63 F.4th 1065
6th Cir.2023Background
- Habib Al‑Adily, an Iraqi citizen and U.S. lawful permanent resident, kept a Thrifty rental car 163 days past its due date, pleaded guilty in Michigan to willfully failing to return rental property, and was ordered to pay $10,660.56 in restitution matching Thrifty’s itemization.
- DHS initiated removal proceedings alleging Al‑Adily’s conviction was an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i) (fraud/deceit with victim loss > $10,000).
- Two Immigration Judges and the BIA found him removable based on the restitution amount; Al‑Adily later moved to reopen proceedings and challenged the sufficiency of the evidence establishing loss over $10,000.
- The district record (probation order, presentence report, Thrifty’s itemization, and Al‑Adily’s admissions) showed the restitution amount but included charges the court found questionable: extensive LDW (loss‑damage‑waiver) fees, vehicle repair costs, and taxes/airport fees.
- The Sixth Circuit majority held DHS failed to prove by clear and convincing evidence that Thrifty’s actual loss tied to the conviction exceeded $10,000, noting the BIA and IJs uncritically accepted the restitution order and improperly shifted burdens.
- The Sixth Circuit granted the petition for review, reversed the BIA, and remanded with instructions to terminate removal proceedings; a concurrence agreed on outcome but not all contract analysis; a dissent argued the evidence sufficed to show loss > $10,000.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a state restitution order alone proves victim loss > $10,000 for an INA fraud‑or‑deceit aggravated‑felony | Restitution is not dispositive; itemization includes charges not tied to the conviction and may be unreliable; DHS must prove loss > $10,000 by clear and convincing evidence | Restitution order, presentence materials, and respondent’s admissions suffice as clear and convincing evidence of loss | Held: Restitution order insufficient without critical review; DHS failed to meet clear‑and‑convincing burden |
| Whether LDW fees and repair costs both may be counted toward the loss | LDW was voided or at least cannot be charged for all 170 days after breach; cannot count both full LDW and repair charges (double recovery) | Thrifty’s itemization legitimately included LDW and repair costs as losses flowing from failure to return the car | Held (majority): Itemization was internally inconsistent; counting all items yields double recovery and overstates loss; net loss falls below $10,000 (government didn’t prove otherwise) |
| Who bears the burden to prove loss amount in removal proceedings | DHS must prove the loss tied to the conviction exceeded $10,000 by clear and convincing evidence; BIA/IJ erred by shifting burden to respondent | Government viewed unchallenged restitution as sufficient; respondent’s failure to dispute in state court weighs in favor of restitution’s reliability | Held: Burden rested on DHS; IJs and BIA improperly shifted burden and failed to critically assess restitution evidence |
Key Cases Cited
- Nijhawan v. Holder, 557 U.S. 29 (2009) (loss‑threshold inquiry is circumstance‑specific; loss must be tied to the counts and proven by clear and convincing evidence)
- Alizoti v. Gonzales, 477 F.3d 448 (6th Cir. 2007) (standard for finding BIA abuse of discretion)
- Trujillo Diaz v. Sessions, 880 F.3d 244 (6th Cir. 2018) (abuse of discretion requires showing the BIA departed from established policies)
- Allabani v. Gonzales, 402 F.3d 668 (6th Cir. 2005) (discussing limits of BIA discretion)
- Pilla v. Holder, [citation="458 F. App'x 518"] (6th Cir. 2012) (examples where sentencing materials and restitution supported loss > $10,000)
- Ibe v. Holder, [citation="406 F. App'x 23"] (6th Cir. 2010) (sentencing materials can be clear and convincing evidence of loss when uncontradicted)
- Dieng v. Barr, 947 F.3d 956 (6th Cir. 2020) (describing the deferential standard for review of BIA decisions)