Nijhawan v. Holder

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NIJHAWAN v. HOLDER, ATTORNEY GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT

No. 08–495. Argued April 27, 2009—Decided June 15, 2009
An alien “convicted of an aggravated felony any time after admission is
deportable.” 8 U. S. C. §1227(a)(2)(A)(iii). An “aggravated felony” in
cludes “an offense that . . . involves fraud or deceit in which the loss
to the . . . victims exceeds $10,000.” §1101(a)(43)(M)(i). Petitioner,
an alien, was convicted of conspiring to commit mail fraud and re
lated crimes. Because the relevant statutes did not require a finding
of loss, the jury made no such finding. However, at sentencing, peti
tioner stipulated that the loss exceeded $100 million. He was sen
tenced to prison and required to make $683 million in restitution.
The Government subsequently sought to remove him from the United
States, claiming that he had been convicted of an “aggravated fel
ony.” The Immigration Judge found that petitioner’s conviction fell
within the “aggravated felony” definition. The Board of Immigration
Appeals agreed, as did the Third Circuit, which held that the Immi
gration Judge could inquire into the underlying facts of a prior fraud
conviction for purposes of determining whether the loss to the victims
exceeded $10,000.
Held: Subparagraph (M)(i)’s $10,000 threshold refers to the particular
circumstances in which an offender committed a fraud or deceit crime
on a particular occasion rather than to an element of the fraud or de
ceit crime. Pp. 3–13.
(a) Words such as “crime,” “felony, and “offense” sometimes refer to
a generic crime (a “categorical” interpretation), and sometimes refer
to the specific acts in which an offender engaged (“circumstance
specific” interpretation). The basic argument favoring the “categori
cal” interpretation rests upon Taylor v. United States, 495 U. S. 575,
Chambers v. United States, 555 U. S. ___, and James v. United
States, 550 U. S. 192. These cases concerned the Armed Career
2 NIJHAWAN v. HOLDER

Syllabus

Criminal Act (ACCA), which enhances the sentence for firearm-law
offenders who have prior “violent felony” convictions, 18 U. S. C.
§924(e). The Court held that the word “felony” refers to a generic
crime as generally committed. Thus, for example, in James, the
Court applied the “categorical method” to determine whether an “at
tempted burglary” was a “violent felony.” That method required the
Court to examine “not the unsuccessful burglary . . . attempted on a
particular occasion, but the generic crime of attempted burglary.”
550 U. S., at 204–206. Pp. 3–5.
(b) Contrary to petitioner’s arguments, the “$10,000 loss” provision
at issue calls for a “circumstance-specific” interpretation, not a “cate
gorical” one. The “aggravated felony” statute of which it is a part dif
fers from ACCA in general, and the “$10,000 loss” provision differs
specifically from ACCA’s provisions. Pp. 6–10.
(1) The “aggravated felony” statute at issue resembles ACCA
when it lists several “offenses” in language that must refer to generic
crimes. But other “offenses” are listed using language that almost
certainly refers to specific circumstances. Title 8 U. S. C.
§1101(a)(43)(P), for example, after referring to “an offense” that
amounts to “falsely making, forging, counterfeiting, mutilating, or al
tering a passport,” adds, “except in the case of a first offense for
which . . . the alien committed the offense for the purpose of assisting
. . . the alien’s spouse, child, or parent . . . to violate a provision of this
chapter.” The language about “forging . . . passport[s]” may well refer
to a generic crime, but the exception cannot possibly refer to a generic
crime, because there is no criminal statute that contains any such ex
ception. Subparagraph (M)(ii), which refers to an offense “described
in [26 U. S. C. §7201] (relating to tax evasion) in which the revenue
loss to the government exceeds $10,000,” provides another example.
Because no §7201 offense has a specific loss amount as an element,
the tax-evasion provision would be pointless, unless the “revenue
loss” language calls for circumstance-specific application. Here, the
question is to which category subparagraph (M)(i) belongs. Pp. 6–8.
(2) Subparagraph (M)(i)’s language is consistent with a circum
stance-specific approach. The words “in which” (modifying “offense”)
can refer to the conduct involved “in” the commission of the offense of
conviction, rather than to the elements of the offense. Moreover,
subparagraph (M)(i) appears just prior to subparagraph (M)(ii), the
tax-evasion provision, and their structures are identical. Where, as
here, Congress uses similar statutory language and similar statutory
structure in two adjoining provisions, it normally intends similar in
terpretations. IBP, Inc. v. Alvarez, 546 U. S. 21, 34. Additionally,
applying a categorical approach would leave subparagraph (M)(i)
with little, if any, meaningful application. Only three federal fraud
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Syllabus

statutes appear to contain a relevant monetary loss threshold. And
at the time the $10,000 threshold was added, only eight States had
fraud and deceit statutes in respect to which that threshold, as cate
gorically interpreted, would have full effect. Congress is unlikely to
have intended subparagraph (M)(i) to apply in such a limited and
haphazard manner. Pp. 8–10.
(c) This Court rejects petitioner’s alternative position that fairness
calls for a “modified categorical approach” requiring a jury verdict or
a judge-approved equivalent to embody a loss-amount determination,
and permitting the subsequent immigration court applying subpara
graph (M)(i) to examine only charging documents, jury instructions,
and any special jury finding, or their equivalents. The Court’s cases
developed the evidentiary list to which petitioner points for a very
different purpose, namely, to determine which statutory phrase (con
tained within a statutory provision covering several different generic
crimes) covered a prior conviction. Additionally, petitioner’s proposal
can prove impractical insofar as it requires obtaining from a jury a
special verdict on a fact that is not an element of the offense. Fur
ther, evidence of loss offered by the Government must meet a “clear
and convincing” standard and the loss must be tied to the specific
counts covered by the conviction. These considerations mean that pe
titioner and others in similar circumstances have at least one and
possibly two opportunities to contest the loss amount, the first at the
earlier sentencing and the second at the deportation hearing. There
was nothing unfair about the Immigration Judge’s reliance on earlier
sentencing-related material here. The defendant’s sentencing stipu
lation and the court’s restitution order show that the conviction in
volved losses considerably greater than $10,000. Absent any conflict
ing evidence, this evidence is clear and convincing. Pp. 10–12.
523 F. 3d 387, affirmed.

