(A)  Aggravated Felonies.  See § § 7.80-2, supra.

 

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 . . . .”[139]  See also Fraud Against the Government, § 8.25, supra, and False Statement Offenses, § § 8.45, et seq., supra.

 

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, and because it is a hybrid offense, as a theft offense as well as a fraud offense, it must 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”[140] becomes a sub-class of the term any “offense” in the fraud offense definition.[141]  Imagine a Venn 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 both be punishable by at least one year in prison, and the victim must have suffered a loss of at least $10,000 or more. Where the $10,000 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 8 U.S.C. § 1101(a)(43)(M)(i), for immigration purpose, since the offense could be committed with intent to defraud or injure).

 

Fifth Circuit:

 

United States v. Dabeit, 231 F.3d 979 (5th Cir. Oct.30, 2000), cert. denied, 531 U.S. 1202 (2001) (federal conviction for conspiracy to perpetrate a checking and savings account kite scheme, in violation of 18 U.S.C. § 2113(b), was an “aggravated felony,” under an attempted theft theory of INA § 101(a)(43)(G), (U), 8 U.S.C. § 1101(a)(43)(G), (U)(2000), so as to permit enhancement of the illegal re-entry sentence in defendant’s base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)).

 

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, DHS must show jury specifically found the requisite amount of loss).

United States v. Doe 374 F.3d 851 (9th Cir. July 06, 2004) (amount of restitution imposed must reflect the losses of identified victims).

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. Hickey, 367 F.3d 888 (9th Cir. April 30, 2004) (order of disgorgement of $1.1 million in civil action brought by SEC did not bar government from proceeding criminally against defendant, or from proving losses of more than $1.1 million).

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).

[139] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).  See N. Tooby, Aggravated Felonies § 5.31, Fraud (2003).

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

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

AGGRAVATED FELONY - FRAUD
Dulal-Whiteway v. US Dep't of Homeland Sec., 501 F.3d 116 (2d Cir. Sept. 19, 2007) (federal conviction of using unauthorized access devices to obtain things of value aggregating $1000 or more, in violation of 18 U.S.C. 1029(a)(2), may be an aggravated felony under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i)).

Second Circuit

AGGRAVATED FELONY " FRAUD OFFENSE " PLEA DID NOT ESTABLISH OFFENSE WAS COMMITTED WITH SPECIFIC INTENT TO DEFRAUD
Akinsade v. Holder, 678 F.3d 138 (2d Cir. May 1, 2012) (federal conviction for embezzlement by a bank employee under 18 U.S.C. 656, did not categorically constitute a fraud aggravated felony, for purposes of deportation, where none of the facts to which the petitioner actually and necessarily pleaded to establish whether that offense was committed with a specific intent to defraud).

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)).

Fifth Circuit

AGGRAVATED FELONY - FRAUD & DECEIT DEFINED
Omari v. Gonzales, __ F.3d __, 2005 WL 1714364 (5th Cir. July 25, 2005) (defining "fraud" as a "knowing misrepresentation of truth or concealment of a material fact to induce another to act to his or her detriment" and "deceit" as "the act of intentionally giving a false impression" as defined in Blacks Law Dictionary).
http://caselaw.lp.findlaw.com/data2/circs/5th/0361014p.pdf

Eleventh Circuit

AGGRAVATED FELONY - FRAUD OFFENSE - LOSS TO THE VICTIM - RESTITUTION ORDER BASED ON CONDUCT NOT CHARGED, PROVEN, OR ADMITTED, AND WHICH WAS ISSUED BY THE CRIMINAL COURT UNDER A LOWER PREPONDERANCE STANDARD OF PROOF, WAS STANDING ALONE AN INSUFFICIENT BASIS TO SUPPORT AN IMMIGRATION JUDGE'S FINDING OF LOSS TO THE VICTIM IN EXCESS OF $10,000
Obasohan v. U.S. Attorney General, ___ F.3d ___, 2007 WL 548359 (11th Cir. Feb. 23, 2007) (federal conviction of conspiracy to produce, use and traffic in counterfeit access devices, in violation of 18 U.S.C. 1029(b)(2), with a restitution order for fraudulent use of other credit cards during the course of the conspiracy which had caused losses in excess of $37,000 to three financial institutions, issued pursuant to 18 U.S.C. 3663, did not constitute an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), for purposes of removal, because the restitution order, standing alone, had been issued by the sentencing judge under a preponderance standard, and the immigration court was required to make a loss to the victim finding by clear, unequivocal, and convincing evidence, and the restitution order, which in this case was the only document that made reference to any loss, was based on factual findings regarding conduct and loss amounts that were not charged, proven or admitted).

Other

AGGRAVATED FELONY - CRIME OF VIOLENCE - RECKLESS INTENT INSUFFICIENT
See § 7.49