In re Yuriy Il Yavmaniyevich BABAISAKOV, Respondent
File A71 416 447 - York
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided September 28, 2007
24 I&N Dec. 306 (BIA 2007)
Interim Decision #3585
A single ground for removal may require proof of a conviction tied to the statutory elements of a criminal offense, as well as proof of an additional fact or facts that are not tied to the statutory elements of any such offense. - When a removal charge depends on proof of both the elements leading to a conviction and some nonelement facts, the nonelement facts may be determined by means of evidence beyond the limited “record of conviction” that may be considered by courts employing the “categorical approach,” the “modified categorical approach,” or a comparable “divisibility analysis,” although the record of conviction may also be a suitable source of proof, depending on the circumstances.
- Section 101(a)(43)(M)(i) of the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(43)(M)(i) (2000), which defines the term “aggravated felony” to mean “an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” depends on proof of both a conviction having an element of fraud or deceit and the nonelement fact of a loss exceeding $10,000 that is tied to the conviction. - Because the phrase “in which the loss to the victim or victims exceeds $10,000” is not tied to an element of the fraud or deceit offense, the loss determination is not subject to the limitations of the categorical approach, the modified categorical approach, or a divisibility analysis and may be proved by evidence outside the record of conviction, provided that the loss is still shown to relate to the conduct of which the person was convicted and, for removal purposes, is proven by clear and convincing evidence.
- The Immigration Judge erred in declining to consider a presentence investigation report as proof of victim loss because of his mistaken belief that he was restricted to consideration of the respondent‘s record of conviction.
FOR RESPONDENT: Thomas M. Griffin, Esquire, Philadelphia, Pennsylvania
FOR THE DEPARTMENT OF HOMELAND SECURITY: Rhonda M. Dent, Appellate Counsel
BEFORE: Board Panel: OSUNA, Acting Chairman; FILPPU and PAULEY, Board Members.
FILPPU, Board Member:
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Uzbekistan, has been a lawful permanent resident since 1998. In 2003, the respondent and various codefendants were indicted in the United States District Court for the Southern District of New York on four criminal counts arising from a scheme to defraud insurance companies, between July 2002 and January 2003, by staging automobile accidents, receiving unnecessary medical treatment, and submitting false and fraudulent claims for insurance benefits. On January 21, 2005, the respondent was convicted on a guilty plea of the offenses set forth in counts one and three of the indictment, charging him with conspiracy and mail fraud, respectively, under
The DHS has pursued charges of deportability against the respondеnt under section 237(a)(2)(A)(iii) of the Act,
The Immigration Judge dismissed the charge and terminated proceedings. There is no dispute that the respondent‘s offenses involved “fraud or deceit.” See Valansi v. Ashcroft, 278 F.3d 203, 210 (3d Cir. 2002). The Immigration Judge found, however, that the DHS had failed to offer clear and convincing evidence that the offense involved more than $10,000 in loss to the victim. The Immigration Judge noted that neither the criminal statutes under which the
The criminal judgment does identify the “total loss” arising from the respondent‘s offenses as $19,850, the amount of restitution ordered, but it does not reflect how the trial court calculated this loss amount. However, the same figure appears in the PSR as the amount allegedly paid out in fraudulent claims, and, as indicated in the SOR, the trial court expressly adopted the PSR without change. Nevertheless, the Immigration Judge observed that the amount of restitution ordered is a “post-guilt calculus” aimed at making a victim whole and is not necessarily representative of actual loss arising from the offenses of conviction. The Immigration Judge further found that consulting a PSR to determine the amount of loss would not comport with the “categorical approach” to statutory interpretation set forth in the Supreme Court‘s decisions in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005). See also Gonzales v. Duenas-Alvarez, 127 S. Ct. 815 (2007) (discussing the categorical approach as applied to aggravated felony determinations under the immigration law). Finally, the Immigration Judge emphasized that the record contains no evidence, such as a plea agreement or plea colloquy transcript, reflecting that the respondent admitted that his criminal conduct resulted in any particular amount of loss.
