A Jamaican immigrant has won the reversal of a deportation order following his guilty plea to a charge of making a false statement under penalty of perjury in connection with a Chapter 11 bankruptcy proceeding.
Singh v. Attorney General of the United States, No. 11-1988, 2012 WL 1255061 (3d Cir. Apr. 16, 2012).
The 3rd U.S. Circuit Court of Appeal reversed the order issued by the Board of Immigration Appeals, finding the government failed to show the immigrant’s false statement caused an “actual loss” in excess of $10,000.
The panel explained that an alien may be deported for committing an aggravated felony such as causing a loss to a victim of $10,000 or more.
Nigel Singh was born in Jamaica and has been a lawful permanent resident of the United States since 1975. He is married to a U.S. citizen, has three children and founded construction company Raeback Corp., according to the 3rd Circuit opinion.
The company filed for bankruptcy in 2005, and Singh found himself the subject of a kickback sting operation conducted by the Port Authority of New York and New Jersey.
During the investigation, he allegedly tried to hide $54,000 in revenue from a Port Authority project, but ended up unknowingly transferring the money to a PA confidential informant, the opinion said.
Singh eventually pleaded guilty in 2009 to a single count of violating 18 U.S.C. § 152(3) by failing to disclose all Raeback’s accounts receivables on the company’s bankruptcy petition.
The statute makes it a crime to “knowingly and fraudulently make[] a false declaration, certificate, verification, or statement under penalty of perjury” in relation to a bankruptcy proceeding.
Singh received a 10-month prison sentence and was ordered to pay restitution by having the $54,000 held by the PA transferred to Raeback’s bankruptcy trustee for distribution to creditors.
The Department of Homeland Security subsequently brought a successful proceeding to have Singh removed from the country. It argued that his conviction involved a “loss or intended loss” to a victim exceeding $10,000, thus making him removable as an aggravated felon under 8 U.S.C. § 1101(a)(43)(M)(i), the opinion said.
The Board of Immigration Appeals affirmed the removal order in April 2011. It found Singh’s agreement to pay restitution provided clear and convincing evidence that his offense caused a loss to the trustee in excess of $10,000.
But on appeal, the 3rd Circuit said the loss in this case was not “actual” because at no time did Singh possess the funds at issue. Instead, the funds were held by the Port Authority and later turned over to the trustee.
“At the time Singh committed his offense …, the money that he failed to disclose was in the custody of the Port Authority and beyond his control,” the 3rd Circuit said.
The appeals court cited with approval a recent decision from the 2nd Circuit, Pierre v. Holder, 588 F.3d 767 (2d Cir. 2009). There, the court found that an “intended loss” of more than $10,000 was insufficient to satisfy the loss requirement of Section 1101(a)(43)(M)(i). The loss has to be “actual,” the 2nd Circuit held.
The 3rd Circuit noted that, at sentencing, the U.S. attorney informed the trial court that because the trustee will receive the funds Singh had attempted to hide, his “crime will not affect the ultimate outcome of the bankruptcy proceedings.”
The panel, held, therefore, that the government had failed to meet the loss requirement for a finding that Singh is an aggravated felon.
The 3rd Circuit closed its decision by saying it is not suggesting that “an alien defendant can avoid a finding of actual loss for removal purposes simply by paying restitution after getting caught.”
“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,” the 3rd Circuit said.
Attorneys:
Petitioner: Thomas E. Moseley, Newark, N.J.
Respondent: Jesse M. Bless, Department of Justice, Office of Immigration Litigation, Washington
(Reporting by Chip Giambrone, Westlaw Journal Bankruptcy)