AGGRAVATED FELONY"TAX EVASION"FRAUD OFFENSE
Kawashima v. Holder, 132 S.Ct. 1166 (Feb. 21, 2012) (federal conviction of willfully making a false tax return, in violation of 26 U.S.C. 7206(a), and aiding and assisting in the preparation of a false tax return, under 26 U.S.C. 7206(2), constituted fraud offense aggravated felonies, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), because they are crimes involv[ing] fraud or deceit in which the loss to the victim(s) exceeds $10,000, even though they are not listed as aggravated felonies under INA 101(a)(43)(M)(ii), 8 U.S.C. 1101(a)(43)(M)(ii), which lists certain tax evasion aggravated felonies).

AGGRAVATED FELONY"FRAUD OFFENSE"AIDING PREPARATION OF A FALSE TAX RETURN
Kawashima v. Holder, 132 S.Ct. 1166 (Feb. 21, 2012) (federal conviction of aiding and assisting in the preparation of a false tax return, under 26 U.S.C. 7206(2), constituted a fraud offense aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i): We conclude that Mrs. Kawashima's conviction establishes that, by knowingly and willfully assisting her husband's filing of a materially false tax return, Mrs. Kawashima also committed a felony that involved deceit.).

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).

FRAUD OFFENSE - SUBMITTING FALSE CLAIM
Matter of Onyido, 22 I. & N. Dec. 552 (BIA Mar. 4, 1999) (en banc) (Indiana conviction of submitting a false claim with intent to defraud, in violation of section 35-43-5-4(10) of the Indiana Code, a Class D felony for which the respondent received the maximum penalty of 3 years confinement, arising from an unsuccessful scheme to obtain $15,000 from an insurance company, was a conviction of an "attempt" to commit a fraud in which the loss to the victim exceeded $10,000, which was an aggravated felony within the meaning of INA § 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), triggering deportation under 8 U.S.C. § 1251(a)(2)(A)(iii))

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)).

AGGRAVATED FELONY - FRAUD OFFENSE -- LOSS TO VICTIM
De Vega v. Gonzales, __ F.3d __, 2007 WL 2696489 (1st Cir. Sept. 17, 2007) (Massachusetts conviction of larceny of property valued at more than $250.00 and false representations to the Department of Public Welfare in order to secure support, based on noncitizen's admission of sufficient facts to warrant a finding of guilt [even though the court did not make an actual finding of guilt], and restitution in excess of $10,000 was ordered by the court, constituted fraud offense aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i) where IJ properly inferred actual loss to the victim in excess of $10,000).

Note: Defendant was charged with one count of larceny in excess of $250.00, and one count of making false representations to the department of welfare in order to secure support. "The IJ noted that the restitution was technically imposed in response to the larceny charge, which the IJ found not to be an aggravated felony, but held that the distinction was immaterial because the two charges were coterminous in terms of the dates of occurrence on the complaint form and the sentence imposed relate[d] clearly to both counts." Id. at *4. The First Circuit found the IJ could properly infer from the record that the two charges were part of a single scheme of criminal misconduct, and therefore the restitution amount reflected the loss of both the larceny and the fraud jointly.

This decision improperly attributes a restitution order related to a conviction of larceny, rather than fraud, to a dismissed fraud offense, to find an aggravated felony. The restitution order was not based on a "conviction" of a fraud offense, but rather a theft offense. Therefore, this larceny conviction did not properly constitute a fraud aggravated felony.

First Circuit

FRAUD - 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).

Second Circuit

AGGRAVATED FELONY " FRAUD OFFENSE " PLEA DID NOT ESTABLISH OFFENSE WAS COMMITTED WITH SPECIFIC INTENT TO DEFRAUD
Akinsade v. Holder, 678 F.3d 138 (2d Cir. May 1, 2012) (federal conviction for embezzlement by a bank employee under 18 U.S.C. 656, did not categorically constitute a fraud aggravated felony, for purposes of deportation, where none of the facts to which the petitioner actually and necessarily pleaded to establish whether that offense was committed with a specific intent to defraud).

AGGRAVATED FELONY - FRAUD OFFENSES - ATTEMPT
Ljutica v. Holder, 588 F.3d 119 (2d Cir. Dec. 3, 2009) (federal conviction of attempted bank fraud, in violation of 18 U.S.C. 2, 1344, constitutes a fraud aggravated felony, under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), even though defendant was caught before any loss occurred), following Matter of Onyido, 22 I. & N. Dec. Dec. 522 (BIA 1999).

