Nijhawan v. Holder, 129 S.Ct. 2294 (2009): SCOTUS Examines Circumstance-Specific Approach for Immigration Aggravated Felonies

Fraud or Deceit Offense


Introduction: Nijhawan v. Holder, 129 S.Ct. 2294 (2009)

On June 15, 2009, the Supreme Court of the United States issued a decision titled Nijhawan v. Holder, 129 S.Ct. 2294 (2009) [PDF version]. In Nijhawan, the Supreme Court considered the proper approach for determining whether a conviction was an aggravated felony fraud or deceit offense in which the loss to the victim or victims exceeds $10,000 under section 101(a)(43)(M)(i) of the Immigration and Nationality Act (INA). The decision, written by Justice Stephen Breyer for a unanimous Court, held that the proper approach for determining whether a fraud or deceit crime resulted a loss to the victim or victims in excess of $10,000 is the “circumstance-specific approach.”

Not only is the Nijhawan decision relevant in the section 101(a)(43)(M)(i) context, it is also relevant to the determination of whether other immigration statutes that are similarly structured call for the circumstance-specific approach as well. For example, please see our articles the Board of Immigration Appeals (BIA) published decisions in Matter of Garza-Oliveras, 26 I&N Dec. 736 (BIA 2016) [see article] (applying Nijhawan in section 101(a)(43)(T) case) and Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016) [see article] (applying Nijhawan in section 237(a)(2)(E)(i) context).

In this article, we will examine the facts and procedural history of Nijhawan v. Holder, the Supreme Court's analysis and conclusions, and what the decision means generally. After reading about the Nijhawan decision in detail, please see our companion article on how the BIA and Federal appellate courts have subsequently interpreted the Nijhawan decision both in the section 101(a)(43)(M)(i) context and as applied to other immigration statutes [see article].

Factual and Procedural History: Nijhawan v. Holder, 129 S.Ct. at 2298

Petitioner (Nijhawan), an alien, immigrated to the United States in 1985. In 2002, Petitioner was charged with conspiring to commit mail fraud, wire fraud, bank fraud, and money laundering under sections 371, 1341, 1343, 1344, and 1956(h) of Title 18 of the U.S. Code. The jury found petitioner guilty. However, in what proved to be a key point in the subsequent immigration proceedings, the jury made no finding about the amount of loss incurred by the victim(s) because none of the statutes of conviction required a specific finding about the amount of loss incurred. However, Justice Breyer wrote, “[a]t sentencing petitioner stipulated that the loss exceeded $100 million.” Petitioner was sentenced to 41 months in prison and restitution of $683 million.

In 2005, the Government charged petitioner as removable under section 237(a)(2)(A)(iii) as an alien who was convicted of an immigration aggravated felony. Specifically, the Government charged that petitioner's conviction was an aggravated felony under section 101(a)(43)(M)(i) of the INA, which encompasses fraud and deceit offenses where the losses to the victim(s) exceed $10,000. The Government also charged the respondent as having been convicted of an aggravated felony under section 101(a)(43)(U), which encompasses an attempt or conspiracy to commit any of the aggravated felonies listed in section 101(a)(43).

The Immigration Judge concluded that the respondent's conviction was an aggravated felony under sections 101(a)(43)(M)(i) and 101(a)(43)(U). The Immigration Judge relied on the sentencing stipulation and the restitution order to conclude that the loss to the victim(s) exceeded $10,000. On appeal, this decision was affirmed by the BIA. Petitioner then appealed to the United States Court of Appeals for the Third Circuit. In a published decision titled Nijhawan v. Attorney General of U.S., 523 F.3d 387 (3d Cir. 2008) [PDF version], the Third Circuit dismissed petitioner's appeal and agreed with the conclusion of the Immigration Judge and the BIA. Significantly, the Third Circuit decision concluded that the determination of whether the loss to the victim(s) exceeded $10,000 “requires an inquiry into the underlying facts of the case.” Id. at 396. This conclusion was significant in that the central question in Nijhawan was whether an adjudicator could look to the case record to determine the amount of loss or whether the plain language of the statute of conviction was controlling.

