19-825 Rampersaud v. Barr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2019
(Argued: May 8, 2020 Decided: August 19, 2020)
Docket No. 19-825
_____________________________________
CHARRAN DANESHWAR RAMPERSAUD,
Petitioner,
v.
WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
Respondent. _____________________________________
Before: LEVAL, LOHIER, and PARK, Circuit Judges.
Petitioner Charran Daneshwar Rampersaud, a noncitizen resident of the United States, seeks review of an order of the Board of Immigration Appeals (BIA) finding him removable as an aggravated felon for having been convicted of fraud involving a loss to the victims exceeding $10,000. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(M)(i). The Immigration Judge found that Rampersaud met the $10,000 threshold on the ground that he was ordered to pay more than $77,000 in restitution from his convictions for a single count of insurance fraud and a single count of grand larceny, and the BIA affirmed. However, because the BIA failed to adequately consider whether more than $10,000 of the restitution represented loss to the victims of the insurance fraud as distinct from the grand larceny, we GRANT the petition for review, VACATE the decision of the BIA, and REMAND for further proceedings consistent with this opinion. H. RAYMOND FASANO, ESQ., Youman, Madeo & Fasano, LLP., New York, NY, for Petitioner.
CRAIG A. NEWELL, JR., Trial Attorney, (Erica B. Miles, Senior Litigation Counsel, on the brief) for Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, United States Department of Justice, Civil Division, Washington, DC, for Respondent.
LEVAL, Circuit Judge:
Petitioner Charran Daneshwar Rampersaud, a noncitizen1 resident of
the United States, seeks review of an order of the Board of Immigration
Appeals (“BIA”) finding him removable as an aggravated felon, see 8 U.S.C.
§ 1227(a)(2)(A)(iii). Rampersaud is a native of Guyana who has lived in the
United States as a lawful permanent resident since 1987. In 2010, he was
convicted in Westchester County, New York of one count of insurance fraud
and one count of grand larceny. A conviction of an offense involving fraud or
deceit in which the loss to the victim or victims exceeds $10,000 qualifies as an
aggravated felony. See 8 U.S.C. § 1101(a)(43)(M)(i). The BIA’s conclusion that
1 The Supreme Court has recently used the term “noncitizen” as equivalent to the statutory term “alien.” See Nasrallah v. Barr, 140 S. Ct. 1683, 1689 n.2 (2020) (citing 8 U.S.C. § 1101(a)(3)). We do the same here.
2 Rampersaud was an aggravated felon was based on his conviction for
insurance fraud. See In re Charran Daneshwar Rampersaud, No. A041 191 762
(B.I.A. Mar. 4, 2019), aff’g No. A041 191 762 (Immig. Ct. N.Y. City Sept. 20,
2018). The principal issue in this appeal is whether, in the immigration
proceeding, the BIA satisfactorily justified its conclusion that the losses
suffered by the victims of Rampersaud’s insurance fraud offense exceeded
$10,000.
In the 2010 criminal proceeding in Westchester County, Rampersaud
pleaded guilty to one count of insurance fraud in the third degree and one
count of grand larceny in the fourth degree, and was ordered to pay $77,199
in restitution without any indication whether the restitution order was for the
benefit of victims of the insurance fraud, the grand larceny, or both. The
Immigration Judge (“IJ”) found him removable as an aggravated felon,
interpreting the $77,199 restitution award as an indication that the insurance
fraud offense caused more than $10,000 in victim losses, and the BIA affirmed
on the same basis. Rampersaud now contends on this appeal, inter alia, that
the Government failed to establish a loss to the victims in excess of $10,000
stemming specifically from the insurance fraud, as the $77,199 restitution
3 could have covered losses from either the insurance fraud offense, the grand
larceny offense, or both.
We hold that the BIA relied on inadequate analysis in concluding that
the $77,199 restitution order, on its own, showed that Rampersaud’s
insurance fraud caused more than $10,000 in victim losses. The Government
undoubtedly may, in some circumstances, rely on a restitution award to
establish the loss amount from a fraud offense. Its burden, however, is to
demonstrate by clear and convincing evidence that more than $10,000 in loss
is “tied to the specific counts covered by the conviction.” Nijhawan v. Holder,
557 U.S. 29, 42 (2009). Yet in this case, where the petitioner was convicted of
two separate crimes and ordered to pay an overarching restitution amount
without indication of what part, if any, was for the insurance fraud, the
restitution order, without more, is insufficient to demonstrate that more than
$10,000 in losses were caused by the insurance fraud count as distinct from
the larceny count. The BIA gave no explanation why it concluded that more
than $10,000 of the restitution award was attributable to losses caused by the
insurance fraud. We therefore GRANT the petition for review, VACATE the
decision of the BIA, and REMAND for further proceedings consistent with
4 this opinion, possibly including clarification by the BIA of its basis for
attributing more than $10,000 in loss to the insurance fraud count.
