972 F.3d 55
2d Cir.2020Background
- Rampersaud, a Guyana native and lawful permanent resident since 1987, pleaded guilty in Westchester County (2010) to one count of insurance fraud (NYPL §176.20) and one count of grand larceny (NYPL §155.30).
- The state court ordered $77,199 in restitution but did not allocate that amount between the insurance-fraud and larceny convictions or explain its calculation.
- DHS initiated removal proceedings (2018) alleging Rampersaud was removable as an aggravated felon because his fraud conviction involved victim loss exceeding $10,000; the government also alleged the larceny independently qualified as an aggravated felony.
- The Immigration Judge relied on the $77,199 restitution order to find the fraud loss exceeded $10,000; the BIA affirmed removal based solely on that restitution figure and faulted Rampersaud for not rebutting it.
- The Second Circuit held the BIA erred by failing to show the restitution amount was attributable specifically to the insurance-fraud count and remanded for further proceedings.
Issues
| Issue | Rampersaud's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the fraud conviction is an aggravated felony because victim loss exceeded $10,000 | The $77,199 restitution covered two separate convictions and does not show >$10,000 loss tied to the insurance-fraud count | A restitution order is sufficient absent conflicting evidence; Rampersaud should have rebutted it | BIA erred: restitution alone, without showing allocation to the fraud count, is insufficient to meet the Government’s clear-and-convincing burden; remand required |
| Burden of proof on loss amount | Government must prove loss >$10,000 tied to the specific count by clear and convincing evidence | Restitution plus sentencing stipulations can suffice; petitioner must produce evidence to undermine it | Government bears initial burden; where restitution is not clearly tied to the relevant count, petitioner need not rebut an unestablished inference |
| Whether restitution covering multiple counts can be treated as covering the fraud count | Restitution may reflect losses from other convictions or dismissed counts; allocation required | If restitution is unrebutted, it may be treated as reliable evidence of loss | Restitution can be sufficient in some cases, but here the BIA failed to analyze allocation, so it was insufficient |
| Whether relatedness of counts (single transaction) matters | If offenses were part of one criminal transaction, restitution covering both might qualify | Same—single-scheme showing would permit attribution | If the record shows the counts are part of one scheme, restitution might suffice; here record lacked such proof |
Key Cases Cited
- Nijhawan v. Holder, 557 U.S. 29 (2009) (requires circumstance-specific inquiry and that loss be tied to the specific counts; burden is clear and convincing)
- Pierre v. Holder, 588 F.3d 767 (2d Cir. 2009) (jurisdiction and de novo review of legal questions about aggravated-felony classification)
- Francis v. Gonzales, 442 F.3d 131 (2d Cir. 2006) (standard of review: Government must meet clear-and-convincing standard; review more demanding than substantial evidence)
- INS v. Orlando Ventura, 537 U.S. 12 (2002) (appellate courts should remand to agency to address unadjudicated alternate grounds)