BREYER, J., delivered the opinion for a unanimous Court.
 Cite as: 557 U. S. ____ (2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–495
_________________

MANOJ NIJHAWAN, PETITIONER v. ERIC H.

HOLDER, JR., ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[June 15, 2009]

JUSTICE BREYER delivered the opinion of the Court.
Federal immigration law provides that any “alien who is
convicted of an aggravated felony at any time after admis
sion is deportable.” 8 U. S. C. §1227(a)(2)(A)(iii) (emphasis
added). A related statute defines “aggravated felony” in
terms of a set of listed offenses that includes “an offense
that . . . involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000.” §1101(a)(43)(M)(i)
(emphasis added). See Appendix A. The question before
us is whether the italicized language refers to an element
of the fraud or deceit “offense” as set forth in the particu
lar fraud or deceit statute defining the offense of which the
alien was previously convicted. If so, then in order to
determine whether a prior conviction is for the kind of
offense described, the immigration judge must look to the
criminal fraud or deceit statute to see whether it contains
a monetary threshold of $10,000 or more. See Taylor v.
United States, 495 U. S. 575 (1990) (so interpreting the
Armed Career Criminal Act). We conclude, however, that
the italicized language does not refer to an element of the
fraud or deceit crime. Rather it refers to the particular
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Opinion of the Court

circumstances in which an offender committed a (more
broadly defined) fraud or deceit crime on a particular
occasion.
I
Petitioner, an alien, 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.
18 U. S. C. §§371, 1341, 1343, 1344, 1956(h). A jury found
him guilty. But because none of these statutes requires a
finding of any particular amount of victim loss, the jury
made no finding about the amount of the loss. At sentenc
ing petitioner stipulated that the loss exceeded $100 mil
lion. The court then imposed a sentence of 41 months in
prison and required restitution of $683 million.
In 2005 the Government, claiming that petitioner had
been convicted of an “aggravated felony,” sought to remove
him from the United States. The Immigration Judge
found that petitioner’s conviction was for crimes of fraud
and deceit; that the sentencing stipulation and restitution
order showed that the victims’ loss exceeded $10,000; and
that petitioner’s conviction consequently fell within the
immigration statute’s “aggravated felony” definition. See
8 U. S. C. §§1101(a)(43)(M)(i), (U) (including within the
definition of “aggravated felony” any “attempt or conspir
acy to commit” a listed “offense”). The Board of Immigra
tion Appeals agreed. App. to Pet. for Cert. 44a–51a. So
did the Third Circuit. 523 F. 3d 387 (2008). The Third
Circuit noted that the statutes of conviction were silent as
to amounts, but, in its view, the determination of loss
amounts for “aggravated felony” purposes “requires an
inquiry into the underlying facts of the case.” Id., at 396
(internal quotation marks omitted).
The Courts of Appeals have come to different conclu
sions as to whether the $10,000 threshold in subpara
graph (M)(i) refers to an element of a fraud statute or to
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Opinion of the Court

the factual circumstances surrounding commission of the
crime on a specific occasion. Compare Conteh v. Gonzales,
461 F. 3d 45, 55 (CA1 2006) (fact-based approach); 523
F. 3d 387 (same) (case below); Arguelles-Olivares v. Mu
kasey, 526 F. 3d 171, 178 (CA5 2008) (same), with Dulal-
Whiteway v. United States Dept. of Homeland Security,
501 F. 3d 116, 131 (CA2 2007) (definitional approach);
Kawashima v. Mukasey, 530 F. 3d 1111, 1117 (CA9 2008)
(same); Obasohan v. United States Atty. Gen., 479 F. 3d
785, 791 (CA11 2007) (same). We granted certiorari to
decide the question.
II
The interpretive difficulty before us reflects the linguis
tic fact that in ordinary speech words such as “crime,”
“felony, “offense,” and the like sometimes refer to a generic
crime, say, the crime of fraud or theft in general, and
sometimes refer to the specific acts in which an offender
engaged on a specific occasion, say, the fraud that the
defendant planned and executed last month. See Cham
bers v. United States, 555 U. S. ___, ___ (2009) (slip op., at
3). The question here, as we have said, is whether the
italicized statutory words “offense that involves fraud or
deceit in which the loss to the . . . victims exceeds $10,000”
should be interpreted in the first sense (which we shall
call “categorical”), i.e., as referring to a generic crime, or in
the second sense (which we shall call “circumstance
specific”), as referring to the specific way in which an
offender committed the crime on a specific occasion. 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.
A
The basic argument favoring the first—i.e., the “generic”
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Opinion of the Court

