Loss over $10,000 for INA Fraud Aggravated Felonies May Be Proven Through the Criminal Record (Including a Signed Factual Proffer), Not Just Restitution

1. Introduction

This case concerns whether the Department of Homeland Security (“DHS”) properly placed Odain Orlando Marsh, a Jamaican citizen, into expedited administrative removal under INA § 238(b), 8 U.S.C. § 1228(b), via a Final Administrative Removal Order (“FARO”), based on DHS’s conclusion that Marsh’s federal conviction for conspiracy to commit wire fraud, 18 U.S.C. § 1349, constituted an “aggravated felony” because the “loss to the victim or victims exceeds $10,000.”

The key dispute was not whether the offense “involves fraud or deceit,” but whether the record established the statutory loss threshold under INA § 101(a)(43)(M)(i) and (U), 8 U.S.C. § 1101(a)(43)(M)(i), (U). Marsh emphasized that the amended criminal judgment imposed restitution of $9,850, arguing loss therefore did not exceed $10,000. DHS relied on the broader criminal record—especially a signed Factual Proffer describing a $28,161 vehicle sale induced by fraud. Marsh also asserted procedural due process violations in the expedited removal process.

2. Summary of the Opinion

The Eleventh Circuit denied the petition for review. It held:

• Aggravated felony: Substantial evidence supported DHS’s loss finding over $10,000 because the signed Factual Proffer reflected, at minimum, a fraudulent transaction in which Carvana paid $28,161 and received a car with no valid title.
• Due process: Marsh had notice and an opportunity to respond, and in any event failed to show “substantial prejudice” because he did not proffer evidence that would undermine the loss evidence relied upon by DHS.

3. Analysis

3.1 Precedents Cited

Balogun v. U.S. Att'y Gen. (425 F.3d 1356) is cited for the proposition that, notwithstanding jurisdiction-stripping provisions, the Eleventh Circuit retains jurisdiction to decide legal questions such as whether a conviction qualifies as an aggravated felony. In this case, that allowed the court to reach the aggravated-felony classification question, even though success on DHS’s loss factfinding would ultimately foreclose merits review.

Garcia-Simisterra v. U.S. Attorney General (984 F.3d 977) supplies two key rules applied here:

• Standard of review for loss factfinding: loss amount is reviewed under the “highly deferential substantial evidence test.”
• Scope of materials: to determine the loss amount under INA § 101(a)(43)(M)(i), the adjudicator “may consider the entire record from a person's conviction,” and is not limited to the charge(s) to which the noncitizen pled or to a restitution figure alone.

The Marsh panel used Garcia-Simisterra to reject Marsh’s attempt to confine the analysis to the restitution number and to validate reliance on the Factual Proffer as a conviction-record document reflecting the “essential facts and circumstances.”

Adefemi v. Ashcroft (386 F.3d 1022) is invoked to emphasize the stringent nature of substantial-evidence review: the court may reverse only if the record “compels” the contrary conclusion. That deference is outcome-determinative here; once the Factual Proffer evidences a $28,161 fraud-induced payment, the record does not compel a finding below $10,000.

Nijhawan v. Holder (557 U.S. 29) is the doctrinal centerpiece. The Supreme Court held that the $10,000 loss threshold in INA § 101(a)(43)(M)(i) is “circumstance-specific,” meaning the adjudicator looks to the particular facts of the offense conduct, not merely to the statutory elements of the crime of conviction. Marsh applies Nijhawan to justify examining the facts in the Factual Proffer rather than treating restitution as dispositive.

Munroe v. Ashcroft (353 F.3d 225) is cited for a cautionary point about restitution: while restitution can be “helpful,” it is not controlling where it does not reflect the actual loss. In Marsh, the panel leverages this reasoning to undercut the argument that the $9,850 restitution figure necessarily caps the “loss to the victim or victims” for aggravated-felony purposes.

Lapaix v. U.S. Att'y Gen. (605 F.3d 1138) supplies the due-process standard: a petitioner must show (1) deprivation of due process and (2) “substantial prejudice,” i.e., the asserted procedural defect likely affected the outcome. The court applied Lapaix to reject Marsh’s due-process claim, concluding he failed to show outcome-changing prejudice.

3.2 Legal Reasoning

(a) Classification as an aggravated felony depends on a fact-based loss inquiry.
The panel treated Marsh’s conviction as falling within INA § 101(a)(43)(M)(i) (fraud or deceit with loss exceeding $10,000), and therefore within INA § 101(a)(43)(U) (conspiracy to commit an aggravated felony), provided the loss threshold is satisfied. Under Nijhawan v. Holder, the loss inquiry is not element-based; the court instead examines conviction-related records reflecting the factual “circumstances surrounding the conviction.”

