BIA

AGGRAVATED FELONY - THEFT - 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.

SUBMITTING FALSE CLAIM - FRAUD OFFENSE
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)).

Lower Courts of Third Circuit

FALSE STATEMENT ON LOAN APPLICATION - FRAUD OFFENSE
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).

Fifth Circuit

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).

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 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).

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 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.").

WELFARE FRAUD - FRAUD OFFENSE
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).

FALSE CLAIM AGAINST THE UNITED STATES - FRAUD OFFENSE
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).

FALSE TAX RETURN - FRAUD OFFENSE
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).

Lower Courts of Ninth Circuit

WELFARE FRAUD - FRAUD OFFENSE
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").