Safe Havens

(D)  Use of Plea Agreement to Limit Record of Conviction for Immigration Purposes.  This rule of the binding nature of a plea agreement, however, can work to the defendant’s benefit.  For example, in Chang v. INS,[103] the plea agreement provided that the loss resulting from the crime contained in the count of conviction was $605.30.  The court of appeals held this agreement was binding on the United States, which could not later attempt to characterize this conviction as a fraud conviction with a loss in excess of $10,000, even though the restitution order was in excess of that amount and the scheme as a whole factually (at least according to the presentence report) caused a loss in excess of that amount.

[103] Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (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).