Safe Havens

 

(A)  Elements of the Aggravated Felony Category.  A conviction is an aggravated felony for immigration purposes if the offense involves “fraud or deceit in which the loss to the victim or victims exceeds $10,000.”[606]  This ground therefore requires the following elements:

 

            (1)  a conviction for an offense

            (2)  that involves fraud or deceit

            (3)  for which the loss to the victim(s) exceeds $10,000.

 

The INA does not define either the term “fraud” or “deceit,” but an offense requiring an intent to defraud will fall within this aggravated felony ground.[607]

 

            (1)  Requirement of an Intent to Defraud or Deceive.  The Third Circuit examined the scope of this ground in Valansi v. Ashcroft,[608] and held that any offense with either an intent to defraud or an intent to deceive will qualify.  The conviction there was for misapplication of bank funds under 18 U.S.C. § 656, which requires an intent to injure or defraud.  Recognizing that an intent to injure, as opposed to an intent to defraud, was insufficient to establish an element of fraud or deceit, the court held that the statute was divisible for aggravated felony purposes.[609] 

            The court held that the language “an offense that — involves fraud or deceit” should be interpreted as requiring an intent to defraud or deceive as an element of the offense before the offense will be considered an aggravated felony.[610]

The word “involves” means “to have within or as part of itself” or “to require as a necessary accompaniment.” Webster’s Third New International Dictionary at 1191. Thus, an offense that “involves fraud or deceit” is most naturally interpreted as an offense that includes fraud or deceit as a necessary component or element. It does not require, however, that the elements of the offense be coextensive with the crime of fraud.

 

Thus, the use of the word “involves” expands the scope of § 1101(a)(43)(M)(i) to include offenses that have, at least as one element, fraud or deceit.[611]

 

            Although there is little authority, it thus appears that an intent to defraud or deceive is a necessary element to give rise to the aggravated felony ground of deportation.  No cases expanding the ground to allow for application without an intent to deceive or defraud were found.[612] 

 

The label given an offense is not, by itself, determinative of whether the offense involves fraud or deceit.  A conviction of securities fraud, for example, may be made without an express intent to defraud, and thus may not constitute an offense involving fraud for purposes of this aggravated felony category.[613]

            (2)  Definition of Fraud.  The Valansi court set forth the definition of fraud and deceit.  The Court noted that the BIA has held that “fraud” should be defined “in the commonly accepted legal sense, that is, as consisting of false representations of a material fact made with knowledge of [their] falsity and with intent to deceive the other party.  The representation must be believed and acted upon by the party deceived to his disadvantage.”[614] 

            (3)  Definition of Deceit.  The Valansi court set forth its own definition of “deceit:”

 

The term “deceit” also is not defined in the INA. However, it is commonly             perceived as “[t]he act of intentionally giving a false impression,” Black’s Law Dictionary 413 (7th ed.1999), or “the act or process of deceiving,” which is in turn defined as “to cause to believe the false.” Webster’s Third New International Dictionary of the English Language Unabridged 584 (3d ed.1993).[615]

 

(4)  Relationship with Other Aggravated Felony Categories.  There are occasions where a single conviction may fall within more than one section of the aggravated felony definition.  If a conviction for perjury[616] or theft,[617] for example, involved an act of fraud or deceit, and there was a loss of $10,000, the INS might charge the perjury conviction under the fraud or deceit ground even if the sentence imposed was less than one year.  However, because the courts may not look beyond the record of conviction to establish the elements of the offense, see § 6.21, supra, counsel may be able to protect a defendant with a conviction of theft with a loss in excess of $10,000, but no one-year sentence imposed, by ensuring that the record of conviction does not establish that the offense “involve[d]” fraud or deceit.

 

If the offense was in federal court, treatment under the U.S. Sentencing Guidelines may serve as evidence that, for example, an offense involving theft should not be charged as fraud.  For example, if there was no enhancement of the sentence for an offense involving fraud under USSG § 2Fl.1(b), then the offense should be held not to have included fraud.[618]

 

The Ninth Circuit has held — in a now vacated opinion — that a federal tax evasion conviction constituted a conviction of an offense involving fraud, for purposes of this ground of deportation, even though the statute was not listed in the aggravated felony “tax evasion” ground.[619]  This decision was incorrect, and hopefully the error will not be repeated when the issue surfaces again.

[606] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[607] Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002); Matter of Onyido, 22 I. & N. Dec. 552 (BIA 1999) (submitting a false claim with intent to defraud insurance company held aggravated felony); Matter of Ayala-Arevalo, 22 I. & N. Dec. 398 (BIA 1998) (conspiracy in violation of 18 U.S.C. § 371 (1994) (conspiracy to defraud the United States by making false statements to a department of the United States).

[608] Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002).

[609] But see Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001) (conviction under 18 U.S.C. § 656, misapplication of bank funds, falls within fraud/deceit aggravated felony definition because jury must find the defendant knowingly participated in a deceptive or fraudulent transaction.)  This decision does not address the defining issue in Valansi that an intent to injure does not establish fraud or deceit, and is therefore not persuasive on the question of the statute’s divisibility.

[610] Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002).

[611] Valansi v. Ashcroft, 278 F.3d 203, 209 (3d Cir. 2002).

[612] 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); Sharma v. Ashcroft, 2003 U.S. App. LEXIS 3642 (3d Cir. Feb. 27, 2003) (federal conviction of bank fraud, in violation of 18 U.S.C. § 1344, held to be conviction of a crime involving fraud or deceit, and therefore an aggravated felony under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i)).

[613] United States v. Tarallo, 380 F.3d 1174 (9th Cir. Aug. 20, 2004) (defendant may commit securities fraud “willfully” in violation of 15 U.S.C. § § 78 ff and 17 C.F.R. § 240.10b-5 even if he did not know at the time of the acts that the conduct violated the law if s/he intentionally acted with reckless disregard for the truth of material misleading statements).

[614] Matter of GG, 7 I. & N. Dec. 161, 164 (BIA 1956).

[615] Valansi v. Ashcroft, 278 F.3d 203, 209 (3d Cir. 2002).

[616] INA § § 101(a)(S), 8 U.S.C. § § 1101(a)(S).

[617] INA § § 101(a)(G), 8 U.S.C. § § 1101(a)(G).

[618] See K. Brady, California Criminal Law And Immigration, § 9.20 (2004).

[619] 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), fell within the definition of aggravated felony as a fraud offense under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), even though the statute of conviction was not listed in the “tax fraud” section of the aggravated felony statute, INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii)), earlier mandate withdrawn, petition for rehearing granted, prior opinion withdrawn, petition for review granted, 350 F.3d 966 (9th Cir. November 21, 2003) (the entire opinion was vacated, including the holding that 26 U.S.C. § 7206(1) is an aggravated felony under INA § 101(a)(43)(M)(i))