or “categorical”—interpretation rests upon Taylor, Cham
bers, and James v. United States, 550 U. S. 192 (2007).
Those cases concerned the Armed Career Criminal Act
(ACCA), a statute that enhances the sentence imposed
upon certain firearm-law offenders who also have three
prior convictions for “a violent felony.” 18 U. S. C. §924(e).
See Appendix B, infra. ACCA defines “violent felony” to
include, first, felonies with elements that involve the use
of physical force against another; second, felonies that
amount to “burglary, arson, or extortion” or that involve
the use of explosives; and third, felonies that “otherwise
involv[e] conduct that presents a serious potential risk of
physical injury to another.” §924(e)(2)(B).
In Taylor and James we held that ACCA’s language
read naturally uses the word “felony” to refer to a generic
crime as generally committed. Chambers, supra, at ___
(slip op., at 3) (discussing Taylor, 495 U. S., at 602);
James, supra, at 201–202. The Court noted that such an
interpretation of the statute avoids “the practical difficulty
of trying to ascertain” in a later proceeding, “perhaps from
a paper record” containing only a citation (say, by number)
to a statute and a guilty plea, “whether the [offender’s]
prior crime . . . did or did not involve,” say, violence.
Chambers, supra, at ___ (slip op., at 3).
Thus in James, referring to Taylor, we made clear that
courts must use the “categorical method” to determine
whether a conviction for “attempted burglary” was a con
viction for a crime that, in ACCA’s language, “involved
conduct that presents a serious potential risk of physical
injury to another.” §924(e)(2)(B)(ii). That method re
quired the court to “examine, not the unsuccessful bur
glary the defendant attempted on a particular occasion,
but the generic crime of attempted burglary.” Chambers,
supra, at (slip op., at 3) (discussing James, supra, at 204–
206).
We also noted that the categorical method is not always
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Opinion of the Court

easy to apply. That is because sometimes a separately
numbered subsection of a criminal statute will refer to
several different crimes, each described separately. And it
can happen that some of these crimes involve violence
while others do not. A single Massachusetts statute sec
tion entitled “Breaking and Entering at Night,” for exam
ple, criminalizes breaking into a “building, ship, vessel or
vehicle.” Mass. Gen. Laws, ch. 266, §16 (West 2006). In
such an instance, we have said, a court must determine
whether an offender’s prior conviction was for the violent,
rather than the nonviolent, break-ins that this single five
word phrase describes (e.g., breaking into a building
rather than into a vessel), by examining “the indictment or
information and jury instructions,” Taylor, supra, at 602,
or, if a guilty plea is at issue, by examining the plea
agreement, plea colloquy or “some comparable judicial
record” of the factual basis for the plea. Shepard v. United
States, 544 U. S. 13, 26 (2005).
Petitioner argues that we should interpret the subsec
tion of the “aggravated felony” statute before us as requir
ing use of this same “categorical” approach. He says that
the statute’s language, read naturally as in Taylor, refers
to a generic kind of crime, not a crime as committed on a
particular occasion. He adds that here, as in Taylor, such
a reading avoids the practical difficulty of determining the
nature of prior conduct from what may be a brief paper
record, perhaps noting only a statutory section number
and a guilty plea; or, if there is a more extensive record,
combing through that record for evidence of underlying
conduct. Also, the categorical approach, since it covers
only criminal statutes with a relevant monetary threshold,
not only provides assurance of a finding on the point, but
also assures that the defendant had an opportunity to
present evidence about the amount of loss.
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Opinion of the Court

B

Despite petitioner’s arguments, we conclude that the
“fraud and deceit” provision before us calls for a “circum
stance-specific,” not a “categorical,” interpretation. The
“aggravated felony” statute of which it is a part differs in
general from ACCA, the statute at issue in Taylor. And
the “fraud and deceit” provision differs specifically from
ACCA’s provisions.
1
Consider, first, ACCA in general. That statute defines
the “violent” felonies it covers to include “burglary, arson,
or extortion” and “crime[s]” that have “as an element” the
use or threatened use of force. 18 U. S. C. §§924(e)(2)
(B)(i)–(ii). This language refers directly to generic crimes.
The statute, however, contains other, more ambiguous
language, covering “crime[s]” that “involv[e] conduct that
presents a serious potential risk of physical injury to
another.” Ibid. (emphasis added). While this language
poses greater interpretive difficulty, the Court held that it
too refers to crimes as generically defined. James, supra,
at 202.
Now compare the “aggravated felony” statute before us.
8 U. S. C. §1101(a)(43). We concede that it resembles
ACCA in certain respects. The “aggravated felony” statute
lists several of its “offenses” in language that must refer to
generic crimes. Subparagraph (A), for example, lists
“murder, rape, or sexual abuse of a minor.” See, e.g.,
Estrada-Espinoza v. Mukasey, 546 F. 3d 1147, 1152 (CA9
2008) (en banc) (applying the categorical approach to
“sexual abuse”); Singh v. Ashcroft, 383 F. 3d 144, 164 (CA3
2004) (same); Santos v. Gonzales, 436 F. 3d 323, 324 (CA2
2005) (per curiam) (same). Subparagraph (B) lists “illicit
trafficking in a controlled substance.” See Gousse v.
Ashcroft, 339 F. 3d 91, 95–96 (CA2 2003) (applying cate
gorical approach); Fernandez v. Mukasey, 544 F. 3d 862,
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Opinion of the Court

