NIJHAWAN v. HOLDER, ATTORNEY GENERAL

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29 OCTOBER TERM, 2008
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 related
crimes. Because the relevant statutes did not require a finding of loss,
the jury made no such finding. However, at sentencing, petitioner stip
ulated that the loss exceeded $100 million. He was sentenced to prison
and required to make $683 million in restitution. The Government sub
sequently sought to remove him from the United States, claiming that
he had been convicted of an “aggravated felony.” The Immigration
Judge found that petitioner’s conviction fell within the “aggravated fel
ony” definition. The Board of Immigration Appeals agreed, as did the
Third Circuit, which held that the Immigration Judge could inquire into
the underlying facts of a prior fraud conviction for purposes of deter
mining whether the loss to the victims exceeded $10,000.
Held: Subparagraph (M)(i)’s $10,000 threshold refers to the particular cir
cumstances in which an offender committed a fraud or deceit crime on
a particular occasion rather than to an element of the fraud or deceit
crime. Pp. 33–43.
(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 “categorical” inter
pretation rests upon Taylor v. United States, 495 U. S. 575, Chambers
v. United States, 555 U. S. 122, and James v. United States, 550 U. S.
192. These cases concerned the Armed Career 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 “attempted burglary” was a “violent felony.”
550 U. S., at 204–206. That method required the Court to examine “not
the unsuccessful burglary . . . attempted on a particular occasion, but
the generic crime of attempted burglary.” Chambers, supra, at 125.
Pp. 33–36.

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Syllabus
(b) Contrary to petitioner’s arguments, the “$10,000 loss” provision
at issue calls for a “circumstance-specific” interpretation, not a “categor
ical” one. The “aggravated felony” statute of which it is a part differs
from ACCA in general, and the “$10,000 loss” provision differs specifi
cally from ACCA’s provisions. Pp. 36–40.
(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 re
fers to specific circumstances. Title 8 U. S. C. § 1101(a)(43)(P), for ex
ample, after referring to “an offense” that amounts to “falsely making,
forging, counterfeiting, 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.” 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 exception. 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. 36–38.
(2) Subparagraph (M)(i)’s language is consistent with a
circumstance-specific approach. The words “in which” (modifying “of
fense”) can refer to the conduct involved “in” the commission of the
offense of conviction, rather than to the elements of the offense. More
over, 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 inter
pretations. IBP, Inc. v. Alvarez, 546 U. S. 21, 34. Additionally, apply
ing a categorical approach would leave subparagraph (M)(i) with little,
if any, meaningful application. Only three federal fraud 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 categorically interpreted,
would have full effect. Congress is unlikely to have intended subpara
graph (M)(i) to apply in such a limited and haphazard manner.
Pp. 38–40.
(c) This Court rejects petitioner’s alternative position that fairness
calls for a “modified categorical approach” requiring a jury verdict or a

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Syllabus
judge-approved equivalent to embody a loss-amount determination, and
permitting the subsequent immigration court applying subparagraph
(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 pur
pose, namely, to determine which statutory phrase (contained within a
statutory provision covering several different generic crimes) covered
a prior conviction. Additionally, petitioner’s proposal can prove im
practical insofar as it requires obtaining from a jury a special verdict on
a fact that is not an element of the offense. Further, 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 convic
tion. These considerations mean that petitioner and others in similar
circumstances have at least one and possibly two opportunities to con
test the loss amount, the first at the earlier sentencing and the second
at the deportation hearing. There was nothing unfair about the Immi
gration Judge’s reliance on earlier sentencing-related material here.
The defendant’s sentencing stipulation and the court’s restitution order
show that the conviction involved losses considerably greater than
$10,000. Absent any conflicting evidence, this evidence is clear and con
vincing. Pp. 41–43.
523 F. 3d 387, affirmed.
Breyer, J., delivered the opinion for a unanimous Court.
Thomas E. Moseley argued the cause for petitioner.
him on the briefs was Peter C. Salerno.
Curtis E. Gannon argued the cause for respondent.
With
With
him on the brief were Solicitor General Kagan, Acting As
sistant Attorney General Hertz, Deputy Solicitor General
Kneedler, Donald E. Keener, Jennifer J. Keeney, W. Man
ning Evans, Holly M. Smith, Andrew C. MacLachlan, Saul
Greenstein, and Erica B. Miles.*
*Briefs of amici curiae urging reversal were filed for the American
Civil Liberties Union et al. by Jayashri Srikantiah, Cecillia D. Wang,
Lucas Guttentag, and Steven R. Shapiro; for the Asian American Justice
Center et al. by Vincent A. Eng, Karen K. Narasaki, David A. Kettel, and
Donald W. Yoo; for the National Association of Criminal Defense Lawyers
by Iris E. Bennett, Michael A. Hoffman, and Joshua L. Dratel; and for
Akio Kawashima et al. by Jenny Lin-Alva, Edward O. C. Ord, and Thomas
J. Whalen.