BACKGROUND
The 2010 Criminal Conviction. In 2008, Rampersaud was charged by a
felony complaint in Westchester County with three counts of insurance fraud
in the third degree and three counts of grand larceny in the third degree.
According to the felony complaint, Rampersaud committed the insurance
fraud offenses on August 3, September 27, and November 1, 2007, by actions
related to his submission to insurers of materially false statements of property
damage to a 2002 BMW automobile. The complaint alleged that he committed
the grand larcenies on July 13, August 10, and October 6, 2007, by stealing on
two occasions from the MetLife Insurance Company and on one occasion
from the Grange Insurance Company. The language of the complaint does not
relate the thefts from the two insurance companies to the false statements
involving the 2002 BMW.
In November 2009, Rampersaud waived indictment and pleaded guilty
in Westchester County Superior Court to an information charging a single
count of insurance fraud in the third degree, in violation of New York Penal
5 Law (“NYPL”) § 176.20, for the fraudulent insurance act committed on
August 3, 2007, as well as a single count of grand larceny in the fourth degree,
in violation of NYPL § 155.30, for the act of theft committed on July 13, 2007.
He was sentenced to one to three years’ imprisonment. As part of his
sentence, he was ordered to pay restitution in the amount of $77,199. The
record evidence in the immigration proceeding does not show how the
Westchester court calculated the $77,199 amount or whether it was
attributable to losses caused by the insurance fraud, the grand larceny, or
both. 2
2 The Government contends on this appeal that the larceny counts were based on the same criminal scheme as the insurance fraud counts, and therefore that the victims of the two were the same. Although Rampersaud’s brief appears to concede that point, neither the IJ nor the BIA relied on the proposition that the insurance fraud and the larceny were part of a single criminal scheme. The record establishes only that the grand larceny offense to which Rampersaud pleaded guilty occurred on or about July 13, 2007, when Rampersaud stole property from MetLife, and that the insurance fraud offense to which he pleaded guilty occurred on or about August 3, 2007, when he submitted false information to an insurer in support of a claim for insurance payment. Although it is certainly possible that the fraud and larceny charges were premised on the same overarching criminal transactions – for example, if Rampersaud committed the fraud offenses by submitting false claims to an insurer and committed the larceny offenses by receiving the illegitimate insurance payouts from those very false claims – the record does not provide clear and convincing evidence of such a link. 6 Proceedings Below. In April 2018, the Department of Homeland Security
took Rampersaud into custody and initiated removal proceedings against
him. The Government alleged that he was removable as an aggravated felon
under 8 U.S.C. § 1227(a)(2)(A)(iii) for two independent reasons: first, that his
insurance fraud conviction qualified as an aggravated felony because it was
an offense “involv[ing] fraud or deceit in which the loss to the victim or
victims exceed[ed] $10,000,” see 8 U.S.C. § 1101(a)(43)(M)(i); and second, that
his grand larceny conviction qualified as an aggravated felony as “a theft
offense . . . for which the term of imprisonment [is] at least one year,” see id.
§ 1101(a)(43)(G). Rampersaud moved to terminate the removal proceedings,
arguing, in relevant part, that his insurance fraud conviction was not an
aggravated felony because the $77,199 in restitution did not measure the
actual loss to the victim and there was no other evidence that the victim’s loss
exceeded $10,000.
The IJ found that the Government had established that Rampersaud
was removable based on both of the aggravated felony grounds, and ordered
him removed to Guyana. The IJ concluded that Rampersaud’s insurance
fraud conviction was a fraud aggravated felony as defined in
7 § 1101(a)(43)(M), in that it involved fraud and that the restitution amount of
$77,199 was “an indication of the loss suffered by the victim or victims.”
Certified Administrative Record (“C.A.R.”) at 54. The IJ further noted that
Rampersaud “had ample opportunity to provide evidence of the amount of
loss that disputed that figure, yet did not submit any,” giving the court “no
basis for challenging the [Government’s] evidence.” Id. The IJ did not address
how the $77,199 was calculated, nor did she support her conclusion that more
than $10,000 of it represented loss from the insurance fraud conviction as
opposed to the grand larceny conviction.