FRAUD OFFENSE - POSSESSION OF COUNTERFEIT SECURITIES
Sui v. INS, 250 F.3d 105 (2d Cir. May 11, 2001) (federal conviction of violating 18 U.S.C. § 513(a), possession of counterfeit securities with intent to deceive, does not constitute a deportable aggravated felony as a conviction of an offense involving fraud, under INA § 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), since the loss to the victims as a result of defendants actions did not exceed $10,000).

Third Circuit

AGGRAVATED FELONY " FRAUD OR DECEIT " LOSS TO THE VICTIM
Singh v. Att'y General, 677 F.3d 503 (3d Cir. Apr. 16, 2012) (federal conviction of knowingly making a false statement under penalty of perjury in a bankruptcy proceeding in violation of 18 U.S.C. 152(3), did not trigger removal-deportation as an aggravated felony fraud conviction, because government failed to show that actual loss to the victim exceeded $10,000.00). NOTE: This case agrees with Pierre v. Holder 588 F.3d 767 (2d Cir. 2009), in finding that to be a fraud or deceit aggravated felony, there must be a actual loss, rather than merely an intended or attempted a loss, in excess of $10,000. The court suggests, however, that the government should have charged the respondent under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), to capture intended loss.

AGGRAVATED FELONY " FRAUD OR DECEIT " PERJURY
Singh v. Att'y General, 677 F.3d 503 (3d Cir. Apr. 16, 2012) (federal conviction of knowingly making a false statement under penalty of perjury in a bankruptcy proceeding in violation of 18 U.S.C. 152(3), could properly be charged in removal proceedings either as an aggravated felony perjury offense, under INA 101(a)(43)(S), or as an offense involving fraud or deceit under INA 101(a)(43)(M)(i)).

AGGRAVATED FELONY " FRAUD OFFENSE " WIRE FRAUD
Doe v. Attorney General, 659 F.3d 266 (3d Cir. Sept. 8, 2011) (federal conviction of aiding and abetting a wire fraud scheme, under 18 U.S.C. 2 and 1343, that cost its victims more than $120,000, constituted an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i)).

AGGRAVATED FELONY - FRAUD - SECURITIES FRAUD WITHHOLDING OF REMOVAL - PARTICULARLY SERIOUS CRIME
Kaplun v. Holder, 602 F.3d 260 (3d Cir. Apr. 9, 2010) (federal conviction for violation of 15 U.S.C. 77q, 77x, securities fraud, is an aggravated felony fraud offense under INA 101(a)(43)(M)(i), where PSR, to which defendant entered no objection, indicated a loss in excess of $10,000; BIA did not err in finding securities fraud with a loss between $700,000-900,000 was a particularly serious crime for purposes of withholding of removal).

FRAUD OFFENSES - BANK FRAUD
Alaka v. Attorney General, ___ F.3d ___, 2006 WL 1994500 (3d Cir. Jul. 18, 2006) (federal conviction of one count of aiding and abetting bank fraud, in violation of 18 U.S.C. §§ 1344 and 2, for which the actual loss from the single check was $4,716.68, did not constitute aggravated felony bank fraud conviction, and therefore did not bar noncitizen from eligibility for withholding of deportation).

FRAUD OFFENSE - THEFT BY DECEPTION
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 under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), 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).

FRAUD OFFENSE - THEFT
Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. Dec. 16, 2003) (New Jersey conviction of theft by deception, N.J.S.A. § 2C: 20-4, held to be aggravated felony fraud conviction under INA § 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), for deportation purposes where actual loss to victim exceeded $10,000, even though sentencing judge reduced amount of restitution from $11,522 to $9,999, since critical fact is amount of loss, not restitution amount).

FRAUD OFFENSE - EMBEZZLEMENT
Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. Jan. 23, 2002) (federal conviction for embezzling, in violation of 18 U.S.C. § 656, in excess of $400,000 in cash and checks from employer was not a fraud offense aggravated felony as defined in section INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), for immigration purposes).

Lower Courts of Third Circuit

FRAUD OFFENSE - BANK FRAUD
Sulaiman v. Attorney General, Immigration and Naturalization Service, 212 F.Supp.2d 413 (E.D.Pa. July 30, 2002) (federal conviction of bank fraud, in violation of 18 U.S.C. § 1344, held to be an aggravated felony fraud offense with loss to victim(s) in excess of $10,000, under INA § 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), for the immigration purpose of denying asylum).

