Varughese v. Holder
2010 U.S. App. LEXIS 25612
2d Cir.2010Background
- Varughese, a native and citizen of India, was admitted to the U.S. as a lawful permanent resident in 1981.
- He pled guilty on October 7, 2005 to money laundering under 18 U.S.C. § 1956(a)(3)(B) in a sting operation.
- At sentencing he admitted to laundering funds in amounts including $30,000, $50,000, and $100,000.
- Varughese was sentenced on July 16, 2008 to time served plus three years supervised release.
- In 2009 the government issued a Notice to Appear charging removability as having committed an aggravated felony under INA § 101(a)(43)(D).
- The IJ held Varughese removable based on the amount involved in his money laundering; the BIA affirmed; Varughese sought review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 'the amount of the funds' exceeds $10,000 is satisfied by the plea admissions | Varughese argues the term refers to 'funds' and not 'proceeds' and should be tethered to the conviction. | Holder argues the inquiry is circumstance-specific and the plea admissions show funds over $10,000. | Yes; amount exceeded $10,000 per plea admissions; circumstantial, tied to counts. |
| Whether the amount admitted in the plea is sufficiently tethered to the conviction | Varughese claims the plea statements aren’t tied to the specific count of conviction. | Holder contends admissions cover multiple acts within the charged period and relate to the count. | Yes; admissions were sufficiently related to the count for removability. |
| Whether Varughese is eligible for adjustment of status | Varughese seeks adjustment under INA § 245 but asserts eligibility despite conviction. | Holder maintains ineligibility due to admissibility/conviction under § 212(a)(2)(I) and § 212(h) waiver limits. | No; ineligible for adjustment due to aggravated felony and inadmissibility. |
| Whether using plea colloquy is proper to determine 'funds' amount under Nijhawan framework | Varughese argues Nijhawan requires different sourcing for funds. | Holder relies on Nijhawan's circumstance-specific approach tying amount to the offense. | Proper; court adopts Nijhawan framework for circumstance-specific determination. |
Key Cases Cited
- Nijhawan v. Holder, 129 S. Ct. 2294 (Sup. Ct. 2009) (circumstance-specific analysis of 'amount of funds' for aggravated felony)
- Chowdhury v. INS, 249 F.3d 970 (9th Cir. 2001) (circumstance-specific interpretation of 'funds' versus 'proceeds')
- United States v. Santos, 553 U.S. 507 (Sup. Ct. 2008) (context of 'profits' interpretation of proceeds)
- Lanferman v. BIA, 576 F.3d 84 (2d Cir. 2009) (collateral attacks not available on removal petitions)
- Gertsenshteyn v. U.S. Dep't of Justice, 544 F.3d 137 (2d Cir. 2008) (deference and review standards for BIA decisions)
- Dobrova v. Holder, 607 F.3d 297 (2d Cir. 2010) (unpublished BIA decisions and Skidmore/deference considerations)