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.

BIA

CRIME OF MORAL TURPITUDE - MISUSE OF SOCIAL SECURITY NUMBER
The offense of misuse of a social security number, in violation of 42 U.S.C. 408(a)(7)(B), may or may not be considered a crime of moral turpitude. For example, use of the card to open a checking account would not appear to be fraudulent, and thus not a CMT. The statute should therefore be considered divisible. Sale of fraudulent immigration documents is clearly CMT. Matter of Flores, 17 I. & N. Dec. 225, 1980 WL 121870 (BIA 1980). Use or possession of a false social security document with specific intent to defraud is a CMT. Matter of Serna, 20 I. & N. Dec. 579, 581 (BIA 1992). Knowing possession of false immigration documents, however, is not a CMT. Matter of Serna, 20 I. & N. Dec. 579, 581 (BIA 1992). See Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992) which is (erroneously) argued by the Service to have ruled that 408(a)(7)(B) is a CIMT, and the Ninth Circuits decision in Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000), that found it is not.

Lower Courts of Second Circuit

SAFE HAVEN - AGGRAVATED FELONY - FRAUD OFFENSES -- INTRODUCING MISBRANDED DRUG INTO INTERSTATE COMMERCE
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840, 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (introducing a drug that had been misbranded with the intent to defraud and mislead, into interstate commerce, in violation of 21 U.S.C. 331(a), did not constitute a fraud offense aggravated felony under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i)).

Sixth Circuit

CRIME OF MORAL TURPITUDE - FRAUD OFFENSES - FALSE STATEMENT TO GOVERNMENT AGENT
Kellerman v. Holder, 592 F.3d 700 (6th Cir. Jan. 25, 2010) (applying divisible statute analysis to 18 U.S.C. 371, 1001 [conspiracy to commit crime or defraud United States; false or fraudulent statement to government agent], presumably accepting argument that a conviction for these offenses might not necessarily involve moral turpitude).

Ninth Circuit

AGGRAVATED FELONY - FRAUD OFFENSE - FALSE STATEMENT TO GOVERNMENT OFFICIAL
Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19. 2004) (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).

AGGRAVATED FELONY - FRAUD OFFENSE - FALSE CLAIM AGAINST THE UNITED STATES
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).

AGGRAVATED FELONY - FRAUD OFFENSE - CONSPIRACY TO DEFRAUD THE UNITED STATES
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).

Other

SOCIAL SECURITY FRAUD
Under 408(a)(7) of the Social Security Act, a person is subject to criminal penalties if he or she: (1) willfully, knowingly, and with an intent to deceive uses a social security number on the basis of false information furnished to the SSA (408 (a)(7)(A));  (2) falsely represents, with an intent to deceive, a number to be the social security number assigned to him or her or to another person (408(a)(7)(B )); or  (3) knowingly altered a social security card issued by the SSA, bought or sold a card that was, or was purported to be, a card so issued, counterfeited a social security card, or possessed a social security card or counterfeit social security card with an intent to sell or alter it (408(a)(7)(C)). The Social Security trust fund accumulates billions of dollars in taxes from undocumented workers who wont ever get benefits, and it is the government that it is defrauded. How does having an employer send money in under a fake  SSN harm the government? Thanks to Bruce Nestor

AGGRAVATED FELONY - FRAUD OFFENSE - FOOD STAMP FRAUD
"Food Stamp Fraud," despite what its name sounds like, may be neither an Aggravated Felony nor a Crime of Moral Turpitude.  In some jurisdictions, the elements of the offense do not include any of the key elements that define common law fraud; instead, the offense is basically a strict-liability regulatory offense.