Singh v. Attorney Gen. of the United States, 11–1988.

Citation677 F.3d 503
Decision Date16 April 2012
Docket NumberNo. 11–1988.,11–1988.
PartiesNigel St. Ivan SINGH, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

OPINION TEXT STARTS HERE

Thomas E. Moseley, Esq. [ARGUED], Newark, NJ, for Petitioner.

Tony West, Esq., David V. Bernal, Esq., Jesse M. Bless, Esq. [ARGUED], Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

Before: SCIRICA, AMBRO, and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Nigel Singh petitions for review of a final order of removal based on his conviction, under 18 U.S.C. § 152(3), for knowingly making a false statement under penalty of perjury in a bankruptcy proceeding. The Board of Immigration Appeals (BIA) determined that Singh's conviction was an offense involving fraud or deceit in which the loss to the victim exceeded $10,000, and hence an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i). In his petition, Singh argues that 18 U.S.C § 152(3) is a perjury offense that must meet the requirements for perjury-based aggravated felonies under 8 U.S.C. § 1101(a)(43)(S). Singh further argues that, even if assessed under 8 U.S.C. § 1101(a)(43)(M)(i), he is not removable because his offense did not cause an actual loss exceeding $10,000. While we reject Singh's first argument, we agree that under the unique facts of this case his offense did not cause an actual loss. Because we hold that § 1101(a)(43)(M)(i) requires an actual, not merely intended, loss, we will grant Singh's petition and vacate the order of removal.

I. FACTS & PROCEDURAL HISTORY

Singh was born in Jamaica on August 23, 1959, and has been a lawful permanent resident of the United States since December 7, 1975. Since that time, Singh has married a U.S. citizen and raised three U.S. children. In 1997, Singh founded the Raeback Corporation, a construction contracting firm that bid on public works projects as a Minority Business Enterprise (MBE). During his tenure as Raeback's president, Singh was asked on several occasions by a business contact at a non-MBE firm, U.S. Rebar, to help U.S. Rebar secure government contracts. In exchange for kickbacks, Singh falsely attested that Raeback was serving as a subcontractor on government projects when, in fact, U.S. Rebar did the subcontract work. Under the scheme, billing was done in Raeback's name and the general contractor paid Raeback, which then forwarded the payments to U.S. Rebar, less a ten percent kickback. One of the government entities that funded these projects was the Port Authority of New York and New Jersey (“Port Authority”).

In September 2005, during the course of the Port Authority project, Raeback filed for bankruptcy due to losses on another project. Since the bankruptcy proceedings automatically froze Raeback's bank accounts, Singh and his contact agreed on an arrangement in which the contact would deposit the general contractor's checks and hold the funds for Singh during Raeback's bankruptcy. 1 Unbeknownst to Singh, however, his contact was a confidential informant for the Port Authority, which had begun investigating U.S. Rebar's arrangement with Raeback. Rather than holding the funds for Singh, therefore, the contact transferred the funds—approximately $54,000 in total—to the Port Authority.

When the Port Authority informed Singh of its investigation in 2007, Singh participated in two proffer sessions with law enforcement agents. During these sessions, agents learned of Raeback's bankruptcy proceeding. Agents also learned that Raeback's bankruptcy petition failed to disclose its revenue stream from the Port Authority project. Although the Port Authority did not take legal action against Singh, Singh was charged by the U.S. Attorney's Office in the Eastern District of New York for one count of “fail [ing] to disclose all of Raeback's accounts receivable on Raeback's bankruptcy petition,” in violation of 18 U.S.C. § 152(3). Under § 152(3), it is a crime to “knowingly and fraudulently make[ ] a false declaration, certificate, verification, or statement under penalty of perjury” in relation to a bankruptcy proceeding. On June 24, 2009, Singh pled guilty. As part of the plea agreement, Singh agreed to “restitution in the amount of $54,418.08,” to be paid by transferring the money “held by the Port Authority” to the bankruptcy trustee.

At the time the plea agreement was entered, the U.S. Attorney believed Singh's failure to disclose the Port Authority funds had caused “substantial interference with the administration of justice,” thus warranting a three-point sentencing enhancement under U.S.S.G. § 2J1.2(b)(2). Later, however, the U.S. Attorney informed the sentencing court that, “because the Chapter 11 bankruptcy proceedings are still ongoing and the bankruptcy trustee will receive the funds which the defendant attempted to secrete, the defendant's crime will not affect the ultimate outcome of the bankruptcy proceedings.” App. at 298. The U.S. Attorney also informed the court that the trustee “did not expend any substantial additional resources as a result of the defendant's fraud.” App. at 299. Based on these discoveries, the U.S. Attorney's Office dropped its request for the three-point enhancement. Singh, meanwhile, emphasized the restitution agreement as a factor supporting his request for a non-incarceratory sentence.

