Nijhawan v. Holder


Whether the petitioner's conviction for fraud where he stipulated that his fraud caused a loss of more than $100 million but where the jury did not find the amount of the loss for which the petitioner was individually responsible qualifies as an aggravated felony under 8 U.S.C. 1101(a)(43)(M)(i) of the Immigration and Nationality Act.

Oral argument: 
April 27, 2009

Manoj Nijhawan was convicted of conspiracy to commit bank, mail, and wire fraud, and for conspiracy to commit money laundering. Upon his conviction, Immigration Court proceedings were brought against him and he was found to be subject to deportation under 8 U.S.C. § 1101(a)(43)(M)(i) ("Subsection (M)(i)"). Subsection (M)(i) provides that an "aggravated felony," for purposes of deportation, includes a conviction for "an offense that (i) involves fraud or deceit in which the loss to the victim exceeds $10,000." On appeal, the Third Circuit Court of Appeals held that the loss determination used for sentencing was sufficient to meet the loss requirement under Subsection (M)(i), even though it was not a necessary element of his conviction. Nijhawan challenges this ruling arguing that both the "fraud or deceit" and "loss" elements must be found by a jury in order for Subsection (M)(i) to apply. Accordingly, he argues that he cannot be deported because the elements of the criminal statute under which he was convicted do not match those required for deportation under Subsection (M)(i). The United States argues that the loss element follows a "qualifier" and therefore need not be an element of the conviction for Subsection (M)(i) to apply.

Questions as Framed for the Court by the Parties 

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 exceeded $100 million, and the judgment of conviction and restitution order calculated total victim loss as more than $680 million.


Manoj Nijhawan, an Indian citizen, lawfully entered the United States in July, 1985 and became a permanent resident. See Nijhawan v. Att'y Gen. of the U.S., 523 F.3d 387 (3d Cir. 2008); On the Docket: Supreme Court News: Nijhawan v. Holder. Nijhawan, the Deputy General Manager of Allied Deals, Inc., was part of a group of people who devised a scheme to deprive major banks of "hundreds of millions of dollars." Nijhawan, 523 F.3d at 389. Nijhawan and his accomplices encouraged the banks to make large loans to their companies, including Allied Deals, Inc. See id.

For his role in the scheme, Nijhawan was named in Counts 1 and 30 of the indictment, which contained "the general loss allegation as to the entire fraud scheme and involved conspiracy to commit bank fraud, mail fraud, and wire fraud in violation of 18 U.S.C. § 371" and "conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h)." Id. At trial, the jury convicted Nijhawan of both counts, but it did not determine the specific amount of the banks' loss that Nijhawan caused. See id. For sentencing purposes, Nijhawan stipulated that the total loss was greater than $100 million. See id. The trial judge recorded the amount of the loss as $683,632,800.23. See id. Nijhawan was sentenced to forty-one months in prison, and the court ordered him to pay $683,632,800.23 in restitution. See id. Nijhawan did not appeal. See id.

Given Nijhawan's convictions for "a money laundering offense under 18 U.S.C. § 1956 for which the amount laundered exceeded $ 10,000," the government sought to remove Nijhawan from the United States under 8 U.S.C. § 1101(a)(43)(D) and under 8 U.S.C. § 1101(a)(43)(M)(i) ("Subsection (M)(i)"), for "a crime involving fraud or deceit in which loss to the victims exceeded $ 10,000." Id. An Immigration Judge ("IJ") sustained both of these charges and on February 22, 2006, ordered Nijhawan removed from the United States. See id.

Nijhawan appealed to the Board of Immigration Appeals ("BIA"), which affirmed the IJ's decision based only on Subsection (M)(i). See id. Nijhawan argued that the definition of "fraud" under the Immigration and Nationality Act should correspond with the common law meaning of "fraud." See id. The BIA rejected this argument. See id. In addition, Nijhawan argued that to meet the language in Subsection (M)(i), "the loss amount had to be adjudicated as part of his conviction, and was not." Id. The BIA also rejected this argument, reasoning that "although the jury had not found a specific dollar amount in rendering its guilty verdict, the IJ could properly find loss based on the stipulation of the facts for sentencing and the judgment of conviction stating that the loss involved [was] $683,632,800.23, jointly and severally." Id. at 390. Therefore, according to the BIA, Nijhawan was removable. See id.