871–872 (CA7 2008) (same); Steele v. Blackman, 236 F. 3d
130, 136 (CA3 2001) (same). And subparagraph (C) lists
“illicit trafficking in firearms or destructive devices.”
Other sections refer specifically to an “offense described
in” a particular section of the Federal Criminal Code. See,
e.g., subparagraphs (E), (H), (I), (J), (L).
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, subparagraph (P), after referring to “an
offense” that amounts to “falsely making, forging, counter
feiting, mutilating, or altering a passport,” adds, “except in
the case of a first offense for which the alien . . . committed
the offense for the purpose of assisting . . . the alien’s
spouse, child, or parent . . . to violate a provision of this
chapter” (emphasis added). The language about (for ex
ample) “forging . . . passport[s]” may well refer to a generic
crime, but the italicized exception cannot possibly refer to
a generic crime. That is because there is no such generic
crime; there is no criminal statute that contains any such
exception. Thus if the provision is to have any meaning at
all, the exception must refer to the particular circum
stances in which an offender committed the crime on a
particular occasion. See also subparagraph (N) (similar
exception).
The statute has other provisions that contain qualifying
language that certainly seems to call for circumstance
specific application. Subparagraph (K)(ii), for example,
lists “offense[s] . . . described in section 2421, 2422, or
2423 of title 18 (relating to transportation for the purpose
of prostitution) if committed for commercial advantage”
(emphasis added). Of the three specifically listed criminal
statutory sections only one subsection (namely, §2423(d))
says anything about commercial advantage. Thus, unless
the “commercial advantage” language calls for circum
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Opinion of the Court

stance-specific application, the statute’s explicit references
to §§2421 and 2422 would be pointless. But see Gertsen
shteyn v. United States Dept. of Justice, 544 F. 3d 137,
144–145 (CA2 2008).
Subparagraph (M)(ii) provides yet another example. It
refers to an offense “described in section 7201 of title 26
(relating to tax evasion) in which the revenue loss to the
Government exceeds $10,000” (emphasis added). There is
no offense “described in section 7201 of title 26” that has a
specific loss amount as an element. Again, unless the
“revenue loss” language calls for circumstance-specific
application, the tax-evasion provision would be pointless.
The upshot is that the “aggravated felony” statute,
unlike ACCA, contains some language that refers to ge
neric crimes and some language that almost certainly
refers to the specific circumstances in which a crime was
committed. The question before us then is to which cate
gory subparagraph (M)(i) belongs.
2
Subparagraph (M)(i) refers to “an offense that . . . in
volves fraud or deceit in which the loss to the victim or
victims exceeds $10,000” (emphasis added). The language
of the provision is consistent with a circumstance-specific
approach. The words “in which” (which modify “offense”)
can refer to the conduct involved “in” the commission of
the offense of conviction, rather than to the elements of
the offense. Moreover, subparagraph (M)(i) appears just
prior to subparagraph (M)(ii), the internal revenue provi
sion we have just discussed, and it is identical in structure
to that provision. Where, as here, Congress uses similar
statutory language and similar statutory structure in two
adjoining provisions, it normally intends similar interpre
tations. IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005).
Moreover, to apply a categorical approach here would
leave subparagraph (M)(i) with little, if any, meaningful
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Opinion of the Court

application. We have found no widely applicable federal
fraud statute that contains a relevant monetary loss
threshold. See, e.g., 18 U. S. C. §§1341 (mail fraud), 1343
(wire fraud), 1344 (bank fraud), 371 (conspiracy to defraud
the United States), 666 (theft in federally funded pro
grams), 1028 (fraud in connection with identification
documents), 1029 (fraud in connection with access de
vices), 1030 (fraud in connection with computers), 1347
(health care fraud), and 1348 (securities fraud). Petitioner
has found only three federal fraud statutes that do so, and
those three contain thresholds not of $10,000, but of
$100,000 or $1 million, §§668 (theft by fraud of an artwork
worth $100,000 or more), 1031(a) (contract fraud against
the United States where the contract is worth at least $1
million), and 1039(d) (providing enhanced penalties for
fraud in obtaining telephone records, where the scheme
involves more than $100,000). Why would Congress in
tend subparagraph (M)(i) to apply to only these three
federal statutes, and then choose a monetary threshold
that, on its face, would apply to other, nonexistent stat
utes as well?
We recognize, as petitioner argues, that Congress might
have intended subparagraph (M)(i) to apply almost exclu
sively to those who violate certain state fraud and deceit
statutes. So we have examined state law. See Appendix
C, infra. We have found, however, that in 1996, when
Congress added the $10,000 threshold in subparagraph
(M)(i), see Illegal Immigration Reform and Immigrant
Responsibility Act §321(a)(7), 110 Stat. 3009–628, 29
States had no major fraud or deceit statute with any
relevant monetary threshold. In 13 of the remaining 21
States, fraud and deceit statutes contain relevant mone
tary thresholds but with amounts significantly higher
than $10,000, leaving only 8 States with statutes in re
spect to which subparagraph (M)(i)’s $10,000 threshold, as
categorically interpreted, would have full effect. We do
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Opinion of the Court