In its appellate brief, the DHS argues that the award of $19,850 in restitution is clear and convincing evidence that the offenses of which the respondent was convicted occasioned losses of more than $10,000 to his victims. The DHS also argues that the PSR is admissible to prove the amount of loss, even under Taylor and Shepard, because the district court judge affirmatively adopted it when imposing the sentence. At oral argument, the DHS further contended that the amount of loss arising from a fraud or deceit offense need not be established categorically, by reference to documents conventionally understood as constituting the “record of conviction,” but may instead be рroven by reference to any evidence that is otherwise admissible, including the testimony of witnesses or the admissions of the respondent taken by the Immigration Judge during the removal proceedings. Noting that it has been unable to identify any State or Federal fraud statute that includes as an element the requirement that a victim sustain losses exceeding $10,000, the DHS claims that the categorical approach embodied in Taylor and Shepard is simply unworkable as applied to the loss calculation required by section 101(a)(43)(M)(i) of the Act.
The respondent, in both his appellate brief and at oral argument, claimed that the restitution award is not evidence of the actual loss that he was convicted of causing to his victims because that award included losses that arose from other conduct as well. Moreover, the respondent contends that the district court‘s findings as to victim loss in the sentencing context are not sufficiently reliable to establish deportability becausе those findings need only have been supported
II. ANALYSIS
A. Introduction and Summary
The questions before us turn in large measure on the nature of the determinations that section 101(a)(43)(M)(i) requires and on whether an Immigration Judge must apply the so-called “categorical” approach when seeking to ascertain the amount of loss arising from a conviction for an offense that “involves fraud or deceit.” The court of appeals case law addressing the “categorical” and “modified categorical” approaches contains conflicting views over the scope and applicability of these concepts. In the end, however, we believe a very basic principle governs.
Simply put, the categorical and modified categorical approaches, as we understand Taylor and Shepard, properly apply only when the statute currently being implemented or administered demands a focus exclusively on the elements of a prior conviction. Further, neither Taylor nor Shepard demands the use of the categorical or the modified categorical approach to any currently required determination that is not tied to an element of a prior conviction.
Here, the removal provision demands a prior conviction for fraud or deceit. But, as we explain, the statute also requires a separate finding as to loss that is not tied to the elements of any State or Federal criminal statute. The categorical and modified categorical approaches properly govern the assessment as to whether the elements of the conviction for fraud or deceit are present, but they do not apply when assessing the additional “nonelement” factor of victim loss.
The proper focus is on the nature of the findings that must be madе to resolve a removal charge. Reliance exclusively on the categorical and modified categorical approaches is both necessary and proper if the removal charge is tied solely to the elements of an earlier conviction. But if something
Substantial confusion has arisen, however, from both the case law and the multiple evidentiary purposes that can be served by conviction records. For example, some nonelement determinations are easily and appropriately made from records of conviction, such as the length of sentence the defendant received after being found guilty of all the elements of the crime. The proper use of the cоnviction record to assess nonelement factors, such as length of sentence, mimics a categorical or modified categorical approach as set forth in Taylor and Shepard. However, it is really a look at the conviction record as a piece of ordinary evidence that discloses the length of sentence and is not an inquiry into what the trier of fact was required to find to determine guilt or innocence.2
B. Supreme Court‘s Categorical Approach
Under the Supreme Court‘s categorical approach, an adjudicator seeking to determine whether a defendant‘s prior “convictions” justify an enhanced sentence on a new conviction “must look only to the statutory definitions of the prior offenses,” and may not “consider other evidence concerning the defendant‘s prior crimes,” including “the particular facts underlying [the] convictions.” Taylor v. United States, supra, at 600 (addressing the meaning of “burglary” as defined in
The Supreme Court nonetheless indicated that the “categorical approach . . . may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements” of the currently relevant offense, such as generic burglary at issue in Taylor. Taylor v. United States, supra, at 602. The Supreme Court has noted that some lower courts refer to this second “step of the Taylor inquiry,” pertaining to which elements of an overly broad statute led to conviction, “as a ‘modified categorical approach.‘” Gonzales v. Duenas-Alvarez, supra, at 819. Yet some courts have also considered the “modified categоrical approach” to include a search for criminal record facts that do not pertain to the “elements” of the predicate offense but that can nonetheless be deemed reliably established by the conviction record. However, both Taylor and Shepard confine a review of the conviction record to such items as charging documents, jury instructions, “the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information,” and do so as part of a search for the elements that led to a prior conviction, not the facts that were involved in the crime. Shepard v. United States, supra, at 26.
