Habib Al-Adily v. Garland, No. 22-3432 (6th Cir. 2023)
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Al-Adily is a citizen of Iraq and a lawful U.S. permanent resident. After returning his rental car to Thrifty 163 days past its due date, Al-Adily pleaded guilty to failing to return rental property worth between $1,000 and $20,000, under Michigan law. The state court ordered him to pay $10,660.56 in restitution, matching Thrify's itemized restitution request, including a daily loss-damage-waiver charge for 170 days, repair costs, an airport concession fee, and state and municipal taxes.
In removal proceedings, DHS alleged that Al-Adily’s conviction constituted an aggravated felony under 8 U.S.C. 1101(a)(43)(M)(i), allowing for deportation under 8 U.S.C. 1227(a)(2)(A)(iii), as an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” The IJ noted oddities in Thrifty’s itemization but felt bound by the restitution amount. With the assistance of new counsel seven years later, Al-Adily successfully moved to reopen his removal proceedings. A new IJ concluded that Thrifty’s loss amount was necessarily equal to the amount of court-ordered restitution and denied Al-Adily’s applications for withholding of removal and relief under the Convention Against Torture. The BIA affirmed.
The Sixth Circuit reversed. The Supreme Court has warned that restitution orders must be considered with caution, especially where the amount was determined under a lower evidentiary standard. Thrifty’s itemization is internally inconsistent. Several enumerated charges do not stem from “the specific counts covered by the conviction” or are not losses at all.
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