Safe Havens

Some courts in immigration cases assume that the amount of restitution ordered by the convicting criminal court is the same as the amount of loss to the victim for purposes of finding the noncitizen is an aggravated felon.  See § 7.82, infra.  An immigration judge may find, for example, that the restitution order alone proves that a conviction constitutes a fraud offense with a loss to the victim(s) in excess of $10,000.[164]  While this assumption may be correct in some cases, the amount of restitution is not always indicative of the actual loss to the victim as the result of a conviction.  In one case, for example, a loss to the victim of $10,000 or more was found despite the fact that the restitution order was for less than that amount.[165]  Arguably, absent other proof of the loss, the restitution amount should never be relied upon to determine the loss to the victim, because it would be impossible to tell whether, in that particular case, the restitution amount accurately reflects the loss to the victim.  This is true for a number of reasons:

First, the restitution amount may be a sum of the loss to all of multiple victims in a multiple-count judgement.  However, for aggravated felony purposes, the amount of loss to a victim is not in the aggregate, but is determined by the loss to the victim that results from an individual count.[166]

Second, even in a single count case, the restitution amount may be more than the total loss to the victim.  A “restitution” amount ordered by a criminal court may include more than just money to be paid to the actual victim of the crime, and may include other sundry fines, investigation costs, interest, and contributions to victim restitution funds.  Where the restitution ordered was just over $10,000, it is certainly possible that actual the loss to the victim was around $9,500, and the other $500 covers court costs and fines, or other non-loss items.

Third, restitution can be ordered in some jurisdictions for acquitted defenses.[167]  Therefore, restitution can be ordered for offenses other than the offense of conviction.  This gives rise to the argument that the amount of restitution ordered is not a valid reflection of the amount of loss flowing from the specific offense of conviction.  It would run counter to the law to allow deportation for a conviction on the basis of restitution ordered for offenses, especially acquitted offenses, other than the offense of conviction.

Fourth, there may be other, contrary, evidence available in the record of conviction that would show a different amount of loss, such as language in a plea agreement, or in the indictment itself.  In particular, where the plea agreement determines the amount of loss from the particular count of conviction, it governs and the conviction should not be considered an aggravated felony fraud offense even if the restitution ordered is in excess of the required amount.

The Ninth Circuit has stated that a finding of loss by a sentencing judge, applying a preponderance of the evidence standard, is insufficient by itself to demonstrate that the offense is an aggravated felony, since there is no evidence that the defendant was found to have caused such loss beyond a reasonable doubt, or that the defendant actually admitted to the loss.[168]  This same reasoning should apply to orders of restitution, which are based on findings also made by the sentencing judge, or even by the probation department.

[164] 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), constitutes an offense involving fraud or deceit with a loss to the victim in excess of $10,000, 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, where the plea agreement — part of the record of conviction — sets the amount of restitution at $22,305 and where the California courts are required under California Penal Code § 1202.04(f) to set restitution based on the loss to the victim).

[165] Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. Dec. 16, 2003) (New Jersey 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).

[166] 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).

[167] People v. Percelle, 126 Cal.App.4th 164 (Sixth Dist. 2005) (while defendant who was acquitted of an offense and was not granted probation could not be ordered to pay restitution for losses arising out of the offense of acquittal, the defendant could be ordered to pay restitution for acquitted offenses if probation had been granted).

[168] Li v. Ashcroft, 389 F.3d 892, 898 (9th Cir. November 19, 2004) (finding by sentencing judge does not satisfy categorical analysis requirement to show defendant was convicted of each element of the aggravated felony offense).