Fifth Circuit Holds Unrebutted, Defendant‑Specific Forfeiture Orders Can Establish the $10,000 Threshold for Aggravated‑Felony Money‑Laundering Determinations

Introduction

In Dominguez Reyes v. Bondi, the United States Court of Appeals for the Fifth Circuit addressed a recurring question at the intersection of criminal sentencing records and immigration law: what evidence may immigration adjudicators rely on to decide whether a money‑laundering conviction qualifies as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(D), which requires that “the amount of the funds exceeded $10,000”?

The petitioner, Cleto Marte Dominguez Reyes, a lawful permanent resident from the Dominican Republic, pled guilty in federal court to conspiracy to commit money laundering under 18 U.S.C. § 1956(h). His criminal judgment included an attached forfeiture order finding that “at least $3,934,518 was obtained and laundered by the defendant” as a result of the conspiracy. After DHS charged him as removable as an aggravated felon, an Immigration Judge and then the Board of Immigration Appeals (BIA) relied on the forfeiture order to conclude that his offense involved more than $10,000.

On petition for review, Dominguez Reyes contended that the BIA could not rely on a forfeiture order—entered on a preponderance standard and not among the “Shepard documents”—to meet DHS’s clear‑and‑convincing burden in removal proceedings. He also argued the order was not sufficiently tethered to his conduct of conviction, did not isolate his personal liability from codefendants, and conflicted with a presentence report (PSR) assertion that he did not personally handle more than $10,000.

The Fifth Circuit denied the petition, holding that an unrebutted forfeiture order entered solely against the noncitizen and attributing a specific amount of laundered funds to the conduct of conviction can constitute clear and convincing evidence that the “amount of the funds exceeded $10,000” for purposes of § 1101(a)(43)(D).

Summary of the Opinion

Writing for a panel consisting of Judges Davis, Stewart, and Ramirez, Judge W. Eugene Davis affirmed the BIA’s decision and denied the petition for review. The court:

Confirmed that the circumstance‑specific approach from Nijhawan v. Holder governs the “amount of the funds” inquiry under § 1101(a)(43)(D), permitting adjudicators to consult sentencing‑related materials in the record of conviction that are tethered to the offense of conviction.
Rejected the argument that reliance must be confined to Shepard‑approved documents, noting that Nijhawan expressly permits use of non‑Shepard sentencing materials such as restitution orders and sentencing stipulations when tethered to the conviction.
Adopted the reasoning of the Second Circuit in Barikyan v. Barr, which in turn relied on the BIA’s decision in In re Babaisakov, to hold that findings entered on a preponderance standard can satisfy the government’s clear‑and‑convincing burden when (i) the noncitizen did not contest those findings in criminal court, (ii) there is no showing of error in the criminal proceedings, and (iii) the amount by which the loss/funds exceed $10,000 is substantial.
Found the forfeiture order here—entered solely against the petitioner and expressly attributing at least $3,934,518 to his conduct in the money‑laundering conspiracy—to be clear and convincing evidence that the “amount of the funds” exceeded $10,000.
Clarified that § 1101(a)(43)(D) speaks to the amount of funds involved in the offense of conviction, not the defendant’s net profits; thus, the PSR’s statements about profits did not undermine the forfeiture order’s amount‑of‑funds finding.

Key Holdings

Under Nijhawan’s circumstance‑specific approach, immigration adjudicators may rely on sentencing‑related materials in the record of conviction, including forfeiture orders, so long as they are tethered to the count(s) of conviction.
An unrebutted, defendant‑specific forfeiture order attributing a specific amount of laundered funds to the offense of conviction can constitute clear and convincing evidence that the amount exceeded $10,000 under § 1101(a)(43)(D).
The statutory phrase “amount of the funds” refers to the funds involved in the offense of conviction, not to the defendant’s personal profits.

