Restitution Orders as Prima Facie Proof of the $10,000-Loss Threshold in Aggravated-Felony Removal Cases
Commentary on Manuel Labrada v. U.S. Attorney General, 11th Cir., 13 June 2025

1. Introduction

The United States Court of Appeals for the Eleventh Circuit, sitting on the non-argument calendar, denied the petition for review filed by Cuban lawful permanent resident Manuel Labrada. Mr. Labrada challenged the Board of Immigration Appeals’ (BIA) affirmance of an Immigration Judge’s (IJ) refusal to reopen his removal proceedings. The core allegation was ineffective assistance of former counsel who had advised that Labrada’s federal fraud convictions constituted an aggravated felony under Immigration and Nationality Act (INA) § 101(a)(43)(M). The case presented two principal issues:

• Whether the restitution order ($68,277.74) entered in Labrada’s criminal judgment could, standing alone and absent contrary proof, supply the “clear and convincing evidence” that the loss to victims exceeded $10,000 for aggravated-felony purposes.
• Whether, given the foregoing, Labrada could demonstrate prejudice necessary to reopen proceedings on the ground of ineffective assistance of counsel.

The Eleventh Circuit’s opinion—though unpublished—adds a significant gloss to the Supreme Court’s decision in Nijhawan v. Holder and this Circuit’s own decisions in Obasohan and Garcia-Simisterra, by holding that an uncontested restitution order that is facially tied to the counts of conviction, when coupled with admissions in a guilty plea, satisfies the “clear and convincing” evidentiary burden imposed on the Government by INA § 1229a(c)(3)(A).

2. Summary of the Judgment

The panel (Rosenbaum, Newsom, and Grant, JJ.) concluded:

• The IJ did not abuse discretion in finding no prejudice, because Labrada’s conspiracy conviction “was, and is still, properly considered an aggravated felony.”
• The restitution figure of $68,277.74, found in both the plea agreement and the criminal judgment, was “reasonably” inferred to stem from the charged and admitted conduct, thereby crossing the $10,000 threshold.
• Absent any conflicting evidence presented by Labrada, the agency’s factual findings were supported by substantial evidence, foreclosing reopening.
• Consequently, the petition for review was DENIED.

3. Analytical Commentary

3.1 Precedents Cited and Their Influence

1. Nijhawan v. Holder, 557 U.S. 29 (2009)
   The Supreme Court distinguished between “generic” and “circumstance-specific” aggravated-felony provisions. Loss amount under § 101(a)(43)(M) is circumstance-specific, so adjudicators may consult the “entire record of conviction.” The Court also approved reliance on sentencing stipulations and restitution orders absent contradictory evidence.
   Impact on Labrada: The Eleventh Circuit explicitly followed Nijhawan, treating the restitution order as probative and controlling because it was uncontested.
2. United States v. Obasohan, 479 F.3d 785 (11th Cir. 2007), overruled in part by Nijhawan.
   Obasohan had rejected exclusive reliance on a restitution order that reflected uncharged conduct. Post-Nijhawan, Obasohan remains good law only to the extent it insists that the loss figure be tied to the counts of conviction.
   Impact on Labrada: The panel distinguished Obasohan; here, the restitution amount was inferably tethered to the pleaded conspiracy.
3. Garcia-Simisterra v. U.S. Att’y Gen., 984 F.3d 977 (11th Cir. 2020)
   Confirmed that the “entire record of conviction” may be consulted, reiterating the deferential substantial-evidence standard for factual determinations.
   Impact on Labrada: Guided the panel’s approach to fact-finding review.
4. Martin v. United States, 949 F.3d 662 (11th Cir. 2020)
   Restated that the loss must be linked to convicted counts, not dismissed counts or uncharged conduct.
   Impact on Labrada: Used as an interpretive checkpoint; the panel found the link sufficiently established.

3.2 Legal Reasoning Employed by the Court

The court’s reasoning proceeded in four steps:

1. Evidentiary Framework. The Government bears the burden of establishing removability by clear and convincing evidence (8 U.S.C. § 1229a(c)(3)(A)). Since § 101(a)(43)(M)(i) is circumstance-specific, the IJ could look beyond the categorical elements to underlying facts.
2. Assessment of the Record. The panel highlighted three undisputed documents: (a) plea agreement (including restitution clause), (b) a factual proffer detailing the conspiracy, (c) judgment of conviction with restitution order listing specific payees. In the court’s view these materials “aligned,” demonstrating loss well above $10,000.
3. Absence of Conflicting Evidence. Citing Nijhawan, the panel emphasized that Labrada supplied no documentary or testimonial evidence to show the restitution amount captured uncharged losses.
4. No Prejudice, Therefore No Reopening. Under Lozada and circuit precedent, an ineffective-assistance claim fails absent a showing that counsel’s error could have changed the outcome. Because the aggravated-felony ground was independently sound, counsel’s allegedly faulty advice caused no prejudice.

3.3 Likely Impact on Future Litigation

• Restitution Orders Gain Evidentiary Weight. Practitioners in the Eleventh Circuit should anticipate that Labrada will be cited by the Government and IJs to justify reliance on uncontested restitution orders, even when they do not contain an explicit “loss attributable solely to the counts of conviction” line-item. The absence of rebuttal evidence will be decisive.
• Heightened Burden on Respondents. Non-citizens contesting the $10,000 threshold must now marshal affirmative proof— e.g., sentencing transcripts, PSRs, or expert accounting—to show a mismatch between restitution and convicted conduct.
• Narrowing of Ineffective-Assistance Relief. Where removal is pursuant to § 101(a)(43)(M), a respondent will struggle to prove prejudice if the criminal record contains an unchallenged restitution figure above the statutory threshold.
• Guidance for Criminal Counsel. Defense attorneys representing non-citizens in fraud cases must recognize that negotiated restitution exceeding $10,000 virtually guarantees aggravated-felony exposure, absent sophisticated structuring of plea and sentencing documents.

4. Complex Concepts Simplified

• Aggravated Felony. A set of offenses defined in INA § 101(a)(43) that trigger severe immigration consequences, including near-automatic removal and ineligibility for most forms of relief. Not necessarily an “aggravated” or even “felony” offense under state or federal criminal law.
• Circumstance-Specific Inquiry. Instead of looking only at the legal elements of a crime, the court examines factual particulars proven, admitted, or found at sentencing.
• Restitution Order. A criminal-court directive requiring the defendant to compensate victims. While determined by a preponderance of the evidence, it often mirrors the Government’s loss allegations and thus can be persuasive in immigration court.
• Motion to Reopen. A procedural vehicle allowing a respondent to introduce new facts or evidence after a final removal order. Must show prima facie eligibility and (in ineffective-assistance cases) prejudice under Lozada.
• Prejudice (Ineffective Assistance). The requirement that, but for counsel’s errors, the outcome probably would have differed. Merely identifying bad advice is insufficient.

5. Conclusion

Manuel Labrada v. U.S. Attorney General fortifies an emerging rule in the Eleventh Circuit: where a restitution order that exceeds $10,000 is facially connected to the offense of conviction, and the respondent offers no contrary evidence, that order will by itself satisfy the Government’s clear-and-convincing burden to prove the monetary threshold for an aggravated felony under INA § 101(a)(43)(M). Consequently, ineffective-assistance claims predicated on counsel’s concession of removability will rarely prevail in such circumstances. The decision advances administrative efficiency but simultaneously underscores the critical importance of strategic plea negotiations and comprehensive record-building by defense and immigration counsel alike.