BABAISAKOV, 24 I&N Dec. 306 (BIA 2007)

Cite as 24 I&N Dec. 306 (BIA 2007) Interim Decision #3585
In re Yuriy Il Yavmaniyevich BABAISAKOV, Respondent
File A71 416 447 – York
Decided September 28, 2007
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A single ground for removal may require proof of a conviction tied to the statutory
elements of a criminal offense, as well as proof of an additional fact or facts that are not
tied to the statutory elements of any such offense.
(2) When a removal charge depends on proof of both the elements leading to a conviction
and some nonelement facts, the nonelement facts may be determined by means of
evidence beyond the limited “record of conviction” that may be considered by courts
employing the “categorical approach,” the “modified categorical approach,” or a
comparable “divisibility analysis,” although the record of conviction may also be a
suitable source of proof, depending on the circumstances.
(3) Section 101(a)(43)(M)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(43)(M)(i) (2000), which defines the term “aggravated felony” to mean “an
offense that involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000,” depends on proof of both a conviction having an element of fraud or deceit and
the nonelement fact of a loss exceeding $10,000 that is tied to the conviction.
(4) Because the phrase “in which the loss to the victim or victims exceeds $10,000” is not
tied to an element of the fraud or deceit offense, the loss determination is not subject to
the limitations of the categorical approach, the modified categorical approach, or a
divisibility analysis and may be proved by evidence outside the record of conviction,
provided that the loss is still shown to relate to the conduct of which the person was
convicted and, for removal purposes, is proven by clear and convincing evidence.
(5) The Immigration Judge erred in declining to consider a presentence investigation report
as proof of victim loss because of his mistaken belief that he was restricted to
consideration of the respondent’s record of conviction.
FOR RESPONDENT: Thomas M. Griffin, Esquire, Philadelphia, Pennsylvania
BEFORE: Board Panel: OSUNA, Acting Chairman; FILPPU and PAULEY, Board
FILPPU, Board Member:
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This case concerns the scope of the evidence that an Immigration Judge may
consider in removal proceedings to determine whether a conviction for an
offense involving fraud or deceit was one “in which the loss to the victim or
victims exceeds $10,000,” as required by section 101(a)(43)(M)(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2000). We
hold that an Immigration Judge is not restricted to “record of conviction”
evidence but may consider any evidence admissible in removal proceedings
bearing on the loss to the victim. Consequently, we will sustain the appeal of
the Department of Homeland Security (“DHS”) from the Immigration Judge’s
March 6, 2006, decision dismissing the aggravated felony charge against the
respondent and terminating the removal proceedings.
The respondent, a native and citizen of Uzbekistan, has been a lawful
permanent resident since 1998. In 2003, the respondent and various
codefendants were indicted in the United States District Court for the Southern
District of New York on four criminal counts arising from a scheme to defraud
insurance companies, between July 2002 and January 2003, by staging
automobile accidents, receiving unnecessary medical treatment, and submitting
false and fraudulent claims for insurance benefits. On January 21, 2005, the
respondent was convicted on a guilty plea of the offenses set forth in counts
one and three of the indictment, charging him with conspiracy and mail fraud,
respectively, under 18 U.S.C. §§ 371 and 1341 (2000). He was sentenced to
a term of imprisonment of 10 months, followed by 3 years of supervised
release, and was ordered to pay $19,850 in restitution pursuant to 18 U.S.C.
§ 3663 et seq.
The DHS has pursued charges of deportability against the respondent under
section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), as an
alien convicted of an “aggravated felony.” Specifically, the DHS alleged that
the respondent was convicted of an offense that “involves fraud or deceit in
which the loss to the victim or victims exceeds $10,000” under section
101(a)(43)(M)(i) of the Act, and of an attempt or conspiracy to commit such
an offense under section 101(a)(43)(U). In support of the charge, the DHS
submitted the criminal judgment, indictment, statement of reasons (“SOR”) by
the sentencing judge, and presentence investigation report (“PSR”) into
The Immigration Judge dismissed the charge and terminated proceedings.
There is no dispute that the respondent’s offenses involved “fraud or deceit.”
See Valansi v. Ashcroft, 278 F.3d 203, 210 (3d Cir. 2002). The Immigration
Judge found, however, that the DHS had failed to offer clear and convincing
evidence that the offense involved more than $10,000 in loss to the victim.
The Immigration Judge noted that neither the criminal statutes under which the
307Cite as 24 I&N Dec. 306 (BIA 2007) Interim Decision #3585
respondent was convicted nor the counts of the indictment made any loss a
prerequisite to a finding of guilt.
The criminal judgment does identify the “total loss” arising from the
respondent’s offenses as $19,850, the amount of restitution ordered, but it does
not reflect how the trial court calculated this loss amount. However, the same
figure appears in the PSR as the amount allegedly paid out in fraudulent
claims, and, as indicated in the SOR, the trial court expressly adopted the PSR
without change. Nevertheless, the Immigration Judge observed that the
amount of restitution ordered is a “post-guilt calculus” aimed at making a
victim whole and is not necessarily representative of actual loss arising from
the offenses of conviction. The Immigration Judge further found that
consulting a PSR to determine the amount of loss would not comport with the
“categorical approach” to statutory interpretation set forth in the Supreme
Court’s decisions in Taylor v. United States, 495 U.S. 575 (1990), and Shepard
v. United States, 544 U.S. 13 (2005). See also Gonzales v. Duenas-Alvarez,
127 S. Ct. 815 (2007) (discussing the categorical approach as applied to
aggravated felony determinations under the immigration law). Finally, the
Immigration Judge emphasized that the record contains no evidence, such as
a plea agreement or plea colloquy transcript, reflecting that the respondent
admitted that his criminal conduct resulted in any particular amount of loss.