(b) The criminal restitution figure did not control.
Marsh argued the amended judgment’s restitution of $9,850 meant loss was under $10,000. The panel, relying on Garcia-Simisterra v. U.S. Attorney General and Munroe v. Ashcroft, held restitution is not dispositive because the adjudicator may consider “the entire record” and because restitution may not capture the total loss relevant to the INA’s aggravated-felony definition.

(c) Substantial evidence supported loss > $10,000 based on the signed Factual Proffer.
The court emphasized that the Factual Proffer—signed by Marsh and counsel—described a concrete fraudulent transaction: Marsh sold a Dodge Challenger to Carvana for $28,161, falsely representing ownership and providing a title obtained through fraudulent paperwork. The court reasoned that, for that transaction alone, Carvana paid $28,161 and received a vehicle “with no valid title,” satisfying the > $10,000 loss threshold. With that, the agency’s loss finding survived substantial-evidence review under Adefemi v. Ashcroft and Garcia-Simisterra v. U.S. Attorney General.

(d) Due process: notice, opportunity to respond, and no substantial prejudice.
Marsh claimed he was denied a meaningful opportunity to review evidence and present testimony about loss. The court responded in three steps:

• Notice: DHS relied on the conviction, statutory violation, and the Factual Proffer—documents Marsh had reason to know, particularly because he and counsel signed the proffer.
• Opportunity to respond: Although Marsh’s response was not initially in the agency record before the first FARO issued, DHS later reviewed it and re-issued the FARO after taking the response “under advisement.”
• No substantial prejudice: Proposed testimony that Marsh subjectively expected loss to be under $10,000, or that his criminal defense attorney would not have advised a plea with immigration consequences, did not rebut the proffer’s factual loss evidence. Under Lapaix v. U.S. Att'y Gen., absent a showing that the missing process would likely change the result, there is no due-process violation warranting relief.

3.3 Impact

Although designated “NOT FOR PUBLICATION,” the decision illustrates (and reinforces within the Eleventh Circuit’s existing framework) several practical consequences:

• Restitution under $10,000 is not a safe harbor against INA aggravated-felony fraud classification when other conviction-record materials show higher losses.
• Signed factual proffers can be decisive in the “circumstance-specific” loss inquiry, especially where they identify a specific victim payment exceeding $10,000.
• Expedited removal under INA § 238(b) remains process-limited for aggravated felons, and due-process challenges will likely fail without a concrete, outcome-changing rebuttal to DHS’s loss evidence.
• Criminal defense/immigration crossover risk: plea papers and proffers drafted for sentencing or charging-resolution purposes can later function as removal triggers; negotiation focused solely on restitution may not address immigration loss exposure.

4. Complex Concepts Simplified

• “Aggravated felony” (INA): A term of art; certain crimes (including fraud with loss > $10,000 and conspiracies to commit such crimes) trigger severe immigration consequences, including ineligibility for many forms of relief and exposure to expedited removal.
• “Circumstance-specific” loss inquiry: Under Nijhawan v. Holder, the court does not ask whether “loss > $10,000” is an element of the criminal statute. It asks whether the actual offense conduct, as shown by reliable conviction-record materials, involved loss exceeding $10,000.
• Substantial evidence review: A highly deferential standard. The court does not reweigh evidence; it asks whether the agency’s conclusion is reasonably supported. Reversal requires that the record compel the opposite finding.
• FARO / expedited administrative removal (INA § 238(b)): A DHS-run removal process for certain noncitizens convicted of aggravated felonies, typically without an Immigration Judge hearing. Some procedural protections exist (notice, opportunity to inspect/rebut), but relief options are sharply constrained.
• Procedural due process + “substantial prejudice”: Even if a procedural misstep occurred, the petitioner must show it likely changed the outcome—mere unfairness in the abstract is insufficient.

5. Conclusion

Odain Marsh v. U.S. Attorney General underscores that, for INA fraud aggravated-felony determinations, the $10,000 loss threshold is a fact-bound inquiry proven through the broader conviction record—here, a signed Factual Proffer reflecting a $28,161 fraudulent payment—rather than being controlled by a restitution amount under $10,000. The decision also reiterates that due-process challenges to expedited removal require a concrete showing of outcome-changing prejudice, not merely disagreement with the immigration consequences of plea-related admissions.