Unanimous court rules on 'aggravated felony' under immigration laws (June 15, 2009)

A unanimous Supreme Court ruled today that convictions for mail, bank and wire fraud qualify as an aggravated felony under the Immigration and Nationality Act.

Manoj Nijhawan is a native and citizen of India who entered the United States as an immigrant in July 1985. In 2002, Nijhawan was arrested and indicted for his involvement in a fraudulent scheme to obtain “hundreds of millions of dollars” in loans from banks.

A jury convicted Nijhawan of conspiracy to commit bank fraud, mail fraud and wire fraud, in violation of 18 U.S.C. 371, and of conspiracy to commit money laundering, in violation of 18 U.S.C. 1956(h). The federal bank fraud, mail fraud and wire fraud statutes do not require proof of any particular amount of loss to the victim or victims, and the jury did not find any particular amount of loss in reaching its verdict.

For purposes of sentencing, however, Nijhawan stipulated that the loss from the fraud conspiracy offense “exceeds $100 million.” The judgment of conviction indicated that the total loss associated with the offenses was $683,632,800. Nijhawan was sentenced to 41 months in prison and ordered, jointly and severally with his co-defendants, to pay restitution in the amount of the loss.

While Nijhawan was serving his sentence, the Department of Homeland Security instituted removal proceedings against him. DHS alleged that he was removable for having been convicted of offenses that qualify as “aggravated felon[ies],” namely, a money laundering offense in violation of 18 U.S.C. 1956 in which the amount of the funds exceeded $10,000 and an offense involving fraud or deceit in which the loss to the victim or victims exceeded $10,000.

The immigration judge denied a motion to terminate the proceedings and ordered Nijhawan removed to India. The Board of Immigration Appeals affirmed.

In May 2008, a divided three-judge panel on the U.S. Court of Appeals for the Third Circuit also affirmed, siding with the government. Nijhawan appealed to the U.S. Supreme Court.

“The decision below by a deeply divided panel of the Third Circuit radically departs from the controlling categorical approach in aggravated felony determinations under the Act and literally permits an alien to be deported based upon conduct for which he was not convicted,” argued Nijhawan’s counsel. “Furthermore, the decision below reaches this result by jettisoning the categorical approach based upon a misreading of the plain language of the Act requiring a person to have been convicted of the aggravated felony at issue, a result fundamentally at odds with recent decisions of this Court applying the categorical approach.”

On June 15, 2009, a unanimous Supreme Court affirmed the lower court decision.

Question presented: Whether the petitioner’s conviction for mail, bank and wire fraud qualified as an aggravated felony under the immigration laws, the penalty for which is lifetime banishment from the country.