BIA

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
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.

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).

POSSESSION OF COUNTERFEIT SECURITIES - FRAUD OFFENSE
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).

Lower Courts of Second Circuit

INTRODUCING MISBRANDED DRUG INTO INTERSTATE COMMERCE - FRAUD OFFENSE
Zhang v. United States, 401 F.Supp.2d 233 (E.D.N.Y. Nov. 18, 2005) (introducing a drug that had been misbranded with the intent to defraud and mislead, into interstate commerce, in violation of 21 U.S.C. § 331(a), did not constitute an aggravated felony fraud offense under INA § 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i)).

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)).

THEFT BY DECEPTION - FRAUD OFFENSE
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).

THEFT - FRAUD OFFENSE
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).

Fourth Circuit

FRAUDULENT USE OF A CREDIT CARD TO OBTAIN PROPERTY - THEFT OFFENSE
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 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.").

CONSPIRACY TO ENGAGE IN CHECK FRAUD - THEFT OFFENSE
United States v. Dabeit, 231 F.3d 979 (5th Cir. Oct. 30, 2000), cert. denied, 531 U.S. 1202, 121 S.Ct. 1214 (2001) (federal conviction for conspiracy to perpetrate a checking and savings account kite scheme, in violation of 18 U.S.C. § 2113(b), was an "aggravated felony," under an attempted theft theory of INA § 101(a)(43)(G), (U), 8 U.S.C. § 1101(a)(43)(G), (U), so as to permit enhancement of the illegal re-entry sentence in defendants base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)).

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).

CONSPIRACY TO POSSESS STOLEN MOTOR VEHICLES - FRAUD OFFENSE
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).

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).