2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-16-2012

Nigel Singh v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 11-1988

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PRECEDENTIAL 

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-1988

_____________

NIGEL ST. IVAN SINGH,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

_____________

On Petition for Review of a Final Order 

of the Board of Immigration Appeals

Immigration Judge: Honorable Edward R. Grant

(No. A035-479-111)

______

Argued March 6, 2011

Before: SCIRICA, AMBRO, and VAN ANTWERPEN, 

Circuit Judges

(Opinion Filed: April 16, 2012)

Thomas E. Moseley, Esq. [ARGUED]
2

1 Gateway Center, Suite 2600 

Newark, New Jersey 07102

Counsel for Petitioner

Tony West, Esq.

David V. Bernal, Esq.

Jesse M. Bless, Esq. [ARGUED]

Office of Immigration Litigation, Civil Division

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Counsel for Respondent 

______

OPINION OF THE COURT

______

 

VAN ANTWERPEN, Circuit Judge.

Nigel Singh petitions for review of a final order of 

removal based on his conviction, under 18 U.S.C § 152(3), 

for knowingly making a false statement under penalty of 

perjury in a bankruptcy proceeding. The Board of 

Immigration Appeals (BIA) determined that Singh’s 

conviction was an offense involving fraud or deceit in which 

the loss to the victim exceeded $10,000, and hence an 

aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i). In his 

petition, Singh argues that 18 U.S.C § 152(3) is a perjury 

offense that must meet the requirements for perjury-based 

aggravated felonies under 8 U.S.C § 1101(a)(43)(S). Singh 

further argues that, even if assessed under 8 U.S.C § 

1101(a)(43)(M)(i), he is not removable because his offense 

did not cause an actual loss exceeding $10,000. While we 
3

reject Singh’s first argument, we agree that under the unique 

facts of this case his offense did not cause an actual loss. 

Because we hold that § 1101(a)(43)(M)(i) requires an actual, 

not merely intended, loss, we will grant Singh’s petition and 

vacate the order of removal.

I. FACTS & PROCEDURAL HISTORY

Singh was born in Jamaica on August 23, 1959, and 

has been a lawful permanent resident of the United States 

since December 7, 1975. Since that time, Singh has married a 

U.S. citizen and raised three U.S. children. In 1997, Singh 

founded the Raeback Corporation, a construction contracting 

firm that bid on public works projects as a Minority Business 

Enterprise (MBE). During his tenure as Raeback’s president, 

Singh was asked on several occasions by a business contact at 

a non-MBE firm, U.S. Rebar, to help U.S. Rebar secure 

government contracts. In exchange for kickbacks, Singh 

falsely attested that Raeback was serving as a subcontractor 

on government projects when, in fact, U.S. Rebar did the 

subcontract work. Under the scheme, billing was done in 

Raeback’s name and the general contractor paid Raeback, 

which then forwarded the payments to U.S. Rebar, less a ten 

percent kickback. One of the government entities that funded 

these projects was the Port Authority of New York and New 

Jersey (“Port Authority”). 

In September 2005, during the course of the Port 

Authority project, Raeback filed for bankruptcy due to losses 

on another project. Since the bankruptcy proceedings 

automatically froze Raeback’s bank accounts, Singh and his 

contact agreed on an arrangement in which the contact would 

deposit the general contractor’s checks and hold the funds for 
4

Singh during Raeback’s bankruptcy.1

 

 Unbeknownst to Singh, 

however, his contact was a confidential informant for the Port 

Authority, which had begun investigating U.S. Rebar’s 

arrangement with Raeback. Rather than holding the funds for 

Singh, therefore, the contact transferred the funds—

approximately $54,000 in total—to the Port Authority.

When the Port Authority informed Singh of its 

investigation in 2007, Singh participated in two proffer 

sessions with law enforcement agents. During these sessions, 

agents learned of Raeback’s bankruptcy proceeding. Agents 

also learned that Raeback’s bankruptcy petition failed to 

disclose its revenue stream from the Port Authority project. 

Although the Port Authority did not take legal action against 

Singh, Singh was charged by the U.S. Attorney’s Office in 

the Eastern District of New York for one count of “fail[ing] to 

disclose all of Raeback’s accounts receivable on Raeback’s 

bankruptcy petition,” in violation of 18 U.S.C. § 152(3). 

Under § 152(3), it is a crime to “knowingly and fraudulently 

make[] a false declaration, certificate, verification, or 

statement under penalty of perjury” in relation to a 

bankruptcy proceeding. On June 24, 2009, Singh pled guilty. 

As part of the plea agreement, Singh agreed to “restitution in 

 1 As noted in the Pre-Sentence Report (PSR), Singh “cashed 

$53,952.41 worth of checks through the confidential 

informant in order to hide these funds from creditors of 

Raeback.” App. at 209. While the PSR does not specifically 

state that Singh had the general contractor send the checks 

directly to U.S. Rebar, a copy of one of the checks confirms 

that this was, in fact, the arrangement. See App. at 156 

(providing photocopy of $6,000 check from general 

contractor to U.S. Rebar).
5

the amount of $54,418.08,” to be paid by transferring the 

money “held by the Port Authority” to the bankruptcy trustee. 

At the time the plea agreement was entered, the U.S. 

Attorney believed Singh’s failure to disclose the Port 

Authority funds had caused “substantial interference with the 

administration of justice,” thus warranting a three-point 

sentencing enhancement under U.S.S.G. § 2J1.2(b)(2). Later, 

however, the U.S. Attorney informed the sentencing court 

that, “because the Chapter 11 bankruptcy proceedings are still 

ongoing and the bankruptcy trustee will receive the funds 

which the defendant attempted to secrete, the defendant’s 

crime will not affect the ultimate outcome of the bankruptcy 

proceedings.” App. at 298. The U.S. Attorney also informed 

the court that the trustee “did not expend any substantial 

additional resources as a result of the defendant’s fraud.” 

App. at 299. Based on these discoveries, the U.S. Attorney’s 

Office dropped its request for the three-point enhancement. 

Singh, meanwhile, emphasized the restitution agreement as a 

factor supporting his request for a non-incarceratory sentence.

