Tuesday, June 16, 2009

Supreme Court upholds Third Circuit's classification of mail fraud offense as an "aggravated felony"

Petitioner, an alien, was convicted of conspiracy to commit mail fraud, wire fraud, bank fraud and money laundering. No jury finding was made regarding the amount of loss for those offenses because the amount of loss was not an element of the offense for any count of conviction. Instead, Petitioner stipulated at sentencing to a loss that exceeded $100 million. Near the end of Petitioner's term of imprisonment, the Government sought to remove Petitioner from the United States based on his commission of an "aggravated felony," namely, an offense that involved fraud or deceit in which the loss to the victims exceeded $10,000 (8 U.S.C. § 1101(a)(43)(M)(i)). Petitioner argued that under the categorical approach of Taylor v. United States, 495 U.S. 575 (1990), both the "fraud and deceit" and "loss" elements of § 1101(a)(43)(M)(i) must have been found by a jury in order for him to have been convicted of an aggravated felony.

The Supreme Court in Nijhawan v. Holder, No. 08-495 (June 15, 2009) affirmed the Third Circuit's holding that the Immigration Judge could inquire into the underlying facts of the prior fraud conviction to determine whether the loss to the victims exceeded $10,000. Resolving a circuit split on the issue, the Court concluded "that Congress did not intend subparagraph (M)(i)'s monetary threshold to be applied categorically, i.e., to only those fraud and deceit crimes generically defined to include [the $10,000 threshold]. Rather, the monetary threshold applies to the specific circumstances surrounding an offender's commission of a fraud and deceit crime on a specific occassion." The Court found that a "circumstance-specific" approach, rather than a "categorical approach," was necessary because (1) the "aggravated felony" statute at issue differed from the ACCA statute at issue in Taylor by listing both generic and specific circumstance offenses, (2) subparagraph (M)(i)'s language, containing the words "in which" (modifying "offense") can refer to the conduct involved "in" the commission of the offense of conviction, rather than to the elements "of" the offense, and (3) applying a categorical approach would leave subparagraph (M)(i) with little, if any, meaningful application. Finally, the Court rejected Petitioner's fairness argument, concluding that Petitioner and others in similar circumstances had the opportunity to contest the loss amount at both the sentencing and deportation hearings.

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