In its appellate brief, the DHS argues that the award of $19,850 in restitution
is clear and convincing evidence that the offenses of which the respondent was
convicted occasioned losses of more than $10,000 to his victims. The DHS
also argues that the PSR is admissible to prove the amount of loss, even under
Taylor and Shepard, because the district court judge affirmatively adopted it
when imposing the sentence. At oral argument, the DHS further contended
that the amount of loss arising from a fraud or deceit offense need not be
established categorically, by reference to documents conventionally understood
as constituting the “record of conviction,” but may instead be proven by
reference to any evidence that is otherwise admissible, including the testimony
of witnesses or the admissions of the respondent taken by the Immigration
Judge during the removal proceedings. Noting that it has been unable to
identify any State or Federal fraud statute that includes as an element the
requirement that a victim sustain losses exceeding $10,000, the DHS claims
that the categorical approach embodied in Taylor and Shepard is simply
unworkable as applied to the loss calculation required by section
101(a)(43)(M)(i) of the Act.
The respondent, in both his appellate brief and at oral argument, claimed that
the restitution award is not evidence of the actual loss that he was convicted of
causing to his victims because that award included losses that arose from other
conduct as well. Moreover, the respondent contends that the district court’s
findings as to victim loss in the sentencing context are not sufficiently reliable
to establish deportability because those findings need only have been supported
308Cite as 24 I&N Dec. 306 (BIA 2007) Interim Decision #3585
by a preponderance of the evidence, rather than the “clear and convincing”
evidence needed for deportability.1
A. Introduction and Summary
The questions before us turn in large measure on the nature of the
determinations that section 101(a)(43)(M)(i) requires and on whether an
Immigration Judge must apply the so-called “categorical” approach when
seeking to ascertain the amount of loss arising from a conviction for an offense
that “involves fraud or deceit.” The court of appeals case law addressing the
“categorical” and “modified categorical” approaches contains conflicting views
over the scope and applicability of these concepts. In the end, however, we
believe a very basic principle governs.
Simply put, the categorical and modified categorical approaches, as we
understand Taylor and Shepard, properly apply only when the statute currently
being implemented or administered demands a focus exclusively on the
elements of a prior conviction. Further, neither Taylor nor Shepard demands
the use of the categorical or the modified categorical approach to any currently
required determination that is not tied to an element of a prior conviction.
Here, the removal provision demands a prior conviction for fraud or deceit.
But, as we explain, the statute also requires a separate finding as to loss that is
not tied to the elements of any State or Federal criminal statute. The
categorical and modified categorical approaches properly govern the
assessment as to whether the elements of the conviction for fraud or deceit are
present, but they do not apply when assessing the additional “nonelement”
factor of victim loss.
The proper focus is on the nature of the findings that must be made to
resolve a removal charge. Reliance exclusively on the categorical and
modified categorical approaches is both necessary and proper if the removal
charge is tied solely to the elements of an earlier conviction. But if something
We also understand the respondent to argue that Matter of Eslamizar, 23 I&N Dec. 684
(BIA 2004), requires that all aspects of a removal charge predicated on the existence of a
“conviction” be proved beyond a reasonable doubt during the criminal proceedings. There
is no dispute that the respondent’s Federal criminal conviction arose from a proceeding in
which each element of the crimes of conspiracy and mail fraud had to be proved beyond a
reasonable doubt. He stands “convicted” of his crimes for immigration purposes. As
explained below, a loss exceeding $10,000 need not be an element of the criminal statute,
and hence can be shown by evidence beyond that needed to obtain a conviction for a crime
of fraud or deceit.
1 2
Cite as 24 I&N Dec. 306 (BIA 2007) Interim Decision #3585
more is demanded by the terms of the removal provision at issue, then the
categorical and modified categorical approaches will not apply to this
additional aspect of the removal statute.
Substantial confusion has arisen, however, from both the case law and the
multiple evidentiary purposes that can be served by conviction records. For
example, some nonelement determinations are easily and appropriately made
from records of conviction, such as the length of sentence the defendant
received after being found guilty of all the elements of the crime. The proper
use of the conviction record to assess nonelement factors, such as length of
sentence, mimics a categorical or modified categorical approach as set forth in
Taylor and Shepard. However, it is really a look at the conviction record as a
piece of ordinary evidence that discloses the length of sentence and is not an
inquiry into what the trier of fact was required to find to determine guilt or
B. Supreme Court’s Categorical Approach
Under the Supreme Court’s categorical approach, an adjudicator seeking to
determine whether a defendant’s prior “convictions” justify an enhanced
sentence on a new conviction “must look only to the statutory definitions of the
prior offenses,” and may not “consider other evidence concerning the
defendant’s prior crimes,” including “the particular facts underlying [the]
convictions.” Taylor v. United States, supra, at 600 (addressing the meaning
of “burglary” as defined in 18 U.S.C. § 924(e)(2)(B)(ii)). Thus, the categorical
approach focuses on “whether the elements of the offense are of the type that
would justify its inclusion” within the scope of a federally listed term, “without
inquiring into the specific conduct of this particular offender.” James v. United
States, 127 S. Ct. 1586, 1594 (2007); see also Shepard v. United States, supra,
In this context, we understand the term “element” to mean a “fact necessary to constitute
the crime.” See In re Winship, 397 U.S. 358, 364 (1970) (emphasis added); see also
Mullaney v. Wilbur, 421 U.S. 684, 697-99 (1975); Black’s Law Dictionary 520 (6th ed.