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32 NIJHAWAN v. HOLDER
Opinion of the Court
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) (em
phasis added). See Appendix A, infra. The question be
fore us is whether the italicized language refers to an ele
ment of the fraud or deceit “offense” as set forth in the
particular 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 cir
cumstances 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 find
ing of any particular amount of victim loss, the jury made no
finding about the amount of the loss. At sentencing peti
tioner stipulated that the loss exceeded $100 million. The
court then imposed a sentence of 41 months in prison and
required restitution of $683 million.

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Opinion of the Court
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 de
ceit; that the sentencing stipulation and restitution order
showed that the victims’ loss exceeded $10,000; and that peti
tioner’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 conspiracy to commit”
a listed “offense”). The Board of Immigration 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 conclusions
as to whether the $10,000 threshold in subparagraph (M)(i)
refers to an element of a fraud statute or to the factual cir
cumstances surrounding commission of the crime on a spe
cific occasion. Compare Conteh v. Gonzales, 461 F. 3d 45, 55
(CA1 2006) (fact-based approach); 523 F. 3d 387 (case below)
(same); Arguelles-Olivares v. Mukasey, 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 linguistic
fact that in ordinary speech words such as “crime,” “felony,”
“offense,” and the like sometimes refer to a generic crime,

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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 Chambers v. United States,
555 U. S. 122, 125 (2009). 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 ge
neric 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 thresh
old; if the second, we must look to the facts and circum
stances underlying an offender’s conviction.
A
The basic argument favoring the first—i. e., the “generic”
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 con
victions for “a violent felony.” 18 U. S. C. § 924(e). See Ap
pendix 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 “bur
glary, arson, or extortion” or that involve the use of explo
sives; 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 125 (discuss
ing Taylor, supra, at 602); James, supra, at 201–202. The

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Court noted that such an interpretation of the statute avoids
“the practical difficulty of trying to ascertain” in a later pro
ceeding, “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 in
volve,” say, violence. Chambers, supra, at 125.
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 convic
tion for a crime that, in ACCA’s language, “involve[d] con
duct that presents a serious potential risk of physical injury
to another.” § 924(e)(2)(B)(ii). That method required the
court to “examine, not the unsuccessful burglary the defend
ant attempted on a particular occasion, but the generic crime
of attempted burglary.” Chambers, supra, at 125 (discuss
ing James, supra, at 204–206).
We also noted that the categorical method is not always
easy to apply. That is because sometimes a separately num
bered subsection of a criminal statute will refer to several
different crimes, each described separately. And it can hap
pen that some of these crimes involve violence while others
do not. A single Massachusetts statute section entitled
“Breaking and Entering at Night,” for example, 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 nonvio
lent, 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 instruc
tions,” Taylor, 495 U. S., 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 subsection
of the “aggravated felony” statute before us as requiring use

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of this same “categorical” approach. He says that the stat
ute’s language, read naturally as in Taylor, refers to a ge
neric 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, per
haps 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 assur
ance of a finding on the point, but also assures that the de
fendant had an opportunity to present evidence about the
amount of loss.
B
Despite petitioner’s arguments, we conclude that the
“fraud and deceit” provision before us calls for a
“circumstance-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 stat
ute, however, contains other, more ambiguous language, cov
ering “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 inter
pretive difficulty, the Court held that it too refers to crimes
as generically defined. James, supra, at 202.

