)(M)(i) does not describe a required element of a generic offense, but is, rather, "qualifying" language, id. at 8a, that serves as "a limit ing provision on crimes that would otherwise qualify," and "invite[s] inquiry into the facts underlying the con viction at issue," id. at 12a-13a (quoting Singh v. Ash croft, 383 F.3d 144, 148 (3d Cir. 2004)). The court con cluded that Section 1101(a)(43)(M)(i) thus requires an inquiry into whether the record evidence establishes a loss exceeding $10,000, and whether the loss was "par ticularly tethered" to the specific fraud offense alleged to be an aggravated felony. Id. at 16a (quoting Knutsen v. Gonzales, 429 F.3d 733, 739-740 (7th Cir. 2005); see id. at 26a.

The court of appeals noted that a contrary rule would effectively raise the government's burden in removal proceedings from one of providing "clear and convinc ing evidence" of an alien's removability, see 8 U.S.C. 1229a(c)(3)(A), to one of "proof beyond a reasonable doubt." Pet. App. 24a. Moreover, the court noted, be cause "[m]ost fraud statutes, including the federal stat utes at issue here, do not contain loss as an element," such a rule "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." Id. at 25a. Finally, the court concluded, such a rule is unjustified by practical considerations concerning ease of proof, since "[i]t is well within the competence of a court to examine the record for clear and convincing evidence of loss caused by the conduct of conviction." Id. at 26a.

Judge Stapleton dissented. Pet. App. 27a-43a. In his view, Section 1227(a)(2)(A)(iii), which requires that an alien have been "convicted" of an "aggravated felony," "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)." Id. at 29a. That inquiry, Judge Stapleton concluded, must be limited to an examination of "the facts upon which the petitioner's prior conviction actually and necessarily rested." Id. at 28a; see id. at 29a, 33a, 43a. Because, "[i]n this case, loss was not an element of the crime of conviction," and the jury was therefore not required to find any particular loss in order to convict, Judge Stapleton concluded that petitioner's fraud offense did not qualify as an "aggra vated felony" under Section 1101(a)(43)(M)(i). Id. at 33a.

ARGUMENT

Petitioner renews his contention (Pet. 14-26) that his conviction for involvement in a multi-million-dollar fraud conspiracy does not qualify as a conviction for an of fense 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) and (U), because the jury was not re quired to find a particular amount of loss in order to convict. The court of appeals correctly rejected peti tioner's contention, and although its analysis diverges from decisions of other courts of appeals, a recent deci sion of the Board of Immigration Appeals may serve as a vehicle for resolving any disagreement among the courts of appeals as to the question presented. Further review is not warranted.

1. The court of appeals correctly held that petitioner was convicted of an offense that qualifies as an aggra vated felony under 8 U.S.C. 1101(a)(43)(M)(i) and (U), because petitioner was convicted of conspiracy to com mit an offense that "involves fraud," and because peti tioner's sentencing stipulation, criminal judgment, and restitution order clearly established that petitioner's fraud offense was one "in which the loss to the victim or victims exceeds $10,000." 8 U.S.C. 1101(a)(43)(M)(i). See Pet. App. 7a-26a.

a. Petitioner contends (Pet. 17-24) that, in determin ing whether the loss requirement was satisfied, the court of appeals should have restricted its inquiry "at most[] to what was necessarily established in the adjudi cation of guilt," consistent with the "categorical ap proach" set forth in this Court's decisions in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005). Petitioner's conten tion lacks merit.

As the court of appeals explained (Pet. App. 9a-12a), the categorical approach of Taylor and Shepard governs the range of documents that may be used to establish that a defendant's prior conviction categorically quali fies as a predicate for a criminal sentencing enhance ment, based on an examination of the statutory elements of the defendant's offense. See Taylor, 495 U.S. at 602; Shepard, 544 U.S. at 16, 26. Neither case involved re moval proceedings, and neither decision purported to limit the kinds of evidence that the government may adduce to establish required features of a prior offense other than its elements.

In a removal proceeding involving charges under Section 1101(a)(43)(M)(i), the specificity of the loss re quirement language makes clear that loss exceeding $10,000 is not a required element of the offense of con viction, but is rather "qualifying" language used to iden tify a subset of fraud offenses that constitute aggravated felonies, Pet. App. 8a, 14a, and therefore "invites inquiry into 'the underlying facts of the case,'" id. at 12a (quot ing Singh v. Ashcroft, 383 F.3d 144, 148 (3d Cir. 2004)). As the court of appeals noted, a contrary interpretation "would render § 1101(a)(43)(M)(i) largely inoperative," since "[m]ost fraud statutes, including the federal stat utes at issue here, do not contain loss as an element" that must be "found by the jury or explicitly admitted to in a guilty plea." Id. at 25a. The same is true of the other prong of the definition of "aggravated felony" in Section 1101(a)(43)(M), which encompasses any offense that "is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Govern ment exceeds $10,000," 8 U.S.C. 1101(a)(43)(M)(ii), since 26 U.S.C. 7201 likewise does not contain a revenue- loss element. See 26 U.S.C. 7201 ("Any person who will fully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall * * * be guilty of a felony[.]"). It is unlikely that Congress intended for the loss requirements of Section 1101(a)(43)(M)(i) and (ii) virtually to nullify those provi sions. Cf. Taylor, 495 U.S. at 594 (rejecting an interpre tation of the term "burglary" in 18 U.S.C. 924(e) that would track the common-law definition, reasoning that few state burglary statutes conform to the common-law definition, and such an interpretation therefore "would come close to nullifying that term's effect in the stat ute").

