Aggravated Felonies

(D)  Orders Modifying Restitution.  The Third Circuit recently held that a state sentencing court’s alteration of the amount of restitution ordered from $11,522 to $9,999 did not alter the aggravated felony character of the conviction, since it was undisputed that the former figure accurately reflected the loss to the victim and that the conviction was for a fraud offense.  The relevant consideration was the amount of the loss, not the amount of restitution, and the court order did not represent a new finding on the amount of the loss.[582]  The Third Circuit did not discuss the basis for its conclusion as to the amount of the loss, and mentioned no “record of conviction” objection on the part of the noncitizen.  The Third Circuit commented that the state sentencing court altered the restitution amount solely to avoid immigration consequences, and referred to the Fifth Circuit’s decision indicating that “[w]hen a court vacates an otherwise final and valid conviction on equitable grounds merely to avoid the immigration law consequences of the conviction, it usurps Congress’ plenary power to set the terms and conditions of American citizenship and the executive’s discretion to administer the immigration laws.”[583]  The Third Circuit, however, is incorrect in suggesting that Renteria is relevant to the present context.  Renteria involved state rehabilitative relief vacating a conviction; it did not involve any alteration in a sentence.  BIA and circuit law holds that immigration authorities are bound by the most recent sentence, whatever the reason for its alteration, and Renteria is not to the contrary, since it interpreted the 1996 statutory definition of “conviction,” instead of the completely different statutory definition of “sentence.”

            An alteration of a judgment that would be effective to eliminate the adverse immigration consequences of a sentencing-court finding that the loss from a specific conviction exceeded $10,000, for purposes of avoiding a fraud aggravated felony conviction, could be arranged by (1) obtaining a new sentence in which the loss attributable to the count of conviction was $10,000 or less; (2) avoiding any indication in the moving papers of an immigration purpose in altering the finding as to the amount of the loss; and (3) arranging a written agreement (analogous to a plea agreement) as to the sentence specifying the amount of loss resulting from the count of conviction was $10,000 or less.[584]

[582] Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. Dec. 16, 2003) (New Jersey conviction of theft by deception, in violation of N.J.S.A. 2C: 20-4, considered aggravated felony fraud conviction under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), for deportation purposes under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), where actual loss to victim exceeded $10,000, even though the sentencing judge eventually reduced the amount of restitution that he was required to pay from $11,522 to $9,999, because the critical fact is the amount of loss, not the amount of restitution, so district court properly denied habeas relief).

[583] Ibid., quoting Renteria-Gonzalez v. INS, 322 F.3d 804, 812 (5th Cir. 2002) (citation omitted).

[584] Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (conviction of bank fraud for knowingly passing a $605.30 bad check held not to constitute an aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), as a conviction of an offense involving fraud for which the loss to the victim(s) exceeded $10,000, even though losses resulting from the entire scheme described in the presentence report exceeded $30,000, since plea agreement specified loss from the count of conviction as $605.30).