Similar to the sentence enhancements at issue in Taylor and Shepard, deportability under section 237(a)(2)(A)(iii) of the Act depends on the existence of a “conviction” for a federally defined category of offenses, i.e., “aggravated felonies.” Hence, the courts of appeals have a long-standing practice of applying the categorical approach to aggravated felony determinations under the immigration law, a practice acknowledged in Gonzales v. Duenas-Alvarez, supra, at 818-19. We have also traditionally applied an analysis that closely resembles the categorical approach to determine whether an alien has a “conviction” that falls within a federally defined category of crimes leading to deportation. See Matter of Gertsenshteyn, 24 I&N Dec. 111, 112 (BIA 2007); Matter of Sweetser, 22 I&N Dec. 709, 715 (BIA 1999); Matter of Pichardo, 21 I&N Dec. 330, 335 (BIA 1996); Matter of Madrigal, 21 I&N Dec. 323, 327 (BIA 1996); Matter of Ghunaim, 15 I&N Dec. 269, 270 (BIA 1975), modified on other grounds, Matter of Franklin, 20 I&N Dec. 867 (BIA 1994); Matter of S-, 2 I&N Dec. 559 (C.O., BIA 1946; A.G. 1947); Matter of S-, 2 I&N Dec. 353, 357 (BIA, A.G. 1945); Matter of N-, 1 I&N Dec. 181 (BIA 1941). Indeed, in Matter of Sweetser, 22 I&N Dec. at 715, we characterized our approach to “divisible” statutes as being “identical to how the federal courts have applied the categorical approach.” Our unpublished cases undoubtedly include decisions in which we applied a “modified categorical approach” to search for conviction record “facts” that
Yet, as recognized by the United States Court of Appeals for the Third Circuit, in which this case arises, the applicability of the categorical approach in the aggravated felony context necessarily depends on the language of both the statute of conviction and the particular aggravated felony category to which that approach might be applied. Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004) (stating that while Taylor‘s “formal categorical approach presumptively applies in comparing [predicate offenses and aggravated felony categories], under certain conditions, both the enumerating statute and the statute of conviction can require a departure from the formal categorical approach“). Moreover, according to Singh, the reference in section 101(a)(43)(M)(i) of the Act to $10,000 in loss to the victims is the “prototypical example” of such a nonelement qualifier that would “invite inquiry into the facts underlying the conviction at issue,” because “it expresses such a specificity of fact that it almost begs an adjudicator to examine the facts at issue.” Id.
We, too, have recognized that application of the categorical approach depends on the nature of the determinations required by the statute in the aggravated felony context. For example, in Matter of Gertsenshteyn, supra, we considered section 101(a)(43)(K)(ii) of the Act, which provides aggravated felony treatment for an offense “described in section 2421, 2422, or 2423 of title 18, United States Code (relating to transportation for thе purpose of prostitution) if committed for commercial advantage.” Because only one of the three enumerated statutes employs the phrase “commercial advantage” as an element (and none had done so at the time of enactment of section 101(a)(43)(K)(ii)), we determined that a strict application of the categorical or modified categorical approach would likely render the provision a nullity. Concluding that such an eventuality was inconsistent with legislative intent, we held that the parties could offer evidence outside the limits of a “record of conviction” in proving the “committed for commercial advantage” component of that aggravated felony charge.3 Id. at 115-16.
C. Section 101(a)(43)(M)(i) of the Act
We begin with the statutory language. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984). Section 101(a)(43)(M) of the Act provides that an aggravated felony includes
an offense that–
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or
(ii) is described in section 7201 of the Internal Revenue Code of 1986 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.4
Viewed in isolation, the “loss to the victim” language of section 101(a)(43)(M)(i) could refer to an “element” of the underlying fraud offense. On the other hand, the victim loss aspect of that section can be considered as a “limiting” fact, unrelated to the statutory elements of the underlying offense, that excludes less serious fraud crimes from being aggravated felonies. When viewed in context, however, it is evident that the victim loss aspect of the statute was not intеnded to refer to an “element” of any underlying fraud offense.
Many of the aggravated felony provisions within section 101(a)(43) of the Act identify some limiting fact that excludes otherwise-qualifying crimes from the scope of the definition. For example, in sections 101(a)(43)(J), (Q), and (continued...)
Three other provisions–including the one at issue here–provide that an offense is an aggravated felony only if the financial implications of the crime were sufficiently far-reaching. See sections 101(a)(43)(D), (M)(i), (M)(ii) of the Act (covering, respectively, money laundering offenses or offenses involving the proceeds of specified unlawful activity in which “the amount of the funds exceeded $10,000,” offenses involving fraud or deceit “in which the loss to the victim or victims exceeds $10,000,” and tax evasion offenses “in which the revenue loss to the Government exceeds $10,000“).