Circuit Split on the Issue: Nijhawan v. Holder, 129 S.Ct. at 2298-99

Justice Breyer's decision notes that the Third Circuit decision added to what was then a growing circuit split on how to interpret and apply section 101(a)(43)(M)(i). The Third had joined the First and Fifth Circuits in concluding that the $10,000 threshold referred to factual circumstances surrounding the commission of the offense, thus inviting an inquiry into the case record to determine the actual loss incurred by the victim(s). Conversely, the Second, Ninth, and Eleventh Circuits held that the $10,000 threshold actually referred to an “element” of the fraud statute of conviction. Under this reading, an adjudicator would not be permitted to look beyond the language of the statute of conviction. This would require, in effect, that the statute of conviction must include as an element of the offense that the victim incurred a loss in excess of $10,000 for the conviction to fall under section 101(a)(43)(M)(i).

Language of Aggravated Felony Provision

Section 101(a)(43)(M)(i) defines as an aggravated felony an offense that:

involves fraud or deceit in which the loss to the victim exceeds $10,000.

As we noted above, the question in Nijhawan was whether the requirement for triggering section 101(a)(43)(M)(i) that “the loss to the victim exceeds $10,000“was a circumstance of the offense or whether it was an element of the offense.

Issues and Petitioner's Arguments: Nijhawan v. Holder, 129 S.Ct. at 2299

Justice Breyer described the central question in Nijhawan:

The question here … is whether the italicized statutory words “offense that involves fraud or deceit in which the loss to the … victims exceeds $10,000” should be interpreted in the first sense (which we shall call “categorical”), i.e., as referring to a generic crime, or in the second sense (which we shall call “circumstance-specific”), as referring to the specific way in which an offender committed the crime on a specific occasion.

Justice Breyer then explained the implications of both readings. First, if the Court determined that the categorical reading applied, it would “look to the statute defining the offense to determine whether it has an appropriate monetary threshold.” In short, this means that the question would be, provided that the statute was a fraud or deceit offense, whether it specified the amount of loss incurred by the victim(s). Alternatively, if the Court found that the circumstance-specific reading applied, it would “look to the facts and circumstances underlying an offender's conviction.” Under this approach, the Court would be able to look beyond the record of conviction to ascertain the loss incurred by the victim(s).

Petitioner argued that the Third Circuit erred in making an inquiry into the underlying facts of the case. Instead, petitioner argued that the language in section 101(a)(43)(M)(i) referred to a generic crime and that the proper inquiry was the “categorical approach.” Specifically, petitioner rejected the assertion that the loss in excess of $10,000 language referred to the circumstances of an offense rather than being part of the generic crime.

The categorical approach, developed by the Supreme Court in Taylor v. United States, 110 S.Ct. 2143 (1990) [PDF version], requires adjudicators to look only to the language of the statute of conviction in determining whether a conviction falls under a separate Federal law. In Taylor, the Court applied the categorical approach to a State burglary conviction — rather than examining the record of conviction — to determine whether it fell under a sentence enhancement provision. Here, it is worth noting that the Supreme Court has further developed the categorical approach in subsequent cases. Please see our detailed index article on the subject to learn more about later developments in the law and read our specific articles [see index].

The Court would ultimately conclude that section 101(a)(43)(M)(i) “calls for a 'circumstance-specific, not a 'categorical,' interpretation. In making this finding, the Court found that the “fraud and deceit” provision section 101(a)(43)(M)(i) was distinguishable from the provisions at issue in Taylor. In the following subjections, we will examine the Supreme Court's reasoning and decision.

Distinguishing Approaches and Statutes: Nijhawan v. Holder, 129 S.Ct. at 2299-2301

For example, the statute at issue in Taylor, 18 U.S.C. 924(e)(2)(B)(i)-(ii), defined “violent” felonies as including “burglary, arson, or extortion” and crimes that have “as an element” the use or threatened use of force. Justice Breyer noted that these all refer to “generic” crimes.

Then, the opinion compared the language of the statutes at issue in Taylor to section 101(a)(43) . It noted that many immigration aggravated felony provisions refer to generic crimes. For one of many examples, he noted that section 101(a)(43)(A) refers to “sexual abuse of a minor” (see our article on a 2017 Supreme Court decision addressing this provision and employing the categorical approach [see article]). Justice Breyer noted that sections 101(a)(43)(B), (E), (H), (I), (J), and (L) also define generic crimes.