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Opinion of the Court
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 “mur
der, 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); San
tos v. Gonzales, 436 F. 3d 323, 324 (CA2 2005) (per curiam)
(same). Subparagraph (B) lists “illicit trafficking in a con
trolled substance.” See Gousse v. Ashcroft, 339 F. 3d 91,
95–96 (CA2 2003) (applying categorical approach); Fernan
dez v. Mukasey, 544 F. 3d 862, 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 Fed
eral Criminal Code. See, e. g., subparagraphs (E), (H), (I),
(J), (L).
More importantly, however, the “aggravated felony” stat
ute differs from ACCA in that it lists certain other “offenses”
using language that almost certainly does not refer to ge
neric crimes but refers to specific circumstances. For exam
ple, subparagraph (P), after referring to “an offense” that
amounts to “falsely making, forging, counterfeiting, mutilat
ing, 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.” (Empha
sis added.) The language about (for example) “forging . . .
passport[s]” may well refer to a generic crime, but the itali
cized 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

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Opinion of the Court
the provision is to have any meaning at all, the exception
must refer to the particular circumstances in which an of
fender committed the crime on a particular occasion. See
also subparagraph (N) (similar exception).
The statute has other provisions that contain qualify
ing 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 prostitu
tion) if committed for commercial advantage.” (Emphasis
added.) Of the three specifically listed criminal statutory
sections only one subsection (namely, § 2423(d)) says any
thing about commercial advantage. Thus, unless the “com
mercial advantage” language calls for circumstance-specific
application, the statute’s explicit references to §§ 2421 and
2422 would be pointless. But see Gertsenshteyn 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 (re
lating to tax evasion) in which the revenue loss to the Gov
ernment exceeds $10,000.” (Emphasis added.) There is no
offense “described in section 7201 of title 26” that has a spe
cific 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 generic crimes
and some language that almost certainly refers to the spe
cific circumstances in which a crime was committed. The
question before us then is to which category subparagraph
(M)(i) belongs.
2
Subparagraph (M)(i) refers to “an offense that . . . involves
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.

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Opinion of the Court
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 subpar
agraph (M)(ii), the internal revenue provision 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 interpretations. 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 ap
plication. 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 programs), 1028 (fraud
in connection with identification documents), 1029 (fraud in
connection with access devices), 1030 (fraud in connection
with computers), 1347 (health care fraud), and 1348 (securi
ties 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 intend
subparagraph (M)(i) to apply to only these three federal stat
utes, and then choose a monetary threshold that, on its face,
would apply to other, nonexistent statutes 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

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C, infra. We have found, however, that in 1996, when Con
gress 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 thresh
old. In 13 of the remaining 21 States, fraud and deceit stat
utes contain relevant monetary thresholds but with amounts
significantly higher than $10,000, leaving only 8 States with
statutes in respect to which subparagraph (M)(i)’s $10,000
threshold, as categorically interpreted, would have full ef
fect. We do 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. 415, 427 (2009) (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 criminal
izes illegal entry after removal and imposes a higher maxi
mum sentence when an alien’s removal was “subsequent
to a conviction for commission of an aggravated felony.”
§ 1326(b)(2). Petitioner says that a circumstance-specific ap
proach to subparagraph (M)(i) could create potential consti
tutional 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 pro
ceeding. The Government, however, stated in its brief and
at oral argument that the later jury, during the illegal reen
try trial, would have to find loss amount beyond a reasonable
doubt, Brief for Respondent 49–50; Tr. of Oral Arg. 39–40,
eliminating any constitutional concern. Cf. Hayes, supra,
at 426.
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 ap
plies to the specific circumstances surrounding an offender’s
commission of a fraud and deceit crime on a specific occasion.