On December 14, 2009, the United States District Court for the Eastern District of New York sentenced Singh to ten months in prison. Although the court's initial judgment did not mention restitution, an amended judgment issued on January 29, 2010 included a restitution order “pursuant to [the] plea agreement.” The terms of the court's restitution order, identical in all relevant respects to the terms Singh agreed to in the plea, ordered that “the $54,418.08 currently held by the Port [A]uthority” be transferred to the trustee. On March 22, 2010, the funds were transferred to the trustee, and on January 19, 2011, the trustee distributed Raeback's assets to its creditors.

Shortly after Singh began serving his sentence, the Department of Homeland Security (DHS) initiated removal proceedings by issuing him a Notice to Appear (NTA). In the NTA, the DHS charged that Singh's § 152(3) conviction involved a “loss or intended loss” to a victim or victims exceeding $10,000 and thus made him removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii). App. at 343. Under § 1101(a)(43)(M)(i) (hereinafter, “subparagraph (M)(i)), an aggravated felony is defined as an “offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” The Immigration Judge sustained DHS's charge and entered an order of removal, which the BIA affirmed on April 12, 2011. In an unpublished opinion, the BIA ruled that a conviction under § 152(3) “categorically involves fraud,” as evident by our Court's determination of the crime's essential elements in United States v. Mathies, 350 F.2d 963 (3d Cir.1965). The BIA also ruled that Singh's agreement to pay restitution and the sentencing court's restitution order provided clear and convincing evidence that Singh's offense caused a loss to the trustee exceeding $10,000.

After the BIA issued its order, we granted Singh's request for a stay so that we could consider his petition for review. In granting the stay, we cited the Second Circuit's decision in Pierre v. Holder, 588 F.3d 767 (2d Cir.2009), where an intended loss exceeding $10,000 was held insufficient, as a matter of law, to satisfy the loss requirement of subparagraph (M)(i).

II. LEGAL BACKGROUND

Although 8 U.S.C. § 1252(a)(2)(C) divests federal courts of jurisdiction to review orders of removal based on an alien's commission of an aggravated felony, this “jurisdiction-stripping provision” only applies if we are satisfied the petitioner is, in fact, an alien who has committed an aggravated felony. Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir.2002). Whether or not Singh committed an aggravated felony is a question of law which we review de novo. Bobb v. Att'y Gen., 458 F.3d 213, 217 (3d Cir.2006). While we generally defer to the BIA's reasonable interpretations of the INA, [w]e do not defer to the BIA's determination of whether a crime constitutes an aggravated felony.” Henry v. Bureau of Immig. & Customs Enforcement, 493 F.3d 303, 306 (3d Cir.2007). We also will not affirm a BIA order if it cannot be sustained on the grounds upon which the BIA relied, unless “it is highly probable” that the omission or error did not affect the outcome. Li Hua Yuan v. Att'y Gen., 642 F.3d 420, 427 (3d Cir.2011).

Under the INA, [a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). An aggravated felony under subparagraph (M)(i) has two distinct elements: (1) it must be a crime that “involves fraud or deceit,” (2) “in which the loss to the victim or victims exceeds $10,000.” To determine whether a crime involves fraud or deceit, we must employ a “categorical approach” in which we focus on the crime's statutory elements “rather than ... the specific facts underlying the crime.” Kawashima v. Holder, –––U.S. ––––, 132 S.Ct. 1166, 1172, 182 L.Ed.2d 1 (2012). By contrast, we must use a “circumstance-specific” approach to determine whether the alien's offense involved a loss to a victim(s) exceeding $10,000, Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 2300, 174 L.Ed.2d 22 (2009); Kaplun v. Att'y Gen., 602 F.3d 260, 265 (3d Cir.2010), wherein the loss must be “tethered” to the actual “offense of conviction,” not “acquitted or dismissed counts or general conduct,” Nijhawan, 129 S.Ct. at 2302; Alaka v. Att'y Gen., 456 F.3d 88, 106–08 (3d Cir.2006).

III. DISCUSSION
A. Fraud or Deceit Requirement

We begin our analysis here by considering whether Singh was convicted of an offense that categorically...

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