However, the opinion then noted that some aggravated felony provisions in section 101(a)(43) clearly do not refer to generic crimes but instead refer to specific circumstances of the commission of the offense. Justice Breyer noted the following example:

[Section 101(a)(43)(P)], after referring to 'an offense' that amounts to 'falsely making, forging, counterfeiting, mutilating, or altering a passport,' adds, 'except in the case of a first offense for which the alien … committed the offense for the purpose of assisting … the alien's spouse, child, or parent … to violate a provision of this chapter' (emphasis added).

Regarding section 101(a)(43)(P), the opinion explained that the “forging … passport[s]” language may refer to a generic crime. However, the portion of section 101(a)(43)(P) which the Court italicized does not refer to a generic crime. Instead, Justice Breyer explained, “if the [italicized] provision is to have any meaning at all, the exception must refer to the particular circumstances in which an offender committed the crime on a particular occasion.” The opinion also added that section 101(a)(43)(N) is similarly structured.

The opinion then noted other statutes that specify circumstances rather than merely stating generic crimes. For example, section 101(a)(43)(K)(ii) “lists 'offense[s] … described in section 2421, 2422, 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage' (emphasis added).” Here, Justice Breyer noted that 18 U.S.C. 2421 and 2422 say nothing about “commercial advantage.” Thus, to read “committed for commercial advantage” as referring to a generic crime rather than specific circumstances would result in effectively negating the language of section 101(a)(43)(K)(ii) that includes 18 U.S.C. 2421 and 2422. The opinion accordingly reasoned that “if committed for commercial advantage” refers to specific circumstances rather than an element of the offense.

Perhaps most pertinent to the analysis of section 101(a)(43)(M)(i), Justice Breyer noted in writing for the Court that section 101(a)(43)(M)(ii) is another example of an aggravated felony provision that references specific circumstances. The opinion stated that “[i]t refers to an offense 'described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000' (emphasis added).” The opinion stated that were the “revenue loss” language not read as referring to circumstances “the tax-evasion provision would be pointless.”

Applying Principles to Statute INA Provision in Nijhawan: Nijhawan v. Holder, 129 S.Ct. at 2301-2302

The Supreme Court held that the language of section 101(a)(43)(M)(i) is consistent with the circumstance-specific approach. Justice Breyer quoted the pertinent part of the statute:

Subparagraph (M)(i) refers to 'an offense that … involves fraud or deceit in which the loss to the victim or victims exceeds $10,000' (emphasis added).

Here, Justice Breyer noted that “[t]he words 'in which' (which modify 'offense') can refer to the conduct involved 'in' the commission of the offense of conviction, rather than to the elements of the offense.” In short, the Court reasoned that “in which the loss to the victim or victims exceeds $10,000” refers to the circumstances of the commission of the offense. This differed from the respondent's preferred reading that the phrase defined elements of an offense.

Furthermore, the Court's opinion noted that the structure of section 101(a)(43)(M)(i) — at issue in the instant case — was “identical” to the structure of the succeeding paragraph, section 101(a)(43)(M)(ii). The Court had discussed section 101(a)(43)(M)(ii) in the previous section of the opinion, stating that it was an example of a statute that referred to specific circumstances of an offense. The Court explained that, “[w]here … Congress uses similar statutory language and similar statutory structure in two adjoining provisions, it normally intends similar interpretations.”

The Court then explained that the application of the categorical approach to section 101(a)(43)(M)(i) would leave the aggravated felony provision “with little, if any, meaningful application.” It noted that it did not find a single Federal fraud statute that contained a relevant money loss threshold. Petitioner had cited to three Federal statutes in support of his position, but Justice Breyer noted that the monetary thresholds in these statutes were $100,000 and $1 million. Accordingly, the opinion asked rhetorically, “[w]hy would Congress intend subparagraph (M)(i) to apply to only these three federal statutes, and then choose a monetary threshold that, on its face, would apply to other nonexistent statutes as well.”

Petitioner had also argued that Congress may have intended for section 101(a)(43)(M)(i) to apply only to certain state fraud and deceit convictions. However, the Supreme Court found that when section 101(a)(43)(M)(i) was added to the INA, “29 of the States had no major fraud or deceit offense statute with any monetary threshold.” Furthermore, “13 of the remaining 21 States … [had] fraud and deceit statutes contain[ing] relevant monetary thresholds but with amounts higher than $10,000…” The Court's analysis found that only eight of the 50 States had fraud and deceit statutes with monetary thresholds of $10,000. The Court found it implausible that Congress had drafted section 101(a)(43)(M)(i) “to apply in so limited and so haphazard a manner.”