On December 14, 2009, the United States District 

Court for the Eastern District of New York sentenced Singh 

to ten months in prison. Although the court’s initial judgment 

did not mention restitution, an amended judgment issued on 

January 29, 2010 included a restitution order “pursuant to 

[the] plea agreement.” The terms of the court’s restitution 

order, identical in all relevant respects to the terms Singh 

agreed to in the plea, ordered that “the $54,418.08 currently 

held by the Port [A]uthority” be transferred to the trustee. On 

March 22, 2010, the funds were transferred to the trustee, and 

on January 19, 2011, the trustee distributed Raeback’s assets 

to its creditors. 
6

Shortly after Singh began serving his sentence, the 

Department of Homeland Security (DHS) initiated removal 

proceedings by issuing him a Notice to Appear (NTA). In the 

NTA, the DHS charged that Singh’s § 152(3) conviction 

involved a “loss or intended loss” to a victim or victims 

exceeding $10,000 and thus made him removable as an 

aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii). App. at 

343. Under § 1101(a)(43)(M)(i) (hereinafter, “subparagraph 

(M)(i)”), an aggravated felony is defined as an “offense that 

involves fraud or deceit in which the loss to the victim or 

victims exceeds $10,000.” The Immigration Judge sustained 

DHS’s charge and entered an order of removal, which the 

BIA affirmed on April 12, 2011. In an unpublished opinion, 

the BIA ruled that a conviction under § 152(3) “categorically 

involves fraud,” as evident by our Court’s determination of 

the crime’s essential elements in United States v. Mathies, 

350 F.2d 963 (3d Cir. 1965). The BIA also ruled that Singh’s 

agreement to pay restitution and the sentencing court’s 

restitution order provided clear and convincing evidence that 

Singh’s offense caused a loss to the trustee exceeding 

$10,000.

After the BIA issued its order, we granted Singh’s 

request for a stay so that we could consider his petition for 

review. In granting the stay, we cited the Second Circuit’s 

decision in Pierre v. Holder, 588 F.3d 767 (2d Cir. 2009), 

where an intended loss exceeding $10,000 was held 

insufficient, as a matter of law, to satisfy the loss requirement 

of subparagraph (M)(i).

II. LEGAL BACKGROUND
7

Although 8 U.S.C. § 1252(a)(2)(C) divests federal 

courts of jurisdiction to review orders of removal based on an 

alien’s commission of an aggravated felony, this 

“jurisdiction-stripping provision” only applies if we are 

satisfied the petitioner is, in fact, an alien who has committed 

an aggravated felony. Valansi v. Ashcroft, 278 F.3d 203, 207 

(3d Cir. 2002). Whether or not Singh committed an 

aggravated felony is a question of law which we review de 

novo. Bobb v. Att’y Gen., 458 F.3d 213, 217 (3d Cir. 2006). 

While we generally defer to the BIA’s reasonable 

interpretations of the INA, “[w]e do not defer to the BIA’s 

determination of whether a crime constitutes an aggravated 

felony.” Henry v. Bureau of Immig. & Customs Enforcement, 

493 F.3d 303, 306 (3d Cir. 2007). We also will not affirm a 

BIA order if it cannot be sustained on the grounds upon 

which the BIA relied, unless “it is highly probable” that the 

omission or error did not affect the outcome. Li Hua Yuan v. 

Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011).

 

Under the INA, “[a]ny alien who is convicted of an 

aggravated felony at any time after admission is deportable.” 

8 U.S.C. § 1227(a)(2)(A)(iii). An aggravated felony under 

subparagraph (M)(i) has two distinct elements: (1) it must be 

a crime that “involves fraud or deceit,” (2) “in which the loss 

to the victim or victims exceeds $10,000.” To determine 

whether a crime involves fraud or deceit, we must employ a 

“categorical approach” in which we focus on the crime’s 

statutory elements “rather than . . . the specific facts 

underlying the crime.” Kawashima v. Holder, 132 S. Ct. 

1166, 1172 (2012). By contrast, we must use a 

“circumstance-specific” approach to determine whether the 

alien’s offense involved a loss to a victim(s) exceeding 

$10,000, Nijhawan v. Holder, 129 S. Ct. 2294, 2300 (2009); 
8

Kaplun v. Att’y Gen., 602 F.3d 260, 265 (3d Cir. 2010), 

wherein the loss must be “tethered” to the actual “offense of 

conviction,” not “acquitted or dismissed counts or general 

conduct,” Nijhawan, 129 S. Ct. at 2302; Alaka v. Att’y Gen., 

456 F.3d 88, 106–08 (3d Cir. 2006).

III. DISCUSSION

A. Fraud or Deceit Requirement

We begin our analysis here by considering whether 

Singh was convicted of an offense that categorically involves 

fraud or deceit. As the Supreme Court has recently made 

clear, a crime involves fraud or deceit if it “necessarily 

entail[s] fraudulent or deceitful conduct.” Kawashima, 132 S. 

Ct. at 1172; accord Valansi, 278 F.3d at 210. For the reasons 

that follow, we hold that a conviction under 18 U.S.C. § 

152(3) necessarily entails deceit and therefore qualifies as a 

deceit offense under 8 U.S.C. § 1101(a)(43)(M)(i).

To violate 18 U.S.C. § 152(3), one must “knowingly 

and fraudulently make a false declaration . . . under penalty of 

perjury” in relation to a bankruptcy proceeding. This Court 

has previously interpreted the phrase “knowingly and 

fraudulently” in § 152(3) as requiring an intent to defraud. In 

re Topper, 229 F.2d 691, 692 (3d Cir. 1956) (interpreting § 

152(3) as requiring “actual intent on the part of the bankrupt 

to hinder, delay and defraud his creditors”); see also Mathies, 

350 F.2d at 967. As Singh correctly notes, however, the 

jurisdiction in which he was convicted (the Second Circuit) 

interprets § 152(3) differently than we do. Under the Second 

Circuit’s interpretation, “the words of the statute requiring 

that the testimony be given ‘knowingly and fraudulently’ 
9

mean no more than an intentional untruth in a matter material 

to the issue which is itself material.”2

 In re Robinson, 506 

F.2d 1184, 1187 (2d Cir. 1974) (internal quotation marks 

omitted). In the Second Circuit, therefore, “only the basic 

requirements of perjury need to be proven.”3

 Id. at 1189. 

