Taylor/Shepard Categorical Approach Not Applicable to All Aggravated Felonies, Some Require "Circumstance-Specific" Approach

Nijhawan v. Holder, No. 08-495 (U.S. June 15, 2009)

Remember that circuit split over whether the Taylor/Shepard categorical approach applies to 8 U.S.C. § 1101(a)(43)(M)(i), which includes as an "aggravated felony" "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000[?]" The split is no more, having been resolved by the Supreme Court in Nijhawan v. Holder.

The question, as the Court framed it, was whether the phrase "loss to the victim or victims exceeds $10,000" refers to a generic crime (the categorical reading), or to "the specific way in which an offender committed the crime on a specific occasion" (the circumstance-specific reading). "If the first, we must look to the statute defining the offense to determine whether it has an appropriate monetary threshold; if the second, we must look to the facts and circumstances underlying an offender's conviction."

Justice Breyer, writing for a unanimous Court, began by noting that one of the rationales for the Taylor categorical approach is a practical one: by limiting the inquiry to the offense elements and certain judicial documents, the approach avoids the difficultly in trying to determine the exact factual basis for a conviction in a later proceeding.

The Court then compared the ACCA's "violent felony" definition—the statute at issue in Taylor—to the "aggravated felony" definition as a whole. The language in the ACCA—element of force, specific offenses, conduct presenting a risk of injury—all refer to generic crimes. And so do some portions of 1101(a)(43): murder, rape, sexual abuse of a minor, illicit trafficking in a controlled substance, illicit trafficking in firearms or destructive devices, and offenses described in particular statutes. "More importantly, however, the 'aggravated felony' statute differs from ACCA in that it lists certain other 'offenses' using language that almost certainly does not refer to generic crimes but refers to specific circumstances." For example:

• 1101(a)(43)(N) and (P) refer to generic offenses, but contain exceptions when certain circumstances are present, circumstances that aren't elements of the generic crimes. "Thus if the provision is to have any meaning at all, the exception must refer to the particular circumstances in which an offender committed the crime on a particular occasion."
• 1101(a)(43)(K) also refers to specific statutory offenses, but they are only aggravated felonies "if committed for commercial advantage." Only one of the listed statutes refers to "commerical advantage." "Thus, unless the 'commerical advantage' language calls for circumstance-specific application, the statute's explicit references to [other statutes] would be pointless."
• 1101(a)(43)(M)(ii) includes offenses "described in" 26 U.S.C. § 7201, but only if "the revenue loss to the Government exceeds $10,000." As § 7201 does not have a loss-amount element, this provision would be pointless "unless the 'revenue loss' language calls for circumstance-specific application.

So which one is (a)(43)(M)(i): a reference to a generic crime, or to "specific circumstances in which the offense was committed[?]" The latter. Why?

• The language: "In which" can refer to the circumstances in which the offense was committed, rather than just the elements. And the parallel structure to (M)(ii) suggests it should be read the same way as that provision.
• Anti-superfluity: Most federal fraud statutes have no loss-amount element, and those that do have thresholds other than $10,000. And even if Congress intended (M)(i) to apply almost exclusively to state offenses, there are only eight of those in which the $10,000 would have effect under a categorical approach.

Nijwahan argued alternatively that, even if the categorical approach doesn't apply to (M)(i), the Court "should nevertheless borrow from Taylor what that case called a 'modified categorical approach[,]'" which would limit the immigration court to examining the jury findings and judicial documents sanctioned by Taylor and Shepard. "To authorize any broader examination of the prior proceedings, petitioner says, would impose an unreasonable administrative burden on immigration judges and would unfairly permit him to be deported on the basis of circumstances that were not before judicially determined to have been present and which he may not have had an opportunity, prior to conviction, to dispute."

Close, but no cigar, said the Court. The modified categorical approach was developed for a different purpose: to determine which elements underlay a conviction when the offense could have been committed in both generic and non-generic ways. [Not sure why that cuts against Nijhawan's argument.] Also, unlike Taylor et al., we're dealing here with an immigration case, where the evidentiary standard is "clear and convincing," rather than "beyond a reasonable doubt."

These considerations, [together with a few other features of immigration proceedings], mean that petitioner and those in similar circumstances have at least one and possibly two opportunities to contest the amount of loss, the first at the earlier sentencing and the second at the deportation hearing itself. They also mean that, since the Government must show the amount of loss by clear and convincing evidence, uncertainties caused by the passage of time are likely to count in the alien's favor.

Okay, I can sense some nervousness in the crowd. We know that statutes which have both immigration and criminal application should generally be interpreted the same way in both cases. "So, what about 1326's?", you ask. "Can the 20-year maximum in § 1326(b)(2) be triggered by a loss-amount finding made for the first time at the illegal reentry sentencing, on a clear-and-convincing standard?" Yes and no. The Court addressed this matter:

[Nijhawan] says that a circumstance-specific approach to subparagraph (M)(i) could create potential constitutional problems in a subsequent criminal prosecution [under § 1326(b)(2)], because the loss amount would not have been found beyond a reasonable doubt in the prior criminal proceeding. The Government, however, stated in its brief and at oral argument that the later jury, during the illegal reentry trial, would have to find loss amount beyond a reasonable doubt, . . . eliminating any constitutional concern.

Now this brings up an intriguing question: does Nijhawan offer additional support for a narrow reading of the Almendarez-Torres prior-conviction exception to the rule of Apprendi? Given the quoted paragraph, as well as the constitutional concerns identified in Taylor and Shepard, can we say that the prior-conviction exception is limited to the fact of conviction itself, and that any facts about the conviction that would be necessary to trigger a recidivist enhancement—such as those bringing it within the "aggravated felony" defintion—must be proven to a jury beyond a reasonable doubt or admitted by the defendant, either in the prior proceedings or in the proceeding in which the Government seeks to apply the enhancement? Or is that just a wordy way of stating the law as it already is? Discuss.