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