Singh thus contends that the BIA erred in concluding that § 

152(3) “categorically involves fraud.” Even if Singh is

correct, however, it would not change the result here because 

the Second Circuit’s definition of § 152(3) necessarily 

requires deceit. As noted in Kawashima, the word “deceit” 

refers to “the act or process of deceiving (as by falsification, 

concealment or cheating).” 132 S. Ct. at 1172. The Second 

Circuit’s element of “knowingly” making a “false statement” 

fits this definition.4

 2 The Second Circuit’s interpretation of § 152(3) is not 

necessarily at odds with the plain meaning of the word 

“fraudulently,” as the word “fraudulent” has at least two 

distinctly different meanings. On one hand, a fraudulent 

statement is one that is “made . . . with the purpose or design 

to carry out a fraud.” BLACK’S LAW DICTIONARY 596 (5th 

ed. 1979). A statement is also fraudulent, however, if it is 

made with the simple intent to deceive. See id. (“A 

statement, or claim, or document, is ‘fraudulent’ if it was 

falsely made, or caused to be made, with the intent to 

deceive.”). 

 Thus, irrespective of which statutory 

3 Consistent with the Second Circuit’s interpretation of § 

152(3), the sentencing court did not require that the 

government prove, nor did Singh admit to, an intent to 

defraud. 4 The Supreme Court addressed an analogous situation in 

Kawashima. There, the petitioner had been convicted of 

filing a false tax return under 26 U.S.C. § 7206(1), which 
10

elements we use, § 152(3) qualifies under subparagraph 

(M)(i) as an offense that involves deceit.

B. Subparagraph (S) Considerations

Singh also argues that because the Second Circuit 

considers § 152(3) to be “essentially equivalent to a perjury 

statute,” Robinson, 506 F.2d at 1189, he cannot be removable 

because his offense does not qualify under the INA’s 

provision for perjury-based aggravated felonies, 8 U.S.C. § 

1101(a)(43)(S) (hereinafter, “subparagraph (S)”).5

 Singh 

bases this position on Congress’s purported intent when 

enacting subparagraph (S) and the “basic rule” that “the 

specific statutory provision . . . should prevail over the more 

general.” Appellant’s Br. at 23. This argument is at odds 

with our precedent.

As we made clear in Valansi, “[w]hen the statutory 

language [of the INA] has a clear meaning, we need not look 

further.” 278 F.3d at 214. In Valansi, the petitioner argued 

that her conviction for embezzlement was a theft offense and 

 

established that the petitioner “knowingly and willfully 

submitted a tax return that was false as to a material matter.” 

Kawashima, 132 S. Ct. at 1172. The Supreme Court 

concluded that the offense necessarily involved deceit, 

irrespective of whether the statute actually used the word 

“deceit.” Id.

5 Under subparagraph (S), perjury offenses only qualify as 

aggravated felonies if they result in a “term of imprisonment 

[of] at least one year.” Singh does not qualify as an 

aggravated felon under subparagraph (S) because he only 

received a ten-month sentence.
11

could only be an aggravated felony if it satisfied the INA’s 

specific criteria for theft offenses under subparagraph (G). Id.

at 213. We rejected this “all-or-nothing” argument because 

the “plain meaning of [subparagraph (M)(i)] suggests that 

embezzlement with intent to defraud would qualify as an 

offense that ‘involves fraud or deceit.’” Id. at 214. A similar 

situation applies here, as the plain meaning of subparagraph 

(M)(i) encompasses offenses, such as § 152(3), that involve 

knowingly making false statements. Under Valansi we need 

not look further.

C. The Loss Requirement

We turn now to the issue of whether Singh’s offense 

was one in which the loss to the victim exceeded $10,000. 

Our determination depends in part on whether the 

government must prove actual loss, or merely an intended or 

potential loss. We begin, therefore, by considering the 

meaning of subparagraph (M)(i)’s requirement that there be a 

“loss to the victim or victims.” As we noted in granting 

Singh’s request to stay removal, the Second Circuit holds that 

subparagraph (M)(i) requires the loss to be an actual one. See 

Pierre, 588 F.3d at 773 (citing Ming Lam Sui v. INS, 250 F.3d 

105, 119 (2d Cir. 2001)). For the reasons that follow, we 

agree with the Second Circuit.

Since the INA does not define the term loss, we must 

interpret the word according to its ordinary meaning at the 

time Congress enacted subparagraph (M)(i). See Robinson v. 

Napolitano, 554 F.3d 358, 365 (3d Cir. 2009) (“‘A 

fundamental canon of statutory construction is that, unless 

otherwise defined, words will be interpreted as taking their 

ordinary, contemporary, common meaning at the time 
12

Congress enacted the statute.’” (quoting Perrin v. United 

States, 444 U.S. 37, 42 (1979))). Thus, because subparagraph 

(M)(i) was enacted by Congress in 1994,6

 

 we will consider 

the ordinary meaning of loss as of that time.

The 1993 edition of Webster’s New International 

Dictionary provides numerous definitions of loss, along with 

illustrative examples. Each of these definitions, and their 

corresponding examples, refer to loss that actually occurs. 

See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

1338 (1993). Loss is defined, for example, as: (a) “the act or 

fact of losing”; (b) “a person or thing or an amount that is 

lost”; (c) “the act or fact of failing to gain, win, obtain, or 

utilize”; (d) a “decrease in amount, magnitude, or degree”; (e) 

“the state or fact of being destroyed or placed beyond 

recovery”; and (f) “the amount of an insured’s financial 

detriment due to the occurrence of a stipulated contingent 

event.” Corresponding examples to illustrate these 

definitions include: (a) “loss of a leg”; (b) “killed, wounded, 

or captured soldiers”; (c) “loss of opportunity”; (d) “altitude 

loss”; (e) “loss of life in war”; and (f) financial detriment 

caused by “death, injury, destruction, or damage.” 

