Safe Havens

(D) Intended Loss.  In Matter of Onyido,[639] the BIA issued a divided and controversial first decision about the meaning of loss and attempt.  Onyido was convicted in Indiana of a completed offense, insurance fraud, for a plot in which he had negotiated a settlement of $15,000 but did not collect any money because he was arrested before he could do so.  The problem the Board faced was that no victim had actually “lost” any money, since the plot was nipped in the bud.  The INS filed a notice to appear that charged Onyido with fraud or deceit in which the “loss or potential loss” (emphasis added) to the victim exceeded $10,000.  While the BIA did not discuss this, this notice to appear obviously expanded on the statutory definition of the offense, which speaks only of “loss,” not “potential loss.”

            A 10-person majority of the Board found that Onyido was an aggravated felon based not on the fact that he was convicted of completed fraud, but on the fact that he could have been or was the equivalent of convicted of attempted fraud involving an amount in excess of  $10,000.  The majority asserted that because the Indiana fraud statute holds the action complete when a false claim is submitted and does not require proof that the insurer has incurred a loss, “an attempt to defraud is included” within the completed fraud offense.  The majority stated that “[t]he respondent’s actions support a conviction for attempted fraud which is a lesser included offense within a conviction for fraud under Indiana law.”  This analysis arguably violated the rules of categorical analysis, in which the facts of the case are to be ignored in favor of the elements of the actual offense of conviction.

            The five dissenting Board members pointed out that Onyido was not in fact convicted of attempt to defraud.  They stated that the BIA had always held that “crimes of attempt and conspiracy, as used in the Immigration and Nationality Act, referred only to convictions for attempt and conspiracy — not to crimes of which the respondent might have been convicted.”[640]  They also stated that attempted fraud is not a lesser included offense of fraud under Indiana law, contrary to what the majority asserted.[641]

            The dissent also made an important point involving the plain meaning of the statute.[642]  This must be an attempt or conspiracy to commit an offense that actually is an aggravated felony.  If the Indiana fraud offense can be completed without actual loss to the victim, then that offense is not an aggravated felony under the $10,000 loss provision.  Therefore, an attempt to commit the offense cannot constitute an aggravated felony.

            The BIA majority’s dilemma is that it would like to punish people who tried to defraud others of over $10,000, even if they failed.  Arguably this is not included in the statutory language as currently drafted.  In confronting this confusing statute, adjudicators must be reminded that reasonable doubts concerning the meaning of the statute must be construed in favor of the noncitizen.[643]  See § 5.25, supra.

            The Ninth Circuit has also held, without much discussion, that intended loss can satisfy the loss element of the fraud offense aggravated felony, but the point was uncontested and the case therefore does not represent a holding on the issue.[644]

[639] Matter of Onyido, 22 I. & N. Dec. 552 (BIA 1999).

[640] Id. at p. 14 (emphasis supplied).

[641] The dissent pointed out that Indiana law had separate sections for insurance fraud and for the general attempt section, and that the Indiana case that the majority relied on, Houston v. State, 528 N.E. 2d 818 (Ind. Ct. App. 1988), in fact involved the attempt statute, not the fraud statute.  Dissent at pp. 13-15.

[642] INA § 101(a)(43)(U), U.S.C. § 1101(a)(43)(U), includes as an aggravated felony “an attempt or conspiracy to commit an offense described in this paragraph.” (emphasis supplied).

[643] Barber v. Gonzales, 347 U.S. 637, 642, 74 S.Ct. 822, 825 (1954); Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376 (1948).

[644] Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19. 2004) (“Potential or intended loss can satisfy the second element under 8 U.S.C. § 1101(a)(43)(U), which defines an aggravated felony as “an attempt or conspiracy to commit” another aggravated felony defined in § 1101(a)(43).  See Matter of Onyido, 22 I. & N. Dec. 552 (BIA 1999) (concluding that submission of a false insurance claim qualified as an aggravated felony under § 1101(a)(43)(U), even though the petitioner’s scheme was unsuccessful and he received no payment from the insurance company).”).