FRAUD OFFENSE - FALSE STATEMENT ON LOAN APPLICATION
Sharma v. Ashcroft, 158 F.Supp.2d 519, 521 (E.D.Pa. May 25, 2001) (federal conviction of making false statements on a loan application, in violation of 18 U.S.C. § 1014, constitutes an "aggravated felony" as defined by 8 U.S .C. § 1101(a)(43)(M)(i), for immigration purposes).

FRAUD OFFENSE - BANK FRAUD
Sharma v. Ashcroft, 158 F.Supp.2d 519, 521 (E.D.Pa. May 25, 2001) (federal conviction of bank fraud, in violation of 18 U.S.C. § 1344, constitutes an "aggravated felony" as defined by 8 U.S .C. § 1101(a)(43)(M)(i) for immigration purposes).

FRAUD OFFENSE - CONSPIRACY TO COMMIT BANK FRAUD
United States v. Ogembe, 41 F.Supp.2d 567 (E.D.Pa. Mar. 3, 1999) (federal conviction of conspiracy to commit bank fraud in violation of 18 U.S.C. § 371 constitutes aggravated felony as any offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000" under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), regardless of sentence).

Fourth Circuit

FRAUD OFFENSE - FRAUDULENT USE OF A CREDIT CARD TO OBTAIN PROPERTY
Soliman v. Gonzales, 419 F.3d 276 (4th Cir. Aug. 22, 2005) (Virginia conviction of fraudulent use of a credit card, in violation of Virginia Code § 18.2-195, with intent to obtain $200.00 in property, is not an aggravated felony theft offense; the BIA erred in finding that fraud offenses necessarily included theft; theft is distinguishable from fraud, in that theft requires the taking of property without consent, while fraud requires an intent to deprive through consent obtained through misrepresentation).

Fifth Circuit

AGGRAVATED FELONY - FRAUD - MISPRISON OF A FELONY
Patel v. Mukasey, 526 F.3d 800 (5th Cir. Apr. 29, 2008) (federal conviction for violation of 8 U.S.C. 4, misprision of a felony was an aggravated felony under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i) because it necessarily entails deceit; in this particular case the loss to the victim, which exceeded $10,000, was not disputed by the parties).

AGGRAVATED FELONY - FRAUD - FRAUD OFFENSE
Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. April 22, 2008), revised opinion, (5th Cir. Feb. 5, 2009) (federal conviction of knowingly filing a false tax return, in violation of 26 U.S.C. 7206(1), constituted a fraud offense aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), if the loss to the victim is in excess of $10,000, for purposes of triggering deportability); accord, Kawashima v. Gonzales, 503 F.3d 997, 1000-01 (9th Cir. 2007); contra, Lee v. Ashcroft, 368 F.3d 218, 220 (3d Cir. 2004).

AGGRAVATED FELONY - FRAUD OFFENSE - BANK FRAUD
Martinez v. Mukasey, 519 F.3d 532 (5th Cir. Mar. 11, 2008) (federal bank-fraud conviction, in violation of 18 U.S.C. 1344, with restitution order of about $313,000, constituted an offense involving fraud or deceit under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), rejecting argument that because bank fraud does not require proof of two common-law elements of fraud [reliance and damage], it is not a fraud aggravated felony), following James v. Gonzales, 464 F.3d 505, 509 (5th Cir. 2006) ("The plain language of 1344 ... necessarily entails fraud or deceit.").

AGGRAVATED FELONY - FRAUD - INSURANCE FRAUD
Martinez v. Mukasey, 508 F.3d 255 (5th Cir. Nov. 14, 2007) (per curiam) (Texas conviction of insurance fraud in violation of Texas Penal Code 35.02 is an aggravated felony fraud offense for immigration purposes).

FRAUD OFFENSE - TRANSPORTATION OF STOLEN PROPERTY
Omari v. Gonzales, 419 F.3d 303 (5th Cir. July 25, 2005) (federal conviction of interstate transportation of stolen, converted, and fraudulently obtained property, in violation of 18 U.S.C. § 2314, is not an aggravated felony under INA § 101(a)(43)(M)(i) for immigration purposes, as not all parts of 18 U.S.C. § 2314 necessarily involve fraud or deceit).