Nijhawan appealed the decision of the BIA to the Court of Appeals for the Third Circuit, which rejected Nijhawan's challenge. See id. at 389. Nijhawan appealed to the Supreme Court of the United States, which granted certioriari on January 16, 2009. Nijhawan v. Holder, No. 08-495 (U.S. 2009).


An alien who has been convicted of an "aggravated felony" faces deportation under the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1227(a)(2)(A)(iii). 8 U.S.C. § 1101(a)(43)(M)(i) ("Subsection(M)(i)") provides that "an offense that (i) involves, fraud or deceit in which the loss to the victim exceeds $10,000" is an aggravated felony. See 8 U.S.C. § 1101(a)(43)(M)(i). Manoj Nijhawan was convicted of bank, mail, and wire fraud. See Nijhawan v. Att'y Gen. of the U.S., 523 F.3d 387, 389 (3d Cir. 2008). Following his conviction, the Government sought to remove Nijhawan under Subsection (M)(i). See Id. When determining whether Nijhawah could be removed under Subsection (M)(i), the Immigration Court relied on the amount of loss Nijhawan stipulated to for sentencing purposes, and determined that the loss exceeded $10,000. See Id. at 395. Nijhawan's criminal conviction did not require that the jury find the amount of loss caused by his crime in order to find him guilty. See Brief for Petitioner at 8. Nijhawan contends that the sentencing stipulation is insufficient to meet the $10,000 loss requirement of Subsection (M)(i), because the Subsection (M)(i) requires that the amount loss be found by the jury as part of the underlying conviction. See Brief for Petitioner at 23-29.

Does 8 U.S.C. § 1101(a)(43)(M)(i) Mandate that Loss Greater Than $10,000 be an Element of the Underlying Conviction?

To determine whether an alien is removable, some courts use the "categorical approach" which compares the elements found by the jury in the aliens' criminal conviction, to see if all elements needed for deportation were found by the jury. See Brief for Petitioner at 38-39. In Nijahwah's case, a court employing the categorical approach could not use loss amounts used in sentencing to calculate loss under Subsection (M)(i), because those amounts were not elements necessary for conviction in the underlying offense. See Id. at 41.

Nijhawan argues that court must use the categorical approach to determine whether the requirement for deportation under Subsection (M)(i) have been met. See Brief for Petitioner at 22. He contends that the plain language of Subsection(M)(i) shows that Congress intended that the aggravated felony of fraud to consist of two elements: (1) fraud or deceit and (2) a $10,000 loss. See Id. at 26. He contends that Subsection (M)(I) is a restrictive clause, and therefore that both elements must be proven before it will apply. See Id. at 28. Nijhawan contrasts the "in which" language of Subsection (M)(i) with other provisions of the INA which use the phrase "for which" when a qualifying factor is introduced, and argues that when Congress intended a post-conviction finding to be part of the aggravated felony definition it used "for which." See Id. at 29. Nijhawan cites "the controlling principle of statutory construction that the inclusion of language in one section and the omission of that language in another was intentional," and concludes that because Congress used the phrase "in which" in Subsection (M)(i), rather than "for which," it intended "in excess of $10,000" be part of the aggravated felony definition. See Id. at 29-31.

The Government counters that the plain language of Subsection (M)(i) does not require the amount of loss to be found in the underlying conviction, or that courts must apply the categorical approach. See Brief for Respondent at 15. It contends that Subsection (M)(i) has two restrictive clauses: the first indicates "that an offense may be treated as an aggravated felony if it ‘involves fraud or deceit'"; and the second, beginning with "in which," limits application of Subsection (M)(i) to felonies that result in a loss above $10,000. See Id. at 15. It argues that the second clause, though a limitation on the crimes to which Subsection (M)(i) applies, does not require that amount be an element of the underlying conviction; rather, it invites the adjudicator to inquire into the facts of the case to determine if that element is satisfied. See Id. at 15. It notes that when Congress amended the INA in 1994 and 1996, it expanded the definition of aggravated felony "to address what it concluded were serious problems associated with criminal aliens' presence in the United States." See Id. at 24. The Government argues that adopting a categorical approach would effectively remove the majority of "fraud or deceit" crimes from falling within Subsection (M)(i), and would contravene Congressional intent. See Id. at 24-34.

