Safe Havens

 

(B)  Loss Need Not Be Proven to Convict.  In general, the assessment of the immigration consequences of a criminal conviction is limited to the elements of the offense as established by the record of conviction, and the immigration or federal courts may not resort to information outside the record of conviction to bring a conviction within a ground of deportation.  See § 6.21, supra.

            The Ninth Circuit has adopted this position in regards to establishing loss to the victims, at least in the context of a jury trial conviction.  In Li v. Ashcroft, [629] the court held that an offense that does not require, as an essential element, a finding that a specific loss, or any loss, occur is divisible with respect to the amount of loss requirement.[630] 

 

            The court found that, in the jury trial context, an amount of loss in excess of $10,000 must have been specifically found by the jury.  To establish deportability, the immigration authorities had presented the criminal charge (which did contain sufficient facts to establish the fraud offense and the required amount of loss) and the judgment, which merely recited that the defendant had been found guilty of the charges, but which did not state, “as charged in the information.”[631]  The court found that it could not sustain a finding of deportability on the basis of that record because the record provided no assurance that the jury itself had made a finding that the loss to the victims was the same as the loss charged in the information:

Our later cases have cited our conclusion in Parker that the verdict form must confirm the requisite factual findings when the jury instructions are absent. See, e.g., United States v. Fish, 368 F.3d 1200, 1203 n. 2 (9th Cir. 2004); United States v. Franklin, 235 F.3d 1165, 1170 n. 5 (9th Cir. 2000).  We are especially reluctant to rely solely on the charging document and the judgment to establish a fact that the government was not required to prove, and the jury was not required to find, to convict Petitioner. Amount of loss is not an element of the underlying crimes of conviction, as we have pointed out, and we have in the record no jury instructions, verdict form, or other comparable document suggesting that the jury actually was called on to decide, for example, that Petitioner’s false claims were for a particular amount. Although it is tempting to presume that the false claims for which the jury convicted Petitioner were those alleged in the superseding information -- count 8 described one invoice for $134,199.42 and another for $113,133.53 -- we do not know for sure that the prosecutor introduced the invoices or that the indictment’s description of the invoices was accurate or that the entire amount of the invoices was fraudulent.[632]

 

The court also rejected the argument that the amount of loss could be proven by looking to findings made by the sentencing judge:

 

A finding by the sentencing judge by a preponderance of the evidence that Petitioner and his associates were responsible for losses amounting to much more than $10,000 does not satisfy the categorical approach, however, because it does not satisfy the requirement that the defendant have been convicted of each element of the generic crime.[633]

 

The court expressed no opinion as to whether a sentencing fact found beyond a reasonable doubt by either a jury or a judge would qualify as a “conviction” of that fact, or whether a defendant’s admission of a specific sentencing fact would suffice.

 

            The Third Circuit, in dictum, has laid the foundation for an alternative method of establishing the amount of loss that would allow the court to go beyond the elements required to be proven beyond a reasonable doubt.[634]  The court suggested that the categorical analysis used to determine the nature of a conviction for immigration purposes, see § § 6.18-6.22, supra, is not applied to the extent that  the immigration statutes “invite” an inquiry beyond the elements.[635]  As an example, the court noted that certain portions of the aggravated felony definition are triggered only upon imposition of a certain sentence, which is a “fact” not found by a judge or jury.[636]  The court also suggested that the “loss to the victim” language in the fraud category invited the immigration courts to look to the record of conviction for a “fact” that need not be an element proven to convict under the criminal statute.[637]

The reasoning behind this dictum seems to be that it is necessary to allow the government to look beyond the elements to establish elements of certain grounds of deportation.  The issue is nonetheless debatable, and the law of the particular jurisdiction should be carefully checked.

[629] Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19. 2004) (conviction of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).  It also held that a conviction of making a false statement to a United States official, in violation of 18 U.S.C. § 1001, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition.

[630] Li v. Ashcroft, 389 F.3d 892, 897 (9th Cir. Nov. 19. 2004) (conviction of making a false claim against the United States, in violation of 18 U.S.C. § 287, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since even though it does require some intended loss, “no particular amount of intended loss is required,” and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).

[631] Id. at 898.  Compare, United States v. Alvarez, 972 F.2d 1000, 1105-1106 (9th Cir.1992) (per curiam) (record of conviction sufficient if proven by an information that alleged the requisite elements of the generic crime and a jury’s verdict form stating that it found the defendant guilty “‘as charged in the Information.’”).

[632] See Li v. Ashcroft, 389 F.3d at 889 (9th Cir. 2004).

[633] Ibid.

[634] See Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004) (conviction for unlawful sexual conduct is not an aggravated felony sexual abuse of a minor offense, since the statute does not require that the victim be a minor).

[635] Id. at 161.

[636] Id. at 161-162.

[637] Id. at 159-161.