Most importantly, both sections 101(a)(43)(M)(i) and (ii) depend in part on the “loss” occasioned by the offense of conviction. Yet section 7201 of the Internal Revenue Code,
Furthermore, our review of the legislative history of section 101(a)(43)(M) has uncovered nothing that would lead us to conclude that Congress understood the loss amount to be a required element of the predicate offense, as opposed to a limiting provision or an aggravating factor. Similarly, we have found nothing in the legislative history accompanying the 1996 change from the original $200,000 figure to the current $10,000 figure that suggests the newer figure was intended to be tied to the statutory elements of fraud or deceit convictions. See generally H.R. Conf. Rep. No. 104-828 (1996), available at 1996 WL 563320.
The Federal courts of appeals, including the Third Circuit, have found other aspects of section 101(a)(43)(M) to be plain and unambiguous. See Alaka v. Att‘y Gen., 456 F.3d 88, 106 (3d Cir. 2006) (stating that the statute was plain and unambiguous in relation to the need to prediсate “‘removal on a convicted offense resulting in losses greater than $10,000,‘” as opposed to looking to losses arising from additional fraudulent activity that did not result in conviction (quoting Knutsen v. Gonzales, 429 F.3d 733, 736 (7th Cir. 2005))). Moreover, the circuits have consistently applied some form of categorical analysis when seeking to ascertain whether the offense in question had “fraud or deceit” as an element. E.g., Valansi v. Ashcroft, supra, at 214.
But we are not aware of any precedential majority opinion declaring that the victim impact aspect of the statute, i.e., a loss exceeding $10,000, must
D. Modified Categorical Approach Under Circuit Law
Our conclusion that the $10,000 loss figure in section 101(a)(43)(M)(i) of the Act was not intended to describe an “element” of a “fraud or deceit” crime takes this victim loss aspect of the statute outside the scope of the categorical approach of Taylor and Shepard. Nevertheless, the weight of authority at the circuit court level is that proof of such loss must be derived from the same types of evidence (such as the charging instrument or plea agreements) that are typically consulted under the “modified categorical approach” by a court seeking to identify the elements of an offense defined by an overbroad statute. E.g., Dulal-Whiteway v. U.S. Dep‘t of Homeland Sec., No. 05-3098-ag, 2007 WL 2712941 (2d Cir. Sept. 19, 2007) (holding that a loss of more than $10,000 may be shown only by information appearing in a record of conviction that would be permissible under Taylor and Shepard); Kawashima v. Gonzales, Nos. 04-74313, 05-74408, 2007 WL 2702330 (9th Cir. Sept. 18, 2007) (holding that the modified categorical approach limits the scоpe of review to the record of conviction in relation to a loss exceeding $10,000 where there was no element of loss in the criminal statute); Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006) (requiring clear and convincing evidence derived solely from the criminal record of the aggravated felony charge, even if the criminal statute lacked a “loss” element); Alaka v. Att‘y Gen., supra, at 107-08 (stating, in relation to the conduct resulting in conviction, that “[b]ecause our consideration is limited to the offense of conviction, we look only to the charges to which the [alien] pled guilty, and not to conduct that was neither
Despite the rulings in cases such as Dulal-Whiteway, Conteh, and Tokatly, we do not believe there is any sound legal principle that constrains inquiry to the record of conviction if the search involves aspects of the crime that go beyond the elements of the offense. In Tokatly, the Ninth Circuit specifically rejected the Government‘s argument that the ground of removal pertaining to crimes of domestic violence, section 237(a)(2)(E)(i) of the Act, required a bifurcated evidentiary approach. The Government acknowledged that proof of a “conviction” for a “crime of violence,” with all its attendant “elements,” was required. On the other hand, the Government maintained that the existence of a “domestic” relationship between the offender and the victim was not understood by Congress as describing an element of the predicate offense but was instead a separate “immigration fact” that should have been subject to independent proof–outside the “record of conviction” if necessary. See Tokatly v. Ashcroft, supra, at 620. The Ninth Circuit rejected this approach, describing it as a “somewhat convoluted and bipolar methodology to the statutory inquiry.” Id. The principal grounds for rejection, however, were the Ninth Circuit‘s Taylor-related approach to assessing convictions and our adherence to a comparable approach in cases such as Matter of Pichardo, supra, and Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996).
