Criminal Defense of Immigrants

In determining whether a fraud or deceit offense constitutes an aggravated felony,[123] the amount of restitution can be decisive.  In these cases, the plea agreement and the entry of the plea should therefore be framed carefully so the amount of “loss” to the victim(s) from the exact offense of conviction is $10,000 or less.   See § 19.74, infra.  The same holds true for tax evasion offenses listed as aggravated felonies.  See § 19.93, infra.  In a jurisdiction in which restitution need be proven only by a preponderance, not beyond a reasonable doubt, and only to the satisfaction of the sentencing judge, not the jury, the standard of proof should be made clear on the record, to afford immigration counsel the chance to argue the restitution finding does not measure up to the high “clear and convincing” level of proof required to prove a fact essential to deportation or to other immigration consequences in which the government bears the burden of proof.[124]

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

[124] Obasohan v. U.S. Attorney General, 479 F.3d 785 (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).