Aggravated Felonies

(A)  Definition of Fraud.  The BIA has held that “fraud” should be defined “in the commonly accepted legal sense, that is, as consisting of false representations of a material fact made with knowledge of [their] falsity and with intent to deceive the other party.  The representation must be believed and acted upon by the party deceived to his disadvantage.”[417]  Black’s Law Dictionary defines “fraud” as “a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment,” and “deceit” as “the act of intentionally giving a false impression.”[418] 

            The Fourth Circuit has distinguished between “fraud” and “theft.”[419]  The court found that, while the two terms are not mutually exclusive, it is not true that all fraud offenses are necessarily also theft offenses for aggravated felony purposes.  The court noted that “theft” involves a taking without the consent of the owner.  Fraud, while also a taking, is accomplished with the unlawfully obtained consent of the owner.

[417] Matter of GG, 7 I. & N. Dec. 161, 164 (BIA 1956).

[418] Black’s Law Dictionary 413, 670 (7th ed. 1999).

[419] Soliman v. Gonzalez, 419 F.3d 276 (4th Cir. Aug. 22, 2005).  See also Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. May 7, 2004) (Pennsylvania conviction of theft by deception, in violation of 18 Pa. Cons. Stat. Ann. § 3922(a), with an indeterminate sentence from a minimum of six months to a maximum of 23 months, does not trigger removal as an aggravated felony fraud conviction, since the loss to the victim was under $10,000, and because it is a hybrid offense, as a theft offense as well as a fraud offense, it must qualify as an aggravated felony under both categories or it does not trigger removal).