1990) (defining “[e]lements of crime” as “[t]hose constituent parts of a crime which must be
proved by the prosecution to sustain a conviction”). In sentencing cases, the Supreme Court
has concluded that any fact, other than a prior conviction, that is necessary to support a
punishment must be admitted by the defendant or proven to a jury beyond a reasonable
doubt. Cunningham v. California, 127 S. Ct. 856 (2007); United States v. Booker, 543 U.S.
220 (2005); Blakely v. Washington, 542 U.S. 296 (2004); Apprendi v. New Jersey, 530 U.S.
466 (2000). We are not now treating sentencing facts that are outside the statutory definition
of the crime as “elements,” although we acknowledge that there may be reasons for deeming
sentencing factors found in accordance with Apprendi to be part of the elements leading to
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at 19 (stating that “the categorical approach . . . refers to predicate offenses in
terms not of prior conduct but of prior ‘convictions’ and the ‘element[s]’ of
crimes” (quoting Taylor v. United States, supra, at 600-01)).
The Supreme Court nonetheless indicated that the “categorical approach . . .
may permit the sentencing court to go beyond the mere fact of conviction in a
narrow range of cases where a jury was actually required to find all the
elements” of the currently relevant offense, such as generic burglary at issue
in Taylor. Taylor v. United States, supra, at 602. The Supreme Court has
noted that some lower courts refer to this second “step of the Taylor inquiry,”
pertaining to which elements of an overly broad statute led to conviction, “as
a ‘modified categorical approach.’” Gonzales v. Duenas-Alvarez, supra, at
819. Yet some courts have also considered the “modified categorical
approach” to include a search for criminal record facts that do not pertain to the
“elements” of the predicate offense but that can nonetheless be deemed reliably
established by the conviction record. However, both Taylor and Shepard
confine a review of the conviction record to such items as charging documents,
jury instructions, “the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record of this
information,” and do so as part of a search for the elements that led to a prior
conviction, not the facts that were involved in the crime. Shepard v. United
States, supra, at 26.
Similar to the sentence enhancements at issue in Taylor and Shepard,
deportability under section 237(a)(2)(A)(iii) of the Act depends on the
existence of a “conviction” for a federally defined category of offenses, i.e.,
“aggravated felonies.” Hence, the courts of appeals have a long-standing
practice of applying the categorical approach to aggravated felony
determinations under the immigration law, a practice acknowledged in
Gonzales v. Duenas-Alvarez, supra, at 818-19. We have also traditionally
applied an analysis that closely resembles the categorical approach to
determine whether an alien has a “conviction” that falls within a federally
defined category of crimes leading to deportation. See Matter of
Gertsenshteyn, 24 I&N Dec. 111, 112 (BIA 2007); Matter of Sweetser, 22 I&N
Dec. 709, 715 (BIA 1999); Matter of Pichardo, 21 I&N Dec. 330, 335 (BIA
1996); Matter of Madrigal, 21 I&N Dec. 323, 327 (1996); Matter of Ghunaim,
15 I&N Dec. 269, 270 (BIA 1975), modified on other grounds, Matter of
Franklin, 20 I&N Dec. 867 (BIA 1994); Matter of S-, 2 I&N Dec. 559 (C.O.,
BIA 1946; A.G. 1947); Matter of S-, 2 I&N Dec. 353, 357 (BIA, A.G. 1945);
Matter of N-, 1 I&N Dec. 181 (BIA 1941). Indeed, in Matter of Sweetser,
supra, at 715, we characterized our approach to “divisible” statutes as being
“identical to how the federal courts have applied the categorical approach.”
Our unpublished cases undoubtedly include decisions in which we applied a
“modified categorical approach” to search for conviction record “facts” that
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may not have been “elements” necessary for conviction under the pertinent
criminal statute. However, our published law applies either a categorical or a
divisibility analysis, where the actual elements leading to conviction are the
determining factor for removal charges hinging on a conviction for a crime.
See Matter of Pichardo, supra, at 335 (emphasizing that it is the elements of
the crime an alien is actually convicted of, and not the crime he or she may
have committed, that is determinative of deportability).
Yet, as recognized by the United States Court of Appeals for the Third
Circuit, in which this case arises, the applicability of the categorical approach
in the aggravated felony context necessarily depends on the language of both
the statute of conviction and the particular aggravated felony category to which
that approach might be applied. Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir.
2004) (stating that while Taylor’s “formal categorical approach presumptively
applies in comparing [predicate offenses and aggravated felony categories],
under certain conditions, both the enumerating statute and the statute of
conviction can require a departure from the formal categorical approach”).
Moreover, according to Singh, the reference in section 101(a)(43)(M)(i) of the
Act to $10,000 in loss to the victims is the “prototypical example” of such a
nonelement qualifier that would “invite inquiry into the facts underlying the
conviction at issue,” because “it expresses such a specificity of fact that it
almost begs an adjudicator to examine the facts at issue.” Id.