Importantly, not one of these definitions or examples refers to 

potential loss; even where loss refers to a failure to gain, the 

loss is characterized as having already occurred (e.g., loss of a 

battle).

 

Consistent with Webster’s definition, this Court stated 

in 1991 that the “ordinary meaning” of loss is “actual loss,”

not “probable” or “intended loss.” United States v. Kopp, 951 

 6 Immigration and Nationality Technical Corrections Act of 

1994, Pub. L. No. 103-406, 108 Stat. 4305 (1994).
13

F.2d 521, 529 (3d Cir. 1991) (superseded by statute on other 

grounds). We conclude, therefore, that when Congress 

enacted subparagraph (M)(i), the plain meaning of loss 

referred to actual, not merely intended, loss. Accordingly, 

because neither subparagraph (M)(i) nor paragraph (43) 

expand loss’s ordinary meaning, we hold that subparagraph 

(M)(i) requires actual loss. Accord Kharana v. Gonzales, 487 

F.3d 1280, 1282 n.3 (9th Cir. 2007) (“[I]nterpreting § 

101(a)(43)(M)(i) such that a conviction involving an 

unsuccessful attempt to obtain more than $10,000 counts as a 

conviction ‘in which the loss to the victim or victims exceeds 

$10,000’ flies in the face of the plain meaning of the 

statute.”).

Although some have argued that subparagraph (M)(i) 

should include intended loss, the reasons for overriding the 

statute’s plain meaning are unconvincing. The concurrence in 

Kharana advanced the argument, for example, that because 

loss under subparagraph (U) has been interpreted to include 

intended loss, see Matter of S-I-K, 24 I. & N. Dec. 324 (BIA 

2007) and Matter of Onyido, 22 I. & N. Dec. 552 (BIA 1999), 

loss under subparagraph (M)(i) should be read to include 

intended loss as well.7

 7 Because the government only charged Singh as removable 

under subparagraph (M)(i), we do not reach the question of 

whether intended loss satisfies the loss requirement for 

attempts or conspiracies to commit a deceit offense under 

subparagraph (U).

 Kharana, 487 F.3d at 1286 (Wallace, 

J., concurring). The Kharana concurrence reasons that 

because subparagraph (U) does not provide “additional gloss” 

on the word, loss’s meaning under (U) “applies with equal 

force” to subparagraph (M)(i). Id. There are several 
14

problems with this argument. Subparagraph (U) defines an 

aggravated felony as “an attempt or conspiracy to commit an 

offense described in this paragraph.” 8 U.S.C. § 

1101(a)(43)(U). Since subparagraph (U) does not mention 

the word loss, it is hardly significant that (U) does not provide 

“additional gloss” on the word itself. Further, we question 

the premise that subparagraph (U) does not provide any 

additional gloss. After all, the reason the BIA interpreted 

subparagraph (U) to include intended loss is because (U) 

includes the word “attempt,” a word not present in (M). See 

Onyido, 22 I. & N. at 553. There is a clear textual reason, 

therefore, why loss under subparagraph (U) should not “apply 

with equal force” to subparagraph (M)(i). Whereas 

subparagraph (U) expressly applies to attempts and 

conspiracies to commit crimes of deceit, subparagraph (M)(i)

applies to consummated crimes of deceit. The BIA 

determined that intended loss is relevant under subparagraph 

(U) because, by definition, an attempt to commit a crime does 

not require the crime to be successfully carried out. See id. 

This rationale does not apply to completed offenses under 

subparagraph (M)(i). In short, the fact that the BIA has held 

that actual loss is unnecessary under subparagraph (U), does 

not mean that actual loss must be unnecessary under (M)(i).

Along with the Kharana concurrence, the Seventh 

Circuit has suggested, in dicta, that subparagraph (M)(i)

should be interpreted to encompass intended loss. See Eke v. 

Mukasey, 512 F.3d 372, 380 (7th Cir. 2008). The Seventh 

Circuit suggests that this interpretation would be reasonable 

because it is consistent with the Sentencing Guidelines’ 

definition of loss for fraud and deceit crimes under U.S.S.G. § 

2B1.1. Id. This argument is also unpersuasive. The statutory 

language of subparagraph (M)(i) provides no indication that 
15

Congress wanted loss to be defined in accordance with the 

Sentencing Guidelines. As the Kharana concurrence

observed, the Guidelines and the INA are like “apples and 

oranges.” See Kharana, 487 F.3d at 1287 (Wallace, J., 

concurring). Not only are they written by different bodies 

(one by a non-legislative commission, one by Congress), but 

they serve distinctly different purposes (one penological, one 

civil).8 Although we have recognized that there might be 

occasions where the Guidelines can help “divine Congress’s 

intent when passing the INA,” no such guidance is necessary 

when the INA’s statutory language “has a clear meaning.” 

Valansi, 278 F.3d at 213–14. Indeed, “[w]hen we find the 

terms of a statute unambiguous, judicial inquiry is complete, 

except in rare and exceptional circumstances.” Rubin v. 

United States, 499 U.S. 424, 430 (1981) (citations omitted). 

Here, there are no rare or exceptional circumstances that 

compel us to override subparagraph (M)(i)’s plain meaning.

D. The Actual Loss from Singh’s Offense

Having determined that subparagraph (M)(i) requires 

actual loss, we now turn to the “specific circumstances” of 

Singh’s offense to determine if the government has proved by 

“clear and convincing” evidence that his offense involved an 

actual loss to a victim, or victims, that exceeds $10,000. 

Nijhawan, 129 S. Ct. at 2302–03. We begin by laying out the 

parameters of the circumstance-specific approach.

