Singh v. Attorney General of the United States
2012 U.S. App. LEXIS 7544
| 3rd Cir. | 2012Background
- Singh pled guilty to knowingly making a false statement under penalty of perjury in a bankruptcy proceeding under 18 U.S.C. § 152(3).
- The Port Authority held funds tied to Raeback’s bankruptcy; about $54,000 were diverted to the Port Authority and later transferred to Raeback’s bankruptcy trustee.
- The restitution amount of $54,418.08 was ordered as part of Singh’s plea agreement and paid to the trustee.
- The DHS charged Singh as removable for an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i) based on loss over $10,000, and the BIA affirmed; Singh challenged under § 1101(a)(43)(S).
- The Second Circuit stayed removal pending review and later addressed whether actual loss is required under (M)(i) in light of Pierre v. Holder; the court ultimately grants the petition and vacates the removal order.
- The court analyzes whether § 152(3) categorically involves deceit, whether (S) applies, and whether actual loss, not merely intended loss, was proven.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 152(3) falls within (M)(i)’s fraud/deceit category | Singh argues § 152(3) is a perjury statute not a deceit offense | Singh’s offense categorically involves deceit under (M)(i) | Yes; § 152(3) qualifies as deceit under (M)(i) |
| Whether § 152(3) can be treated under subparagraph (S) for perjury-based felonies | Second Circuit interpretation would limit to perjury-based offenses under (S) | Valansi precedent shows (S) does not override (M)(i) plain meaning | Subparagraph (S) not controlling; (M)(i) governs here |
| Whether actual loss is required under (M)(i) or intended loss suffices | Loss can be intended or potential to meet (M)(i) | Loss must be actual under (M)(i) | Actual loss is required; intended loss alone does not satisfy (M)(i) |
| Whether Singh’s restitution or trustee’s loss demonstrates actual loss | Restitution reflects actual loss to the trustee | Restitution records and circumstances may reflect only potential or non-damaging loss | Restitution here does not prove actual loss exceeding $10,000; no victim suffered actual loss |
Key Cases Cited
- Kawashima v. Holder, 132 S. Ct. 1166 (U.S. 2012) (crime involving fraud or deceit includes deceit even if statute lacks explicit term)
- Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002) (court rejects narrow construction when statute’s plain meaning supports broad scope)
- Nijhawan v. Holder, 129 S. Ct. 2294 (U.S. 2009) (loss must be tethered to actual offense; allows circumstantial evidence for actual loss)
- Pierre v. Holder, 588 F.3d 767 (2d Cir. 2009) (intended loss insufficient where actual loss did not occur)
- Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. 2003) (restitution orders influenced by sentencing but not controlling for removal)
- In re Topper, 229 F.2d 691 (3d Cir. 1956) (intent to defraud required for § 152(3))
- United States v. Mathies, 350 F.2d 963 (3d Cir. 1965) (forum-cavored interpretation of § 152(3) elementsapplies)
- Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002) (precedent on categorization of aggravated felonies)