We, too, have recognized that application of the categorical approach
depends on the nature of the determinations required by the statute in the
aggravated felony context. For example, in Matter of Gertsenshteyn, supra,
we considered section 101(a)(43)(K)(ii) of the Act, which provides aggravated
felony treatment for an offense “described in section 2421, 2422, or 2423 of
title 18, United States Code (relating to transportation for the purpose of
prostitution) if committed for commercial advantage.” Because only one of the
three enumerated statutes employs the phrase “commercial advantage” as an
element (and none had done so at the time of enactment of section
101(a)(43)(K)(ii)), we determined that a strict application of the categorical or
modified categorical approach would likely render the provision a nullity.
Concluding that such an eventuality was inconsistent with legislative intent,
we held that the parties could offer evidence outside the limits of a “record of
conviction” in proving the “committed for commercial advantage” component
of that aggravated felony charge.3 Id. at 115-16.
In Matter of Gertsenshteyn, supra, we explained that the “commercial advantage”
component of a section 101(a)(43)(K)(ii) aggravated felony was neither an element nor a
sentence enhancement factor for the underlying Federal crime. Victim loss is more likely
to be a sentencing factor. Prior to Apprendi v. New Jersey, supra, and its progeny, we had
3 Cite as 24 I&N Dec. 306 (BIA 2007) Interim Decision #3585
The extent to which the categorical approach applies to the determination
of loss arising from a conviction for an offense that “involves fraud or deceit”
under section 101(a)(43)(M)(i) of the Act thus depends on whether this
immigration provision envisions loss as an element of the criminal offense or
as a separate factor for assessment in relation to removability. To answer this
question, we look to the statute.
C. Section 101(a)(43)(M)(i) of the Act
We begin with the statutory language. INS v. Cardoza-Fonseca, 480 U.S.
421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984). Section
101(a)(43)(M) of the Act provides that an aggravated felony includes
an offense that–
(i) involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000; or
(ii) is described in section 7201 of the Internal Revenue Code of 1986 (relating to
tax evasion) in which the revenue loss to the Government exceeds $10,000.4
Viewed in isolation, the “loss to the victim” language of section
101(a)(43)(M)(i) could refer to an “element” of the underlying fraud offense.
On the other hand, the victim loss aspect of that section can be considered as
a “limiting” fact, unrelated to the statutory elements of the underlying offense,
that excludes less serious fraud crimes from being aggravated felonies. When
viewed in context, however, it is evident that the victim loss aspect of the
statute was not intended to refer to an “element” of any underlying fraud
Many of the aggravated felony provisions within section 101(a)(43) of the
Act identify some limiting fact that excludes otherwise-qualifying crimes from
the scope of the definition. For example, in sections 101(a)(43)(J), (Q), and
rejected sentence enhancements as constituting part of the crime of which an alien could be
deemed to have been “convicted” if the enhancement was not treated as a separate crime
leading to conviction within the prosecuting jurisdiction. Matter of Rodriguez-Cortes,
20 I&N Dec. 587 (BIA 1992). We are not now required to reassess Rodriguez-Cortes,
because we find that loss to the victim is not an element that must be present in the
underlying crime. Nevertheless, as we explain later, a sentencing factor that is found under
Apprendi standards will suffice to show victim loss for removal purposes.
Section 101(a)(43)(M) was added to the Act by section 222(a) of the Immigration and
Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, 108 Stat. 4305, 4322.
The original loss threshold for both clauses was $200,000. That amount was lowered to
$10,000 in 1996 by section 321(a)(7) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628.
4 Cite as 24 I&N Dec. 306 (BIA 2007) Interim Decision #3585
(T), which provide that an offense is an aggravated felony only if a certain
minimum sentence may be imposed for the crime, the qualifier is the statutory
penalty available for the offense of conviction. A number of other provisions
limit crimes based on facts relating to the particular conviction at issue, rather
than to the generic offense of conviction. Specifically, sections 101(a)(43)(F),
(G), (P), (R), and (S) exclude crimes from the aggravated felony definition
where the actual sentence imposed was too short (regardless of the sentence
that could have been imposed), while sections 101(a)(43)(K)(ii), (N), and (P)
provide that convictions are included in, or excluded from, the aggravated
felony definition based on the particular offender’s motivation for committing
the crime.5
In Matter of Gertsenshteyn, supra, we noted that Congress used the
length of sentence as one of the “aggravating” factors to distinguish ordinary
crimes from aggravated felonies, even though the sentence resulting from a
conviction is not an element of the crime itself.
Three other provisions–including the one at issue here–provide that an
offense is an aggravated felony only if the financial implications of the crime
were sufficiently far-reaching. See sections 101(a)(43)(D), (M)(i), (M)(ii) of
the Act (covering, respectively, money laundering offenses or offenses
involving the proceeds of specified unlawful activity in which “the amount of
the funds exceeded $10,000,” offenses involving fraud or deceit “in which the
loss to the victim or victims exceeds $10,000,” and tax evasion offenses “in
which the revenue loss to the Government exceeds $10,000”).