 8 It is instructive to note, for example, that the inclusion of

intended loss in the Guidelines’ definition of loss was based 

on the Guidelines’ “overall theory of culpability for 

attempts.” Kopp, 951 F.2d at 529 (emphasis added). 
16

Although “not an invitation to relitigate the conviction 

itself,” Kaplun, 602 F.3d at 266, the circumstance-specific 

approach goes beyond the “modified-categorical approach” 

that is used for determining which elements of a disjunctive 

statute an individual was convicted of committing. See 

Nijhawan, 129 S. Ct. at 2302 (citing Shepard v. United States, 

544 U.S. 13 (2005) and Taylor v. United States, 495 U.S. 575

(1990)). For example, whereas the modified-categorical 

approach is limited to the record of conviction (e.g., 

indictment, plea agreement, criminal judgment, etc) and 

judicial findings of fact, Alaka, 456 F.3d at 106, the 

circumstance-specific approach may consider “sentencingrelated material,” Nijhawan, 129 S. Ct. at 2302–03. Accord

Matter of Babaisakov, 24 I. & N. Dec. 306, 306 (BIA 2007). 

The guiding principle for the circumstance-specific analysis is 

that immigration courts must use “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 relevant loss to victims.” 

Nijhawan, 129 S. Ct. at 2303.

Here, the government argues that the circumstancespecific approach proves the existence of a loss that exceeds 

$10,000. The government’s primary argument is that, on its 

face, the restitution order is clear and convincing evidence of 

actual loss because restitution orders are limited to “actual 

losses that resulted from the offense of conviction.” Gov’t 

Br. at 28. The government also argues that the circumstances 

of the case prove that Singh caused an actual, if temporary, 

deprivation of $54,000 of assets to the bankruptcy trustee.

 

1. The Restitution Order
17

According to the government, the very fact that the 

sentencing court issued a restitution order of $54,000 is proof 

positive that the requisite actual loss occurred.9

 The 

government reaches this conclusion based on a misapplication 

of the federal statutes governing restitution orders by federal 

courts: the Mandatory Victims Restitution Act (MVRA), 18 

U.S.C. § 3663A, and the Victim and Witness Protection Act 

(VWPA), 18 U.S.C. § 3663.10

 9 The BIA made this argument in its opinion as well. 

However, in contrast to the BIA (which devoted just one 

sentence to the issue), the government made this the 

centerpiece of its case. Accordingly, we focus our analysis 

here on the government’s argument. 

 Under the MVRA, a federal 

sentencing court “shall order” restitution for certain offenses, 

but only if the court finds that “an identifiable victim or 

victims has suffered a physical injury or pecuniary loss” as a 

“direct[] and proximate[]” result of the offense. §§

3663A(a)(2), (c)(1)(B). Offenses involving “fraud or deceit” 

are included under the MVRA, § 3663A(c)(1)(A), and, as the 

government notes, violations of § 152(3) have “generally” 

10 As set forth in 18 U.S.C. § 3556, “[t]he court, in imposing a 

sentence on a defendant who has been found guilty of an 

offense shall order restitution in accordance with section 

3663A [the MVRA], and may order restitution in accordance 

with section 3663 [the VWPA]. The procedures under section 

3664 shall apply to all orders of restitution under this 

section.” Thus, if an offense qualifies under the MVRA, the 

sentencing court must order restitution. Only if the offense 

does not qualify under the MVRA does a court have 

permissive authority to grant restitution under the VWPA. 
18

qualified as such.11 Further, as the government points out, 

courts ordering restitution under the MVRA are limited to 

remedying the actual loss caused by the defendant’s “offense 

of conviction.” Hughey v. United States, 495 U.S. 411, 413 

(1990).12 Ergo, the government concludes that the sentencing 

court’s restitution order of $54,000 here is ipso facto evidence 

that Singh caused an actual loss to a victim exceeding 

$10,000.

The government’s argument fails, however, for three 

reasons. First, its reliance on the MVRA is misplaced 

because the record shows that the sentencing court issued 

restitution pursuant to an express agreement by the parties, 

not the MVRA. Second, the law governing restitution issued 

pursuant to a party agreement shows that such orders are not

limited to actual losses from the offense of conviction. Third, 

even if the court’s restitution order reflected a judicial finding 

of loss, Nijhawan and our own precedent make clear that we 

 11 Gov’t Br. at 27–28 (citing Feldman, 338 F.3d at 219–20; 

United States v. Waldner, 580 F.3d 699, 709–10 (8th Cir. 

2009); United States v. Lovell, 256 F.3d 463, 464 (7th Cir. 

2001); United States v. Grice, 419 Fed. App’x 50, 52 (2d Cir. 

2011) (unpublished)).

12 Although Hughey was decided before the MVRA was 

enacted, the Second Circuit (the circuit in which Singh was 

convicted) has applied Hughey’s interpretation of the VWPA 

to the MVRA. See United States v. Marino, 654 F.3d 310, 

319 n.7 (2d Cir. 2011) (citing In re Local # 46 Metallic 

Lathers Union, 568 F.3d 81, 86 (2d Cir. 2009) and United 

States v. Oladimeji, 463 F.3d 152, 158 n.1 (2d Cir. 2006)). 

Other federal circuits do so as well. E.g., United States v. 

Maturin, 488 F.3d 657, 661 n.2 (5th Cir. 2007).
19

need not take the order at face value for removal purposes, 

particularly when, as here, it conflicts with undisputed facts in 

the sentencing material. We will address each of these three 

reasons in turn.

First, the government’s reliance on the MVRA is 

misplaced because it is doubtful the sentencing court issued 

restitution under the MVRA. The sentencing court was only 

required to issue restitution under the MVRA if, and only if,

the court determined that Singh’s offense caused “a physical 

injury or pecuniary loss” to a “victim.” § 3663A(c). This is 

significant because it is unlikely that the bankruptcy trustee

here actually qualified as a victim under the MVRA. 

Although the government cites United States v. Holthaus, 486 

F.3d 451, 457–58 (8th Cir. 2007), for the proposition that 

bankruptcy trustees can be victims of § 152(3) violations, it 

omits the fact that Holthaus limited this holding to trustees 

whose “compensation” has been “negatively impacted.” Id.

(adopting rule set forth by the Seventh Circuit in United 

States v. Lowell, 256 F.3d 463, 465–66 (7th Cir. 2001)); see 

also United States v. Paradis, 219 F.3d 22, 25 (1st Cir. 2000) 

(holding that trustee is not a victim of bankruptcy fraud under 

MVRA where defendant concealed funds that would go to the 

creditors). Here, the government agreed at sentencing that the

trustee “did not expend any substantial additional resources as 

a result of the defendant’s fraud.” App. at 298–99. It is 

unlikely, therefore, that the sentencing court determined the 

trustee to be a victim with an actual loss under the MVRA, 

particularly since there is nothing in the record of conviction 

indicating it deliberated on this otherwise novel ruling.