not believe Congress would have intended (M)(i) to apply
in so limited and so haphazard a manner. Cf. United
States v. Hayes, 555 U. S. ___, ___ (2009) (slip op., at 10–
11) (reaching similar conclusion for similar reason in
respect to a statute referring to crimes involving “domestic
violence”).
Petitioner next points to 8 U. S. C. §1326, which crimi
nalizes illegal entry after removal and imposes a higher
maximum sentence when an alien’s removal was “subse
quent to a conviction for commission of an aggravated
felony.” §1326(b)(2). Petitioner says that a circumstance
specific approach to subparagraph (M)(i) could create
potential constitutional problems in a subsequent criminal
prosecution under that statute, because 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, Brief for Respondent
49–50; Tr. of Oral Arg. 39–40, eliminating any constitu
tional concern. Cf. Hayes, supra, at ___ (slip op., at 10).
We conclude that Congress did not intend subparagraph
(M)(i)’s monetary threshold to be applied categorically, i.e.,
to only those fraud and deceit crimes generically defined to
include that threshold. Rather, the monetary threshold
applies to the specific circumstances surrounding an of
fender’s commission of a fraud and deceit crime on a spe
cific occasion.
III
Petitioner, as an alternative argument, says that we
should nonetheless borrow from Taylor what that case
called a “modified categorical approach.” He says that, for
reasons of fairness, we should insist that a jury verdict, or
a judge-approved equivalent, embody a determination that
the loss involved in a prior fraud or deceit conviction
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Opinion of the Court

amounted to at least $10,000. To determine whether that
is so, petitioner says, the subsequent immigration court
applying subparagraph (M)(i) should examine only charg
ing documents, jury instructions, and any special jury
finding (if one has been requested). If there was a trial
but no jury, the subsequent court should examine the
equivalent judge-made findings. If there was a guilty plea
(and no trial), the subsequent court should examine the
written plea documents or the plea colloquy. To authorize
any broader examination of the prior proceedings, peti
tioner 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 con
viction, to dispute.
We agree with petitioner that the statute foresees the
use of fundamentally fair procedures, including proce
dures that give an alien a fair opportunity to dispute a
Government claim that a prior conviction involved a fraud
with the relevant loss to victims. But we do not agree that
fairness requires the evidentiary limitations he proposes.
For one thing, we have found nothing in prior law that
so limits the immigration court. Taylor, James, and
Shepard, the cases that developed the evidentiary list to
which petitioner points, developed that list for a very
different purpose, namely that of determining which
statutory phrase (contained within a statutory provision
that covers several different generic crimes) covered a
prior conviction. See supra, at 5; Taylor, 495 U. S., at 602;
Shepard, 544 U. S., at 26. For another, petitioner’s pro
posal itself can prove impractical insofar as it requires
obtaining from a jury a special verdict on a fact that (given
our Part II determination) is not an element of the offense.
Further, a deportation proceeding is a civil proceeding
in which the Government does not have to prove its claim
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Opinion of the Court

“beyond a reasonable doubt.” At the same time the evi
dence that the Government offers must meet a “clear and
convincing” standard. 8 U. S. C. §1229a(c)(3)(A). And, as
the Government points out, the “loss” must “be tied to the
specific counts covered by the conviction.” Brief for Re
spondent 44; see, e.g., Alaka v. Attorney General of United
States, 456 F. 3d 88, 107 (CA3 2006) (loss amount must be
tethered to offense of conviction; amount cannot be based
on acquitted or dismissed counts or general conduct);
Knutsen v. Gonzales, 429 F. 3d 733, 739–740 (CA7 2005)
(same). And the Government adds that the “sole purpose”
of the “aggravated felony” inquiry “is to ascertain the
nature of a prior conviction; it is not an invitation to reliti
gate the conviction itself.” Brief for Respondent 44 (inter
nal quotation marks omitted). Finally, the Board of Im
migration Appeals, too, has recognized that immigration
judges must assess findings made at sentencing “with an
eye to what losses are covered and to the burden of proof
employed.” In re Babaisakov, 24 I. & N. Dec. 306, 319
(2007).
These considerations, taken together, mean that peti
tioner 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.
We can find nothing unfair about the immigration
judge’s having here relied upon earlier sentencing-related
material. The defendant’s own stipulation, produced for
sentencing purposes, shows that the conviction involved
losses considerably greater than $10,000. The court’s
restitution order shows the same. In the absence of any
conflicting evidence (and petitioner mentions none), this
evidence is clear and convincing.
 Cite as: 557 U. S. ____ (2009) 13

Opinion of the Court

The Court of Appeals concluded that petitioner’s prior
federal conviction consequently falls within the scope of
subparagraph (M)(i). And we affirm its judgment.

It is so ordered.
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Appendix A to opinionCourt Court
Opinion of the of the

APPENDIXES
A
Section 101(a)(43) of the Immigration and Nationality
Act, as set forth in 8 U. S. C. 1101(a)(43), provides:
“The term ‘aggravated felony’ means—
“(A) murder, rape, or sexual abuse of a minor;
“(B) illicit trafficking in a controlled substance (as
defined in section 802 of title 21), including a drug traf
ficking crime (as defined in section 924(c) of title 18);
“(C) illicit trafficking in firearms or destructive devices
(as defined in section 921 of title 18) or in explosive mate
rials (as defined in section 841(c) of that title);
“(D) an offense described in section 1956 of title 18
(relating to laundering of monetary instruments) or sec
tion 1957 of that title (relating to engaging in monetary
transactions in property derived from specific unlawful
activity) if the amount of the funds exceeded $10,000;
“(E) an offense described in—
“(i) section 842(h) or (i) of title 18, or section 844(d),
(e), (f), (g), (h), or (i) of that title (relating to explosive
materials offenses);
“(ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o),
(p), or (r) or 924(b) or (h) of title 18 (relating to firearms
offenses); or
“(iii) section 5861 of title 26 (relating to firearms
offenses);
“(F) a crime of violence (as defined in section 16 of title
18, but not including a purely political offense) for which
the term of imprisonment at least one year;
“(G) a theft offense (including receipt of stolen property)
or burglary offense for which the term of imprisonment at
least one year;
“(H) an offense described in section 875, 876, 877, or
1202 of title 18 (relating to the demand for or receipt of
ransom);
 Cite as: 557 U. S. ____ (2009) 15