Analysis

Precedents Cited and Their Influence

1) Nijhawan v. Holder (557 U.S. 32 (2009)). Nijhawan is the cornerstone. Addressing § 1101(a)(43)(M)(i) (fraud with loss exceeding $10,000), the Supreme Court held that when “aggravated felony” status turns on the amount of loss or similar circumstance, adjudicators conduct a circumstance‑specific inquiry that can look beyond elements to the facts of the offense as established in the record of conviction. Critically, Nijhawan approved reliance on sentencing‑related materials (like restitution orders and sentencing stipulations) that are tethered to the offense of conviction. The Fifth Circuit applied that same framework to § 1101(a)(43)(D)’s amount‑of‑funds inquiry.

2) Shepard v. United States (544 U.S. 13 (2005)). Shepard restricts the documents that may be consulted under the categorical approach in certain ACCA contexts. Petitioner invoked Shepard to argue against considering a forfeiture order. But Nijhawan makes clear that Shepard’s constraints do not govern the circumstance‑specific inquiry in immigration aggravated‑felony determinations; non‑Shepard sentencing materials may be used when properly tethered.

3) United States v. Mendoza (783 F.3d 278 (5th Cir. 2015)). The Fifth Circuit previously applied Nijhawan’s circumstance‑specific approach to the same statutory phrase at issue here—§ 1101(a)(43)(D)’s “amount of the funds exceeded $10,000”—in the illegal‑reentry sentencing context. Mendoza confirms that, within the Fifth Circuit, the amount‑of‑funds inquiry for money‑laundering aggravated felonies is circumstance‑specific.

4) Fosu v. Garland (36 F.4th 634 (5th Cir. 2022)). Fosu endorsed the use of sentencing materials tethered to the conviction—including a restitution order and, more broadly, PSRs—to meet DHS’s clear‑and‑convincing burden for aggravated‑felony determinations. The panel’s reliance on Fosu underscores that sentencing documents attached to the judgment can be dispositive when closely tied to the count of conviction.

5) Barikyan v. Barr (917 F.3d 142 (2d Cir. 2019)) and In re Babaisakov (24 I. & N. Dec. 306 (BIA 2007)). Barikyan (citing Babaisakov) held that a forfeiture order could establish the amount‑of‑funds element for § 1101(a)(43)(D), even though criminal forfeiture is determined by a preponderance standard, because the order was unrebutted, free from demonstrated error, and far exceeded $10,000. The Fifth Circuit expressly found this reasoning persuasive and applied the same considerations here—effectively harmonizing Fifth Circuit law with the Second Circuit on this point and aligning with the BIA’s approach.

6) Fuentes v. Lynch (788 F.3d 1177 (9th Cir. 2015)). The Ninth Circuit collected cases and approved reliance on PSRs under the circumstance‑specific approach to establish the amount of funds for money‑laundering conspiracies. Although not the basis of the ultimate holding here, Fuentes supports the broader proposition that sentencing‑phase materials can satisfy the government’s burden in removal proceedings when properly tethered.

7) Shroff v. Sessions, Rodriguez v. Holder, and Orellana‑Monson v. Holder. These Fifth Circuit authorities set the jurisdictional and standard‑of‑review backdrop: the court lacks jurisdiction to review final orders of removal against aggravated felons except for constitutional claims and questions of law, which are reviewed de novo; and the court reviews the BIA’s decision and considers the IJ’s reasoning insofar as it influenced the BIA.

