Criminal Defense of Immigrants

 

(D)  Fraud Offenses.  In Singh v. Ashcroft, [109] the Third Circuit took the rare step of analyzing each aggravated felony case published within that circuit to map out when and how the categorical analysis has been applied or not applied.  While the court noted that a strict categorical analysis had been applied to determine whether a conviction triggered removal as an aggravated felony crime of violence,[110] drug trafficking offense,[111] or forgery offense,[112] the court found that the precedent decisions had not applied a strict categorical analysis to the question of whether a conviction fell under the fraud aggravated felony category.[113]  The court found that while the categorical analysis was applied to determine whether the intent to defraud element was present,[114] the court looked to the facts of the case, as reflected in the record of conviction, to determine whether the loss to the victim was in excess of $10,000.[115]

 

                The court found the fraud aggravated felony loss requirement[116] to be the “prototypical example” of where the aggravated felony definition allows the court to look beyond the elements of conviction, since the loss to the victim requirement “expresses such a specificity of fact that it almost begs an adjudicator to examine the facts at issue.”[117] 

 

                On the other end of the spectrum, the Ninth Circuit held in Li v. Ashcroft,[118] that a noncitizen convicted of several fraud offenses was not convicted of an aggravated felony fraud offense[119] because the jury that convicted him was not required to find that any of the convictions involved a loss to the victim in excess of $10,000.  Even though the charging document, judgment, and the findings of the sentencing judge each indicated such a loss, the court stated:

 

            We are especially reluctant to rely solely on the charging document and the judgment to establish a fact that the government was not required to prove, and the jury was not required to find, to convict Petitioner. Amount of loss is not an element of the underlying crimes of conviction, as we have pointed out, and we have in the record no jury instructions, verdict form, or other comparable document suggesting that the jury actually was called on to decide, for example, that Petitioner’s false claims were for a particular amount. Although it is tempting to presume that the false claims for which the jury convicted Petitioner were those alleged in the superseding information--count 8 described one invoice for $134,199.42 and another for $113,133.53--we do not know for sure that the prosecutor introduced the invoices or that the indictment’s description of the invoices was accurate or that the entire amount of the invoices was fraudulent.[120]

The Ninth Circuit here suggests (implicitly distinguishing this case from some of its earlier precedent) that if the jury had, for some reason, been asked to make a specific finding of loss in excess of $10,000, these offenses would have been found to constitute aggravated felony fraud offenses.  In the context of a plea (as opposed to jury verdict), the court noted that that it would consider such an offense an aggravated felony if (a) the loss to the victim were reflected in the charges, and (b) the defendant specifically pleaded guilty “as charged.”[121]  See § 16.18, infra, for more on this distinction.  The concurrence to Li, on the other hand, asserted that the loss to the victim can never be considered unless the statute of conviction specifically requires a finding of loss in order to convict.[122]

 

                Counsel should argue that the categorical analysis applies across the board to all offenses, including fraud offenses, using the authorities suggested in the concurring opinion in Li.  Failing that, counsel should argue that the loss to the victim language represents one of a very few specific instances in which Congress expressly created a requirement of a removal ground (or an exception to one) based on a non-element fact which may be sought in the record of conviction.  See § 16.7(F), infra.  In any event, the courts are still precluded from relitigating the underlying facts of the case, or going outside the record of conviction, to determine the nature of the offense of conviction for immigration purposes.

[109] Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004).

[110] Id. at 155-156 (citing Francis v. Reno, 269 F.3d 162 (3d Cir. 2001)).

[111] Id. at 156-158 (citing Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003), Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002), and Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001)).

[112] Id. at 158-159 (citing Drakes v. Zimski, 240 F.3d 246 (3d Cir. 2001)).

[113] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) (an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000).

[114] Singh v. Ashcroft, 383 F.3d at 160 (discussing Valansi v. Ashcroft, 278 F.3d 203, 217 (3d Cir. 2002)).

[115] Id. at 159-161.

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

[117] Id. at 161.  See also Alaka v. Attorney General, 456 F.3d 88 (3d Cir. Jul. 18, 2006) (looking to loss amount as reflected in record of conviction to determine loss to victim); Nugent v. Ashcroft, 367 F.3d 162, 175 (3d Cir. 2004).

[118] Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19, 2004).

[119] The court noted that INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) has two requirements, that the noncitizen be convicted of an offense involving fraud or deceit, and that the loss to the victim exceed $10,000.  Id. at 896, citing Chang v. INS, 307 F.3d 1185, 1189 (9th Cir. 2002).

[120] Id. at 898.

[121] Ibid., citing United States v. Alvarez, 972 F.2d 1000, 1005 (9th Cir. 1992).

[122] Id. at 899-901 (calling for Alvarez and other precedent to be reversed).  See also Obashohan v. United States Att’y Gen., 479 F.3d 785 (11th Cir. Feb. 23, 2007) (suggesting that loss to the victim must be element of statute of conviction).