Friday, May 02, 2008

Nijhawan: Court Can Review Non-Conviction Evidence That Is "Tethered" In Some Way In Some Cases

Nijhawan v. Mukasey, No. 06-3948, 523 F.3d 387 (3d Cir. May 2, 2008).

Judge Rendell and visiting Senior Judge of the District of NJ Joseph E. Irenas voted in the two-person majority over the dissent of Judge Stapleton.

Thomas E. Moseley fought the losing effort for Mr. Nijhawan while the government's case was argued by Jamie M. Dowd.

This 46-page opinion is going to be hard to summarize. The most important issue here was what type of evidence the government can use to prove a conviction was for a crime that is considered a fraud "in which the loss to the victims exceeded $10,000" and therefore what Congress would call an aggravated felony. (I won't get into the dire consequences of having a conviction classified as an aggravated felony, but they are pretty drastic.)

The Third Circuit previously ruled that in analyzing whether a crime is a certain type of crime so it qualifies as an aggravated felony, the court would follow the same type of analysis in Taylor v. United States and Shepard v. United States, which outline a categorical approach to analyzing how to classify crimes for sentencing purposes.

The Taylor-Shepard approach only penalizes the immigrant if either everything covered by the criminal statute fits the crime category or if the statute is divisible and elements the jury necessarily found would show the portion of the divisible statute that applied in the case would always fall within the crime category.

Mr. Nijhawan sensibly argued that the Taylor-Shepard approach should be used to see whether his crime should be a crime involving fraud with $10,000 loss to the victim. The Third Circuit, though, said it would not use the standard Taylor-Shepard approach because Congress described the category as crimes "involving" loss over $10,000 as opposed to defining the category as "$10,000 frauds." The Third Circuit says the amount of the loss is a qualifier rather than something that has to be found as an element of the crime. I am not sure how you can so easily tell which adjectives are qualifiers and which adjectives are elements. Is the test simply that the key word is "involving"? Or is it a gut feeling that the amount of injury is something that the gut suggests is not usually an element of a crime. I think the Third Circuit is going by its gut feeling, which is going to be hard to apply in a systematic way in the future.

There is a good argument that the ability to reach outside the standard evidence is impossible after the Third Circuit's decision in Alaka v. Gonzales, 456 F.3d 88 (3d Cir. 2006). In this case, the majority says that Alaka stands for the proposition that if you plead guilty to a certain small dollar amount, the government cannot prove the loss was really more. How can the Third Circuit say that, though? What if the government has overwhelming evidence the loss really was more? The Third Circuit is suggesting that it would not matter. So the Third Circuit to preserve its decision proposes perhaps a test first of whether the plea is so clear that it will refuse to look at any other evidence and only if the plea is unclear will it open the door wide to lots of other evidence.

Moving to the next crucial question of what type of evidence is allowed, the Third Circuit ducked the question. It said you need to "tether" a loss more than $10,000 to the conviction. What is tethering? The Third Circuit said it will not tell us -- that it will only tell us that whatever the definition should be, Mr. Nijhawan loses. When the accusation says more than $10,000 and the defendant stipulated for sentencing it was more than $10,000 and the judge found the loss was over $10,000, there is sufficient tethering.

Being optimistic judges, the Third Circuit imagined there are no "daunting practical difficulties," unlike the Second Circuit judges who are concerned with allowing a great deal of extra evidence. Is it possible that future cases should submit a wide variety of positive evidence and let the immigration judges struggle with the daunting practical difficulties? What would be wrong with rebutting the government's evidence by submitting witness statements and testimony from witnesses, experts, co-conspirators, police detectives, and reporters? Why not submit independent evidence to re-try the entire underlying criminal case?

In fact, if an immigration judge asks the immigrant to submit all evidence before making a ruling on whether a crime involved more than $10,000 in loss, the immigrant will not know at what point the proof is sufficient. A diligent immigrant would not only point out the record of conviction, accusing document, guilty plea, and sentencing record but would go further and introduce extensive testimony and evidence about the underlying crime, just in case the judge starts digging more. The practical difficulties could grow exponentially and perhaps this is what the Third Circuit is inviting and burdening the immigration courts with. If the Third Circuit does not yet see the daunting practical difficulties, it may have to be faced with them to realize the consequences of the rule they are vaguely sketching out.

In dissent, Judge Stapleton argued for the Taylor-Shepard approach, warning that expanding it beyond the record of conviction opens the door to all evidence and going over the entire underlying conviction a second time. Judge Stapleton also reasonably criticizes the majority for requiring the loss to be "tethered" to the conviction but not offering guidance on what is considered to be tethered.

A close correlation to this decision is that immigration courts should use their powers to give full discovery to immigrants about underlying criminal convictions and force the government to produce voluminous paperwork about prior convictions. Anything less would deprive the immigrant a fair opportunity to be heard about the wide world of evidence about a loss tethered to a conviction.

Judge Stapleton warns that the majority may be authorizing an immigration court to base its finding on details that were not charged, proven, or admitted, which makes it impossible for an immigrant to make a knowing decision whether to plead guilty because at the time of entering the guilty plea, the immigrant does not know what the sentencing judge will insert into the sentencing record.

Judge Stapleton warns that the Third Circuit has never before allowed the government to deport someone for conduct that he was never convicted of and never pled guilty to.

An interesting future case will be someone who pleads guilty but in fact was innocent and seeks to insert additional evidence about the loss amount by proving that the victim lost $0 from the fraud because the immigrant actually did not commit the crime. Immigrants should be allowed to address this -- not in the context of challenging his guilt (because that is not allowed), but in the context of reducing the loss amount all the way down to $0. Get ready for some extremely long immigration court hearings. And I mean loooooooong.

Please post your comments here to this extremely rough, initial analysis.

For Nijhawan, Thomas E. Moseley of Newark, NJ, who argued the case. For the government, Jamie M. Dowd argued the case and worked with Michelle G. Latour and Lyle D. Jentzer of OIL.

Update: The Third Circuit denied en banc rehearing on July 17, 2008. The Supreme Court granted cert on January 16, 2009. Hope the Third Circuit gets overturned!

The government's opposition to Supreme Court review is on the web at:


Blogger manprabodhsingh said...

you are right brother. in this way we'll really see in the near future the cases going sooooooo long in the courts. i also think that there should be some relaxed rules for immigrants.
MP Singh
New York Immigration Lawyer Marina Shepelsky, located in Brooklyn, assists clients from the New York metro area and across the United States in all immigration and naturalization matters

5:05 AM  

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