Nijhawan v. Attorney General of U.S.

• Decision Date: 02 May 2008
• Docket Number: No. 06-3948.,06-3948.
• Citation: 523 F.3d 387
• Parties: Manoj NIJHAWAN, Petitioner, v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

523 F.3d 387

Manoj NIJHAWAN, Petitioner, v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 06-3948.

United States Court of Appeals, Third Circuit.

Argued December 11, 2007.

Filed May 2, 2008.

Thomas E. Moseley, (Argued) Newark, NJ, for Petitioner.

Michelle G. Latour, Lyle D. Jentzer, Jamie M. Dowd, (Argued), U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before: RENDELL and STAPLETON, Circuit Judges, and IRENAS^*, District Judge.

OPINION OF THE COURT

RENDELL, Circuit Judge.

Manoj Nijhawan appeals from the determination of the Board of Immigration Appeals ("BIA") that he had committed an aggravated felony and was thus removable under 8 U.S.C. § 1101(a)(43)(M)(i) because his conspiracy conviction constituted an offense involving fraud or deceit in which the loss to the victims exceeded $10,000. Nijhawan challenges both aspects of this finding, the "involving fraud" prong as well as the "loss" aspect. As to the latter, he contends that, in order to satisfy the qualifying language, the loss amount had to have been adjudicated as part of his conviction, and was not. We reject both challenges and will proceed to address each in turn.

The indictment involved a scheme by individuals who, it was alleged, set out to deprive their victims, major banks, of "hundreds of millions of dollars." A.R. 229. Through a series of misrepresentations, the banks were induced to make a number of loans to the defendants' companies, among them Allied Deals, Inc. Nijhawan, who was the Deputy General Manager of Allied Deals, Inc., was listed in Count 1, the overall conspiracy count that 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 in Count 30, which alleged conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). The remaining counts were fraud counts implicating one or more of the other defendants in specific fraudulent loans ranging from $163,441 to $2,568,526. The case was tried before a jury, which convicted Nijhawan of all of the counts against him in the indictment. The jury was not asked to, nor did it, determine the amount of the loss attributable to any defendant.

Nijhawan entered into a stipulation for sentencing purposes in which he agreed that, "because the loss from the offense exceeds $100 million, the offense level is increased 26 levels." A.R. 264. In entering the judgment of conviction, the trial judge filled in the space for "loss" with the amount "$683,632,800.23." A.R. 281. The form footnoted the fact that "findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18." A.R. 281. Nijhawan was sentenced to 41 months of imprisonment and ordered to pay restitution in the amount of $683,632,800.23. No appeal was taken.

While Nijhawan was serving his sentence, he was charged with removability under 8 U.S.C. § 1101(a)(43)(D) for conviction of a money laundering offense under 18 U.S.C. § 1956 for which the amount laundered exceeded $10,000 and under 8 U.S.C. § 1101(a)(43)(M)(i) for conviction of a crime involving fraud or deceit in which loss to the victims exceeded $10,000. The IJ sustained both charges, relying primarily on the § 1101(a)(43)(D) charge, and entered an order of removal on February 22, 2006.

On appeal, the BIA rested its decision solely on the 8 U.S.C. § 1101(a)(43)(M)(i) charge. A.R. 2 ("We will affirm the decision of the Immigration Judge insofar as he found the respondent removable as an alien convicted of an aggravated felony as defined in sections 101(a)(43)(M)(i) and (U) of the Immigration and Nationality Act"). The BIA rejected Nijhawan's argument that fraud in the Immigration and Nationality Act ("INA") should be congruent with the common law meaning of the term. As to the loss determination, the BIA agreed that loss was not a necessary element of the offense for which he was convicted, noting that the loss requirement "was used as a qualifier, in a way similar to length of sentence provisions in other aggravated felony subsections." A.R. 4 (citing Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004)). It reasoned 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 facts for sentencing and the judgment of conviction stating that the loss involved is $683,632,800.23, jointly and severally. A.R. 4-5. The BIA held that the stipulation, judgment of conviction, and restitution order were "sufficient to establish that the respondent's conviction renders him removable." A.R. 5.

Nijhawan timely filed a petition for review, appealing the BIA's decision.¹ On appeal, Nijhawan argues (1) that his offense of conviction does not involve fraud or deceit as those terms are used in the INA; and (2) that his conviction did not establish that loss to his victims exceeded $10,000.

