Al-Sharif v. United States Citizenship & Immigration Services, 2013 U.S. App. LEXIS 17167

Background

Nizar Al‑Sharif, a lawful permanent resident, pleaded guilty in 1993 to conspiracy to commit wire fraud (18 U.S.C. § 371) based on a scheme that caused $120,000–$200,000 in loss; he received home confinement, probation, and restitution.
In 2004 he applied for naturalization and disclosed the conviction; USCIS denied the application in 2009, treating the conviction as an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(M)(i) (fraud with loss > $10,000), which disqualifies an applicant from showing good moral character.
Al‑Sharif challenged the denial in district court; the court granted summary judgment to USCIS. He appealed to the Third Circuit.
The appeal required resolution of whether Nugent v. Ashcroft’s "hybrid offense" theory—requiring an offense that is both a theft offense under § 1101(a)(43)(G) and a fraud offense under § 1101(a)(43)(M)(i) to satisfy both subsections’ thresholds—remained valid.
The Third Circuit sitting en banc overruled Nugent, holding the hybrid‑offense theory inconsistent with the statutory text and subsequent authority; it concluded Al‑Sharif’s conspiracy to commit wire fraud met § 1101(a)(43)(M)(i)’s $10,000 loss threshold and affirmed denial of citizenship.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an offense that is both a "theft offense" under § 1101(a)(43)(G) and a fraud offense under § 1101(a)(43)(M)(i) must satisfy both subsections (the "hybrid offense" theory).	Nugent requires both subsections to be satisfied; because Al‑Sharif’s theft component lacked a ≥1 year sentence, he is not an aggravated felon.	The statute lists separate aggravated felonies; a conviction meeting § 1101(a)(43)(M)(i) is an aggravated felony regardless of (G).	Overruled Nugent; held hybrid theory invalid and that meeting (M)(i) alone suffices.
Whether Al‑Sharif’s conspiracy conviction qualifies as an aggravated felony under § 1101(a)(43)(M)(i).	Conspiracy should be analyzed by its elements and sentencing; no one‑year prison term under (G) prevents aggravated‑felony classification.	Conspiracy’s underlying substantive offense (wire fraud) involved loss > $10,000, satisfying (M)(i).	Held it qualifies under (M)(i) because plea stipulated $120,000–$200,000 loss.
Whether the 1996 amendments (lowering the fraud loss threshold) apply to pre‑1996 crimes for naturalization decisions made after the amendments.	Argued the 1996 definitions should not apply retroactively to his 1993 crime.	Biskupski and administrative adjudication allow application to post‑1996 decisions.	Held 1996 definitions apply; USCIS denial in 2009 properly employed them.
Whether the rule of lenity requires resolving ambiguities in favor of Al‑Sharif.	Any ambiguity about aggravated‑felony status should be resolved for the alien.	§ 1101(a)(43)(M)(i) is unambiguous; lenity does not apply.	Held statute is clear; lenity inapplicable.

Key Cases Cited

Nugent v. Ashcroft, 367 F.3d 162 (3d Cir.) (originally adopting the "hybrid offense" theory)
Bobb v. Attorney General, 458 F.3d 213 (3d Cir.) (limited Nugent to subset/classification contexts and narrowed its scope)
Kawashima v. Holder, 132 S. Ct. 1166 (Sup. Ct.) (textual reading of § 1101(a)(43)(M)(i): fraud offenses with loss > $10,000 are aggravated felonies)
Biskupski v. Attorney General, 503 F.3d 274 (3d Cir.) (1996 aggravated‑felony definitions apply to pre‑1996 crimes where administrative adjudication occurs after the amendments)
Doe v. Attorney General, 659 F.3d 266 (3d Cir.) (wire fraud is an offense involving fraud or deceit)