Most importantly, both sections 101(a)(43)(M)(i) and (ii) depend in part on
the “loss” occasioned by the offense of conviction. Yet section 7201 of the
Internal Revenue Code, 26 U.S.C. § 7201, referenced in clause (ii), contains
no element pertaining to revenue loss to the Government. Consequently, no
violation of section 7201 itself could ever be an aggravated felony if
deportability under clause (ii) depended on a showing that the revenue loss to
the Government was an element of the crime, which is an absurd result. The
sensible reading of section 101(a)(43)(M)(ii), then, is that the amount of
revenue loss to the Government is an aggravating factor, similar to the length
of sentence or the “commercial advantage” requirement at issue in Matter of
Gertsenshteyn, supra, that may be proven by reference to evidence unrelated
to the statutory elements of the tax evasion offense. In our view, the reference
to victim loss in clause (i) serves the same purpose as the “revenue loss” aspect
of clause (ii). Our conclusion is bolstered by the fact that we have been unable
5 Sections 101(a)(43)(K)(ii), (N), and (P) of the Act cover, respectively, offenses relating to
transportation for the purposes of prostitution “if committed for commercial advantage” and
alien smuggling and document fraud offenses, except for a “first offense” where the alien has
affirmatively shown that he committed the offense “for the purpose” of assisting close family
members only.
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to identify, despite an extensive (if not exhaustive) inquiry, any Federal or
State fraud statute that contains an element requiring loss to the victims
exceeding $10,000.6
Furthermore, our review of the legislative history of section 101(a)(43)(M)
has uncovered nothing that would lead us to conclude that Congress
understood the loss amount to be a required element of the predicate offense,
as opposed to a limiting provision or an aggravating factor. Similarly, we have
found nothing in the legislative history accompanying the 1996 change from
the original $200,000 figure to the current $10,000 figure that suggests the
newer figure was intended to be tied to the statutory elements of fraud or deceit
convictions. See generally H.R. Conf. Rep. No.104-828 (1996), available at
1996 WL 563320.
The Federal courts of appeals, including the Third Circuit, have found other
aspects of section 101(a)(43)(M) to be plain and unambiguous. See Alaka v.
Att’y Gen., 456 F.3d 88, 106 (3d Cir. 2006) (stating that the statute was plain
and unambiguous in relation to the need to predicate “‘removal on a convicted
offense resulting in losses greater than $10,000,’” as opposed to looking to
losses arising from additional fraudulent activity that did not result in
conviction (quoting Knutsen v. Gonzales, 429 F.3d 733, 736 (7th Cir. 2005))).
Moreover, the circuits have consistently applied some form of categorical
analysis when seeking to ascertain whether the offense in question had “fraud
or deceit” as an element. E.g., Valansi v. Ashcroft, supra, at 214.
But we are not aware of any precedential majority opinion declaring that the
victim impact aspect of the statute, i.e., a loss exceeding $10,000, must
6 The decision in Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. 2004), involved a State fraud
offense requiring that the offender obtain government benefits of more than $400, while
18 U.S.C. § 1029(a)(2) requires proof of a minimum loss to the victim of $1,000. Thus,
while there are fraud statutes containing loss elements, we have not found any in which the
relevant loss threshold corresponds to the $10,000 figure in section 101(a)(43(M)(i) of the
Act. Under 18 U.S.C. § 1039(d), certain fraud crimes can be subject to an enhanced
statutory penalty if committed “as part of a pattern of any illegal activity involving more than
$100,000.” This $100,000 figure need not relate to victim loss, however, nor does the
existence of a pattern of illegal activity involving more than $100,000 constitute a statutory
element of the underlying fraud crime. Instead, it is a sentencing factor, which resembles
a statutory element in the sense that it must either be admitted by the defendant or proven to
a jury beyond a reasonable doubt.
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correspond to a loss element in the criminal statute.7 See Li v. Ashcroft,
389 F.3d 892, 899-901 (9th Cir. 2004) (Kozinski, J., concurring) (arguing that
the lack of an element in the criminal statute requiring a loss exceeding
$10,000 should preclude a finding of an aggravated felony conviction under
section 101(a)(43)(M)(i)). Indeed, most published court of appeals rulings
seem to accept that a loss exceeding $10,000 need not be a formal element of
the criminal offense. And as reflected above, our own construction of the
statute is that the $10,000 loss threshold is a limiting or aggravating factor that
need not be tied to an element of any criminal statute.
D. Modified Categorical Approach Under Circuit Law
Our conclusion that the $10,000 loss figure in section 101(a)(43)(M)(i) of
the Act was not intended to describe an “element” of a “fraud or deceit” crime
takes this victim loss aspect of the statute outside the scope of the categorical
approach of Taylor and Shepard. Nevertheless, the weight of authority at the
circuit court level is that proof of such loss must be derived from the same
types of evidence (such as the charging instrument or plea agreements) that are
typically consulted under the “modified categorical approach” by a court
seeking to identify the elements of an offense defined by an overbroad statute.
