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.


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