Rampersaud sought review of the IJ’s decision before the BIA, which
dismissed his appeal. The BIA did not address the IJ’s conclusion that
Rampersaud’s grand larceny conviction was a theft aggravated felony
making him removable; it affirmed the IJ’s order of removal solely on the
basis that his insurance fraud conviction was an offense involving fraud that
resulted in a loss to the victim in excess of $10,000. Noting the IJ’s reliance on
the $77,199 restitution order, the BIA held “that in the absence of evidence to
show that the restitution amount is not reliable, the [Government] has
established that the loss involved more than $10,000.” C.A.R. at 4 (citing Taher
8 v. Sessions, 726 F. App’x 855, 857 (2d Cir. 2018) (summary order); Doe v.
Sessions, 709 F. App’x 63, 65–67 (2d Cir. 2017) (summary order)). Like the IJ,
the BIA did not consider the possibility that all but $10,000 or less of the
restitution amount was attributable solely to the grand larceny, much less
provide any analysis of why that was not the case. The BIA instead faulted
Rampersaud for failing “to provide evidence of the amount of loss or explain
why the restitution amount may not reflect the amount of loss.” C.A.R. at 4.
Rampersaud now argues, in support of his petition for review of the
BIA’s decision, that the Government did not establish that his insurance fraud
conviction involved an actual loss of more than $10,000, because the
restitution amount reflected total losses from the two counts of conviction
without differentiation. 3
3Contrary to the Government’s argument, Rampersaud preserved this argument before the agency. Although Rampersaud did not raise this precise argument, he did argue generally that his $77,199 restitution order was not sufficient evidence of losses to the victim exceeding $10,000. “[A] petitioner is [not] limited to the exact contours of his argument below,” and so we may consider “specific, subsidiary legal arguments . . . that were not made below.” Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005). 9 DISCUSSION
A noncitizen who is convicted of an aggravated felony at any time after
admission to the United States is removable. 8 U.S.C. § 1227(a)(2)(A)(iii).
Section 101(a)(43) of the Immigration and Nationality Act enumerates a set of
offenses that qualify as aggravated felonies, see 8 U.S.C. § 1101(a)(43),
including any “offense that . . . involves fraud or deceit in which the loss to
the victim or victims exceeds $10,000,” id. § 1101(a)(43)(M)(i). The central
issue in this appeal is whether in reaching its conclusion that Rampersaud’s
insurance fraud offense caused more than $10,000 in losses to victims, the BIA
relied exclusively on evidence that is insufficient to support that conclusion.
i. Standard of Review
In reviewing a final order of removal, “we have jurisdiction to review
constitutional claims or questions of law, including whether a specific
conviction constitutes an aggravated felony, which we review de novo.” Pierre
v. Holder, 588 F.3d 767, 772 (2d Cir. 2009) (citing 8 U.S.C. § 1252(a)(2)(D)). The
Government bears the burden of establishing by clear and convincing
evidence that a noncitizen admitted to the United States is removable. See
8 U.S.C. § 1229a(c)(3)(A). Where the basis for an order of removal is the
10 noncitizen’s commission of an aggravated felony that caused a specific
monetary loss, the Government must establish the amount of loss by clear
and convincing evidence. See Nijhawan, 557 U.S. at 42. We review the BIA’s
finding that the Government established the requisite loss amount under a
standard that is “more demanding” than substantial evidence: to grant the
petition, “we must find that any rational trier of fact would be compelled to
conclude that the proof did not rise to the level of clear and convincing
evidence.” Francis v. Gonzales, 442 F.3d 131, 138–39 (2d Cir. 2006).
ii. Whether Rampersaud’s Insurance Fraud Conviction Qualifies as an Aggravated Felony
For Rampersaud’s insurance fraud offense to qualify as an aggravated
felony, thereby making him removable, it must have “involve[d] fraud or
deceit [and a] loss to the victim or victims exceed[ing] $10,000.” 8 U.S.C.
§ 1101(a)(43)(M)(i). The fraud offense for which the BIA found Rampersaud
removable was a violation of NYPL § 176.20, which provides that “[a] person
is guilty of insurance fraud in the third degree when he commits a fraudulent
insurance act and thereby wrongfully takes, obtains or withholds, or attempts
to wrongfully take, obtain or withhold property with a value in excess of
three thousand dollars.” Id. Rampersaud has not disputed that his insurance
11 fraud offense “involve[d] fraud or deceit.” The only issue before us is whether
the BIA had a legally sufficient basis for its conclusion that victims of the
insurance fraud suffered losses exceeding $10,000. 4
The Supreme Court has instructed that the question whether a
noncitizen’s fraud offense satisfies the $10,000 monetary threshold must be
assessed under “a ‘circumstance-specific,’ not a ‘categorical,’ interpretation.”