E.g., Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., No. 05-3098-ag, 2007
WL 2712941 (2d Cir. Sept. 19, 2007) (holding that a loss of more than $10,000
may be shown only by information appearing in a record of conviction that
would be permissible under Taylor and Shepard); Kawashima v. Gonzales,
Nos. 04-74313, 05-74408, 2007 WL 2702330 (9th Cir. Sept. 18, 2007)
(holding that the modified categorical approach limits the scope of review to
the record of conviction in relation to a loss exceeding $10,000 where there
was no element of loss in the criminal statute); Conteh v. Gonzales, 461 F.3d
45 (1st Cir. 2006) (requiring clear and convincing evidence derived solely from
the criminal record of the aggravated felony charge, even if the criminal statute
lacked a “loss” element); Alaka v. Att’y Gen., supra, at 107-08 (stating, in
relation to the conduct resulting in conviction, that “[b]ecause our
consideration is limited to the offense of conviction, we look only to the
charges to which the [alien] pled guilty, and not to conduct that was neither
7 Portions of the decision in Obasohan v. U.S. Att’y Gen., 479 F.3d 785 (11th Cir. 2007), can
be read to require a conviction with criminal elements covering all aspects of the aggravated
felony definition in section 101(a)(43)(M)(i). However, such a reading would conflict with
the court’s extensive discussion regarding the adequacy (or inadequacy) of conviction record
evidence, unrelated to any element of the criminal statute, bearing on the $10,000 loss
316 Cite as 24 I&N Dec. 306 (BIA 2007) Interim Decision #3585
admitted nor proven beyond a reasonable doubt”);8 see also Tokatly v.
Ashcroft, 371 F.3d 613, 622 (9th Cir. 2004) (describing the categorical and
modified categorical approaches as being based “on the nature of the alien’s
conviction, rather than on the alien’s actual conduct,” but then requiring that
conviction-related facts that are not elements of the underlying criminal
statutes nonetheless be established by reference to the “record of conviction”).
Despite the rulings in cases such as Dulal-Whiteway, Conteh, and Tokatly,
we do not believe there is any sound legal principle that constrains inquiry to
the record of conviction if the search involves aspects of the crime that go
beyond the elements of the offense. In Tokatly, the Ninth Circuit specifically
rejected the Government’s argument that the ground of removal pertaining to
crimes of domestic violence, section 237(a)(2)(E)(i) of the Act, required a
bifurcated evidentiary approach. The Government acknowledged that proof
of a “conviction” for a “crime of violence,” with all its attendant “elements,”
was required. On the other hand, the Government maintained that the
existence of a “domestic” relationship between the offender and the victim was
not understood by Congress as describing an element of the predicate offense
but was instead a separate “immigration fact” that should have been subject to
independent proof–outside the “record of conviction” if necessary. See Tokatly
v. Ashcroft, supra, at 620. The Ninth Circuit rejected this approach, describing
it as a “somewhat convoluted and bipolar methodology to the statutory
inquiry.” Id. The principal grounds for rejection, however, were the Ninth
Circuit’s Taylor-related approach to assessing convictions and our adherence
to a comparable approach in cases such as Matter of Pichardo, supra, and
Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996).
We have a different perspective. We accept that a “categorical” approach
is to be applied with respect to any aspect of a removal charge that depends on
a conviction under a criminal statute containing elements that must be shown
to establish removability. The situation is much different, however, if the
removal charge requires proof of some fact that is not an element of the
predicate offense. For example, a finding of removability under section
237(a)(2)(A)(i) of the Act requires proof of a conviction for a crime involving
moral turpitude that was committed within 5 years after admission. In
implementing this statute we do not look to the conviction record to determine
the date when an alien was admitted to the United States under the immigration
laws because the date of admission is not an element of any criminal offense,
8 This reasoning would not allow independent evidence of loss during a removal hearing, but
such was not Alaka’s holding, in a sense that would preclude our ruling today. On the
evidentiary issue of determining loss, the holding in Alaka was that the alien’s plea
agreement controlled and could not be superseded by a loss calculation for sentencing and
restitution purposes.
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except perhaps in the rarest of cases. Similarly, although the precise date an
offense was committed may be relevant in a criminal prosecution to provide
a defendant with adequate notice of charges or to rebut a statute of limitations
or ex post facto defense, it is not an element of the crime or an aspect of
convicted conduct that must necessarily be established in removal proceedings
by reference to the conviction record.9
As to crimes of moral turpitude committed within 5 years after an alien’s
admission, the statute clearly combines the need for a qualifying “conviction”
with other requirements bearing both on the crime and on the alien’s
immigration history. It may be awkward from the perspective of the
“categorical” or “modified categorical” approach for a particular removal
statute to include both “offense-element” facts and other “nonelement” facts
pertaining either to the conviction (e.g., length of sentence or the date the
offense was committed) or the impact of the crime on the victim. But when
deportability depends in part on proof of nonelement aspects of a crime, we do
not understand how the inquiry into those facts can automatically be
constrained by rules that have been developed solely to ascertain the elements
of the crime. By definition, the inquiry must go beyond the elements in such
cases. The question, then, is whether the conviction record is an adequate
source for the information demanded by the removal statute.
E. “Record of Conviction” Evidence To Assess “Loss” to the Victim
A conviction record may serve as the best source of information for
nonelement facts about a crime. But this will depend on the nature of the
nonelement information. No wooden rule, denominated as a “categorical” or
“modified categorical” approach derived from Taylor and Shepard, or
employed by Pichardo, can answer that question in advance.
The length of sentence is a nonelement fact for some aggravated
felonies that can be readily ascertained from the record of conviction, and it
would not make sense to invite other proof, absent a scrivener’s error. On the
other hand, in Matter of Gertsenshteyn, supra, we found that independent
proof as to the “committed for commercial advantage” component of section
101(a)(43)(K)(ii) aggravated felonies should be allowed in order to give life
9 Conviction records may well reveal the date when a criminal offense was committed, and
the trier of fact may appropriately consider such records in removal proceedings. The point,
however, is that in the section 237(a)(2)(A)(i) context, an Immigration Judge consults such
documents not as a component of a “modified categorical” inquiry, but as primary evidence
of the date itself.
