(A)  Aggravated Felonies.[62]

 

            The aggravated felony definition includes “an offense described in section 1956 of title 18, United States Code (relating to laundering of monetary instruments) or § 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000 . . . .”[63]  For a discussion of the proof necessary to establish the $10,000 amount required to qualify an offense as an aggravated felony, see § 7.82, supra.

 

            A RICO offense carrying a potential sentence of one year also is an aggravated felony, under a separate section.[64]  Counsel should make sure that a money laundering or financial transaction offense is not a RICO offense, or avoiding the $10,000 limit will not prevent the conviction from being an aggravated felony.

 

Ninth Circuit:

Chowdhury v. INS, 249 F.3d 970, 972-974 (9th Cir. May 14, 2001) (federal conviction for money laundering $1,310 in violation of 18 U.S.C. § 1956(a)(1)(A) did not constitute an “aggravated felony,” even though defendant was ordered to pay $967,753.39 in restitution, because, under INA § 101(a)(43)(D), 8 U.S.C. § 1101(a)(43)(D), the amount of funds laundered must exceed $10,000).

[62] See N. Tooby, Aggravated Felonies § 5.35, Money Laundering, § 5.44, RICO Offenses (2003).

[63] INA § 101(a)(43)(D), 8 U.S.C. § 1101(a)(43)(D).

[64] See INA § 101(a)(43)(J), 8 U.S.C. § 1101(a)(43)(J), and discussion infra.

Third Circuit

AGGRAVATED FELONY " FRAUD OR DECEIT " LOSS TO THE VICTIM
Singh v. Att'y General, 677 F.3d 503 (3d Cir. Apr. 16, 2012) (federal conviction of knowingly making a false statement under penalty of perjury in a bankruptcy proceeding in violation of 18 U.S.C. 152(3), did not trigger removal-deportation as an aggravated felony fraud conviction, because government failed to show that actual loss to the victim exceeded $10,000.00). NOTE: This case agrees with Pierre v. Holder 588 F.3d 767 (2d Cir. 2009), in finding that to be a fraud or deceit aggravated felony, there must be a actual loss, rather than merely an intended or attempted a loss, in excess of $10,000. The court suggests, however, that the government should have charged the respondent under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), to capture intended loss.

AGGRAVATED FELONY - FRAUD OFFENSES - BANK FRAUD
Alaka v. Attorney General, ___ F.3d ___, 2006 WL 1994500 (3d Cir. Jul. 18, 2006) (federal conviction of one count of aiding and abetting bank fraud, in violation of 18 U.S.C. 1344 and 2, for which the actual loss from the single check was $4,716.68, did not constitute aggravated felony bank fraud conviction, and therefore did not bar noncitizen from eligibility for withholding of deportation).