Chung Ping Li v. John Ashcroft, Attorney General

389 F.3d 892 Chung Ping LI, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 02-72597. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 16, 2004. Filed November 19, 2004. Zachary Nightingale, Megan Ferstenfeld-Torres, Van Der Hout, Brigagliano and Nightingale, LLP, San Francisco, CA, for the petitioner. Jennifer Paisner, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Before: WALLACE, KOZINSKI, and GRABER, Circuit Judges. GRABER, Circuit Judge: 1 We must decide whether an alien defendant is removable for conviction of an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000," 8 U.S.C. § 1101 (a)(43)(M)(i), even though monetary loss is not an element of the crimes of which he was convicted. Applying the "modified categorical approach," we hold that the requisite amount of loss is not demonstrated unequivocally by the charging document and the judgment of conviction. Therefore, we must grant the petition for review. FACTUAL AND PROCEDURAL BACKGROUND 2…

We must decide whether an alien defendant is removable for conviction of an offense that “involves fraud or deceit in *894 which the loss to the victim or victims exceeds $10,000,” 8 U.S.C. § 1101 (a)(43)(M)(i), even though monetary loss is not an element of the crimes of which he was convicted. Applying the “modified categorical approach,” we hold that the requisite amount of loss is not demonstrated unequivocally by the charging document and the judgment of conviction. Therefore, we must grant the petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Chung Ping Li is a citizen of Taiwan who was admitted to the United States in 1987 as a legal permanent resident. In 1995, he was convicted, after a jury trial, of eight fraud-related federal offenses under 18 U.S.C. §§ 2 , 1 287, 2 371, 3 and 1001. 4 Following his conviction, Petitioner was sentenced to twenty-four months in prison. After his release he was served with a Notice to Appear and placed in removal proceedings by the Immigration and Naturalization Service (INS).

The INS argued to the immigration judge (IJ) that Petitioner is removable as an alien who was convicted of an “aggravated felony.” See 8 U.S.C.…

concurring:

1. Any modified categorical approach analysis must start with Taylor v. United States, 495 U.S. 575, 599-602 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990). Where the substantive statutes under which the defendant was convicted (here, 18 U.S.C. §§ 287 , 371 and 1001) are broader than the generic statute (here, an “aggravated felony” under 8 U.S.C. § 1101 (a)(43)(M)(i)), we may “go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of’ the generic crime. 495 U.S. at 602 , 110 S.Ct. 2143 (emphasis added). To be convicted of a specific offense is to be convicted of the generic offense “if either its statutory definition substantially corresponds to [the generic offense], or the charging paper and jury instructions actually required the jury to find all the elements of [the generic offense] in order to convict the defendant.” Id. (emphasis added).

But this approach only works when the difference between the crime of conviction and the generic crime lies in the fact that particular elements in the former are broader than their counterparts in the latter. By contrast, when the crime of conviction is broader…