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Petitioner, as an
Opinion of the Court
III
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 amounted to at
least $10,000. To determine whether that is so, petitioner
says, the subsequent immigration court applying subpara
graph (M)(i) should examine only charging 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 col
loquy. 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 circum
stances that were not before judicially determined to have
been present and which he may not have had an opportunity,
prior to conviction, to dispute.
We agree with petitioner that the statute foresees the use
of fundamentally fair procedures, including procedures that
give an alien a fair opportunity to dispute a Government
claim that a prior conviction involved a fraud with the rele
vant loss to victims. But we do not agree that fairness re
quires 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 peti
tioner points, developed that list for a very different pur
pose, 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 34–35; Taylor, 495 U. S., at 602; Shepard, 544 U. S.,

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Opinion of the Court
at 26. For another, petitioner’s proposal itself can prove im
practical 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 “be
yond a reasonable doubt.” At the same time the evidence
that the Government offers must meet a “clear and convinc
ing” standard. 8 U. S. C. § 1229a(c)(3)(A). And, as the Gov
ernment points out, the “loss” must “be tied to the specific
counts covered by the conviction.” Brief for Respondent 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. Gonza
les, 429 F. 3d 733, 739–740 (CA7 2005) (same). And the Gov
ernment adds that the “sole purpose” of the “aggravated fel
ony” inquiry “is to ascertain the nature of a prior conviction;
it is not an invitation to relitigate the conviction itself.”
Brief for Respondent 44 (internal quotation marks omitted).
Finally, the Board of Immigration Appeals, too, has recog
nized 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 petitioner
and those in similar circumstances have at least one and pos
sibly 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 evi
dence, 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.
Petitioner’s own stipulation, produced for sentencing pur
poses, shows that the conviction involved losses considerably

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43 Cite as: 557 U. S. 29 (2009)
Appendix A to opinion of the Court
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.
The Court of Appeals concluded that petitioner’s prior fed
eral conviction consequently falls within the scope of subpar
agraph (M)(i). And we affirm its judgment.
It is so ordered.
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 trafficking 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 materials
(as defined in section 841(c) of that title);
“(D) an offense described in section 1956 of title 18 (relat
ing to laundering of monetary instruments) or section 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 materi
als 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 of
fenses); or
“(iii) section 5861 of title 26 (relating to firearms
offenses);

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44 NIJHAWAN v. HOLDER
Appendix A to opinion of the Court
“(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 [is] at least one year;
“(G) a theft offense (including receipt of stolen property)
or burglary offense for which the term of imprisonment [is]
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);
“(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 (relat
ing to racketeer influenced corrupt organizations), or an of
fense described in section 1084 (if it is a second or subse
quent offense) or 1955 of that title (relating to gambling
offenses), for which a sentence of one year imprisonment or
more may be imposed;
“(K) an offense that—
“(i) relates to the owning, controlling, managing, or su
pervising of a prostitution business;
“(ii) is described in section 2421, 2422, or 2423 of title 18
(relating to transportation for the purpose of prostitution)
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, involuntary
servitude, and trafficking in persons);
“(L) an offense described in—
“(i) section 793 (relating to gathering or transmitting
national defense information), 798 (relating to disclosure of
classified information), 2153 (relating to sabotage) 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—

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45 Cite as: 557 U. S. 29 (2009)
Appendix A to opinion of the Court
“(i) involves fraud or deceit in which the loss to the vic
tim 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 Government
exceeds $10,000;
“(N) an offense described in paragraph (1)(A) or (2) of sec
tion 1324(a) of this title (relating to alien smuggling), except
in the case of a first offense for which the alien has affirma
tively shown that the alien committed the offense 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 deported 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, forging,
counterfeiting, mutilating, or altering a passport or instru
ment in violation of section 1543 of title 18 or is described in
section 1546(a) of such title (relating to document 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, abetting, 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 defend
ant for service of sentence if the underlying offense is pun
ishable 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;