Appendix A to opinionCourt Court
Opinion of the of the

“(I) an offense described in section 2251, 2251A, or 2252
of title 18 (relating to child pornography);
“(J) an offense described in section 1962 of title 18
(relating to racketeer influenced corrupt organizations), or
an offense described in section 1084 (if it is a second or
subsequent offense) or 1955 of that title (relating to gam
bling offenses), for which a sentence of one year impris
onment or more may be imposed;
“(K) an offense that—
“(i) relates to the owning, controlling, managing, or
supervising of a prostitution business;
“(ii) is described in section 2421, 2422, or 2423 of title
18 (relating to transportation for the purpose of prosti
tution) if committed for commercial advantage; or
“(iii) is described in any of sections 1581–1585 or
1588–1591 of title 18 (relating to peonage, slavery, in
voluntary servitude, and trafficking in persons);
“(L) an offense described in—
“(i) section 793 (relating to gathering or transmitting
national defense information), 798 (relating to disclo
sure of classified information), 2153 (relating to sabo
tage) or 2381 or 2382 (relating to treason) of title 18;
“(ii) section 421 of title 50 (relating to protecting the
identity of undercover intelligence agents); or
“(iii) section 421 of title 50 (relating to protecting the
identity of undercover agents);
“(M) 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 title 26 (relating to
tax evasion) in which the revenue loss to the Govern
ment exceeds $10,000;
“(N) an offense described in paragraph (1)(A) or (2) of
section 1324(a) of this title (relating to alien smuggling),
except in the case of a first offense for which the alien has
affirmatively shown that the alien committed the offense
16 NIJHAWAN v. HOLDER

Appendix A to opinionCourt Court
Opinion of the of the

for the purpose of assisting, abetting, or aiding only the
alien's spouse, child, or parent (and no other individual) to
violate a provision of this chapter
“(O) an offense described in section 1325(a) or 1326 of
this title committed by an alien who was previously de
ported on the basis of a conviction for an offense described
in another subparagraph of this paragraph;
“(P) an offense (i) which either is falsely making, forg
ing, counterfeiting, mutilating, or altering a passport or
instrument in violation of section 1543 of title 18 or is
described in section 1546(a) of such title (relating to docu
ment fraud) and (ii) for which the term of imprisonment is
at least 12 months, except in the case of a first offense for
which the alien has affirmatively shown that the alien
committed the offense for the purpose of assisting, abet
ting, or aiding only the alien's spouse, child, or parent (and
no other individual) to violate a provision of this chapter;
“(Q) an offense relating to a failure to appear by a
defendant for service of sentence if the underlying offense
is punishable by imprisonment for a term of 5 years or
more;
“(R) an offense relating to commercial bribery, counter
feiting, forgery, or trafficking in vehicles the identification
numbers of which have been altered for which the term of
imprisonment is at least one year;
“(S) an offense relating to obstruction of justice, perjury
or subornation of perjury, or bribery of a witness, for
which the term of imprisonment is at least one year;
“(T) an offense relating to a failure to appear before a
court pursuant to a court order to answer to or dispose of a
charge of a felony for which a sentence of 2 years’ impris
onment or more may be imposed; and
“(U) an attempt or conspiracy to commit an offense
described in this paragraph.
“The term applies to an offense described in this para
graph whether in violation of Federal or State law and
 Cite as: 557 U. S. ____ (2009) 17

Appendix B to opinionCourt Court
Opinion of the of the

applies to such an offense in violation of the law of a for
eign country for which the term of imprisonment was
completed within the previous 15 years. Notwithstanding
any other provision of law (including any effective date),
the term applies regardless of whether the conviction was
entered before, on, or after September 30, 1996.” (Foot
notes omitted.)
B
Armed Career Criminal Act, 18 U. S. C. 924(e), provides:
“(1) In the case of a person who violates section 922(g)
of this title and has three previous convictions by any
court referred to in section 922(g)(1) of this title for a
violent felony or a serious drug offense, or both, committed
on occasions different from one another, such person shall
be fined under this title and imprisoned not less than
fifteen years, and, notwithstanding any other provision of
law, the court shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to the
conviction under section 922(g).
“(2) As used in this subsection—
“(A) the term ‘serious drug offense’ means—
“(i) an offense under the Controlled Substances Act
(21 U. S. C. 801 et seq.), the Controlled Substances
Import and Export Act (21 U. S. C. 951 et seq.), or
chapter 705 of title 46, for which a maximum term of
imprisonment of ten years or more is prescribed by
law; or
“(ii) an offense under State law, involving manufac
turing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance (as
defined in section 102 of the Controlled Substances
Act (21 U. S. C. 802)), for which a maximum term of
imprisonment of ten years or more is prescribed by
law;
“(B) the term ‘violent felony’ means any crime pun
18 NIJHAWAN v. HOLDER

