(D)  Loss to the Victim.  If the defendant is sentenced under a sentence enhancement penalizing great loss to the victim, such a court finding as part of the judgment might be considered by the immigration judge to establish that the amount of the loss to the victim exceeded $10,000, and that a fraud conviction therefore constitutes an aggravated felony conviction.[150]  Similarly, if a $50,000 restitution order is entered as part of the judgment or sentence, that may satisfy this requirement as well.  See § 19.74(c), infra.

In a circumstance involving loss, counsel should avoid creation of any record of conviction that indicates that the loss attributable to the particular count of conviction exceeded $10,000, and also, if possible, that the total loss from the entire scheme exceeded $10,000.  See § 10.20, supra.

[150] Fraud, deceit, and tax evasion are aggravated felonies if the “loss to the victim” or revenue loss to the government is $10,000.  Money laundering and monetary transactions with illegally obtained funds are aggravated felonies if the “amount of the funds” exceeds $10,000.  INA § § 101(a)(43)(M), (D); 8 U.S.C. § § 1101(a)(43)(M), (D).  The IIRAIRA decreased the statutory amount from $200,000 to $10,000.

Second Circuit

SENTENCE - DATE OF CONVICTION - SENTENCE REQUIRED TO CONSTITUTE CONVICTION
Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (under INA 101(f)(8), 8 U.S.C. 1101(f)(8), the date of conviction is the date of sentence: "In sum, we hold that, under the plain meaning of the definition of "conviction" in 8 U.S.C. 1101(a)(48)(A), the entry of a "formal judgment of guilt . . . by a court" occurs when judgment is entered on the docket, not when a defendant pleads guilty."); see Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is the date of either sentencing or entry of judgment on the docket); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea coupled with a sentence constitutes a conviction under the INA, and noting that "Congress focused the sanction of removal on a criminal conviction as opposed to an admission of guilt"); Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New York state conviction mitigated by a Certificate of Relief is still a conviction under the INA because the defendant "entered a plea of guilty, and the court entered a formal judgment of guilt").