The statute includes as an aggravated felony “an offense that — (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000 . . . .”[412]  Statutory changes in 1996 reduced the amount of monetary loss to the victim(s) required to trigger a finding that a fraud or deceit conviction was an aggravated felony, from $200,000 to $10,000.[413]  This change is retroactive.[414]  The nature of the offense is discussed in § 5.55, infra, and the requirement of loss to the victim is discussed in § 5.56, infra.  See also discussion of “deceit” at § 5.34, supra.

[412] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[413] See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”), Division C of Pub. L. No. 104-208, § 321(a)(7), 110 Stat. 3009-546, 3009-628 (enacted Sept. 30, 1996); Matter of Ayala-Arevalo, 22 I. & N. Dec. 398, n.1 (BIA 1998).

[414] See § 3.9, supra.

BIA

AGGRAVATED FELONY - FRAUD - WELFARE FRAUD
Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA Jan. 17, 2008) (Rhode Island conviction of welfare fraud, in violation of R.I. 40-6-15, is not an aggravated felony theft offense, because a "theft" offense, for aggravated felony purposes, requires "the taking of, or exercise of control over, property without consent, and with the criminal intent to deprive the ownership of the rights and benefits of ownership, even if such deprivation is less than total or permanent" (emphasis added); welfare fraud is a fraud offense, in that it requires a taking with consent, obtained by fraud).

NOTE: When faced with a plea to a fraud offense involving a loss of over $10,000, counsel may wish instead to plea to a "theft" offense with a sentence imposed of 364 days or less. This may avoid issues regarding a finding of loss and "extra element" analysis under Matter of Babiaskov.

AGGRAVATED FELONY - CONSPIRACY - FRAUD
Matter of SIK, 24 I. & N. Dec. 324 (BIA Oct. 4, 2007) (federal conviction for violation of 18 U.S.C. 371, conspiracy, where the substantive crime that was the object of the conspiracy was an is an aggravated felony under INA 101(a)(43)(M)(i), (U), 8 U.S.C. 1101(a)(43)(M)(i), (U), since the offense involved "fraud or deceit" and the potential loss to the victim(s) exceeded $10,000).

AGGRAVATED FELONY - FRAUD - MAIL OFFENSES
Matter of Babaisakov, 24 I&N Dec. 306 (BIA Sept. 28, 2007) (federal conviction for violation of 18 U.S.C. 1341, mail fraud, is an aggravated felony fraud offense for immigration purposes under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), where the loss to the victim exceeds $10,000).

AGGRAVATED FELONY - FRAUD
Dulal-Whiteway v. US Dep't of Homeland Sec., 501 F.3d 116 (2d Cir. Sept. 19, 2007) (federal conviction of using unauthorized access devices to obtain things of value aggregating $1000 or more, in violation of 18 U.S.C. 1029(a)(2), may be an aggravated felony under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i)).

First Circuit

AGGRAVATED FELONY - FRAUD - BANK FRAUD
AGGRAVATED FELONY - CONSPIRACY - BANK FRAUD Conteh v. Gonzales, __ F.3d __ (1st Cir. Aug. 22, 2006) (Federal conviction for conspiracy under 18 U.S.C. 371, where the underlying offense was a violation of 18 U.S.C. 1344 [bank fraud] with a loss in excess of $10,000, is an aggravated felony fraud offense for immigration purposes). http://laws.lp.findlaw.com/1st/051282.html

Fifth Circuit

AGGRAVATED FELONY - FRAUD OFFENSES - BANK FRAUD
James v. Gonzales, ___ F.3d ___, 2006 WL 2536614 (5th Cir. Sept. 5, 2006) (federal conviction for aiding and abetting bank fraud, in violation of 18 U.S.C. 2, 1344, involved a transaction with a credit union in the amount of $9,500, but the BIA correctly evaluated the loss to the victim in the amount of the court-ordered restitution of $129,066.60, since the indictment charged a scheme to defraud that resulted in this amount of restitution, the plea agreement and indictment did not specify a different loss, and the conviction therefore resulted in a loss to the victim exceeding $10,000, as required to constitute an aggravated felony under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i).), following Khalayleh v. INS, 287 F.3d 978 (10th Cir. 2002).

Sixth Circuit

AGGRAVATED FELONY - FRAUD OFFENSES - FALSE STATEMENT TO GOVERNMENT AGENT
Kellerman v. Holder, 592 F.3d 700 (6th Cir. Jan. 25, 2010) (federal convictions under 18 U.S.C. sections 371 and 1001 (making false statements to an agency of the U.S. and conspiracy for failure to provide accurate financial records in connection with a grant he received from the government) constituted aggravated felonies as defined at INA section 101(a)(43)(M)(i), for immigration purposes), following Nijhawan v. Holder, 129 S.C.t 2294 (2009).

Seventh Circuit

AGGRAVATED FELONY - FRAUD - BRIBERY
Petrov v. Gonzales, 464 F.3d 800, 2006 WL 2846451 (7th Cir. Oct. 6, 2006) (federal conviction of conspiracy to bribe federal officials to provide bogus "green cards" as part of an immigration fraud, for which he received more than $10,000, constituted a fraud offense aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), which deprived the court of appeals of jurisdiction under 8 U.S.C. 1252(a)(2)(C) to consider whether the conviction constituted a particularly serious crime barring political asylum and withholding of deportation).

Eighth Circuit

AGGRAVATED FELONY - FRAUD OFFENSE - UNAUTHORIZED COMPUTER ACCESS
Tian v. Holder, 576 F.3d 890 (8th Cir. Aug. 19, 2009) (federal conviction of unauthorized access to a computer, in violation of 18 U.S.C. 1030(a)(4), qualifies as a fraud or deceit aggravated felonyconcession by respondent, not holding of case).