Appendix C to opinionCourt Court
Opinion of the of the

ishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carry
ing of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by
an adult, that—
“(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
“(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that pre
sents a serious potential risk of physical injury to an
other; and
“(C) the term ‘conviction’ includes a finding that a
person has committed an act of juvenile delinquency in
volving a violent felony.”
C
We examined state statutes involving fraud or deceit in
effect in 1996, when Congress added the $10,000 threshold
in subparagraph (M)(i). See Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, §321(a)(7), 110
Stat. 3009–628. While perhaps questions could be raised
about whether certain of the statutes listed below involve
“fraud or deceit” as required by subparagraph (M)(i), we
give petitioner the benefit of any doubt and treat the
statute as relevant.
1
In 29 States plus the District of Columbia, the main
statutes in effect in 1996 involving fraud and deceit either
did not have any monetary threshold or set a threshold
lower than $10,000 even for the most serious grade of the
offense. Alabama: see, e.g., Ala. Code §§13A–8–2, 13A–8–
3, 13A–9–14, 13A–9–14.1, 13A–9–46, 13A–9–47, 13A–9–
73 (1996). Arkansas: see, e.g., Ark. Code Ann. §§5–36–
103, 5–37–203, 5–37–204, 5–37–207, 5–37–211 (1996).
 Cite as: 557 U. S. ____ (2009) 19

Appendix C to opinionCourt Court
Opinion of the of the

California: see, e.g., Cal. Penal Code Ann. §§484, 487,
502.7 (West 1996). District of Columbia: see, e.g., D. C.
Code §§22–3821, 22–3823 (1996). Georgia: see, e.g., Ga.
Code Ann. §§16–8–3, 16–8–12, 16–9–33 (1996). Idaho:
see, e.g., Idaho Code §§18–2403, 18–2407 (Lexis 1996).
Kentucky: see, e.g., Ky. Rev. Stat. Ann. §514.040 (West
1996). Louisiana: see, e.g., La. Stat. Ann. §§14:67,
14:67.11, 14:70.1, 14:70.4, 14:71, 14:71.1 (West 1996).
Maryland: see, e.g., Md. Ann. Code, Art. 27, §§340, 342,
145, 230A, 230C, 230D (Lexis 1996). Massachusetts: see,
e.g., Mass. Gen. Laws, ch. 266, §§30, 37C (West 1996).
Michigan: see, e.g., Mich. Comp. Laws §§750.218, 750.271,
750.280, 750.219a, 750.356c (West 1996). Mississippi: see,
e.g., Miss. Code Ann. §§97–19–21, 97–19–35, 97–19–39,
97–19–71, 97–19–83 (1996). Missouri: see, e.g., Mo. Rev.
Stat. §§570.030, 570.120, 570.130, 570.180 (1996). Mon
tana: Mont. Code Ann. §§45–6–301, 45–6–313, 45–6–315,
45–6–317 (1996). Nebraska: see, e.g., Neb. Rev. Stat. Ann.
§§28–512, 28–518, 28–631 (1996). Nevada: see, e.g., Nev.
Rev. Stat. §§205.0832, 205.0835, 205.370, 205.380 (1996).
New Hampshire: see, e.g., N. H. Rev. Stat. Ann. §§637:4,
637:11, 638:5, 638:20 (1996). North Carolina: see, e.g.,
N. C. Gen. Stat. Ann. §§14–100, 14–106, 14–113.13 (1996).
Oklahoma: see, e.g., Okla. Stat., Tit. 21, §§1451, 1462,
1541.1, 1541.2, 1541.3, 1541.4, 1550.2, 1662, 1663 (West
1996). Pennsylvania: see, e.g., 18 Pa. Cons. Stat. §§3903,
3922, 4110, 4111, 4117 (1996); but see §4105 (bad check
statute amended 1996 to introduce $75,000 threshold).
Rhode Island: see, e.g., R. I. Gen. Laws §§11–18–6, 11–18–
7, 11–18–8, 11–18–9, 11–41–4, 11–41–5, 11–41–29, 11–
41–30 (1996). South Carolina: see, e.g., S. C. Code Ann.
§16–13–240 (1996). South Dakota: see, e.g., S. D. Codified
Laws §§22–30A–3, 22–30A–10, 22–30A–17 (1996). Utah:
see, e.g., Utah Code Ann. §§76–6–405, 76–6–412, 76–6–
521, 76–10–1801 (Lexis 1996). Vermont: see, e.g., Vt. Stat.
Ann., Tit. 13, §§2001, 2002, 2024, 2531, 2582 (1996).
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Appendix C to opinionCourt Court
Opinion of the of the