Legal Reasoning

The panel’s reasoning proceeds in four steps, tracking and rejecting each of the petitioner’s arguments:

Shepard versus circumstance‑specific materials. Petitioner argued that a forfeiture order is not among Shepard‑approved documents and thus cannot be consulted. The court pointed to Nijhawan’s explicit acceptance of “sentencing‑related material”—including restitution orders and sentencing stipulations—so long as the materials are tethered to the convictions at issue. Because the forfeiture order here was attached to the judgment of conviction and expressly found that “at least $3,934,518 was obtained and laundered by the defendant as a result of his participation in the money laundering conspiracy for which he has pled guilty,” it was sufficiently tethered to the conduct of conviction.
Preponderance of the evidence in criminal forfeiture versus clear‑and‑convincing in removal. Petitioner contended that the lower burden of proof for forfeiture renders such an order inadequate to satisfy DHS’s clear‑and‑convincing burden in removal proceedings. Adopting the logic of Babaisakov as applied by the Second Circuit in Barikyan, the court held that prior findings by a preponderance can satisfy the clear‑and‑convincing standard where: (i) the noncitizen failed to contest the finding in criminal court; (ii) no error in the criminal proceedings is shown; and (iii) the amount by which the funds exceed $10,000 is significant. Each condition was met. The forfeiture order went unrebutted; there was no evidence of error; and the amount—roughly 390 times the $10,000 threshold—was far beyond the statutory minimum.
Individualized attribution and codefendants. Petitioner claimed the order did not isolate his personal conduct. The court emphasized that the forfeiture order named only him and stated that the total was “obtained and laundered by the defendant.” This specificity tethers the amount to his offense of conviction and removes concerns about joint or several liability across multiple defendants or unrelated counts. In the absence of conflicting evidence, that clarity sufficed under Nijhawan and Fosu.
Profits versus funds involved. Petitioner invoked a PSR statement that he did not personally handle more than $10,000, and that his profits were near that figure. The court held this was beside the point: § 1101(a)(43)(D) turns on the “amount of the funds” involved in the offense of conviction, not the defendant’s profits or personal receipts. The forfeiture order addressed the relevant metric—the amount laundered—while the PSR’s profit discussion did not undermine the tethered finding.

Synthesizing these principles, the court announced its core rule: an unrebutted forfeiture order entered solely against an alien that attributes a specific amount of laundered funds to the offense of conviction can, by itself, constitute clear and convincing evidence that the amount exceeded $10,000 for purposes of § 1101(a)(43)(D).

Impact and Practical Implications

This decision carries significant consequences for immigration adjudication and criminal‑immigration practice within the Fifth Circuit (Texas, Louisiana, Mississippi):

Evidentiary sufficiency clarified. The opinion expressly endorses reliance on defendant‑specific, unrebutted forfeiture orders attached to the criminal judgment to meet DHS’s clear‑and‑convincing burden on the amount‑of‑funds element in § 1101(a)(43)(D). DHS and IJs/BIA are now on solid footing to use such orders as primary evidence without needing additional loss/fund quantifications, provided the order is properly tethered.
Alignment with other authorities. The ruling harmonizes Fifth Circuit law with the Second Circuit’s Barikyan and the BIA’s Babaisakov framework, and is consistent with the Ninth Circuit’s acceptance of sentencing materials (Fuentes). This convergence promotes national uniformity post‑Nijhawan on what records can establish monetary thresholds in aggravated‑felony determinations.
Limits and opportunities to distinguish. The court’s rationale presumes (a) the forfeiture order is entered solely against the noncitizen; (b) it is expressly tied to the count(s) of conviction; (c) it is unrebutted; and (d) there is no evidence of error in the criminal case. Future litigants may distinguish their cases where the forfeiture order is joint and several across codefendants, is a global order covering dismissed or acquitted counts, is ambiguous as to the count of conviction, or is contradicted by other record materials. Where the amount barely exceeds $10,000, courts may scrutinize the sufficiency more closely under Babaisakov’s factors.
Defense‑side practice pointers. Criminal defense and immigration counsel should recognize the collateral immigration stakes of forfeiture findings. Preserving objections, contesting amounts, ensuring the forfeiture is limited to the conduct of conviction, and avoiding global language that sweeps in non‑conviction conduct can materially affect removability. Where appropriate, plea agreements and sentencing records can be negotiated to mitigate immigration consequences.
Substantive clarification: funds versus profits. By emphasizing that § 1101(a)(43)(D) turns on the amount of funds laundered, not the defendant’s profits, the opinion forecloses an argument sometimes raised to minimize exposure based on net gain. This textual clarification will guide both charging and litigating strategies in removal defense.
Relief eligibility consequences. Because a money‑laundering aggravated felony bars LPR cancellation of removal, this evidentiary rule can be outcome‑determinative for relief eligibility where the amount‑of‑funds threshold is in dispute.

