Thin gruel from the high court for criminal law practitioners today. The orders list has four grants of certiorari and one CVSG*, but all in civil cases. There are two opinions, one in a crim-related immigration case. Nijhawan v. Holder, No. 08-495, involves 8 U.S.C. §1227(a)(2)(A)(iii), which provides for deportation of an alien who commits an "aggravated felony." All well and good, but the definition of "aggravated felony" has proven problematic. One variation, §1101(a)(43)(M)(ii),** includes frauds over $10K.
Now, when legislatures impose sentence enhancements or collateral consequences based on convictions or prior convictions, it often happens that the criteria don't match up with the elements of the offense, so there may be no jury verdict on whether a particular criterion is actually true. That raises the issue of a "categorical" approach, in which we look only at the adjudicated elements in the prior proceeding, versus a "circumstance-specific" approach, in which we look at the particular circumstances of the case.
In this case, amount of loss was not an element in the criminal case, but Nijhawan stipulated during sentencing the loss exceeded $100M, ten thousand times the threshold to make it an "aggravated felony." Sort of reminds me of the classic case of Parker v. Levy, 417 U.S. 733 (1974). This statute may be problematic is some cases, Mr. Nijhawan, but it most certainly is not in yours.
Anyhow, Justice Breyer, writing for a unanimous court, rejects the categorical approach and goes circumstance-specific.
Now, when legislatures impose sentence enhancements or collateral consequences based on convictions or prior convictions, it often happens that the criteria don't match up with the elements of the offense, so there may be no jury verdict on whether a particular criterion is actually true. That raises the issue of a "categorical" approach, in which we look only at the adjudicated elements in the prior proceeding, versus a "circumstance-specific" approach, in which we look at the particular circumstances of the case.
In this case, amount of loss was not an element in the criminal case, but Nijhawan stipulated during sentencing the loss exceeded $100M, ten thousand times the threshold to make it an "aggravated felony." Sort of reminds me of the classic case of Parker v. Levy, 417 U.S. 733 (1974). This statute may be problematic is some cases, Mr. Nijhawan, but it most certainly is not in yours.
Anyhow, Justice Breyer, writing for a unanimous court, rejects the categorical approach and goes circumstance-specific.
--------------------------------------------------------------
*Call for the Views of the Solicitor General. The order actually reads, "The Solicitor General is invited to file a brief in this case expressing the views of the United States."
CVSG is an inside-baseball abbreviation tossed around by clerks and SCOTUS practitioners, but the first time I ever saw it used "officially" was in this in-chambers opinion by Justice Ginsburg just six weeks ago.
**Don't you just love how Congress numbers these statutes? All the definitions for a big chunk of the Code are lumped together in one section, and the levels get so deep it feels like spelunking.
*Call for the Views of the Solicitor General. The order actually reads, "The Solicitor General is invited to file a brief in this case expressing the views of the United States."
CVSG is an inside-baseball abbreviation tossed around by clerks and SCOTUS practitioners, but the first time I ever saw it used "officially" was in this in-chambers opinion by Justice Ginsburg just six weeks ago.
**Don't you just love how Congress numbers these statutes? All the definitions for a big chunk of the Code are lumped together in one section, and the levels get so deep it feels like spelunking.
Leave a comment