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46 NIJHAWAN v. HOLDER
Appendix B to opinion of the Court
“(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’ imprison
ment or more may be imposed; and
“(U) an attempt or conspiracy to commit an offense de
scribed in this paragraph.
“The term applies to an offense described in this paragraph
whether in violation of Federal or State law and applies to
such an offense in violation of the law of a foreign 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 regard
less of whether the conviction was entered before, on, or
after September 30, 1996.” (Footnotes 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 fel
ony or a serious drug offense, or both, committed on occa
sions 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 Im
port and Export Act (21 U. S. C. 951 et seq.), or chapter
705 of title 46, for which a maximum term of imprison
ment 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 manu

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47 Cite as: 557 U. S. 29 (2009)
Appendix C to opinion of the Court
facture 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 imprison
ment of ten years or more is prescribed by law;
“(B) the term ‘violent felony’ means any crime punish
able 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 presents
a serious potential risk of physical injury to another;
and
“(C) the term ‘conviction’ includes a finding that a per
son has committed an act of juvenile delinquency involving
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 peti
tioner the benefit of any doubt and treat the statute as
relevant.
1
In 29 States plus the District of Columbia, the main stat
utes 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.

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48 NIJHAWAN v. HOLDER
Appendix C to opinion of the Court
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 (1994). Ar
kansas: see, e. g., Ark. Code Ann. §§ 5–36–103 (Supp. 1995),
5–37–203 (1993), 5–37–204, 5–37–207, 5–37–211. California:
see, e. g., Cal. Penal Code Ann. §§ 484, 487 (West 1985), 502.7
(West Supp. 1998). 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 (Lexis 1987), 18–2407 (Lexis
Supp. 1996). Kentucky: see, e. g., Ky. Rev. Stat. Ann.
§ 514.040 (Lexis Supp. 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
1997). 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 Ann. §§ 750.218,
750.271, 750.280, 750.219a, 750.356c (West 1991). Missis
sippi: see, e. g., Miss. Code Ann. §§ 97–19–21, 97–19–35, 97–
19–39, 97–19–71, 97–19–83 (1994). Missouri: see, e. g., Mo.
Rev. Stat. §§ 570.030, 570.120, 570.130, 570.180 (1994). Mon
tana: see, e. g., Mont. Code Ann. §§ 45–6–301, 45–6–313, 45–
6–315, 45–6–317 (1995). Nebraska: see, e. g., Neb. Rev. Stat.
Ann. §§ 28–512, 28–518, 28–631 (1995). Nevada: see, e. g.,
Nev. Rev. Stat. §§ 205.0832, 205.0835, 205.370, 205.380 (1995).
New Hampshire: see, e. g., N. H. Rev. Stat. Ann. §§ 637:4,
637:11, 638:5, 638:20 (West 1996). North Carolina: see, e. g.,
N. C. Gen. Stat. Ann. §§ 14–100, 14–106, 14–113.13 (Lexis
1993). Oklahoma: see, e. g., Okla. Stat., Tit. 21, §§ 1451
(West 1991), 1462 (West Supp. 1993), 1541.1, 1541.2, 1541.3
(West 1991), 1541.4, 1550.2, 1662, 1663 (West Supp. 1993).
Pennsylvania: see, e. g., 18 Pa. Cons. Stat. §§ 3903, 3922,
4110, 4111 (1983), 4117 (Supp. 2009); 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 (1994), 11–