Nijhawan, 557 U.S. at 36. Under this approach, courts inquire into “the specific
circumstances surrounding an offender’s commission of a fraud and deceit
crime on a specific occasion.” Id. at 40. We then ascertain whether the
petitioner caused more than $10,000 in losses that are “tied to the specific
counts covered by the conviction,” and not “based on acquitted or dismissed
counts or general conduct.” Id. at 42 (citing Alaka v. Att’y Gen., 456 F.3d 88, 107
(3d Cir. 2006), overruled on other grounds by Bastardo-Vale v. Att’y Gen., 934 F.3d
255, 267 (3d Cir. 2019)).
4Because the BIA did not address the IJ’s alternate holding that Rampersaud’s grand larceny conviction was a theft aggravated felony as defined in § 1101(a)(43)(G), we decline to address the issue. On remand the BIA may address that ground for removal in the first instance. See INS v. Orlando Ventura, 537 U.S. 12, 16–18 (2002) (per curiam). 12 We conclude that the BIA failed to adequately analyze the question
before it. Specifically, the BIA and IJ failed to consider, as is required by
Nijhawan, whether more than $10,000 in victim losses were “tied to the
specific count[] covered by [Rampersaud’s] conviction” for insurance fraud.
Id. The BIA and the IJ seem to have assumed that the $77,199 restitution
amount listed on the sentencing form for his two counts of conviction was a
reliable indicator of the loss caused by Rampersaud’s insurance fraud. The
restitution order, however, was not on its own sufficient evidence that a loss
exceeding $10,000 was attributable specifically to the insurance fraud count.
Rampersaud’s $77,199 restitution payment resulted from his having
been charged with and having pleaded guilty to multiple offenses, only one
of which was the fraud offense supporting his removability under
§ 1101(a)(43)(M)(i). All of the $77,199 (or at least all but $10,000 or less of it)
could have stemmed not from the insurance fraud but from the grand
larceny, or even from uncharged criminal conduct that was part of the same
transaction as the grand larceny. See NYPL § 60.27(1), (4)(a) (New York courts
“may require restitution or reparation as part of the sentence imposed upon a
person convicted of an offense,” where “offense” includes “the offense for
13 which a defendant was convicted, as well as any other offense that is part of
the same criminal transaction”); see also People v. Diallo, 931 N.Y.S.2d 444, 446
(N.Y. App. Div. 2011). 5 The IJ and BIA did not consider these possibilities, nor
did they point to any evidence in the record that would justify a conclusion
that more than $10,000 in victim losses were fairly attributable to the
insurance fraud itself. The BIA thus erred in holding, solely on the basis of the
$77,199 restitution order, that the insurance fraud offense caused more than
$10,000 in losses. 6
5 NYPL § 60.27(4)(a) also provides that restitution awards may include losses from any offenses “contained in any other accusatory instrument disposed of by any plea of guilty by the defendant to an offense.” Here, Rampersaud was initially charged by a six-count felony complaint, four counts of which were dismissed when Rampersaud agreed to be prosecuted by the two-count superseding indictment. Depending on whether, under a correct interpretation of New York law, the initial felony complaint could be considered an “accusatory instrument” that was “disposed of” by Rampersaud’s guilty plea, there is a possibility that the $77,199 would have included losses from the four dismissed counts. We take no position on whether New York law could support such a conclusion, and do not rely on it to justify the disposition of this appeal.
