Nijhawan: How a Fraud Conviction With No Dollar Amount Becomes an Aggravated Felony

If you are not a citizen and are charged with fraud, the crime may have no dollar amount in it at all. That does not protect you from the immigration rule that makes a fraud offense an aggravated felony when the victims’ loss exceeds $10,000. An immigration judge can look at what actually happened, using your sentencing papers and restitution order, even though no jury found any amount. If the government charges you as deportable after admission, it must prove the loss by clear and convincing evidence, and the loss has to be tied to the counts of conviction. The time to deal with this is before the plea.

The leading decision is Nijhawan v. Holder, 557 U.S. 29 (2009), No. 08-495, decided June 15, 2009. A man facing removal asked the Court to hold that the $10,000 figure had to be an element of the crime, or at least that immigration judges could rely only on a narrow set of conviction documents. The Court unanimously rejected both requests, in an opinion by Justice Breyer, and affirmed the Third Circuit.

A fraud conviction that never mentioned a loss

Nijhawan immigrated to the United States in 1985. In 2002 he was indicted for conspiring to commit mail fraud, wire fraud, bank fraud and money laundering, and a jury found him guilty. None of those statutes requires a finding of any particular amount of loss, so the jury made no finding about the amount. At sentencing he stipulated that the loss exceeded $100 million. The court imposed 41 months in prison and ordered $683 million in restitution.

In 2005 the government sought to remove him as an aggravated felon. The immigration statute makes deportable a person convicted of an aggravated felony after admission, and it defines that term to include an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” The immigration judge relied on the stipulation and the restitution order. The Board of Immigration Appeals and the Third Circuit agreed. Other circuits, including the Ninth, had gone the other way.

Two ways to read an offense

Words like “crime” and “offense” can refer to a type of crime in general or to what a person did on a particular day. The Court called the first reading “categorical” and the second “circumstance-specific.” Under the categorical reading, courts look only at the statute of conviction. Under the circumstance-specific reading, they look at the facts of the crime.

Nijhawan argued for the categorical reading, relying on the Court’s sentencing cases under the Armed Career Criminal Act. If that were right, a fraud statute without a $10,000 threshold could never qualify. The approach also avoids the trouble of reconstructing old facts from thin records.

Why the dollar amount is about the facts

The Court held that the $10,000 language is circumstance-specific, for several reasons. The aggravated felony list uses some terms that name generic crimes, such as murder. But it also has provisions that “almost certainly” refer to particular circumstances. The next clause, on tax evasion “in which the revenue loss to the Government exceeds $10,000,” covers a crime that has no specific loss amount as an element. The Court read the fraud clause, with the same structure, the same way.

The practical argument was striking. A categorical reading would leave the clause almost empty. The Court found no widely applicable federal fraud statute with a relevant loss threshold. When Congress added the $10,000 figure in 1996, 29 states had no major fraud statute with any relevant threshold, and only eight had thresholds where the $10,000 figure would have its full effect. Congress, the Court concluded, would not have intended the clause to apply “in so limited and so haphazard a manner.”

What the immigration judge can look at

Nijhawan’s fallback was that an immigration judge should look only at charging documents, jury instructions and special findings, or at plea documents. Otherwise, he said, he could be deported on facts no court had found. The Court agreed that the statute contemplates fair procedures, including a fair chance to dispute the government’s claim about the loss. It rejected the evidentiary limit. The list of documents from the sentencing cases served a different purpose, and requiring a special verdict on something that is not an element can prove impractical.

That left sentencing material available. The stipulation showed a loss far above $10,000, and so did the restitution order. With no conflicting evidence, the Court held, that was “clear and convincing.”

The Board had already gone in this direction. In Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007), it held that an immigration judge is not limited to the record of conviction and may consider any evidence admissible in removal proceedings that bears on the loss. In the Ninth Circuit, Kawashima v. Holder, 615 F.3d 1043 (9th Cir. 2010), upheld reliance on a plea-agreement stipulation to a tax loss of $245,126, pointing to Nijhawan. The Supreme Court later affirmed that the false-return convictions in that case involved deceit, as our Kawashima analysis explains.

The protections that remain

The opinion is not all bad for noncitizens. Three limits matter.

First, the burden. Removal is a civil proceeding, so the government need not prove the loss beyond a reasonable doubt. But under 8 U.S.C. § 1229a(c)(3)(A), it must prove deportability by clear and convincing evidence. The burden differs for applicants for admission and for people applying for relief from removal. The Court said “uncertainties caused by the passage of time are likely to count in the alien’s favor.”

Second, the tie to the conviction. The Court noted the government’s own position that the loss must “be tied to the specific counts covered by the conviction,” and it cited decisions holding that the amount cannot rest on acquitted or dismissed counts or general conduct. Babaisakov also warned that sentencing figures must be read with care, because they may have been found only by a preponderance of the evidence or may include other losses. It also rejected the argument that preponderance findings can never suffice, and it said an admission tied to the convicted counts will suffice.

The Ninth Circuit’s earlier decision in Chang v. INS, 307 F.3d 1185 (9th Cir. 2002), shows why the plea matters. A plea agreement fixed the loss on the count of conviction at $605.30. The Board relied on restitution of more than $10,000 and a presentence report describing more than $30,000. On habeas review, the Ninth Circuit reversed the district court and ordered the writ granted, refusing to let unconvicted conduct override the agreed figure. Chang applied the modified categorical approach, which Nijhawan rejected for the loss clause, and immigration judges are no longer confined to the conviction record. A clear plea figure can still help, but Chang cannot be read as guaranteeing that it controls. Its concern about tying the loss to the conviction fits the limit Nijhawan noted.

Third, the limited purpose. The government told the Court that the inquiry’s sole purpose is to establish the nature of the prior conviction and that it is “not an invitation to relitigate the conviction itself,” and the Court counted that among the considerations supporting its result. That cuts both ways. You can dispute the loss, but you cannot reargue guilt.

Nijhawan also has limits as a method. The categorical approach remains the general rule. In Moncrieffe v. Holder, 569 U.S. 184 (2013), the Court applied the categorical approach to a drug trafficking category and said that approach is generally used. The fact-based inquiry applies to language like the loss clause.

What this means if you are facing a fraud charge

These steps are our practical advice, based on these decisions.

• Get immigration advice before any plea or stipulation. Nijhawan’s own sentencing stipulation was central. Defense counsel has a duty to advise about deportation risk under Padilla v. Kentucky.
• Write the loss into the plea carefully. Tie any stated loss to the specific count of conviction. On a conspiracy count, the Ninth Circuit looks to the loss from the whole conspiracy, not just your share, under Khalulyan v. Garland, 63 F.4th 1207 (9th Cir. 2023). Do not agree to a global figure without understanding what it covers.
• Watch restitution and the presentence report. These can be used against you. Object to errors at sentencing, because failing to contest a figure can later weigh against you.
• Remember that a low sentence does not solve the problem. The loss clause has no minimum prison term.
• In a deportability case, hold the government to its burden. Ask what evidence ties the loss to the convicted counts and what standard was used to find it.
• Do not concede the loss by default. Review every document in the conviction and sentencing file with counsel before responding to the charge.