1. Did the offense "involve fraud"

Nijhawan was convicted of conspiracy to commit fraud in violation of 18 U.S.C. § 371. The INA provision under which Nijhawan was charged with removability provides:

(43) The term "aggravated felony" means—

. . . .

(M) an offense that—

(i) 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). Nijhawan contends that the "fraud" and "deceit" in this provision should be given their common law meaning, which requires actual reliance upon allegedly fraudulent statements made and harm from that reliance. Because actual reliance and harm from reliance are not necessary legal elements of the federal fraud statutes under which he was convicted, Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), his conviction, Nijhawan urges, was not an aggravated felony. We can easily dispense with this argument.

In Valansi v. Ashcroft, we examined the very section of the INA at issue here and interpreted the language broadly. 278 F.3d 203 (3d Cir.2002). We said:

we determine whether the phrase "offense that-involves fraud or deceit" has a plain meaning. The word "involves" means "to have within or as part of itself" or "to require as a necessary accompaniment." Webster's Third New International Dictionary at 1191. Thus, an offense that "involves fraud or deceit" is most naturally interpreted as an offense that includes fraud or deceit as a necessary component or element. It does not require, however, that the elements of the offense be coextensive with the crime of fraud.

Id. at 209-10 (emphasis added); see also Bobb v. Att'y Gen., 458 F.3d 213, 218 (3d Cir.2006) ("[W]e have held that subsection (M)(i) covers all offenses that have as an essential element an intent to defraud or deceive."); Ki Se Lee v. Ashcroft, 368 F.3d 218, 222 (3d Cir.2004) ("Subsection (M)(i) has a general application—the gamut of state and federal crimes involving fraud and deceit causing losses over $10,000.").

Other circuits have followed our lead. See Conteh v. Gonzales, 461 F.3d 45, 59 (1st Cir.2006) ("We agree with the Third Circuit. . . . An offense with a scienter element of either intent to defraud or intent to deceive categorically qualifies as an offense involving fraud or deceit."); James v. Gonzales, 464 F.3d 505, 508 (5th Cir. 2006) (noting that "[w]e recognize that `[w]hether an offense "involves" fraud is a broader question than whether it constitutes fraud'" and concluding that "[t]he plain language of § 1344 . . . provides that a violation of either subsection necessarily entails fraud or deceit").

Here, the criminal statutes under which Nijhawan was convicted require that fraud or false or fraudulent pretenses be employed (mail fraud, wire fraud, and bank fraud). They therefore "involve" fraud or deceit for the purposes of the INA. Clearly, Nijhawan's arguments to the contrary are foreclosed by our precedent.

2. Was Nijhawan convicted of a fraud "in which the loss to the victims exceeded $10,000"?

Nijhawan was convicted of conspiracy to commit fraud and therefore is subject to removal under 8 U.S.C. § 1101(a)(43)(U), which provides that "an attempt or conspiracy to commit" another aggravated felony constitutes an aggravated felony. The precise aggravated felony provision at issue here defines an aggravated felony as 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).

As we have noted above, the "involves fraud" language of this provision permits the range of actual offenses to be broader than common law fraud. The issue remains, however, whether the language "in which the loss to the victim or victims exceeds $10,000" requires that a jury have actually convicted defendant of a loss in excess of $10,000, as Nijhawan contends, or permits resort to the prior criminal record in order to determine what loss was in fact occasioned by or attributable to the offense of conviction.

We conclude that the language of § 101(a)(43)(M)(i) does not require a jury to have determined that there was a loss in excess of $10,000. To read the "in which" language as requiring that what follows must have been proven as an element of the crime would bring about an absurd result. Clearly, the phrase is, as the BIA found, qualifying and does not constitute a provable element. For example, what if the language were "in which the victims were elderly" or "in which three or more banks suffered losses"? Would the facts of these qualifying phrases have to have been proven as part of the offense? We suggest not.

To hold to the contrary would essentially gut every deportability standard containing the "in which" or other analogous qualifying language,² for we cannot imagine previous convictions in which an aspect of the crime that is not an element has been proven by the jury. To hold to the contrary would impose a totally impractical...