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 OFFENSE - IDENTITY THEFT
Eke v. Mukasey, 512 F.3d 372 (7th Cir. Jan. 7, 2008) (Illinois conviction of conspiracy to violate the Illinois identity theft statute, 720 ILCS 5/16G-15(a) (using another person's identity information "to fraudulently obtain credit, money, goods, services, or other property."), constituted an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), for purposes of supporting an expedited removal order under INA 238(b), 8 U.S.C. 1228(b), rejecting an argument that this conviction required an actual loss in excess of $10,000, as opposed to an intended loss).

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).

FRAUD - CONSPIRACY TO POSSESS STOLEN MOTOR VEHICLES
Iysheh v. Gonzales, 437 F.3d 613 (7th Cir. Feb. 1, 2006) (federal conviction of "conspiracy to transport, receive, possess, etc. stolen motor vehicles" in violation of 18 U.S.C. § 371 and 2313(a), constituted a fraud aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), even though the statute did not have an element of fraud or deceit, because the record of conviction establishes fraud, since noncitizen pleaded guilty to "count one of the superseding indictment," which describes a conspiracy (1) "to defraud a financial institution ... in violation of [18 U.S.C. § ] 1344"; (2) "to transport in interstate commerce [stolen] motor vehicles ... in violation of [18 U.S.C. § ] 2312"; and (3) "to receive, possess, conceal, store, and sell [stolen] motor vehicles ... in violation of [18 U.S.C. § ] 2313(a)" and the plea agreement established a total loss from the conspiracy in excess of $200,000).

FRAUD OFFENSE - BANK FRAUD
Knutsen v. Gonzales, 429 F.3d 733 (7th Cir. Nov. 22, 2005) (federal conviction of bank fraud, in violation of 18 U.S.C. § 1344, did not constitute aggravated felony fraud offense under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since losses stemming from dismissed second count of two-count bank fraud indictment against noncitizen could not be added to the losses from the first count, to which the guilty plea was entered, for purpose of showing that the loss to the victim exceeded $10,000, as required for the offense to constitute an aggravated felony, because neither the first count nor the plea agreement alleged a single scheme with a loss over $10,000, and stipulations in plea agreement did not amount to a concession that the total loss amount of fraudulent scheme exceeded $10,000), distinguishing Khalayleh v. INS, 287 F.3d 978 (10th Cir. Apr. 23, 2002).

Eighth Circuit

AGGRAVATED FELONY " FRAUD OFFENSE " UNAUTHORIZED USE OF FOOD STAMP BENEFITS
Mowlana v. Lynch, ___ F.3d ___, ___, 2015 WL 5730791 (8th Cir. Sept. 30, 2015) (federal conviction for unauthorized use, transfer, acquisition, and possession of food stamp benefits, under 7 U.S.C. 2024(b)(1), was fraud and deceit aggravated felony in which the loss to the victim or victims exceeds $10,000, 8 U.S.C. 1101(a)(43)(M)(i), since this offense requires knowing that conduct was contrary to statutes or regulations); see Liparota v. United States, 471 U.S. 419, 433 (1985) (elements of 7 U.S.C. 2024(b)(1)). Note: At least one of the four categories of violation of this statute does not invariably involve deceit, it is merely likely: The third category of violations involves bartering of benefits by trading SNAP benefits for goods or money, or vice versa. See, e.g., United States v. Parson, 288 F.3d 818, 819 (6th Cir.2002); United States v. Gibbens, 25 F.3d 28, 30 (1st Cir.1994). The fourth category involves stealing benefits from eligible households. See United States v. Williams, 97 F.3d 1463 (9th Cir.1996) (unpublished table decision). In these situations, an offender makes no false representation to the government at the time of the violation, but a false representation is likely to occur later if an ineligible person"having obtained SNAP benefits through barter or theft"redeems the benefits at a retailer's Point of Sale device. Id. at 927. The concurring opinion finds that this offense is not categorically a fraud or deceit offense, but finds the conviction in this case is a fraud aggravated felony under the modified categorical approach. Id. at 931 (concurring opinion).

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).

AGGRAVATED FELONY - FRAUD OFFENSES - UNAUTHORIZED ACCESS TO COMPUTER
Tian v. Holder, 576 F.3d 890, 895 (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 felony under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), because respondent conceded as much; thus, the question whether this conviction qualified as such was not presented to the court of appeal).

