In re Babaisakov
| Decision Date | 28 September 2007 |
| Docket Number | Interim Decision No. 3585.,File A71 416 447. |
| Parties | In re Yuriy Il Yavmaniyevich BABAISAKOV, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
This case concerns the scope of the evidence that an Immigration Judge may consider in removal proceedings to determine whether a conviction for an offense involving fraud or deceit was one "in which the loss to the victim or victims exceeds $10,000," as required by section 101(a)(43)(M)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2000). We hold that an Immigration Judge is not restricted to "record of conviction" evidence but may consider any evidence admissible in removal proceedings bearing on the loss to the victim. Consequently, we will sustain the appeal of the Department of Homeland Security ("DHS") from the Immigration Judge's March 6, 2006, decision dismissing the aggravated felony charge against the respondent and terminating the removal proceedings.
The respondent, a native and citizen of Uzbekistan, has been a lawful permanent resident since 1998. In 2003, the respondent and various codefendants were indicted in the United States District Court for the Southern District of New York on four criminal counts arising from a scheme to defraud insurance companies, between July 2002 and January 2003, by staging automobile accidents, receiving unnecessary medical treatment, and submitting false and fraudulent claims for insurance benefits. On January 21, 2005, the respondent was convicted on a guilty plea of the offenses set forth in counts one and three of the indictment, charging him with conspiracy and mail fraud, respectively, under 18 U.S.C. §§ 371 and 1341 (2000). He was sentenced to a term of imprisonment of 10 months, followed by 3 years of supervised release, and was ordered to pay $19,850 in restitution pursuant to 18 U.S.C. § 3663 et seq.
The DHS has pursued charges of deportability against the respondent under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), as an alien convicted of an "aggravated felony." Specifically, the DHS alleged that the respondent was convicted of an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000" under section 101(a)(43)(M)(i) of the Act, and of an attempt or conspiracy to commit such an offense under section 101(a)(43)(U). In support of the charge, the DHS submitted the criminal judgment, indictment, statement of reasons ("SOR") by the sentencing judge, and presentence investigation report ("PSR") into evidence.
The Immigration Judge dismissed the charge and terminated proceedings. There is no dispute that the respondent's offenses involved "fraud or deceit." See Valansi v. Ashcroft, 278 F.3d 203, 210 (3d Cir. 2002). The Immigration Judge found, however, that the DHS had failed to offer clear and convincing evidence that the offense involved more than $10,000 in loss to the victim. The Immigration Judge noted that neither the criminal statutes under which the respondent was convicted nor the counts of the indictment made any loss a prerequisite to a finding of guilt.
The criminal judgment does identify the "total loss" arising from the respondent's offenses as $19,850, the amount of restitution ordered, but it does not reflect how the trial court calculated this loss amount. However, the same figure appears in the PSR as the amount allegedly paid out in fraudulent claims, and, as indicated in the SOR, the trial court expressly adopted the PSR without change. Nevertheless, the Immigration Judge observed that the amount of restitution ordered is a "post-guilt calculus" aimed at making a victim whole and is not necessarily representative of actual loss arising from the offenses of conviction. The Immigration Judge further found that consulting a PSR to determine the amount of loss would not comport with the "categorical approach" to statutory interpretation set forth in the Supreme Court's decisions in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005). See also Gonzales v. Duenas-Alvarez, 127 S. Ct. 815 (2007) (). Finally, the Immigration Judge emphasized that the record contains no evidence, such as a plea agreement or plea colloquy transcript, reflecting that the respondent admitted that his criminal conduct resulted in any particular amount of loss.
In its appellate brief, the DHS argues that the award of $19,850 in restitution is clear and convincing evidence that the offenses of which the respondent was convicted occasioned losses of more than $10,000 to his victims. The DHS also argues that the PSR is admissible to prove the amount of loss, even under Taylor and Shepard, because the district court judge affirmatively adopted it when imposing the sentence. At oral argument, the DHS further contended that the amount of loss arising from a fraud or deceit offense need not be established categorically, by reference to documents conventionally understood as constituting the "record of conviction," but may instead be proven by reference to any evidence that is otherwise admissible, including the testimony of witnesses or the admissions of the respondent taken by the Immigration Judge during the removal proceedings. Noting that it has been unable to identify any State or Federal fraud statute that includes as an element the requirement that a victim sustain losses exceeding $10,000, the DHS claims that the categorical approach embodied in Taylor and Shepard is simply unworkable as applied to the loss calculation required by section 101(a)(43)(M)(i) of the Act.
The respondent, in both his appellate brief and at oral argument, claimed that the restitution award is not evidence of the actual loss that he was convicted of causing to his victims because that award included losses that arose from other conduct as well. Moreover, the respondent contends that the district court's findings as to victim loss in the sentencing context are not sufficiently reliable to establish deportability because those findings need only have been supported by a preponderance of the evidence, rather than the "clear and convincing" evidence needed for deportability.1
The questions before us turn in large measure on the nature of the determinations that section 101(a)(43)(M)(i) requires and on whether an Immigration Judge must apply the so-called "categorical" approach when seeking to ascertain the amount of loss arising from a conviction for an offense that "involves fraud or deceit." The court of appeals case law addressing the "categorical" and "modified categorical" approaches contains conflicting views over the scope and applicability of these concepts. In the end, however, we believe a very basic principle governs.
Simply put, the categorical and modified categorical approaches, as we understand Taylor and Shepard, properly apply only when the statute currently being implemented or administered demands a focus exclusively on the elements of a prior conviction. Further, neither Taylor nor Shepard demands the use of the categorical or the modified categorical approach to any currently required determination that is not tied to an element of a prior conviction.
Here, the removal provision demands a prior conviction for fraud or deceit. But, as we explain, the statute also requires a separate finding as to loss that is not tied to the elements of any State or Federal criminal statute. The categorical and modified categorical approaches properly govern the assessment as to whether the elements of the conviction for fraud or deceit are present, but they do not apply when assessing the...
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