Safe Havens

 

The statute includes as an aggravated felony “an offense that — (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000 . . . .”[68]

Statutory changes in 1996[69] reduced the amount of monetary loss to the victim(s) required to trigger a finding that a fraud or deceit conviction was an aggravated felony, from $200,000 to $10,000.[70]  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 local, state, or federal government entity may be considered a “victim” of a crime for purposes of 18 U.S.C. § 3663(a)(2) (Victim and Witness Protection Act), and may be awarded restitution under that section when it has suffered harm resulting from a defendant’s criminal conduct, as from fraud or embezzlement.[71]

 

            A RICO offense carrying a potential sentence of one year also is an aggravated felony, under a separate section.[72]  Counsel should make sure that a fraud offense is not also a RICO offense, or avoiding the $10,000 limit will not prevent the conviction from being an aggravated felony.

 

(1)  Intent[73]

 

United States v. Tarallo, 380 F.3d 1174 (9th Cir. Aug. 20, 2004) (defendant may commit securities fraud “willfully” in violation of 15 U.S.C. § § 78 ff. and 17 C.F.R. § 240.10b-5 even if he did not know at the time of the acts that the conduct violated the law if s/he intentionally acted with reckless disregard for the truth of material misleading statements).

(2)  Loss to the Victim[74]

 

Second Circuit:

Sui v. INS, 250 F.3d 105 (2d Cir. May 11, 2001) (federal conviction of violating 18 U.S.C. § 513(a), possession of counterfeit securities with intent to deceive, does not constitute a deportable aggravated felony as a conviction of an offense involving fraud, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since the loss to the victims as a result of his actions did not exceed $10,000).

 

Third Circuit:

 

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, since it is a hybrid offense, as a theft offense as well as a fraud offense, and must therefore qualify as an aggravated felony under both categories or it does not trigger removal).

 

When an offense is both an aggravated felony theft offense and an offense involving fraud or deceit (“a hybrid offense”), the term “theft offense” in 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), 8 U.S.C. § 1101(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 meet both requirements (1) that a sentence of one year or more has been imposed, and (2) that the victim must have suffered a loss in excess of $10,000.  Where the $10,000 loss requirement (part of the bigger circle) is not met, the offense cannot be an aggravated felony.

 

Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. Jan. 23, 2002) (federal conviction for embezzling, in violation of 18 U.S.C. § 656, in excess of $400,000 in cash and checks from her employer (the First Union National Bank) was not a fraud offense aggravated felony as defined in section INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), for immigration purposes).

 

Ninth Circuit:

 

Li v. Ashcroft, 389 F.3d 892 (9th Cir. November 19, 2004) (to prove aggravated felony fraud in which the loss to the victim exceeded $10,000, resulting from jury trial, the DHS must show jury specifically found the requisite amount of loss).
United States v. Morgan, 376 F.3d 1002 (9th Cir. July 23, 2004) (district court erred in including interest and finance charges in calculation of total amount of loss for sentencing purposes).

 

United States v. Doe 374 F.3d 851 (9th Cir. July 6, 2004) (amount of restitution imposed must reflect the losses of identified victims).

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 presentence report exceeded $30,000, since plea agreement specified loss from the count of conviction as $605.30).

[68] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[69] These are now codified at INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[70] See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, § 321(a)(7), 110 Stat. 3009-546, 3009-628 (enacted Sept. 30, 1996); Matter of Ayala-Arevalo, 22 I. & N. Dec. 398, n.1 (BIA 1998); N. Tooby, Aggravated Felonies § 5.31 (2003).

[71] United States v. Gibbens, 25 F.3d 28 (1st Cir. 1994).

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

[73] See § 7.81, supra.

[74] See § 7.82, supra.