Does Judicial Precedent Require Use of the "Categorical Approach"?

Nijhawan argues that the Supreme Court's decisions in Shepard v. United States and Taylor v. United States show the Court's endorsement of the a modified categorical approach, albeit in a different context. See id. at 39-41 (discussing Shepard v. United States, 544 U.S. 13 (2005) and Taylor v. United States, 495 U.S. 575 (1990)). Nijhawan argues that because Taylor's endorsement of the categorical approach predates the addition of Subsection (M)(i) to the INA, Congress intended for the categorical approach to apply; otherwise it would have explicitly "carve[d] out an exception to Taylor". See id. at 38. Nijhawah also notes that the categorical approach has a long "pedigree in the immigration context" which predates the INA. See id. at 36. He argues that when Congress passed the INA, it did so in light of this pedigree, and that the categorical approach must therefore be used to determine whether a conviction can lead to removal. See id. at 37-38. Moreover, Nijhawah contends that if courts do not use the categorical approach, it will results in injustice because the necessary elements of the deportation statute could be proven by a lesser standard of proof. See id. at 38.

The Government argues that neither the language of Subsection (M)(i) or judicial precedent require the categorical approach to be applied. See Brief for Respondent at 34-35. The Government notes that the INA does not require a court to follow the categorical approach, and also notes that no Supreme Court decision has precluded the Attorney General from finding that the categorical approach should not be applied. See id. at 36. It also disputes the pedigree of the categorical approach in the immigration context, noting that the cases Nijhawan cites for this pedigree address only "crimes involving moral turpitude." See id. at 37. The Government distinguishes Taylor and Shepard from the instant case, noting that they both address sentencing under the Armed Career Criminal Act, not the INA. See id. at 39-40. The Government also notes that a removal proceeding under the INA is a civil proceeding, and consequently does not implicate constitutional concerns that are present in a criminal proceedings and criminal sentencing. See id. at 40. Finally, the Government points out that both the Board of Immigration Appeals and the Attorney General have found that in particular circumstances, an inquiry beyond the record of conviction is appropriate. See id. at 41-42.

If There is Ambiguity, Does the Rule of Lenity Apply?

Nihawan contends that the rule of lenity requires Subsection (M)(i) be construed as narrowly as possible, to provide the alien with "as much protection as possible." See Brief for Petitioner at 48. The rule of lenity is a tool of statutory construction that requires courts to construe statutes narrowly. See Id. Nijhawah argues that because deportation proceedings carry such grave consequences, essentially life-long banishment, a narrow construction is essential. See Id. at 49-50. He concludes that because removal proceedings are part of criminal proceedings, courts should not defer to agency interpretation of Subsection (M)(i), but rather must interpret the statute themselves. See Id. at 54-55.

The Government argues that there is no ambiguity in Subsection (M)(i), but if ambiguity exists, the Court should defer to the Board of Immigration Appeals' ("BIA") interpretation of Subsection (M)(i). See Brief for the Respondent at 45. Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., if a statute is ambiguous, courts must defer to an agency's reasonable interpretation of that statute. See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). According to the Government, in In re Babaisakov, the BIA has clearly determined that amount of loss does not need to be tied to an element in the criminal statute. See Id. (citing In re Babaisakov, 241 I. & N. Dec. 306 (2007)). The Government contends that even if the rule of lenity applied in the immigration context, it would only apply after the agency had a chance to resolve any statutory ambiguities, and thus the BIA's interpretation would still control. See Id. at 46-47.