Another factor suggesting that the MVRA was not the 

statutory framework for the restitution order is the fact that 
20

the court expressly stated that it issued the order “pursuant to 

[the] plea agreement.” App. at 195. This suggests the order 

was issued under § 3663(a)(3) of the VWPA, since that 

provision allows sentencing courts to order restitution “in any

criminal case to the extent agreed to by the parties in a plea 

agreement.” § 3663(a)(3) (emphasis added). Supporting this 

view is the fact that the sentencing court does not appear to 

have demonstrated its consideration of the statutory factors 

under 18 U.S.C. § 3664(a), as courts in the Second Circuit are 

required to do when issuing restitution in the absence of an 

agreement. See United States v. Harris, 79 F.3d 223, 232–33 

(2d Cir. 1996). Accordingly, we do not agree with the 

government’s argument that the sentencing court was 

required to, or did in fact, issue restitution pursuant to the 

MVRA.13

Second, the fact that the sentencing court issued its 

order “pursuant to [the] plea agreement” is significant 

because, in the Second Circuit, restitution is not limited to 

actual loss caused by the offense of conviction when issued 

pursuant to an agreement. United States v. Silkowski, 32 F.3d 

682, 688–89 (2d Cir. 1994). This Court and several other 

courts of appeals have recognized this prevailing rule. United 

States v. Akande, 200 F.3d 136, 140 n.3 (3d Cir. 1999) 

(“Restitution is limited to amounts ‘directly caused by the 

conduct composing the offense of conviction,’ or those 

amounts that defendant ‘expressly agree[s] to’ pursuant to the 

 13 The restitution provision in the plea agreement references 

both “18 U.S.C. §§ 3663 and 3663A.” App. at 225. This 

suggests that the parties either (a) did not determine which 

statute applied to their agreement, or (b) deferred to the 

court’s determination. 
21

plea agreement.” (quoting Silkowski, 32 F.3d at 689)); United 

States v. Maturin, 488 F.3d 657, 661 (5th Cir. 2007); United 

States v. Broughton-Jones, 71 F.3d 1143, 1147–48 (4th Cir. 

1995); United States v. Schrimsher, 58 F.3d 610, 611 (11th 

Cir. 1995); United States v. Soderling, 970 F.2d 529, 533 (9th 

Cir. 1992). The government is thus incorrect when it asserts 

that “[u]nder either the MVRA or the VWPA, the restitution 

award can encompass only actual losses that resulted from the 

offense of conviction.” Gov’t Br. at 28 (citing Hughey, 495 

U.S. at 420; United States v. Zakhary, 357 F.3d 186, 190–91 

(2d Cir. 2004); Feldman, 338 F.3d at 220; United States v. 

Badaracco, 954 F.2d 928, 942 (3d Cir. 1992)). Importantly, 

all of the cases the government cites to support its position are 

cases where the court ordered restitution in the absence of an 

agreement by the parties.

14 See Hughey, 495 U.S. at 413–15; 

Zakhary, 357 F.3d at 188–89; Feldman, 338 F.3d at 214–15; 

Badaracco, 954 F.2d at 930. Accordingly, because the 

sentencing court ordered restitution pursuant to Singh’s 

express agreement, the government’s argument is based on 

inapposite law.

Third, to the extent that the restitution order reflects

the sentencing court’s determination of actual loss, Nijhawan 

and our precedent make clear that immigration courts are not 

bound to accept this determination at face value. Under 

 14 The BIA made the same error. In its opinion, it cites 

United States v. Diaz, 245 F.3d 294, 312 (3d Cir. 2001), for 

the proposition that “a court’s power to order restitution is 

limited to actual loss.” App. at 4. As with the cases cited by 

the government, the sentencing court in Diaz did not issue the 

restitution order pursuant to the parties’ express agreement. 

See Diaz, 245 F.3d at 296.
22

Nijhawan, a restitution order must be assessed in the context 

of “conflicting evidence.” 129 S. Ct. at 2303. Since the 

petitioner in Nijhawan did not point to “any” conflicting 

evidence, the Court ruled that a restitution order for $683 

million coupled with the defendant’s stipulation that his 

offense caused more than $100 million in loss was sufficient 

to meet the government’s burden. Id. at 2298, 2303. 

Consistent with Nijhawan, we have taken the position that a 

restitution order “may be helpful” to the loss inquiry, but is 

not definitive. Munroe v. Ashcroft, 353 F.3d 225, 227 (3d 

Cir. 2003). In Munroe, the sentencing court issued an 

amended restitution order of $9,999 in a thinly veiled attempt 

“to alter the effect of the conviction for immigration 

purposes.” Id. at 226–27. Because we found it “abundantly 

clear” from the record (e.g., the indictment, guilty plea, and

initial restitution order) that the defendant’s offense caused a

loss exceeding $10,000, we refused to let the amended 

restitution order be controlling. Id. As with Munroe, the 

circumstances here—which we discuss below—make it 

“abundantly clear” that the restitution in the court’s amended 

judgment does not reflect the actual loss resulting from 

Singh’s offense. In other words, there is sufficient 

“conflicting evidence” to justify looking past the restitution 

order.

 

Despite Nijhawan and Munroe, the government 

contends that Singh is collaterally estopped from challenging 

the validity of the order. The government bases this argument 

on the Fifth Circuit’s decision in Patel v. Mukasey, 526 F.3d 

800 (5th Cir. 2008). Patel, however, was decided before 

Nijhawan, and its current viability appears tenuous to us. In 

Nijhawan, the Court stated that petitioners, including those 

challenging restitution orders, “have at least one and possibly 
23

two opportunities to contest the amount of loss, the first at the 

earlier sentencing and the second at the deportation hearing 

itself.” 129 S. Ct. at 2303. Further, the Nijhawan Court sided 

with the government, not because the petitioner was estopped 

from challenging his restitution order, but because he failed to 

point to sufficient evidence to cast doubt upon it. See id. 

