Safe Havens

(A)  Multiple Count Convictions.  The Ninth Circuit held in Chang v. INS,[654] that even where the total loss to all victims was, in fact, over $10,000, a conviction of one count of bank fraud for passing a $605.30 bad check did not involve a loss over $10,000, since the plea agreement specified the loss to be the amount of the check.  The court also rejected the argument that the amount of the restitution order, in excess of $10,000, was sufficient to show that the offense was an aggravated felony.[655]

In finding that a federal bank fraud[656] conviction with a loss to the victim(s) in excess of $10,000 was an aggravated felony fraud offense, the Tenth Circuit similarly suggested that a multiple count conviction, where each count “alleged a discrete fraud involving a single check,” would not trigger deportation as an aggravated felony offense, “even if a plea agreement gave the district court authority to order restitution with respect to all four checks in the indictment,” since “perhaps only the check in the count to which the defendant pleaded could properly be considered in determining the amount of the loss for purposes of the definition of aggravated felony.” [657]

[654] 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); cf. 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).

[655] Ibid.

[656] 18 U.S.C. § 1344(1).

[657] Khalayleh v. INS, 287 F.3d 978, 980 (10th Cir. April 23, 2002).