Safe Havens

(B)  Safe Havens Specific to this Category.  A number of safe havens may be applicable to this aggravated felony definition.

            (1)  Lack of Element of Intent to Defraud or Deceive.  If the offense of conviction lacks an essential element requiring intent to defraud or deceive, the conviction is arguably not a conviction of an offense involving fraud or deceit. [620]

            (2)  Offense Falling Within Two Categories Must Meet Requirements of Both.  As indicated above, a given offense may fall within more than one aggravated felony category.  This fact can give rise to a safe haven argument that to trigger deportation, the conviction must meet the requirements of both categories.  The Third Circuit has held that a conviction that fell within the theft offense and fraud offense categories must meet both the one year sentence imposed requirement of the theft category, and the loss in excess of $10,000 requirement of the fraud category, before it will trigger deportation as an aggravated felony.[621]  The court reasoned that when an offense is both an aggravated felony theft offense and an offense involving fraud or deceit (“a hybrid offense”), the term “theft offense” INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) becomes a sub-class of the term any “offense” in INA § 101(a)(43)(M)(i).  Imagine a diagram with (M)(i) (any offense) as the outer circle and (G) (any offense that involves theft) as the inner circle. Since everything in the inner circle must have all the characteristics of the outer circle, all such hybrid offenses must both be punishable by at least one year in prison, and the victim must have suffered a loss of at least $10,000 or more. Where the $10,000 requirement (part of the bigger circle) is not met, the offense cannot be an aggravated felony.  This argument could be applied to other aggravated felony categories as well.

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

[621] 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) (West 1983 & Supp. 2000), 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).