Ninth Circuit

AGGRAVATED FELONY " FRAUD OFFENSES " LOSS AMOUNT " MEDICARE PRESUMPTIVE LOSS AMOUNT
United States v. Popov, 742 F.3d 911 (9th Cir. Feb. 11, 2014) (in federal health care fraud prosecutions, the amount billed to an insurer constitutes sufficient evidence to establish the intended loss by a preponderance of the evidence, if not rebutted).

AGGRAVATED FELONY - FRAUD - FALSE TAX RETURN
Kawashima v. Holder, 615 F.3d 1043 (9th Cir. Aug. 4, 2010) (remanding case to BIA to determine, in light of Nijhawan which documents may be considered to determine the loss to the Government), superseding prior opinion at 593 F.3d 979 (9th Cir. Jan. 2010).

AGGRAVATED FELONY - FRAUD
Carlos-Blaza v. Holder, 611 F.3d 583 (9th Cir. Jun. 30, 2010) (federal conviction for violation of 18 U.S.C. 656, stealing, embezzling, and misapplying bank funds, is an aggravated felony fraud offense since knowing misapplication of funds necessarily involves fraud).

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 OFFENSES - FALSE STATEMENT
Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. Jul. 1, 2008) (per curiam) (federal conviction for subscribing to a false statement on a tax return, in violation of 26 U.S.C. 7206(1), with plea agreement stipulating that the "total actual tax loss" for the purpose of determining his offense level under the Sentencing Guidelines was $245,126, did not categorically constitute a fraud aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), since the statute of conviction is entirely missing an element requiring proof of a monetary loss in excess of $10,000; the court may not consult the record of conviction because the statute is not divisible), following Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc) (when the crime of conviction is missing an element of the generic crime altogether, we can never find that "a jury was actually required to find all the elements of" the generic crime.").

AGGRAVATED FELONY - FRAUD OFFENSES - FALSE STATEMENT
Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. Jul. 1, 2008) (per curiam) (federal conviction for aiding and assisting in the preparation of a false tax return qualify as "aggravated felonies" return, in violation of 26 U.S.C. 7206(2), did not categorically constitute a fraud aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), since the statute of conviction is entirely missing an element requiring proof of a monetary loss in excess of $10,000; the court may not consult the record of conviction because the statute is not divisible), following Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc) (when the crime of conviction is missing an element of the generic crime altogether, we can never find that "a jury was actually required to find all the elements of" the generic crime.").

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).

FRAUD - CHECK FORGERY
Bobb v. Att'y Gen. of the United States, __ F.3d __ (9th Cir. Aug. 3, 2006) (federal conviction of check forgery, in violation of 18 U.S.C. § 510(a)(2), involving a check in an amount over $10,000 is an aggravated felony fraud offense under INA § 101(a)(43)(M)(i) for immigration purposes).

FRAUD OFFENSE - WELFARE FRAUD
Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. Dec. 1, 2004) (California conviction of welfare fraud, in violation of Welf. & Inst. Code § 10980(c)(2), as interpreted by California judicial decisions defining the elements of the offense, invariably requires an element of fraud or deceit, and therefore constitutes an offense involving fraud or deceit for purposes of qualifying as an aggravated felony as defined under INA § 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i) triggering deportation).

FRAUD OFFENSE - FALSE CLAIM AGAINST THE UNITED STATES
Li v. Ashcroft, 389 F.3d 892, 897 (9th Cir. Nov. 19, 2004) (federal conviction of making a false claim against the United States, in violation of 18 U.S.C. § 287, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since even though it does require some intended loss, "no particular amount of intended loss is required," and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).

FRAUD OFFENSE - FALSE STATEMENT TO GOVERNMENT OFFICIAL
Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19, 2004) (federal conviction of making a false statement to a United States official, in violation of 18 U.S.C. § 1001, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).

FRAUD OFFENSE - CONSPIRACY TO DEFRAUD THE UNITED STATES
Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19, 2004) (federal conviction of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).

FRAUD OFFENSE - FALSE TAX RETURN
Abreu-Reyes v. INS, 292 F.3d 1029 (9th Cir. June 10, 2002) (federal conviction of subscribing to a false tax return, in violation of 26 U.S.C. § 7206(1), constituted an aggravated felony as a fraud offense under INA § 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i) for removal purposes), opinion withdrawn on grant of rehearing by, 350 F.3d 966 (9th Cir. Nov. 21, 2003).