We have a different perspective. We accept that a “categorical” approach is to be applied with respect to any aspect of a removal charge that depends on a conviction under a criminal statute containing elements that must be shown to establish removability. The situation is much different, however, if the removal charge requires proof of some fact that is not an element of the predicate offense. For example, a finding of removability under section 237(a)(2)(A)(i) of the Act requires proof of a conviction for a crime involving moral turpitude that was committed within 5 years after admission. In implementing this statute we do not look to the conviction record to determine the date when an alien was admitted to the United States under the immigration laws because the date of admission is not an element of any criminal offense,
As to crimes of moral turpitude committed within 5 years after an alien‘s admission, the statute clearly combines the need for a qualifying “conviction” with other requiremеnts bearing both on the crime and on the alien‘s immigration history. It may be awkward from the perspective of the “categorical” or “modified categorical” approach for a particular removal statute to include both “offense-element” facts and other “nonelement” facts pertaining either to the conviction (e.g., length of sentence or the date the offense was committed) or the impact of the crime on the victim. But when deportability depends in part on proof of nonelement aspects of a crime, we do not understand how the inquiry into those facts can automatically be constrained by rules that have been developed solely to ascertain the elements of the crime. By definition, the inquiry must go beyond the elements in such cases. The question, then, is whether the conviction record is an adequate source for the information demanded by the removal statute.
E. “Record of Conviction” Evidence To Assess “Loss” to the Victim
A conviction record may serve as the best source of information for nonelement facts about a crime. But this will depend on the nature of the nonelement information. No wooden rule, denominated as a “categorical” or “modified categorical” approach derived from Taylor and Shepard, or employed by Pichardo, can answer that question in advance.
The length of sentence is a nonelement fact for some aggravated felonies that can be readily ascertained from the record of conviction, and it would not make sense to invite other proof, absent a scrivener‘s error. On the other hand, in Matter of Gertsenshteyn, supra, we found that independent proof as to the “committed for commercial advantage” component of section 101(a)(43)(K)(ii) aggravated felonies should be allowed in order to give life
The loss threshold of section 101(a)(43)(M)(i) falls betweеn these extremes. Some criminal complaints may allege specific loss amounts, despite the absence of “loss” elements in the criminal statutes. Restitution is frequently included in criminal judgments, and the amount of loss may be discussed during a plea colloquy or included in the sentencing court‘s SOR. Indeed, the respondent concedes that a conviction record can establish “loss to the victim,” but only if the alien admitted the amount of loss during the criminal proceedings. In this respect, he argues that restitution orders are based on calculations that do not necessarily match the “loss to the victim” focus of the removal statute, and that such orders, as well as a PSR (even if adopted by the court without change), do not establish the quantum of loss by “clear and convincing evidence” because they need only have been found by a “preponderance of the evidence.”10
Accordingly, even if a criminal court judge‘s finding as to loss is clear from the record, there may be grounds for questioning whether such a finding, standing alone, is sufficient to prove the amount of loss by the “clear and convincing evidence” standard that applies in removal proceedings. Obasohan v. U.S. Att‘y Gen., 479 F.3d 785, 790-91 (11th Cir. 2007). However, restitution orders have served as evidence in some removal cases, even when challenged. See James v. Gonzales, 464 F.3d 505 (5th Cir. 2006) (rejecting specific challenges to use of the restitution order); Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. 2004) (finding a California State court order of restitution reliable in part because California law, unlike Federal law, limited restitution to the actual loss suffered by the Government agency victim). The Third Circuit has stated that a restitution order “may be helpful” in determining loss to the victim if the plea agreement or indictment is unclear as to loss. Munroe v. Ashcroft, 353 F.3d 225, 227 (3d Cir. 2003).
