Stanford student Brian Goldman summarizes Monday’s argument in Nijhawan v. Holder.

At Monday's oral argument in Nijhawan v. Holder, the Supreme Court struggled to square the text of an immigration statute permitting deportation for prior "aggravated felony" convictions with the practical consequences that a plain-text reading would have on the government's ability to deport aliens with criminal histories. By the end of the argument, it was not clear that the petitioner, an Indian immigrant fighting deportation, had convinced a majority of the Court that his prior felony conviction was not an "aggravated" one.

Arguing for the petitioner, New Jersey immigration attorney Thomas Moseley began by contending that the "time-honored categorical approach" used with statutes relating to criminal law should apply in this case, in which an immigration statute defines an "aggravated felony" as a crime of fraud or deceit in which the amount of loss exceeded $10,000. Under that approach, an alien could be deported for "conviction of" an aggravated felony only if the amount of loss was actually a statutory element of the crime.

Justice Kennedy asked almost immediately about petitioner's alternative argument: that the "modified categorical approach" should apply, requiring at a minimum that the amount of loss be established specifically by the jury. Inquiring about the practical effects of such a rule "“ a theme that would recur throughout the argument "“ Justice Kennedy asked how often such special verdicts are returned. Moseley replied that it is entirely up to the government whether to seek out such verdicts, or more commonly, to seek admissions as to the amount of loss during plea colloquies.

This response prompted a number of objections to petitioner's proposed rule. Justice Ginsburg wondered why a judge would seek such a special verdict, which might confuse the jury because it would be irrelevant to the offense charged. Moseley downplayed the risk of juror confusion, noting that most cases are resolved by guilty pleas. Justice Alito then asked why the defendant's admission in a plea colloquy of the amount of loss should have a different effect than the defendant's stipulation at sentencing of the amount of loss "“ as petitioner had done. Moseley began to explain that the burden of proof is much lower at sentencing, but Justice Souter interjected that the burden of proof should be irrelevant when the defendant "definitively resolves [the issue] by admission."

Justice Souter then returned to the "categorical approach," suggesting that a textual argument would not support the "modified categorical approach," and so "you've got to go the whole hog or you get nothing." He then pressed Moseley about the plausibility of that approach when so few statutes actually contain an amount of loss requirement as an element of a crime. "[I]t would be passing strange," Justice Souter suggested, "to define the offense by reference to a $10,000 figure as an element of the offense . . . which would cut the compass of the statute down to three offenses." Although Moseley pointed out that many state statutes contain such an element, he met strong objections from Justices Souter and Ginsburg, who protested that this would create an "utter and . . . unjust patchwork" of immigration consequences across states, which would amount to "treating people who do the identical thing differently" based on their state's fraud statute.

Justice Stevens returned the argument to the modified categorical approach, which Justice Scalia appeared to criticize as "a deus ex machina which is intended to blunt the government's argument that very few statutes would be covered by this." Moseley again insisted that it would be up to the government to "choose[] to prosecute the case by seeking a determination of the . . . amount in a jury charge," to "convict" the defendant of the requisite amount of loss for immigration purposes. As the questioning subsided, Moseley concluded that any ambiguity in the statute should be resolved in favor of the alien. Justice Scalia encouraged him to use his rebuttal to address the government's argument for agency deferral, because "[w]e usually do that."

For the government, Assistant to the Solicitor General Curtis Gannon opened with an attack on the formal categorical approach as implausible, but Justice Scalia immediately asked him about the modified categorical approach. Gannon noted that the approach would present practical difficulties: The government could only seek special interrogatories prospectively, so existing convictions could not serve as bases for deportation. And, knowing the immigration consequences, aliens would be unlikely to concede the amount of loss in guilty pleas. Moreover, he noted that the government would be reluctant to prove an amount of loss during a criminal proceeding when that fact would be extraneous to that proceeding, because it could confuse the jury or at least would be "odd."

Pivoting back to his argument that the categorical approach is implausible, Gannon noted that the "mainstays" of federal fraud prosecutions "“ such as mail and wire fraud "“ would be "read out" of the aggravated felony definition. Instead, the amount-of-loss requirement should be seen as a "limiting factor" that merely identifies a subset of instances of an offense as an aggravated felony. Justice Alito shifted gears, asking how the loss would be measured in the government's reading. During an exchange with Justices Alito, Scalia, and Ginsburg, Gannon explained that the loss determination would have to be established during removal proceedings by clear and convincing evidence "“ and a sentencing stipulation such as petitioner's would be persuasive evidence there. Moreover, the relevant "loss" is the loss from the entire fraud scheme, not just the portion for which the defendant was responsible. Justice Stevens then posed a hypothetical to clarify: Could an alien be convicted for participation in a fraud scheme without the amount of loss having been established, and then be put in removal proceedings, during which the government establishes the amount of loss for the first time? After initially resisting the hypothetical, Gannon acknowledged the government could do so.

The Chief Justice next seized on the distinction between an aggravated felony and an ordinary one. He noted that although most other offenses defined as aggravated felonies were "aggravated" based on the elements of the offenses themselves "“ such as firearms offenses, child pornography offenses, and national security offenses "“ what made fraud "aggravated" was the particular amount of loss. And "if the only thing that makes it aggravated is . . . something you don't have to prove beyond a reasonable doubt, [then] is that really aggravated?" Gannon replied that other offenses listed among the aggravated felonies have similar "limiting factors," such as ones that depend on the actual sentence imposed, which clearly would not be an element of the offense itself. Gannon suggested subtly that although the Chief Justice might not think that simple fraud could become an "aggravated" felony merely because the amount of loss in fact exceeded $10,000, Congress would "“ and did "“ disagree.

Finally, Justice Stevens returned to petitioner's primary argument in his brief on the merits: If the facts that make the fraud "aggravated" are not proven by a reasonable doubt, then a defendant has not been properly "convicted of" the aggravated felony that forms the basis for removal. Correcting an observation made by Justice Scalia, Justice Stevens noted that because "convicted of" modifies "an aggravated felony," rather than "an offense that involves fraud or deceit, a conviction on the fraud aggravator would require proof beyond a reasonable doubt. Gannon responded by again pointing to limiting factors in other offenses in the definition, for which a "conviction" on those factors would either be nonsensical or implausible.

During his brief rebuttal, Moseley argued that no deference was warranted to the Board of Immigration Appeals here, because the "aggravated felony" definition would control in future criminal proceedings under a criminal portion of the INA, 8 U.S.C. § 1326(b), and no Chevron deference is required for criminal statutes. In response to Justice Scalia's suggestion that the government could just prove the amount of loss beyond a reasonable amount in that later prosecution, Moseley submitted that such an outcome would be far more impractical that petitioner's interpretation.

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