Nijhawan v. Holder, the aggravated felony for purposes of removal statutory interpretation case

Posted in Uncategorized by Ryan Locke on June 17, 2009

This case, decided earlier this week by a unanimous Supreme Court, at first seems pretty boring (especially since they’re following the decisions of the trial and appellate courts). The issue is one of statutory interpretation: does the $10,000 threshold that makes fraud an aggravated felony refer to the actual elements of the fraud or the underlying factual circumstances?

For example, pretend there are two crimes called second-degree littering and first-degree littering, both felonies . The only difference is that first-degree littering means that the loss you’ve caused is greater than $10,000 (and we’ll say that first-degree littering is punished more strictly than regular littering; you get a 6 point sentencing enhancement or something). You littered oil into a fragile ecosystem and the rescue effort takes $25K. The government could prove either crime—you littered oil, so they could prove second-degree littering, and the loss was greater than $10K, so they could prove first-degree littering. In exchange for a plea, the government only charges you with second-degree littering.

Now that you’ve been convicted of second-degree littering, let’s assume one more thing: you’re a legal permanent resident, an immigrant living here lawfully. This throws a wrench into the plan, because you can be removed if you’ve been convicted of an aggravated felon, 8 USC Sec. 1227(a)(2)(A)(iii). An aggravated felony includes offenses that cause losses greater than $10K, Sec. 1101(a)(43)(M)(i). You did caused losses greater than $10K but you plead to a crime where that’s not one of the elements. Did you commit an aggravated felony?

This is essentially the problem for Nijhawan. He pled to mail fraud to the tune of hundreds of millions of dollars, but the amount of money isn’t an element for mail fraud. In some circuits, this wouldn’t be an aggravated felony because the crime for which he’s being charged does not include the 10K threshold as an element—this is called the “categorical approach.” In other circuits, this would be an aggravated felony because the facts show he caused a loss greater than 10K—this is called the “circumstance-specific” approach.

The Supreme Court went with the latter circumstance-specific approach, mostly based on statutory interpretation: (1) the language of the provision is consistent with a circumstance-specific approach, (2) the provision should be read consistently with the one before it, which is identical and interpreted as a circumstance-specific approach, and (3) categorical construction would render the provision meaningless because no widely-applicable federal or state fraud statute contains a relevant monetary loss threshold.

The Court mentioned that the circumstance-specific approach can be problematic because the amount of loss isn’t necessarily contested in the underlying fraud conviction—for example, Nijhawan never contested the amount of loss because he entered into a plea agreement.

This is the biggest problem with this approach, and this ruling. In the above littering hypothetical, even the second-degree littering is an aggravated felony. Which path do you take: plea to the second-degree and get less time in prison and hope that you won’t be removed, or contest the amount but maybe get convicted of first-degree and spend more time in prison. If the amount is far above 10K—like the 25K in our example—then maybe this isn’t a hard choice. But what about 11K? Defense attorneys will need to pay careful attention to the amount of loss in plea agreements to preserve the client’s immigration status.


Posted in Uncategorized by Ryan Locke on June 14, 2009

There’s a fascinating article in the NYT Magazine today about prisons.  The author visits a prison in Austria whose unique architecture sets it apart from prisons we have here in the US.  Worth a read.

It sounds odd to say, but it’s nonetheless true: we punish people with architecture.  The building is the method.  We put criminals in a locked room, inside a locked structure, and we leave them there for a specified period of time.

Does imprisonment work?  It seems like a bottom-line question, but the answer depends on what you want prisons to do, and that’s not an easy thing to decide.  Even if we assume that there are good and sensible reasons to incarcerate people, there remains some debate about what purpose is served.  Deterrence is often proposed as a goal, but no one really knows whether the prospect of incarceration gives would-be criminals pause, and in any case we quickly reach the realm of diminishing returns….

In fact, though most of us are reluctant to admit it, we mainly use prisons as storage containers, putting people there with the hope that, if nothing else, five years behind bars means five years during which they can’t commit more crimes. It’s called warehousing, and we do a lot of it….

[P]rominent architects aren’t lining up to take on the task of making prisons better.  Most ]architects] would be happy to design a courthouse, but few are quite as eager to build a penitentiary, though the two are merely opposite ends of a single system.  New prison construction is generally parceled out to a handful of large and more-or-less anonymous firms — a process that discourages innovation.  Whoever gets the commission is told how many beds are needed, what kinds of security, how much room for the clinic, the recreation area, the guardhouses.  They’re big-box prisons, as anonymous and uninflected as so many Wal-Marts.

pocket constitution

Posted in Uncategorized by Ryan Locke on June 4, 2009

As someone who always keeps a pocket Constitution in my backpack or briefcase, I found this amusing:

Cheney’s efforts to sway Congress toward supporting waterboarding went beyond secret meetings in Washington. In July 2005, he sent David S. Addington, his chief counsel at the time, to travel with five senators — four of them opponents of the CIA interrogation methods — to Guantanamo Bay, Cuba. On the trip, Sen. Graham urged Addington to put the interrogations at secret prisons and the use of military tribunals into a stronger constitutional position by pushing legislation through Congress, rather than relying on executive orders and secret rulings from Justice Department lawyers.

Subsequent court rulings would challenge the legality of the system, and Justice Department lawyers were privately drafting new rules on interrogations. Addington dismissed the views of Graham, who had been a military lawyer.

“I’ve got all the authority I need right here,” Addington said, pulling from his coat a pocket-size copy of the Constitution, according to the senator, suggesting there was no doubt about the system’s legal footing.
Next time someone questions my decisions, I’m going to slowly reach into my coat and pull out my pocket Constitution.