Safe Havens

(A)  Aggravated Felonies.

            Embezzlement may qualify as either an aggravated felony theft,[130] or fraud[131] offense.[132]  Within the Third Circuit, at least, this may mean that an embezzlement conviction must fall within both types of aggravated felony offense or it does not trigger deportation as an aggravated felony at all.[133]

Third Circuit:

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 defendant’s 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, since the offense could be committed with intent to defraud or injure).

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

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

[132] See N. Tooby, Aggravated Felonies § 5.52, Theft, § 5.31, Fraud (2003).

[133] Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. March 22, 2004) (where a particular statute falls within both the theft and fraud sections of the aggravated felony definition, the conviction must meet both the one-year imprisonment and the $10,000 loss to the victim requirements to constitute an aggravated felony).