Criminal Defense of Immigrants

(D)  Use of Plea Agreement to Limit Record of Conviction for Immigration Purposes.  This rule of the binding nature of a plea agreement, however, can work to the defendant’s benefit.  For example, in Chang v. INS,[112] the plea agreement provided that the loss resulting from the crime contained in the count of conviction was $605.30.  The court of appeals held this agreement was binding on the United States, which could not later attempt to characterize this conviction as a fraud conviction with a loss in excess of $10,000, even though the restitution order was in excess of that amount and the scheme as a whole factually (at least according to the presentence report) caused a loss in excess of that amount.  See § § 8.65-8.66, infra.  The plea agreement can also be used to specify the elements of the offense of conviction, which can potentially avoid the conviction falling within a ground of removal.  It can also specify the date of the offense to which a plea is entered, which can have important effects on whether the conviction will have adverse immigration consequences.  For example, if an offense date is chosen late enough that the offense of conviction was not committed within five years of admission, a conviction of a crime of moral turpitude will not trigger deportation.

[112] 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 PSR exceeded $30,000, since plea agreement specified loss from the count of conviction as $605.30).