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41–30 (Supp. 1999). South Carolina: see, e. g., S. C. Code
Ann. § 16–13–240 (2003). South Dakota: see, e. g., S. D. Cod
ified Laws §§ 22–30A–3, 22–30A–10 (1988), 22–30A–17 (Supp.
1997). 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).
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 (1994), 9A.56.030 (Supp. 2005). West Virginia:
see, e. g., W. Va. Code Ann. § 61–3–24 (Lexis Supp. 1997).
Wisconsin: see, e. g., Wis. Stat. §§ 943.20, 943.395, 943.41
(1993–1994). Wyoming: see, e. g., Wyo. Stat. Ann. §§ 6–3–
407, 6–3–607, 6–3–802 (1997).
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 thresholds
for these offenses—that is, the thresholds such that convic
tion categorically would satisfy the monetary requirement 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 (fraudu
lent 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 anything of value by fraudulent use of a credit
card), 13–2204 (defrauding secured creditors), 13–2205 (de
frauding judgment creditors), 13–2206 (West 1989) (fraud in
insolvency), 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 rele
vant monetary threshold. Delaware: see, e. g., Del. Code

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50 NIJHAWAN v. HOLDER
Appendix C to opinion of the Court
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 relevant monetary
threshold. Hawaii: see, e. g., Haw. Rev. Stat. §§ 708–830,
708–830.5 (Lexis 1994) ($20,000); but see, e. g., §§ 708–873 (de
frauding secured creditors), 708–8100 (fraudulent use of a
credit card), 708–8100.5 (fraudulent encoding of a credit
card), 708–8103 (credit card fraud by a provider of goods or
services), all with no relevant monetary threshold. Indi
ana: see, e. g., Ind. Code §§ 35–43–4–1, 35–43–4–2 (West
1993) ($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 rele
vant monetary threshold. New Mexico: see, e. g., N. M. Stat.
Ann. §§ 30–16–6 (1994), 30–33–13 (1997), 30–44–7 (1989), 30–
50–4 (1997) ($20,000); but see, e. g., § 30–16–33 (1994) (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).

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3
In eight States, the main fraud and deceit statutes in effect
in 1996 had relevant monetary thresholds of $10,000. How
ever, a number of these States also had statutes targeted
at particular kinds of fraud without any relevant monetary
threshold. Connecticut: see, e. g., Conn. Gen. Stat. Ann.
§§ 53a–119 (West Supp. 1996), 53a–122 (West 1994); but see,
e. g., §§ 53a–128c, 53a–128i (credit card crimes, no relevant
monetary threshold). Florida: see, e. g., Fla. Stat. Ann.
§§ 812.012 (1994), 812.014 (West Supp. 1996); but see, e. g.,
§§ 817.234 (insurance fraud), 817.61 (fraudulent use of credit
cards), both without a relevant monetary threshold. Illi
nois: see, e. g., Ill. Comp. Stat. Ann., ch. 720, § 5/16–1 (West
Supp. 1995 and 1995 Ill. Laws pp. 3925–3926); but see, e. g.,
§§ 5/17–6 (West 1993) (state benefits fraud), 5/17–9 (public aid
wire fraud), 5/17–10 (public aid mail fraud), 5/17–13 (1995 Ill.
Laws, at 2888) (fraudulent land sales), all without a rele
vant monetary threshold. Iowa: see, e. g., Iowa Code Ann.
§§ 714.1, 714.2 (West 1993), 714.8 (West 1993 and 1994 Iowa
Acts p. 46), 714.9 (West 1993). Maine: see, e. g., Me. Rev.
Stat. Ann., Tit. 17A, §§ 354, 362 (1983); but see, e. g., §§ 902
(defrauding a creditor), 908 (1995 Me. Acts pp. 893–894)
(home repair fraud), both without relevant monetary thresh
olds. North Dakota: see, e. g., N. D. Cent. Code Ann.
§§ 12.1–23–02, 12.1–23–05 (Lexis 1997). Oregon: see, e. g.,
Ore. Rev. Stat. §§ 164.085, 164.057 (1991); but see, e. g.,
§§ 165.055 (1993 Ore. Laws p. 1826) (fraudulent use of a credit
card), 165.692 (1995 Ore. Laws p. 1285), 165.990 (1991 and
1995 Ore. Laws, at 1285–1286) (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 (1991).