Under the Immigration and Nationality Act ("INA"), fraud involving a loss greater than $10,000 is an aggravated felony. See 8 U.S.C. § 1101(a)(43)(M)(i) (2006). In this case, the Supreme Court must determine whether to apply a broad "categorical approach" or a more narrow approach to aggravated felonies in the immigration context. See Brief of Amicus Curiae Asian American Justice Center ("AAJC") et al. in Support of Petitioner at 8-9; Brief for the Respondent at 22. At the most basic level, the two competing interests in this case are fairness and legislative intent. On the one hand, amici for the petitioner argue that in a number of ways, it would be unfair to remove Nijhawan. On the other hand, the Attorney General points to the importance of following Congress's intent.


Amici of Nijhawan argue that the Supreme Court must rule in Nijhawan's favor to "ensure[] uniform application of immigration law and avoid[] gross inequities to immigrants." Brief of AAJC et al. at 8-9. As the Asian American Justice Center ("AAJC") points out, under the INA, an aggravated felony is the most serious offense that a noncitizen can commit. See Id. at 10. To that end, the INA provides very harsh consequences (including, as in this case, permanent removal from the United States) for noncitizens who are found guilty of aggravated felonies. See Id. For this reason, AAJC argues, courts should use a "more careful and predictable standard" for assessing aggravated felonies. Id. at 9. As the National Association of Criminal Defense Lawyers puts it, if "a statute . . . has applications in multiple contexts[, it] should be resolved consistently across applications." Brief of Amicus Curiae National Association of Criminal Defense Lawyers et al. in Support of Petitioner at 2. Doing so would avoid constitutional confusion, provide fair warning, and ensure fair administration of the criminal justice system and immigration laws. See Id. at 2, 3.

The American Civil Liberties Union ("ACLU") argues, in support of Nijhawan, that it is unfair to use documents outside of a limited set of criminal record documents to establish an aggravated felony. Brief of Amicus Curiae American Civil Liberties Union ("ACLU") et al. in Support of Petitioner at 4. The ACLU argues that there is a "lack of evidentiary and procedural protections in immigration courts and in non-adversarial contexts where immigration officers apply the aggravated felony definition." Id. at 4, 16. The AACJ and others also argue that the restitution orders and investigation reports used in establishing many aggravated felonies under the INA are unreliable sources. See Brief of AAJC et al. at 17. Hence, the ACLU argues, it would be unfair to remove Nijhawan given the "open-ended fact-finding" that occurred. Brief of ACLU et al. at 20.

Legislative Intent

The Attorney General argues that if the Court found for Nijhawan it would "dramatically and unnaturally constrain the scope" of the INA. Brief for the Respondent at 11. According to the Attorney General, Nijhawan's reading of the INA would only catch a few, rare federal fraud offenses under 8 U.S.C. § 1101(a)(43)(M)(i). See Id. at 11-12. Moreover, the INA would only apply to a few state-law fraud offenses. See Id. at 12. Hence, a decision for Nijhawan would create an "untenable" construction of the INA. Id. at 12. Moreover, if the Supreme Court ruled in Nijhawan's favor, it would "frustrate Congress's intent to remove criminal aliens." Id. at 11.

Not only would a decision for Nijhawan thwart Congress's authority, it "would usurp the Attorney General's expressly conferred authority" as well. Id. at 13. The Attorney General argues that the he has the power to resolve statutory ambiguities. See Id. at 13, 45-50. As the Supreme Court laid out in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., if Congress has specifically spoken to the precise question at issue in a statute, then Congress's delegation of power deserves deference. See Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron thus adds support to the Attorney General's argument for retaining his statutorily conferred power. See Brief for the Respondent at 13, 45-50.


This decision will resolve a split between Circuit Courts of Appeal as to the proper application of the deportation sections of the Immigration and Nationality Act when deportation is based on a prior criminal conviction. More particularly, it will determine whether the "for which" language contained in some of the provisions should be read as "qualifying" language or as "restrictive" language. If the former, as the Government argues, the Immigration Courts will be allowed to look at evidence outside of the elements necessary to the criminal conviction to determine if the immigration statute applies. Alternatively, if the language is restrictive, as Nijhawan contends, then both the "fraud or deceit" and "loss" provisions in the immigration statute will be subject to the "categorical approach" rule. Under this rule both elements will have to be necessary to the criminal conviction in order for the immigration statute to apply.

Edited by 

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