Rejecting Petitioner's Alternative Argument In Favor of Modified Categorical Approach: Nijhawan v. Holder, 129 S.Ct. at 2302-2304

Petitioner made an alternative argument that the Court should employ the “modified categorical approach” from Taylor to section 101(a)(43)(M)(i). Under this reading, petitioner argued, the Court should require that the jury-verdict or judge-approved equivalent include a determination that the loss involved to the victim(s) in the fraud or deceit conviction amounted to at least $10,000. Justice Breyer summarized petitioner's position:

[T]he immigration court applying subparagraph (M)(i) should examine only charging documents, jury instructions, and any special jury finding (if one has been requested). If there was a trial but no jury, the subsequent court should examine the equivalent judge-made findings. If there was a guilty plea (and no trial), the subsequent court should examine the written plea documents or the plea colloquy.

Petitioner argued that there were two issues with authorizing further inquiry from immigration judges. First, petitioner argued that this would impose an unreasonable administrative burden on immigration judges. Second, it would allow petitioner to be deported based on circumstances “that were not before judicially determined to have been present and which he may not have had an opportunity, prior to conviction, to dispute” (Justice Breyer's description of the argument).

The opinion of the Court rejected petitioner's argument that the proposed limitations were necessary to ensure fundamentally fair procedures in the adjudication of charges under section 101(a)(43)(M)(i) of the INA. First, the Court determined that nothing in Taylor or subsequent cases necessitated petitioner's proposed limitations on the authority of immigration judges to look into the circumstances of the offense. Second, the Court described petitioner's proposal as “impractical insofar as it requires obtaining from a jury a special verdict on a fact that … is not an element of the offense.”

In another interesting point, the Court noted that the Government does not have the burden of proving its claims in civil immigration proceedings “beyond a reasonable doubt.” Rather, as specified in section 240A(c)(3)(A) of the INA, the Government must prove its claim through “clear and convincing” evidence. Here, it is important to note that the burden of proof and required evidentiary standards are different in civil immigration proceedings than they are in criminal proceedings.

The Court agreed with the Government's argument that “the 'sole purpose' of the 'aggravated felony' inquiry 'is to ascertain the nature of a prior conviction; it is not an invitation to relitigate the conviction itself.'” The Court also cited to the BIA published decision in Matter of Babaisakov, 24 I&N Dec. 306, 319 (BIA 2007) [PDF version], wherein the Board stated that immigration judges must assess findings made at sentencing in a criminal case “with an eye to what losses are covered and to the burden of proof employed.”

The Court noted that even under its decision, “petitioner and those in similar circumstances have at least one and possibly two opportunities to contest the amount of loss…” First, an alien could have contested the amount of loss at his or her earlier criminal sentencing. Second, the alien could contest the amount of loss in immigration proceedings. Furthermore, Justice Breyer explained that, because the Government is required to show the amount of loss by clear and convincing evidence, “uncertainties caused by the passage of time are likely to count in the alien's favor.”


Nijhawan was a consequential decision in the immigration removal context beyond its immediate applicability to section 101(a)(43)(M)(i). Namely, the Supreme Court provided clarity as to when a the circumstance-specific approach should be applied and what this means in practice. As we noted in the introduction and discuss in our companion article, Nijhawan has often been cited in discussions of how other INA provisions should be read. The question of what type of analysis applies depends on the structure of the immigration statute in question. An alien facing removal stemming from a criminal conviction should always consult with an experienced immigration attorney immediately. An experienced attorney will be able to assess the case and determine which paths may be available to contest the charges based on the immigration charges, the alien's conviction, new developments in the law, and the specific factual circumstances of the case. Furthermore, the case also highlights that it is important for an alien facing criminal charges to obtain guidance during criminal proceedings on the effect that different case outcomes may have on his or her immigration situation.

Now that you have learned about the Nijhawan decision, please see our follow-up article on how the decision has been interpreted by Federal circuit courts and by the BIA since its issuance [see article].