FRAUD OFFENSE - BANK FRAUD
Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (federal 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 PSR exceeded $30,000, since plea agreement specified loss from the count of conviction as $605.30).

Lower Courts of Ninth Circuit

FRAUD OFFENSE - WELFARE FRAUD
Danh v. Demore, 59 F.Supp.2d 994 (N.D.Cal. May 28, 1999) (California conviction of welfare fraud, in violation of California Welf. & Inst.Code § 10980(c)(2), constituted an aggravated felony under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), as "fraud or deceit in which the loss to the victim or victims exceeds $10,000").

Tenth Circuit

FRAUD OFFENSE - BANK FRAUD
Khalayleh v. INS, 287 F.3d 978, 980 (10th Cir. Apr. 23, 2002) (federal conviction of bank fraud, in violation of 18 U.S.C. § 1344(1), constituted conviction of an offense involving fraud, with a loss to the victim(s) in excess of $10,000, and was therefore an aggravated felony for deportation purposes under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since the count of the indictment to which a plea was entered alleged a scheme to defraud encompassing a number of checks indisputably totaling in excess of $10,000; result might be different if each "count alleged a discrete fraud involving a single check," "even if a plea agreement gave the district court authority to order restitution with respect to all four checks in the indictment, see 18 U.S.C. § 3663(a)(3), perhaps only the check in the count to which the defendant pleaded could properly be considered in determining the amount of the loss for purposes of the definition of aggravated felony.").

Eleventh Circuit

AGGRAVATED FELONY " FRAUD " UTTERING FORGED INSTRUMENT
Walker v. U.S. Atty. Gen., ___ F.3d ___, 2015 WL 1782677 (11th Cir. Apr. 21, 2015) (Florida conviction of uttering a forged instrument, under Fla. Stat. 831.02, is categorically an aggravated felony fraud or deceit offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), because the violator utters and publishes as true something that the violator know[s] to be false, whether this is done with intent to injure or intent to defraud).

AGGRAVATED FELONY - FRAUD OFFENSE - LOSS TO THE VICTIM - RESTITUTION ORDER BASED ON CONDUCT NOT CHARGED, PROVEN, OR ADMITTED, AND WHICH WAS ISSUED BY THE CRIMINAL COURT UNDER A LOWER PREPONDERANCE STANDARD OF PROOF, WAS STANDING ALONE AN INSUFFICIENT BASIS TO SUPPORT AN IMMIGRATION JUDGE'S FINDING OF LOSS TO THE VICTIM IN EXCESS OF $10,000
Obasohan v. U.S. Attorney General, ___ F.3d ___, 2007 WL 548359 (11th Cir. Feb. 23, 2007) (federal conviction of conspiracy to produce, use and traffic in counterfeit access devices, in violation of 18 U.S.C. 1029(b)(2), with a restitution order for fraudulent use of other credit cards during the course of the conspiracy which had caused losses in excess of $37,000 to three financial institutions, issued pursuant to 18 U.S.C. 3663, did not constitute an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), for purposes of removal, because the restitution order, standing alone, had been issued by the sentencing judge under a preponderance standard, and the immigration court was required to make a loss to the victim finding by clear, unequivocal, and convincing evidence, and the restitution order, which in this case was the only document that made reference to any loss, was based on factual findings regarding conduct and loss amounts that were not charged, proven or admitted).

FRAUD OFFENSE - EMBEZZLEMENT
Balogun v. U.S. Attorney Gen., 425 F.3d 1356 (11th Cir. Sept. 26, 2005) (Alabama conviction for embezzlement of moneys belonging to the United States is an aggravated felony fraud offense under INA § 101(a)(43)(M)(i); the United States may be considered the "victim" for purposes of INA § 101(a)(43)(M)(i)).

FRAUD OFFENSE - CONSPIRACY TO COMMIT BANK FRAUD
Bejacmar v. Ashcroft, 291 F.3d 735 (11th Cir. May 14, 2002) (conspiracy to commit bank fraud, a violation of 18 U.S.C. § 371, constituted an aggravated felony under INA § 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), since the loss exceeded $10,000).

FRAUD OFFENSE - MISAPPLICATION OF BANK FUNDS
Moore v. Ashcroft, 251 F.3d 919 (11th Cir. May 14, 2001) (federal conviction of misapplication of bank funds, in violation of 18 U.S.C. § 656, constituted aggravated felony under INA 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) for removal purposes, since it necessarily involves fraud or deceit and loss exceeded $10,000).

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