We conclude that restitution orders can be sufficient evidence of loss to the victim in certain cases, but they must be assessed with an eye to what losses are covered and to the burden of proof employed. We do not agrеe with the respondent that restitution orders and presentence reports can never suffice if a preponderance of the evidence standard was employed in entering the order or developing the report. Facts found by a preponderance may also meet more
Further, a defendant‘s admission during the criminal proceeding as to the amount of loss will suffice to meet a clear and convincing showing in removal proceedings, if the admission pertained to losses arising from the conduct in the particular charges or criminаl counts covered by the conviction. This most likely includes a plea to a criminal count alleging a fraudulent transaction in excess of $10,000, unless the convicting jurisdiction treats the plea as only an admission of the bare elements of the crime. E.g., Bobb v. Att‘y Gen., 458 F.3d 213 (3d Cir. 2006) (finding that a guilty plea to passing a forged check in an amount of $13,277 confirmed that the amount of loss was greater than $10,000, despite no “loss” element in the criminal statute). In addition, conviction record evidence as to loss generally may be sufficient if the record in question arose in a jurisdiction that has adapted to Apprendi and its progeny by requiring sentencing factors to be proven to the jury beyond a reasonable doubt. However, even a plea to a fraudulent transaction exceeding $10,000, or a sentencing fact found beyond a reasonable doubt, may be suspect if the admission or sentencing factor covered losses associated with transactions outside the particular count оr counts covered by the conviction. See Alaka v. Att‘y Gen., supra (holding that losses arising from fraudulent activity outside the actual offense of conviction could not be included for section 101(a)(43)(M)(i) aggravated felony purposes).
F. Independently Assessing “Loss”
While reliance on the criminal “record of conviction” is still possible in many cases, the record of conviction is an uncertain source of reliable information on loss to the victim. The statutory $10,000 threshold is not an element of the crime except, perhaps, in rare cases. The information generated on loss is routinely done for sentencing purposes, not for “conviction” purposes, and may have been assessed against a “preponderance of the evidence” standard. Admissions by defendants should suffice in many cases, but even a plea colloquy need not actually focus on the loss stemming from a particular count in an indictment, if there is no loss element needed to prove
Furthermore, because we are looking for a fact that was part of the crime, but not a fact that must have been proved to establish guilt, the independent assessment of that fact during a removal hearing does not encroach on the principal purpose of the criminal proceedings, which was the determination of guilt under the elements of the criminal statute. Hence, we see no legal objection to the independent resolution of this “victim impact” issue during the course of a removal hearing. Accordingly, we hold that an Immigration Judge may consider any evidence, otherwise admissible in removal proceedings, including witness testimony, bearing on the loss to the victim in an aggravated felony case involving section 101(a)(43)(M)(i) of the Act.12
III. RESPONDENT‘S CASE
In this case, the combination of the counts to which the respondent pled, including a broad conspiracy charge spanning a period from July 2002 to January 2003, the order of restitution, and the information in the PSR and SOR would carry the DHS‘s burden to show a loss exceeding $10,000 by clear and convincing evidence, absent countervailing evidence. Both the conspiracy count and the individual count alleged a “scheme” that the defendants “did execute” as part of the conspiracy or, as relates to the individual count, “for the purpose of executing such scheme . . . caused a bill for unnecessary medical treatment to be mailed . . . to Liberty Mutual Insurance Company.” The charges included conduct well beyond a simple agreement to violate the law.13
IV. CONCLUSION
Our ruling today represents a departure from the precepts that have been presumed to apply in immigration hearings involving aggravated felony charges arising under section 101(a)(43)(M)(i) of the Act. We leave for another day any questions that may arise with respect to circuit law that may be in tension with this decision, as we ordinarily follow circuit law in cases arising within the particular circuit and the grounds for any departure would need to be developed in the context of specific cases. See Nat‘l Cable & Telecomms. Ass‘n v. Brand X Internet Services, 545 U.S. 967 (2005).
Nevertheless, we conclude that the statute governing removal for an aggravated felony conviction involving fraud or deceit with a loss exceeding $10,000 demands two types of determinations. The first is a categorical inquiry into a conviction under a criminal statute with an element of fraud or deceit. The second is an ordinary evidentiary inquiry into whether the loss associated with the fraudulent conduct encompassed by the conviction exceeds $10,000. The second inquiry cannot be confined to the categorical or modified categorical approach because it does not involve a search for the elements of the crime, even though conviction record information may suffice in making this independent “loss” determination.
(continued...) a money laundering conspiracy conviction charged under sections 101(a)(43)(D) and (U), that the “amount of money to be laundered in the conspiracy for which [the alien] was convicted exceeded $10,000“); Matter of Onyido, 22 I&N Dec. 552 (BIA 1999) (rejecting, in the context of an “attempt” allegation, the contention that section 101(a)(43)(U) requires that a victim suffer an actual loss exceeding $10,000).
ORDER: The appeal of the Department of Homeland Security is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.