Doe v. Sessions
709 F. App'x 63
| 2d Cir. | 2017Background
- John Doe, a Dominican national, was ordered removed after pleading guilty to conspiracy to commit wire fraud and identity theft in a cellphone cloning scheme; IJ denied asylum, withholding, and CAT relief and BIA affirmed (Dec. 2014; June & Dec. 2015).
- The agency classified Doe’s conviction as an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i) based on victim losses exceeding $10,000, relying on the indictment (alleging $108,301 in unauthorized calls) and the judgment ordering $11,115.12 in restitution/forfeiture.
- Because Doe was found removable for an aggravated felony, this Court’s review is limited to questions of law and constitutional claims, but it retains jurisdiction to review the factual loss-amount finding insofar as it determines the jurisdictional bar.
- Doe argued the indictment figures were unproven and overstated (reflecting consumer charges not actual losses), and that the restitution/forfeiture order was unreliable or mislabeled; he also challenged the BIA’s particularly-serious-crime finding and denial of CAT relief.
- The Court applied the heightened review standard for the government’s clear-and-convincing proof of loss and evaluated whether any rational factfinder would be compelled to conclude the government failed that standard.
Issues
| Issue | Doe's Argument | Sessions' Argument | Held |
|---|---|---|---|
| Whether conviction qualifies as aggravated felony because victims’ losses > $10,000 | Indictment/restitution overstate loss; restitution mislabeled/insufficient | Indictment plus judgment (restitution/forfeiture) and foreseeability in conspiracy show losses > $10,000 | Loss finding supported; not compelled to conclude gov’t failed clear-and-convincing proof; aggravated felony stands |
| Reliability of restitution/forfeiture order as proof of loss | Plea/restitution may be unreliable; Singh distinguishes similar orders | Restitution order + indictment are circumstantial evidence; no conflicting evidence undermining order | Judgment’s restitution order is sufficient in absence of conflicting evidence (Nijhawan) |
| Whether crimes are "particularly serious" (bar to withholding) | Agency improperly speculated about victim harm; crime nonviolent so not necessarily particularly serious | BIA considered nature, impact, and 28-month sentence; identity theft can be particularly serious | Agency properly applied factors; crime found particularly serious; review limited to legal questions |
| Denial of CAT relief | BIA added time limitation and failed to consider acquiescence evidence | BIA weighed facts; petitioner failed to exhaust some arguments | Court declines review of fact-weighting and unexhausted claims; denial stands |
Key Cases Cited
- Nijhawan v. Holder, 557 U.S. 29 (circumstance-specific loss inquiry; restitution/plea materials can be clear and convincing evidence of loss)
- Francis v. Gonzales, 442 F.3d 131 (standard for reviewing government’s clear-and-convincing proof of loss)
- Flores v. Holder, 779 F.3d 159 (BIA need not make separate dangerousness determination for particularly serious crime analysis)
- Pinkerton v. United States, 328 U.S. 640 (co-conspirator liability for foreseeable acts/losses)
- Nijhawan-related sentencing/restitution precedent and BIA standards reflected through cited circuit decisions: Vargas-Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159 (de novo review of aggravated-felony question)