An Appeal to Remember

On Monday in Nijhawan v. Holder, the Supreme Court unanimously ruled that immigration officials are not required to have a jury determine the financial impact of an immigrant’s crime in their deportation decisions. Under 8 U. S. C. §1227(a)(2)(A)(iii), an alien “convicted of an aggravated felony any time after admission is deportable.” An “aggravated felony” includes “an offense that . . . involves fraud or deceit in which the loss to the . . . victims exceeds $10,000.” §1101(a)(43)(M)(i).

Nijhawan, who immigrated to the United States from India in 1985, had been convicted of fraud and money laundering. However, in Nijhawan’s case the relevant statute under which he was convicted did not require the jury to make a finding of loss. At sentencing, the defendant stipulated that the loss exceeded $100 million. Nijhawan was sentenced to prison and required to make $683 million in restitution.

 The Government subsequently sought to remove him from the United States, claiming that he had been convicted of an “aggravated felony.” The Immigration Judge found that petitioner’s conviction fell within the “aggravated felony” definition. The Board of Immigration Appeals agreed, as did the Third Circuit, which held that the Immigration Judge could inquire into the underlying facts of a prior fraud conviction for purposes of determining whether the loss to the victims exceeded $10,000. Nijhawan argued that a jury should have determined the loss before he could be deported. The Court disagreed. Writing the for the unanimous Court, Justice Steven Breyer said, “The defendant’s own stipulation, produced for sentencing purposes, shows that the conviction involved losses considerably greater than $10,000.”

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