917 F.3d 142
2d Cir.2019Background
- Petitioner Aleksandr Barikyan, a Russian national, became a U.S. lawful permanent resident in 2008 after entering on a temporary visa in 1996.
- In February 2016 he pled guilty to conspiracy to commit money laundering under 18 U.S.C. § 1956(h); sentenced to three years' probation and ordered to forfeit $120,000.
- DHS charged him as removable as an aggravated felon under 8 U.S.C. § 1101(a)(43)(D) (money laundering offenses exceeding $10,000) and initiated removal proceedings in July 2016.
- The Immigration Judge found him removable as an aggravated felon; the BIA affirmed.
- Barikyan petitioned this Court, arguing (1) § 1956(h) conspiracy is not an aggravated felony under § 1101(a)(43)(D) and (2) the Government did not prove by clear and convincing evidence that he laundered over $10,000.
- The Second Circuit denied review, holding conspiracy under § 1956(h) falls within § 1101(a)(43)(D) and the forfeiture order provided clear and convincing evidence that the laundered amount exceeded $10,000.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a § 1956(h) conspiracy conviction is an "offense described in section 1956" for § 1101(a)(43)(D) purposes | §1956(h) is a conspiracy provision and therefore falls only under the separate conspiracy/attempt provision §1101(a)(43)(U), not §1101(a)(43)(D) | §1101(a)(43)(D)'s plain text covers "an offense described in section 1956," which includes §1956(h) conspiracies | Conspiracy under §1956(h) qualifies as an aggravated felony under §1101(a)(43)(D) based on plain language; §1101(a)(43)(U) remains meaningful for other offenses |
| Whether "offense" in §1101(a)(43)(D) is limited to substantive offenses (excluding conspiracies) | "Offense" should be read to mean substantive offenses only, relying on the usage in §1956 | "Offense" means any violation of law, including conspiracies; §1956(h) does not control §1101(a)(43)(D)'s meaning | Court rejected plaintiff's selective importation of §1956's usage; "offense" can encompass conspiracy offenses |
| Standard of review for amount-of-funds determination (de novo or factual clear‑error) | BIA should have reviewed amount-of-funds as a legal conclusion de novo | Amount-of-funds is a factual finding (circumstance-specific) properly reviewed for clear error | Amount-of-funds determination was factual; BIA correctly applied clear-error review |
| Whether the Government proved by clear and convincing evidence that >$10,000 was laundered | Forfeiture order rests on preponderance and may include legitimate/commingled funds, so it cannot satisfy clear and convincing proof here | Forfeiture order (and sentencing concession) can be relied upon under circumstance-specific approach; petitioner did not contest it or show error | Forfeiture order of $120,000, unchallenged in criminal proceedings and far exceeding $10,000, constituted clear and convincing evidence that over $10,000 was laundered |
Key Cases Cited
- Wala v. Mukasey, 511 F.3d 102 (2d Cir.) (standard for reviewing IJ decisions as supplemented by the BIA)
- Varughese v. Holder, 629 F.3d 272 (2d Cir.) (circumstance-specific approach permits consulting record of conviction for amount-of-funds)
- Santana v. Holder, 714 F.3d 140 (2d Cir.) (appellate jurisdiction over whether a conviction is an aggravated felony)
- Cruz-Miguel v. Holder, 650 F.3d 189 (2d Cir.) (plain-text statutory interpretation principles)
- Dobrova v. Holder, 607 F.3d 297 (2d Cir.) (statutory interpretation precedents)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (U.S.) (deference framework for agency statutory interpretation)
- Francis v. Gonzales, 442 F.3d 131 (2d Cir.) (standard for overturning agency factual findings on evidentiary sufficiency)
- Nijhawan v. Holder, 557 U.S. 29 (U.S.) (permitting IJ reliance on sentencing stipulations and restitution orders for loss-amount findings)
- Alom v. Whitaker, 910 F.3d 708 (2d Cir.) (distinguishable example where mixed fact-law determination warranted de novo review)