June 15, 2009

Supreme Court Decides Nijhawan v. Holder

On June 15, the Supreme Court decided Nijhawan v. Holder, No. 08-495.

An alien who is convicted of an "aggravated felony" after entering the United States may be deported. An "aggravated felony" includes "an offense that . . . involves fraud or deceit in which the loss to the . . . victims exceeds $10,000." Nijhawan was convicted of conspiracy to commit mail fraud, wire fraud, bank fraud and money laundering, but the jury made no finding as to the amount of the loss caused by his actions because the amount was not an element of any of the offenses. During the sentencing phase of his trial, however, he stipulated that the loss exceeded $100 million, and he was sentenced to imprisonment and restitution of $683 million. The government later sought to deport him, and the immigration judge, the Board of Immigration Appeals and the U.S. Court of Appeals for the Third Circuit all agreed that the conviction involved an "aggravated felony."

The Supreme Court affirmed unanimously. It rejected Nijhawan's argument, based on prior cases interpreting the Armed Career Criminal Act, that the definition of "aggravated felony" refers to a specific category of crime in which the amount of loss was a necessary element of the offense. Rather, the Court held, the statutory language here refers to the specific circumstances of the offense that the defendant committed. The aggravated felony statute includes a number of provisions that would make no sense if they were interpreted as limited to a category of offenses, because there are no offenses whose elements are defined by those categories. The language of the $10,000 threshold here is structurally similar to those other provisions. Moreover, interpreting the statute as applying only when the amount of the loss was an element of the offense would leave the provision with little, if any, meaningful application, because only a handful of federal and state fraud and deceit statutes, most of which either are very specialized in their scope or impose a monetary threshold significantly higher than $10,000, would be encompassed.

The Court noted that, even under the circumstance-based interpretation of the statute that it adopted, a potential deportee has an opportunity, at least at the immigration hearing, and potentially in the sentencing phase of the original trial as well, to dispute whether the circumstances of his or her case qualify as an aggravated felony. There was nothing fundamentally unfair about the immigration judge's reliance on sentencing-related material, rather than just the elements of the charging document or the jury's findings, in finding that the circumstances here permitted Nijhawan's deportation.

Justice Breyer delivered the opinion of the unanimous Court.

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