6 In pointing out the insufficiency of the BIA’s reasoning, we leave open the question whether the record evidence, properly analyzed, could support a finding that more than $10,000 in losses was attributable to the insurance fraud. 14 In spite of the lack of evidence as to how the $77,199 was calculated, the
Government argues that it was nonetheless Rampersaud’s burden to submit
evidence showing why the $77,199 restitution did not accurately reflect the
amount of loss attributable to the insurance fraud. The Government points to
Nijhawan’s statement that “[i]n the absence of conflicting evidence,” a
restitution order (coupled with the petitioner’s stipulations at sentencing) can
be sufficient to establish victim losses from a fraud offense in excess of
$10,000. 557 U.S. at 42–43. The Government also cites several unpublished
decisions of our court in which we approved of the IJ and BIA’s reliance on
restitution orders to find the $10,000 threshold satisfied. See Resp. Br. at 21–23
(citing Taher, 726 F. App’x at 857; Doe, 709 F. App’x at 66–67; Relvas v. Holder,
382 F. App’x 51, 53–54 (2d Cir. 2010) (summary order)). Relying on these
cases, the Government argues that Rampersaud bore the burden of
“undermin[ing] the [IJ’s] reliance on the restitution order and preclud[ing] the
Government from satisfying its burden of proof.” Resp. Br. at 21–22.7
7This was essentially the reasoning of the IJ and the BIA. The IJ found that the restitution award established that Rampersaud met the $10,000 threshold because Rampersaud “had ample opportunity to provide evidence of the amount of loss that disputed that figure, yet did not submit any,” giving the IJ “no basis for challenging the [Government’s] evidence.” C.A.R. at 54. The BIA
15 This argument is not persuasive. It is of course true that a restitution
award can, in some cases, reliably establish loss to the victims from a fraud
offense. See Nijhawan, 557 U.S. at 42–43. But that principle is inapposite here,
where the restitution amount covered two separate counts of conviction and
where the Government did not point to any evidence that more than $10,000
of the restitution was attributable specifically to the relevant offense involving
fraud or deceit. Indeed, none of the cases on which the Government relies
involved the type of scenario where a restitution order was no more likely
attributable to the relevant count of conviction than to another count, and
where the agency did not discuss any additional record evidence supporting
its conclusion. 8
similarly held that “in the absence of evidence to show that the restitution amount is not reliable, the [Government] has established that the loss involved more than $10,000.” C.A.R. at 4.
8 For example, in Taher, the petitioner was ordered to pay $120,000 in restitution for a single count of conspiracy to commit food-stamp fraud. 726 F. App’x at 857. In Relvas, the petitioner was ordered to pay more than $82,000 in restitution for a single count of conspiracy to defraud the United States. 382 F. App’x at 52. In Doe, although the petitioner’s $11,115 restitution order covered his conviction for two separate counts—conspiracy to commit wire fraud and identity theft—the offenses were found to be part of a common “cellphone ‘cloning’ scheme,” and the indictment to which Doe pleaded guilty alleged losses specifically from the wire fraud conspiracy count in excess of $108,000. 709 F. App’x at 66. 16 Under the circumstances of this case, it was error for the BIA to find
that Rampersaud is an aggravated felon based solely on the total amount of
restitution. See In re Babaisakov, 24 I. & N. Dec. 306, 319 (B.I.A. 2007)
(“[R]estitution 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 . . . .”
(emphasis added)). Absent evidence that the restitution order involved more
than $10,000 in losses specifically from the insurance fraud count of
conviction, the burden was not on Rampersaud to produce evidence to rebut
an inference that had not been established. The burden was on the
Government, in the first instance, to show by “clear and convincing evidence”
that Rampersaud was removable, 8 U.S.C. § 1229a(c)(3)(A), which required it
to show that Rampersaud’s fraud offense resulted in losses exceeding $10,000,
Nijhawan, 557 U.S. at 42. Although the Government may on remand be able to
satisfy that burden, we cannot now conclude that it has done so.
If the evidence showed that the insurance fraud and the grand larceny
charges were part of “a single criminal transaction,” Resp. Br. at 21 n.5, the
outcome here might well be different. In such a case, any monetary losses
attributable to the grand larceny conviction arguably would also have been
17 tied to the insurance fraud offense, as all the charges would have been
predicated on the same criminal conduct. In that event, the $77,199 restitution
order covering both convictions might be a reliable indicator that the
insurance fraud caused more than $10,000 in victim losses, despite the lack of
clarity as to how the restitution was calculated. But as noted above, see supra
note 2, the Government has not demonstrated that all the charged offenses
were part of the same criminal scheme. In the absence of evidence as to how
the restitution order was calculated by the Westchester court, the restitution
order by itself does not show that Rampersaud’s insurance fraud caused
losses exceeding $10,000.
CONCLUSION
For the foregoing reasons, the petition for review is GRANTED, the
decision of the BIA is VACATED, and the cause is REMANDED for
proceedings consistent with this opinion. 9
9Because we vacate the BIA’s decision and remand on the basis that the BIA failed to ascertain whether Rampersaud’s insurance fraud, on its own, caused losses in excess of $10,000, we need not reach any of Rampersaud’s additional challenges to removability. 18