Ninth Circuit

AGGRAVATED FELONY - FRAUD OFFENSES - FALSE STATEMENT ON TAX RETURN
Kawashima v. Holder, 593 F.3d 979 (9th Cir. Jan. 27, 2010) (federal conviction for subscribing to a false statement on a tax return, in violation of 26 U.S.C. 7206(1) (falsely subscribe to return, or other document willfully, with specific intent to violate law) constituted an aggravated felony fraud offense under INA 101(a)(43)(M)(i) because this conviction necessarily involved "fraud or deceit"), withdrawing and superseding 530 F.3d 1111 (9th Cir. July 1, 2008).

Note: the court rejected the argument that tax offenses other than those described in 26 U.S.C. 7201 cannot qualify as aggravated felonies under subsection (M)(i) because subsection (M)(ii)'s specific reference to 7201 indicates Congress's intent to exclude all federal tax offenses from the definition of aggravated felonies under the more general subsection (M)(i)); accord, Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. April 22, 2008); but see Ki Se Lee v. Ashcroft, 368 F.3d 218 (3d Cir.2004) (the presence of subsection (M)(ii) reflected Congress's intent to specify tax evasion as the only removable tax offense, and thereby exclude tax offenses from the scope of subsection (M)(i)).

AGGRAVATED FELONY - FRAUD OFFENSE - ASSISTING IN PREPARATION OF FALSE TAX RETURN
Kawashima v. Holder, 593 F.3d 979 (9th Cir. Jan. 27, 2010) (federal conviction for aiding and assisting in the preparation of a false tax return, in violation of 26 U.S.C. 7206(2), constituted an aggravated felony fraud offense under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), rejecting argument that tax offenses other than those described in 26 U.S.C. 7201 cannot qualify as aggravated felonies under subsection (M)(i) because subsection (M)(ii)'s specific reference to 7201 indicates Congress's intent to exclude all federal tax offenses from the definition of aggravated felonies under the more general subsection (M)(i)), withdrawing and superceding 530 F.3d 1111 (9th Cir. July 1, 2008); accord, Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. April 22, 2008); but see Ki Se Lee v. Ashcroft, 368 F.3d 218 (3d Cir.2004) (the presence of subsection (M)(ii) reflected Congress's intent to specify tax evasion as the only removable tax offense, and thereby exclude tax offenses from the scope of subsection (M)(i)).

AGGRAVATED FELONY - FRAUD OFFENSE - AGGRAVATED FELONY FRAUD IS COMMITTED WITH THE CONSENT OF THE VICTIM
Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. Jul.15, 2009) (California conviction of owning and operating a chop shop, in violation of Vehicle Code 10801 ("premises where any person has been engaged in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud"), did not constitute a theft aggravated felony within the meaning of INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), under the categorical approach, since the offense permits exercising control over property obtained by fraud, which is necessarily committed with the consent of the owner, and the conviction therefore does not require that the exercise of control over the property be "without consent" as required by the generic definition of theft aggravated felony).

AGGRAVATED FELONY - THEFT - THEFT BY FALSE PRETENSES
Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. Jul. 15, 2009) ("theft by false pretenses may be accomplished with the owner's consent. Theft by false pretenses has three elements: "(1) a false pretense or representation, (2) the intent to defraud the owner of his or her property, and (3) the false pretense or representation materially influenced the owner to part with the property." People v. Levine, 2007 WL 4248775 at *10 (Cal.Ct.App. Dec. 5, 2007) (citing People v. Ashley, 42 Cal.2d 246, 267 P.2d 271, 279 (1954)). "Theft by false pretenses does not require that the defendant take the property; it requires that the defendant use false pretenses to induce the other to give the property to him." Shannon, 78 Cal.Rptr.2d at 179. . . . Under California law, a person's false pretenses do not necessarily vitiate the owner's consent.").

AGGRAVATED FELONY - FRAUD - TAX RETURNS
Kawashima v. Gonzales, __ F.3d __, 2007 WL 2702330 (9th Cir. Sept. 18, 2007) (federal conviction of violating 26 U.S.C. 7206(1), subscribing to a false statement on a tax return, qualified as an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), where the record of conviction established, based on stipulation in plea agreement, that the offense resulted in a loss to the government of more than $10,000).

AGGRAVATED FELONY - FRAUD - TAX RETURNS
Kawashima v. Gonzales, __ F.3d __, 2007 WL 2702330 (9th Cir. Sept. 18, 2007) (federal conviction for violation of 26 U.S.C. 7206(2), aiding and assisting in the preparation of a false tax return, did not qualify as an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), where the record of conviction did not show that the offense resulted in a tax loss in excess of $10,000; record showed only that defendant was charged with failing to report income, rather than causing loss to the government).

Other

AGGRAVATED FELONY - FRAUD OFFENSES
David H. Angeli & Per A. Ramfjord, Reexamining "Loss" and "Gain" in the Wake of Dura Pharmaceuticals v. Broudo - New Ammunition for Securities Fraud Defendants, 30 THE CHAMPION 10 (May 2006).

AGGRAVATED FELONY - FRAUD OFFENSE - FOOD STAMP FRAUD
"Food Stamp Fraud," despite what its name sounds like, may be neither an Aggravated Felony nor a Crime of Moral Turpitude.  In some jurisdictions, the elements of the offense do not include any of the key elements that define common law fraud; instead, the offense is basically a strict-liability regulatory offense.