318 Cite as 24 I&N Dec. 306 (BIA 2007) Interim Decision #3585
to the statute, as evidence of this aspect of a crime would not likely be found
in records of conviction.
The loss threshold of section 101(a)(43)(M)(i) falls between these extremes.
Some criminal complaints may allege specific loss amounts, despite the
absence of “loss” elements in the criminal statutes. Restitution is frequently
included in criminal judgments, and the amount of loss may be discussed
during a plea colloquy or included in the sentencing court’s SOR. Indeed, the
respondent concedes that a conviction record can establish “loss to the victim,”
but only if the alien admitted the amount of loss during the criminal
proceedings. In this respect, he argues that restitution orders are based on
calculations that do not necessarily match the “loss to the victim” focus of the
removal statute, and that such orders, as well as a PSR (even if adopted by the
court without change), do not establish the quantum of loss by “clear and
convincing evidence” because they need only have been found by a
“preponderance of the evidence.”10
Accordingly, even if a criminal court judge’s finding as to loss is clear from
the record, there may be grounds for questioning whether such a finding,
standing alone, is sufficient to prove the amount of loss by the “clear and
convincing evidence” standard that applies in removal proceedings. Obasohan
v. U.S. Att’y Gen., 479 F.3d 785, 790-91 (11th Cir. 2007). However,
restitution orders have served as evidence in some removal cases, even when
challenged. See James v. Gonzales, 464 F.3d 505 (5th Cir. 2006) (rejecting
specific challenges to use of the restitution order); Ferreira v. Ashcroft, 390
F.3d 1091 (9th Cir. 2004) (finding a California State court order of restitution
reliable in part because California law, unlike Federal law, limited restitution
to the actual loss suffered by the Government agency victim). The Third
Circuit has stated that a restitution order “may be helpful” in determining loss
to the victim if the plea agreement or indictment is unclear as to loss. Munroe
v. Ashcroft, 353 F.3d 225, 227 (3d Cir. 2003).
We conclude that restitution orders can be sufficient evidence of loss to the
victim in certain cases, but they must be assessed with an eye to what losses
are covered and to the burden of proof employed. We do not agree with the
respondent that restitution orders and presentence reports can never suffice if
a preponderance of the evidence standard was employed in entering the order
or developing the report. Facts found by a preponderance may also meet more
10 The United States Sentencing Guidelines were rendered advisory pursuant to the remedial
portion of the Supreme Court’s decision in United States v. Booker, supra. Thus, sentencing
judges in the Federal system retain authority to find the facts justifying a sentence under the
Guidelines by a preponderance of the evidence, notwithstanding the Sixth Amendment
concerns that prompted the Court to declare mandatory application of the Guidelines
unconstitutional. See, e.g., United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007) (en
banc); see also Rita v. United States, 127 S. Ct. 2456 (2007).
319Cite as 24 I&N Dec. 306 (BIA 2007) Interim Decision #3585
stringent evidentiary tests. For example, a defendant’s failure to contest,
during the criminal proceedings, a fact found by a preponderance would bear
on whether that fact was reliable for removal purposes as well, especially in the
absence of any showing in removal proceedings that there was error in the
criminal proceedings respecting that fact.11
Further, a defendant’s admission during the criminal proceeding as to the
amount of loss will suffice to meet a clear and convincing showing in removal
proceedings, if the admission pertained to losses arising from the conduct in
the particular charges or criminal counts covered by the conviction. This most
likely includes a plea to a criminal count alleging a fraudulent transaction in
excess of $10,000, unless the convicting jurisdiction treats the plea as only an
admission of the bare elements of the crime. E.g., Bobb v. Att’y Gen., 458 F.3d
213 (3d Cir. 2006) (finding that a guilty plea to passing a forged check in an
amount of $13,277 confirmed that the amount of loss was greater than
$10,000, despite no “loss” element in the criminal statute). In addition,
conviction record evidence as to loss generally may be sufficient if the record
in question arose in a jurisdiction that has adapted to Apprendi and its progeny
by requiring sentencing factors to be proven to the jury beyond a reasonable
doubt. However, even a plea to a fraudulent transaction exceeding $10,000,
or a sentencing fact found beyond a reasonable doubt, may be suspect if the
admission or sentencing factor covered losses associated with transactions
outside the particular count or counts covered by the conviction. See Alaka v.
Att’y Gen., supra (holding that losses arising from fraudulent activity
outside the actual offense of conviction could not be included for section
101(a)(43)(M)(i) aggravated felony purposes).
F. Independently Assessing “Loss”
While reliance on the criminal “record of conviction” is still possible in
many cases, the record of conviction is an uncertain source of reliable
information on loss to the victim. The statutory $10,000 threshold is not an
element of the crime except, perhaps, in rare cases. The information generated
on loss is routinely done for sentencing purposes, not for “conviction”
purposes, and may have been assessed against a “preponderance of the
evidence” standard. Admissions by defendants should suffice in many cases,
but even a plea colloquy need not actually focus on the loss stemming from a
particular count in an indictment, if there is no loss element needed to prove
Similarly, the degree by which a loss is found to exceed $10,000 may also bear on
whether evidence derived from a restitution order or PSR could carry the burden in removal
Cite as 24 I&N Dec. 306 (BIA 2007) Interim Decision #3585
guilt, and may instead focus on a broader loss determination relating
exclusively to sentencing or restitution. Because of these limitations on the
probative value of “record of conviction” evidence relating to victim loss, we
discern no sound reason for prohibiting Immigration Judges from considering
other reliable evidence that bears on this question, including but not limited to
the testimonial admissions of the respondent made during the removal hearing.