b. Contrary to petitioner's contentions (Pet. 19-21), the court of appeals' conclusion is entirely consistent with the statute's use of the words "convicted," "that," and "in." As an initial matter, the statutory requirement that an alien be "convicted" of an aggravated felony pro vides little aid to petitioner, since the court of appeals held that petitioner was removable because of his crimi nal conviction for conspiracy to commit fraud. In con cluding that petitioner had a qualifying conviction, the court examined the statutory definitions of the federal bank fraud, mail fraud, and wire fraud offenses that formed the basis for the charges against him, and con cluded that those statutory definitions categorically de scribe offenses that "involve fraud or deceit," 8 U.S.C. 1101(a)(43)(M)(i). See Pet. App. 6a-7a. The court's fur ther conclusion that, as a factual matter, the fraud of fense was one "in which the loss to the victim or victims exceeds $10,000," ibid., does not mean, as petitioner sug gests (Pet. 18 & n.6), that the court determined that he was removable merely because he had committed crimi nal conduct. Rather, having already determined that petitioner had been convicted of an offense that categor ically qualifies as an offense involving fraud or deceit, the court, consistent with the language of the statute, then inquired whether the conduct underlying that con viction resulted in victim loss greater than $10,000.

Nor does the court of appeals' decision "rip[]" the loss requirement language "out of the larger context of a restrictive clause beginning with the word 'that'" and thus "render[] 'that' a nullity." Pet. 19. The word "that," as applied to subparagraph (i) in 8 U.S.C. 1101(a)(43)(M), serves the basic function of identifying crimes "that * * * involve[] fraud or deceit." The text, beginning with "in which," then confines the qualifying fraud or deceit offenses to those resulting in a loss of $10,000 or more. The court's decision thus appropri ately interprets the loss requirement language as a "limiting provision" on fraud offenses "that would other wise qualify" as aggravated felonies under Section 1101(a)(43)(M)(i). See Pet. App. 13a (quoting Singh, 383 F.3d at 161).

And finally, the fact that the loss requirement is in troduced by the words "in which" rather than "for which" cannot bear the significance that petitioner (Pet. 20) ascribes to it; the word "in" does suggest that the required loss must be within the scope of the criminal conduct, but that is not, as petitioner suggests, the equivalent of a requirement that the statutory definition of the offense contain a loss element, such that a loss finding would necessarily be part of a jury verdict or guilty plea.

c. Petitioner also errs in contending (Pet. 22) that the court of appeals' decision "radically alter[s] the bur den of proof for cases such as this," because the court relied in part on a restitution order governed by a pre ponderance of the evidence standard. As the court re peatedly made clear, it applied the requisite "clear and convincing evidence" standard, and found such evidence in the indictment, stipulation, judgment of conviction, and the restitution order, all of which demonstrated that petitioner's fraud offense involved a loss far exceeding $10,000. Pet. App. 17a, 24a, 26a. As the court noted, there is "no argument, let alone anything in the record, that [petitioner] was convicted of an offense involving less than $10,000." Id. at 17a.

d. Petitioner contends (Pet. 23) that the court of ap peals' approach imposes substantial added burdens on courts in removal proceedings. But it is, as the court of appeals noted, "well within the competence of a court to examine the record for clear and convincing evidence of loss caused by the conduct of conviction." Pet. App. 26a. And although petitioner cites the BIA's decision in In re Pichardo-Sufren, 21 I. & N. Dec. 330, 335 (1996), for the proposition that "when deportability is based upon con viction the categorical approach is the only 'workable approach,'" Pet. 23, it is notable that the BIA itself has endorsed the approach adopted by the court of appeals. See In re Babaisakov, 24 I. & N. Dec. 306 (2007). More over, in a recent opinion, the Attorney General expressly rejected the proposition that "the administrative bur dens associated with inquiries beyond the record of con viction should preclude such inquiries," noting that con siderations of administrative efficiency must be "sec ondary to the determination and enforcement of statu tory language," and that, in any event, "[i]mmigration judges are well versed in case management," and capa ble of avoiding "relitigat[ion] of the conviction itself." In re Silva-Trevino, 24 I. & N. Dec. 687, 702-703 (A.G. 2008) (internal quotation marks and citation omitted).

2. The court of appeals' decision in this case is con sistent with the decisions of the First and Fifth Circuits. See Conteh v. Gonzales, 461 F.3d 45, 55, 59 (1st Cir. 2006); Arguelles-Olivares v. Mukasey, 526 F.3d 171, 177-179 (5th Cir. 2008). As noted above, it is also consis tent with the BIA's recent precedential decision in Babaisakov.