Virginia: see, e.g., Va. Code Ann. §§18.2–178, 18.2–95,
18.2–195 (Lexis 1996). Washington: see, e.g., Wash. Rev.
Code §§9A.56.020, 9A.56.030 (1996). West Virginia: see,
e.g., W. Va. Code Ann. §61–3–24 (Lexis 1996). Wisconsin:
see, e.g., Wis. Stat. §§943.20, 943.395, 943.41 (1996).
Wyoming: see, e.g., Wyo. Stat. Ann. §§6–3–407, 6–3–607,
6–3–802 (1996).
2
In 13 States, conviction under the main fraud and deceit
statutes in effect in 1996 could categorically qualify under
subparagraph (M)(i). But the relevant monetary thresh
olds for these offenses—that is, the thresholds such that
conviction categorically would satisfy the monetary re
quirement of subparagraph (M)(i)—were significantly
higher than $10,000. Additionally, a number of these
States had statutes targeted at particular kinds of fraud
without any relevant monetary threshold. Alaska: see,
e.g., Alaska Stat. §§11.46.120, 11.46.180 (1996) ($25,000);
but see, e.g., §11.46.285 (fraudulent use of a credit card, no
relevant monetary threshold). Arizona: see, e.g., Ariz.
Rev. Stat. Ann. §§13–1802 (West 1989), 13–2109 (West
2000) ($25,000); but see, e.g., §§13–2103 (receipt of any
thing of value by fraudulent use of a credit card), 13–2204
(defrauding secured creditors), 13–2205 (defrauding judg
ment creditors), 13–2206 (West 1989) (fraud in insol
vency), all with no relevant monetary threshold. Colo
rado: see, e.g., Colo. Rev. Stat. Ann. §18–4–401 (Supp.
1996) ($15,000), but see, e.g., §§18–5–205 (fraud by check),
18–5–207 (1986) (purchase on credit to defraud), both with
no relevant monetary threshold. Delaware: see, e.g., Del.
Code Ann., Tit. 11, §§841, 843 (1995) ($50,000); but see,
e.g., §§903 (unlawful use of credit card), 913 (insurance
fraud), 916 (home improvement fraud), all with no rele
vant monetary threshold. Hawaii: see, e.g., Haw. Rev.
Stat. §§708–830, 708–830.5 (Lexis 1994) ($20,000); but
 Cite as: 557 U. S. ____ (2009) 21

Appendix C to opinionCourt Court
Opinion of the of the

see, e.g., §§708–873 (defrauding secured creditors), 708–
8100 (fraudulent use of a credit card), 708–8100.5 (fraudu
lent encoding of a credit card), 708–8103 (credit card fraud
by a provider of goods or services), all with no relevant
monetary threshold. Indiana: see, e.g., Ind. Code §§35–
43–4–1 (West 1993), 35–43–4–2 ($100,000), 35–43–5–7.1
(West Supp. 1996) ($50,000); but see, e.g., §§35–43–5–3
(deception), 35–43–5–4 (West 1993) (insurance and credit
card fraud), 35–43–5–7 (welfare fraud), 35–43–5–8 (fraud
on financial institutions), all with no relevant monetary
threshold. Kansas: see, e.g., Kan. Stat. Ann. §§21–3701
(1995), 21–3707 (Supp. 1996), 21–3729 (1995), 21–3846
(Supp. 1996) ($25,000). Minnesota: see, e.g., Minn. Stat.
§609.52 (1996) ($35,000). New Jersey: see, e.g., N. J. Stat.
Ann. §§2C:20–2, 2C:20–4, 2C:21–13, 2C:21–17 (West 1995)
($75,000); but see, e.g., §§2C:21–6 (credit cards), 2C:21–12
(defrauding secured creditors), both without a relevant
monetary threshold. New Mexico: see, e.g., N. M. Stat.
Ann. §§30–16–6, 30–33–13, 30–44–7, 30–50–4 (1996)
($20,000); but see, e.g., §30–16–33 (credit card fraud, no
relevant monetary threshold). New York: see, e.g., N. Y.
Penal Law Ann. §§155.05 (West 1988), 155.40, 158.20
(West Supp. 1998), 176.25 ($50,000); but see, e.g., §§190.65
(scheme to defraud), 185.00 (fraud in insolvency), 185.05
(fraud involving security interest), all with no relevant
monetary threshold. Ohio: see, e.g., Ohio Rev. Code Ann.
§§2913.02, 2913.11, 2913.21, 2913.40, 2913.45, 2913.47,
2913.48 (Lexis 1996) ($100,000). Texas: see, e.g., Tex.
Penal Code Ann. §§31.02 (West 1994), 31.03, 35.02 (West
Supp. 2003) ($20,000); but see, e.g., §32.31 (credit card or
debit card abuse, no relevant monetary threshold).
3
In eight States, the main fraud and deceit statutes in
effect in 1996 had relevant monetary thresholds of
$10,000. However, a number of these States also had
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Opinion of the of the

statutes targeted at particular kinds of fraud without any
relevant monetary threshold. Connecticut: see, e.g., Conn.
Gen. Stat. §§53a–119, 53a–122 (1996); but see, e.g., §§53a–
128c, 53a–128i (credit card crimes, no relevant monetary
threshold). Florida: see, e.g., Fla. Stat. §§812.012, 812.014
(1996); but see, e.g., §§817.234 (insurance fraud), 817.61
(fraudulent use of credit cards) (1996), both without a
relevant monetary threshold. Illinois: see, e.g., Ill. Comp.
Stat., ch. 720, §5/16–1 (West 1996); but see, e.g., §§5/17–6
(state benefits fraud), 5/17–9 (public aid wire fraud), 5/17–
10 (public aid mail fraud), 5/17–13 (fraudulent land sales),
all without a relevant monetary threshold. Iowa: see, e.g.,
Iowa Code §§714.1, 714.2, 714.8, 714.9 (1996). Maine: see,
e.g., Me. Rev. Stat. Ann., Tit. 17A, §§354, 362 (1996); but
see, e.g., §§902 (defrauding a creditor), 908 (home repair
fraud), both without relevant monetary thresholds. North
Dakota: see, e.g., N. D. Cent. Code Ann. §§12.1–23–02,
12.1–23–05 (1996). Oregon: see, e.g., Ore. Rev. Stat.
§§164.085, 164.057; but see, e.g., §§165.055 (fraudulent
use of a credit card), 165.692, 165.990 (false claims for
health care payments), both without a relevant monetary
threshold. Tennessee: see, e.g., Tenn. Code Ann. §39–14–
101, 39–14–105, 39–14–118, 39–14–133 (1996).