Complex Concepts Simplified

Aggravated felony (immigration law). A statutory list of offenses in 8 U.S.C. § 1101(a)(43) that trigger severe immigration consequences, including deportability and ineligibility for certain relief. Some categories depend on generic crime definitions; others on specific statutes or offense circumstances (e.g., monetary thresholds).
§ 1101(a)(43)(D): money laundering with threshold. A conviction for an offense described in 18 U.S.C. § 1956 (including § 1956(h) conspiracy) is an aggravated felony “if the amount of the funds exceeded $10,000.”
Categorical versus circumstance‑specific approaches. The categorical approach looks only to statutory elements; the circumstance‑specific approach (Nijhawan) allows adjudicators to examine the actual offense facts as reflected in the record of conviction when the statute makes the aggravated‑felony inquiry turn on factual circumstances (like the amount of loss/funds).
Shepard documents. A limited set of judicial records—charging document, plea agreement, plea colloquy transcript, jury instructions/verdict—often used in categorical‑approach analysis. Under Nijhawan’s circumstance‑specific framework, adjudicators may also consider sentencing‑related materials tethered to the conviction, such as restitution or forfeiture orders.
Record of conviction and tethering. The “record of conviction” includes materials generated in the criminal case. “Tethering” means the material must be closely connected to the specific count(s) of conviction, not to dismissed or acquitted counts or general uncharged conduct.
Forfeiture versus restitution. Forfeiture is a criminal penalty requiring a defendant to forfeit property or proceeds associated with the crime; restitution compensates victims for losses. Both are typically determined at sentencing and generally by a preponderance standard in federal court.
Burdens of proof. In removal proceedings, DHS must establish removability by clear and convincing evidence. A prior preponderance‑based finding (e.g., in a forfeiture order) can satisfy this higher standard when it is unrebutted, error‑free, well tethered, and significantly exceeds the statutory threshold (per Babaisakov/Barikyan and now this decision).
Profits versus “amount of the funds.” The § 1101(a)(43)(D) inquiry measures the amount of funds involved in the offense of conviction, not the defendant’s net profits from the scheme.

Conclusion

Dominguez Reyes v. Bondi cements a practical and consequential evidentiary rule for immigration adjudication in the Fifth Circuit: an unrebutted, defendant‑specific forfeiture order that expressly attributes a quantified amount of laundered funds to the offense of conviction can, by itself, meet the government’s clear‑and‑convincing burden to show that the “amount of the funds exceeded $10,000” under § 1101(a)(43)(D). Anchored in Nijhawan’s circumstance‑specific approach and aligned with the Second Circuit’s Barikyan and the BIA’s Babaisakov, the decision authorizes reliance on sentencing‑phase findings when tethered to the conviction and uncontested.

The opinion also clarifies that the statutory benchmark concerns the amount of funds laundered, not the defendant’s profits, foreclosing a common defense argument in these cases. Looking forward, DHS and immigration courts are likely to emphasize forfeiture and restitution records when litigating monetary thresholds, while defense counsel should be attentive to challenging and tailoring those records during the criminal case to protect against severe immigration consequences.

In short, the Fifth Circuit’s decision both strengthens the evidentiary pathway for establishing money‑laundering aggravated felonies and provides a clear roadmap for how sentencing materials can—and cannot—be used in the circumstance‑specific inquiry that Nijhawan prescribes.