In Babaisakov, the BIA clarified that the Taylor and Shepard categorical approach applies in immigration proceedings only insofar as the relevant statute "de mands a focus exclusively on the elements of a prior con viction." 24 I. & N. Dec. at 309. Where the "removal charge requires proof of some fact that is not an element of the predicate offense," the BIA concluded that the factfinder may consider "any evidence[] otherwise ad missible in removal proceedings" that bears on the ques tion. Id. at 317, 320-321. Based on the language, his tory, and purpose of the provision, the BIA held that the loss requirement of Section 1101(a)(43)(M)(i) is such a non-element factor. Id. at 309-316. The BIA thus held that a court considering whether an alien's offense qualifies as an aggravated felony under Section 1101(a)(43)(M)(i) must make two types of determina tions: (1) a categorical inquiry into whether the convic tion is for a crime involving fraud or deceit; and (2) an "ordinary evidentiary inquiry" into whether the loss exceeded $10,000. Id. at 322. In his recent decision in Silva-Trevino, the Attorney General expressly approved the BIA's decision in Babaisakov, and concluded that immigration judges may also look beyond materials qualified under Taylor and Shepard to determine whether an alien has been convicted of a "crime involv ing moral turpitude" under 8 U.S.C. 1182(a)(2)(A)(i)(I)). See 24 I. & N. Dec. at 701-702; see also id. at 689-690.

As petitioner correctly notes (Pet. 14-15), and as the court below also acknowledged (Pet. App. 9a, 21a-22a), other courts of appeals have taken different approaches to the question. See Dulal-Whiteway v. DHS, 501 F.3d 116, 131, 133-134 (2d Cir. 2007) (court must determine whether loss threshold has been met based solely on "information appearing in the record of conviction that would be permissible under the Taylor-Shepard ap proach in the sentencing context"); Kawashima v. Mu kasey, 530 F.3d 1111, 1118 (9th Cir. 2008) (per curiam) (court may not consult any extrinsic documentation un less monetary loss is an element of the offense of convic tion), petition for rehearing en banc pending, Nos. 04- 74313 and 05-74408 (filed Sept. 15, 2008); cf. Obasohan v. United States Att'y Gen., 479 F.3d 785, 790-791 (11th Cir. 2007) (restitution order did not discharge govern ment's burden of establishing an alien's removability).

Significantly, however, both Dulal-Whiteway and Obasohan were decided before the BIA issued its pre cedential decision in Babaisakov, which is entitled to deference under INS v. Aguirre-Aguirre, 526 U.S. 415, 424-425 (1999), and neither the Second Circuit nor the Eleventh Circuit has since addressed the import of the BIA's decision in that case.1 And although the Ninth Circuit panel's decision in Kawashima postdates the BIA's decision in Babaisakov, the panel did not address Babaisakov in its per curiam decision. As the Seventh Circuit recently noted, those court of appeals decisions that "predate (or do not notice) Babaisakov * * * re quire reexamination now that the [BIA] has fully devel oped its own position, for administrative discretion be longs to the agency rather than to the court." Ali v. Mu kasey, 521 F.3d 737, 742-743 (7th Cir. 2008) (citing Na tional Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005)), petition for cert. pending, No. 08-552 (filed Oct. 23, 2008); see id. at 743 (deferring to the BIA's decision in Babaisakov). Because the BIA's precedential decision in Babaisakov may prompt other courts to reconsider their resolution of the question, and thus may alter or eliminate any differences between the courts' approaches, this Court's intervention is not war ranted at this time.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

GREGORY G. GARRE
Solicitor General
GREGORY G. KATSAS
Assistant Attorney General
DONALD E. KEENER
JENNIFER J. KEENEY
Attorneys

 

 

DECEMBER 2008

1 The Second Circuit has noted the conflict between its decision in Dulal-Whiteway and Babaisakov. See Gertsenshteyn v. United States Dep't of Justice, 544 F.3d 137, 144 n.7 (2d Cir. 2008); James v. Mukasey, 522 F.3d 250, 257 n.8 (2d Cir. 2008). But neither Gertsenshteyn nor James concerned the scope of evidence a court may consult in deter mining whether the loss threshold of Section 1101(a)(43)(M)(i) is satis fied, and neither decision addressed the question whether Babaisakov requires reexamination of Dulal-Whiteway. See Gertshensteyn, 544 F.3d at 145-148 (concluding that a court determining whether an of fense qualifies as an aggravated felony under 8 U.S.C. 1101(a)(43)(K)(ii) is limited to considering documents qualified under Taylor and Shep ard); James, 522 F.3d at 255, 259 (noting that it remains an open ques tion in the circuit whether the modified categorical approach applies where the alien was convicted under a "statute . . . where only one type of generic conduct . . . is proscribed, but an alien can commit the conduct both in ways that would render him removable . . . and in ways that would not"; and remanding to the BIA to consider the ques tion in the first instance) (internal quotation marks and citation omit ted).