Unlike the petitioner in Nijhawan, the petitioner here has 

pointed to undisputed facts in the sentencing material that 

undermine the restitution order’s reliability as a measure of 

actual loss.15

 

 We will now discuss this evidence.

2. Specific Offense Circumstances

At the time Singh committed his offense of conviction 

(i.e., knowingly making a false statement in relation to 

Raeback’s bankruptcy petition), the money that he failed to 

disclose was in the custody of the Port Authority and beyond 

his control. While Singh may have subjectively believed his 

criminal act would enable him to obtain this money, in reality

this was just as impossible as the failed attempt in Onyido, 

 15 This applies to the restitution agreement as well. Although 

this Court has previously stated that an amount agreed to in a

plea agreement provides the definitive measure of loss, we 

did so in the context of a modified-categorical analysis. See 

Alaka, 456 F.3d at 108; see also Nijhawan v. Att’y Gen., 523 

F.3d 387, 394 (3d Cir. 2008) (citing Alaka for proposition that 

where defendant pleads to a specific loss amount, “that 

amount is controlling”). Since the Supreme Court has

rejected using the modified-categorical approach for 

determining loss under subparagraph (M)(i), Nijhawan, 129 

S. Ct. at 2302–03, the Alaka rule does not limit our inquiry 

here. 
24

where the BIA accepted that the loss was only intended, not 

actual. See 22 I. & N. Dec. 552. In Onyido, the DHS sought 

to remove the petitioner based on his conviction for filing a 

false claim with the intent to defraud an insurance company. 

Id. at 553. Onyido was convicted for signing paperwork to 

process a fraudulent $15,000 claim in the presence of people 

he believed were insurance agents, but were in fact 

undercover officers. Id. Although the facts are somewhat 

more complicated here, we find them to be functionally 

equivalent to Onyido. For starters, both cases involve 

situations where, at the moment the crime was consummated, 

a government sting operation made any intended benefit 

impossible. Since the Port Authority had custody of the 

funds, basic principles of property law precluded Singh from 

having any capacity to use this money for his benefit.16

 16 Based on the facts in the record, Singh would have had no 

means for obtaining the $54,000 from the Port Authority (the 

defrauded party) for his personal benefit because a

wrongdoer’s interest in fraudulently obtained property is 

voidable, In re Newpower, 233 F.3d 922, 929 (6th Cir. 2000); 

S.E.C. v. Levine, 881 F.2d 1165, 1176 (2d Cir. 1989), and 

subject to a constructive trust, see In re Am. Motor Club, Inc., 

109 B.R. 595, 599 (E.D.N.Y. 1990). Although the Port 

Authority transferred the money to the trustee, this was not 

for the benefit of Singh. Instead, under the unique rules of 

bankruptcy, a debtor’s estate is deemed to include 

fraudulently obtained property, so long as the property was 

not impressed with a constructive trust prior to the 

commencement of the bankruptcy proceeding. See generally 

In re Omegas Group, Inc., 16 F.3d 1443 (6th Cir. 1994). The 

inclusion of fraudulently obtained property in the debtor’s 

estate is not for the debtor’s benefit. Id. at 1452; see also In 

 The 
25

fact that Singh “agreed” to have this money transferred to the 

trustee as restitution was thus only a formality—one in which 

he had nothing to lose, but potentially much to gain.

17

The impossibility of Singh’s intended18

 

re Quality Holstein Leasing, 752 F.2d 1009, 1013 (5th Cir. 

1985). It is designed, instead, to ensure equal treatment of 

creditors, each of whom “has suffered disappointed 

expectations at the hands of the debtor.” Omegas Group, 16 

F.3d at 1452. 

outcome does 

not end our inquiry, however, because it is obviously possible 

that Singh’s offense could have still caused actual losses. It is 

conceivable, for example, that Singh’s offense could have 

produced incidental losses for the bankruptcy trustee by 

forcing him to spend additional money and time accessing the 

17 Singh stood to gain because the restitution agreement 

increased his chances of getting a non-incarceratory sentence, 

which was his “fervent” objective. App. at 264. Singh was 

well aware of this during the sentencing proceedings as he 

cited the restitution agreement as a factor that “strongly 

favors a non-incarceratory” sentence. App. at 292. 

18 It bears noting that Singh was only convicted of having an 

intent to deceive, not an intent to defraud. It is possible, 

therefore, that Singh’s intent may have been based on other 

considerations besides defrauding the estate; for example, 

preventing detection of his illicit business arrangement with

U.S. Rebar. While this distinction may have a bearing on the 

tethering analysis, see Ming Lam Sui, 250 F.3d at 118 n.12, 

we need not decide the issue here because there is no actual 

loss to tether. See generally Alaka, 456 F.3d at 106–08 

(describing requirement that loss be tethered to actual offense 

of conviction, not general or acquitted conduct). 
26

$54,000. The record, however, does not demonstrate any 

such loss. Indeed, as the U.S. Attorney conceded in the 

sentencing memorandum, the trustee “did not expend any 

substantial additional resources as a result of the defendant’s 

fraud.” App at 298–99. Thus, under the metric that federal 

courts of appeals have used for determining if bankruptcy 

trustees have suffered pecuniary harm, Holthaus, 486 F.3d at 

457–58; Lowell, 256 F.3d at 465–66; Paradis, 219 F.3d at 25, 

the trustee in this case suffered no identifiable loss.

 

It is also conceivable that Singh’s offense may have 

resulted in actual losses for the creditors. Had the Port 

Authority, for example, not learned of Singh’s bankruptcy 

proceedings, the trustee may never have learned about the 

$54,000, and, consequently, the creditors could have had a

smaller estate from which to recover on their claims. Again, 

however, the record shows that this potential loss did not 

actually occur, since the Port Authority transferred the funds 

to the trustee prior to the distribution of Raeback’s assets. As 

noted in the U.S. Attorney’s sentencing memorandum, “the 

bankruptcy trustee will receive the funds which the defendant 

attempted to secrete,” and thus, “the defendant’s crime will 

not affect the ultimate outcome of the bankruptcy 

proceedings.” App. at 298 (emphases added).