Furthermore, because we are looking for a fact that was part of the crime,
but not a fact that must have been proved to establish guilt, the independent
assessment of that fact during a removal hearing does not encroach on the
principal purpose of the criminal proceedings, which was the determination of
guilt under the elements of the criminal statute. Hence, we see no legal
objection to the independent resolution of this “victim impact” issue during the
course of a removal hearing. Accordingly, we hold that an Immigration Judge
may consider any evidence, otherwise admissible in removal proceedings,
including witness testimony, bearing on the loss to the victim in an aggravated
felony case involving section 101(a)(43)(M)(i) of the Act.12
In this case, the combination of the counts to which the respondent pled,
including a broad conspiracy charge spanning a period from July 2002 to
January 2003, the order of restitution, and the information in the PSR and SOR
would carry the DHS’s burden to show a loss exceeding $10,000 by clear and
convincing evidence, absent countervailing evidence. Both the conspiracy
count and the individual count alleged a “scheme” that the defendants “did
execute” as part of the conspiracy or, as relates to the individual count, “for the
purpose of executing such scheme . . . caused a bill for unnecessary medical
treatment to be mailed . . . to Liberty Mutual Insurance Company.” The
charges included conduct well beyond a simple agreement to violate the law.13
The independent resolution of loss during the respondent’s removal hearing, however,
must take into account the ruling in Alaka v. Att’y Gen., supra, which holds that losses
arising from charges or conduct that did not result in conviction may not be used to calculate
the loss to a victim. Hence, the DHS must prove a connection between the loss and the
specific conduct that led to the respondent’s conviction.
13 The Eleventh Circuit in Obasohan v. U.S. Att’y Gen., supra, at 789 n.8, questions whether
a conspiracy charge can lead to loss, as the convicted conduct in a conspiracy is the
agreement to commit a crime, not the commission of the substantive offense. We are not
required to resolve this issue, but we note that section 101(a)(43)(U) of the Act specifically
covers both attempts and conspiracies involving all other subparagraphs of the aggravated
felony definition. Requiring an actual loss exceeding $10,000 from attempts and
conspiracies would seem to defeat the very purpose behind section 101(a)(43)(U). See
generally Perez v. Elwood, 294 F.3d 552, 557 n.1 (3d Cir. 2002) (observing, in relation to
321 Cite as 24 I&N Dec. 306 (BIA 2007) Interim Decision #3585
The Immigration Judge refused to consider the PSR, however, because he
believed it to be beyond the scope of permissible evidence. We acknowledge
that a PSR may have shortcomings. There can be questions as to the accuracy
of the report, and the information in it may have been assessed against a
“preponderance of the evidence” standard. Thus, the respondent should have
an opportunity to object and to offer evidence of inaccuracies that may not
have had a bearing on the criminal case, but that do have a bearing on the
removal case. Importantly, neither party approached the hearing below with
the understanding that testimonial evidence could be offered directly to the
Immigration Judge. While the respondent did not offer evidence to refute the
DHS’s exhibits, we cannot discount the possibility that he possesses such
evidence. In any event, we are not permitted to make findings of fact for the
first time on appeal. Accordingly, a remand is required.
Our ruling today represents a departure from the precepts that have been
presumed to apply in immigration hearings involving aggravated felony
charges arising under section 101(a)(43)(M)(i) of the Act. We leave for
another day any questions that may arise with respect to circuit law that may
be in tension with this decision, as we ordinarily follow circuit law in cases
arising within the particular circuit and the grounds for any departure would
need to be developed in the context of specific cases. See Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005).
Nevertheless, we conclude that the statute governing removal for an
aggravated felony conviction involving fraud or deceit with a loss exceeding
$10,000 demands two types of determinations. The first is a categorical
inquiry into a conviction under a criminal statute with an element of fraud or
deceit. The second is an ordinary evidentiary inquiry into whether the loss
associated with the fraudulent conduct encompassed by the conviction exceeds
$10,000. The second inquiry cannot be confined to the categorical or modified
categorical approach because it does not involve a search for the elements of
the crime, even though conviction record information may suffice in making
this independent “loss” determination.
a money laundering conspiracy conviction charged under sections 101(a)(43)(D) and (U),
that the “amount of money to be laundered in the conspiracy for which [the alien] was
convicted exceeded $10,000”); Matter of Onyido, 22 I&N Dec. 552 (BIA 1999) (rejecting,
in the context of an “attempt” allegation, the contention that section 101(a)(43)(U) requires
that a victim suffer an actual loss exceeding $10,000).
322 Cite as 24 I&N Dec. 306 (BIA 2007) Interim Decision #3585
In this case, the Immigration Judge erred in declining to consult evidence
outside the record of conviction in order to determine the amount of loss
resulting from the respondent’s criminal conduct. Accordingly, we find it
necessary to remand the case to the Immigration Judge so that both parties may
have the opportunity to submit evidence bearing on the question of
ORDER: The appeal of the Department of Homeland Security is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for
further proceedings consistent with the foregoing opinion and for the entry of
a new decision.