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Immigration Issue Debated by Justices

WASHINGTON (CN) - Whether an Indian immigrant who lived in the United States for 20 years can be deported after a fraud conviction turns on the definition of aggravated felony, a definition debated in the Supreme Court Monday. The argument at one point centered on basic rules of grammar.

Manjo Nijhawan, who has two teenage American sons, was the deputy general manager of Allied Deals, a metal trading company that misrepresented itself to obtain loans from banks.

The government considers Nijhawan's crime an aggravated felony, which is defined by Congress as being "an offense that involves fraud or deceit in which the loss exceeds $10,000". The term is used only in the immigration context and provides sufficient reason for deportation.

Whether Nijhawan committed an aggravated felony, as opposed to a plain felony, revolves around whether he is responsible for a loss of $10,000.

Nijhawan was convicted of fraud, but not specifically of defrauding the victim out of $10,000 because, as Justice Antonin Scalia said, the jury had no obligation to specify the amount.

The jury at the time was deliberating on the issue of whether a felony had been committed, without regard to the specific requirements of immigration law. The amount of the loss was to be determined later, said Assistant Solicitor General Curtis Gannon, representing the government.

Lawyer Thomas Moseley, who represented Nijhawan, said that because it was not specified that the fraud resulted in more than $10,000 worth of loss, Nijhawan cannot be convicted of an aggravated felony.

Justice Ruth Bader Ginsburg brought up tax evasion and said you don't have to prove the amount of loss in order to convict someone.

"A person who is charged with tax evasion who goes to trial and is convicted, that person would not be deportable, as I understand it from your reading, because the jury is not asked to determine the amount of the deficiency."

Scalia said the jury shouldn't have to determine the amount. He said it was already decided by looking at the plea and the charges.

"You are convicted of what you are charged with," said Scalia. "You are convicted of the elements of the offense, not of whatever the judge chooses to allow the jury to be questioned about."

Many of the justices questioned whether Nijhawan should be held responsible for the total losses of the victims, or whether his role was responsible for less than $10,000 worth of loss. In his guilty plea, Nijhawan admitted that the fraud caused a loss of more than $100 million loss, but the loss directly tied to Nijhawan was not determined.

"In a scheme involving $100 million, but this person has no way of reasonably anticipating that this would be the total amount of the loss, this was a minor participant, how would that come out?" asked Justice Samuel Alito.

When Gannon replied that the rulings are tied to the loss incurred by the victim, and not the individual's role, Ginsburg asked, "even though this defendant did not pocket any gain?"

Justice John Stevens asked a clarification question: "Let's say it's a mail fraud case, they proved one victim lost $30, and that's all the trial established, but as a matter of fact you could establish this was part of a scheme, just like the one we've got here, in which millions of dollars were lost, you could prove that independently and he would still be required to be deported?"

Gannon said it was possible.

Another hotly debated topic was what type of proof was needed to determine Nijhawan's responsibility for a particular amount of loss.

Moseley said it would have to be proved beyond a reasonable doubt, which is reserved for criminal cases.

He used grammar rules to support his argument, referring to Strunk and White's Elements of Style to make the point. He said the word "that" is restrictive. "An offense that involves fraud or deceit in which the loss to the victim exceeds $10,000," grammatically means that the $10,000 should be included with fraud and deceit and that it should be held to the same standards, he argued.

Gannon argued that the proof of $10,000 should only need to be based on clear and convincing evidence, the lowest standard of proof. Proof beyond a reasonable doubt, he said, is not necessary for a civil removal proceeding.

Justice David Souter seemed to side with Gannon. "This provision, the $10,000 figure, was placed into the statute at a time when Congress was trying to expand the category of deportable, removable offenses," he said.

Congress dropped the threshold for an aggravated felony from $200,000 to $10,000 in 1994.

It would run counter to that apparent intent to require a high standard of proof for the $10,000 threshhold amount that would result in removal from the United States, said Souter.

In a phone interview, Associate Editor of the Minnesota Lawyer Newspaper Barbara Jones said that she's not sure why the argument went off in this direction. "It's a weak argument," she said, referring to Moseley's use of Elements of Style to establish a grammar technicality.

The case began when Nijhawan, from prison, tried to appeal his removal order. The Board of Immigration Appeals determined the fraud loss was worth more than $10,000, as did the Third Circuit U.S. Court of Appeals.

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