 

Although Singh’s offense did not deprive the creditors

of assets, the government argues that Singh’s offense caused 

an actual loss by depriving the trustee. To support this 

argument, the government contrasts this case with the 

intended loss at issue in Pierre, where the petitioner was 

convicted of bank fraud for submitting fraudulent documents 

to obtain a $500,000 loan from a bank. 588 F.3d at 770. As 

the government notes, the bank in Pierre detected the fraud
27

before loaning any money, and was thus never deprived of 

any property for any period of time. By contrast, the 

government argues that Singh’s offense deprived the trustee 

of $54,000 from Raeback’s estate.

19

 

 What the government 

omits, however, is that the trustee, unlike the bank in Pierre, 

was not a party that stood to lose from the deprivation itself

(as compared to the incidental effects thereof). Instead, the 

only people who stood to lose were Raeback’s creditors, and

thus the deprivation should be assessed against them, not the 

trustee. Accordingly, because the creditors were not deprived 

of any property for any length of time, the fact that the trustee 

was temporarily unable to access all of Raeback’s assets does 

not constitute an actual loss to an actual victim.

While the government is correct that the creditors may 

have suffered a loss if Singh was never caught, the same is 

equally true for the potential victim in Pierre. Indeed, the 

government’s argument that Singh should not benefit from 

the fortuitous fact that he was caught before his creditors 

were harmed overlooks the reality that such fortuitous facts 

are inherent to all intended loss. While an intended loss may

 19 The government supports this result by applying the test we 

established in United States v. Feldman, 338 F.3d 212 (3d 

Cir. 2003) for calculating actual loss for restitution purposes. 

Under Feldman, actual loss is measured by comparing “what 

actually happened with what would have happened if [the 

defendant] had acted lawfully.” 338 F.3d at 221. We need 

not address Feldman here, however, because even if we 

assume it is appropriate in the removal context, it would not 

change the result in this case for the reasons stated above.
28

itself provide grounds for removal,20 we are bound here to 

follow the statutory language of subparagraph (M)(i), which 

requires actual loss.

Finally, we wish to make clear that our conclusion 

does not mean, as the government contends, that an alien 

defendant can avoid a finding of actual loss for removal 

purposes simply by paying restitution after getting caught. 

Indeed, we agree with the government that payment of 

restitution should not, and does not, negate a loss that actually 

occurred. Our holding here is a narrow one, involving an

offense that at no point resulted in an actual loss to any victim

for any length of time. To highlight the narrowness of this 

rule, consider the result in a situation like Pierre had the bank 

not detected the fraud. If a bank gives a person a loan under 

false pretenses, then no matter how soon afterwards it detects

the fraud, whether one minute or one year, an actual loss 

results because the person obtains possession of the loan at 

the direct deprivation of the bank. It doesn’t matter how 

fleetingly the person obtains control. If the person’s offense 

deprives the defrauded party of property, an actual loss occurs 

to an actual victim under subparagraph (M)(i).

Contrary to the government’s suggestion at oral 

argument, therefore, nothing in this opinion will change the 

result in Nijhawan and other cases where restitution was paid 

after the petitioner’s offense caused an actual loss. In 

Nijhawan, the petitioner was convicted of a fraudulent 

scheme that deceived banks into giving over $100 million 

 20 As noted earlier, we need not decide today whether 

intended loss satisfies the loss requirement for deceit offenses 

charged under subparagraph (U). See supra note 7.
29

dollars to the petitioner and his co-defendants. 523 F.3d 387, 

389 (3d Cir. 2008). Unlike the situation here, there was no 

government sting operation that doomed the scheme from its 

inception, the petitioner obtained control of the money, and 

the victims that stood to directly lose from being deprived of 

the money (i.e., the banks) were in fact deprived. 

Irrespective, therefore, of whether the petitioner in Nijhawan 

paid full restitution for his crime, nothing in this opinion 

would change the outcome of that case, nor others like it.

 

In summary, the undisputed circumstances of this case 

show that a government sting operation (a) doomed any 

intended benefit when the crime was committed, and (b) 

prevented any potential or incidental losses from in fact 

occurring. This observation is the same whether we focus our 

inquiry at the time the court ordered restitution; at the time 

Singh was charged; or, as, the government implores us, at the 

time Singh committed the offense. At any of these times, the 

record shows that: (a) a government entity (the Port 

Authority) had custody of the money; (b) Singh had no 

capacity to obtain this money for his personal benefit; (c) the 

trustee’s personal compensation had not been affected; and 

(d) the creditors had not been deprived of any property for 

any length of time. Under this set of circumstances, we find 

that no actual loss occurred. 

E. Additional Considerations

Since the government has failed to provide clear and 

convincing evidence that Singh’s offense caused an actual 

loss exceeding $10,000, Singh is not removable under 

subparagraph (M)(i). Although it is possible that Singh may 

be removable under subparagraph (U), the DHS only charged 
30

him under (M). This is important because Singh has a due 

process right to receive notice of “[t]he charges against [him] 

and the statutory provisions alleged to have been violated.” 8 

U.S.C. § 1229(a); see also United States v. Torres, 383 F.3d 

92, 104 (3d Cir. 2004) (stating that, under the Constitution,

aliens have right to receive “notice of the charges” against 

them and a “fair opportunity to be heard”). Further, since 

removability under (U) would involve questions that neither 

Singh nor this Court have had an opportunity to address, it 

appears that a sua sponte invocation of (U) at this late stage in 

the litigation would prejudice Singh’s rights. See Pierre, 588 

F.3d at 776–77 (holding that BIA’s sua sponte invocation of 

subparagraph (U) as basis for removal violated petitioner’s 

due process rights); see also Ming Lam Sui, 250 F.3d at 113–

19 (addressing questions unique to a removability analysis 

under subparagraph (U)). Our inquiry here, therefore, is at its 

end. 

IV. CONCLUSION

For the foregoing reasons, we will grant Singh’s 

petition for review and vacate the BIA’s order of removal.