Criminal Defense of Immigrants


§ 19.52 L. Deceit

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The aggravated felony definition includes an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.”[524]  This aggravated felony is not defined by reference to a federal statute, and the BIA has yet to adopt a “generic” definition of the offense.[525]


                There are very few cases on this aggravated felony offense.  Most cases instead deal with the fraud portion of INA § 101(a)(43)(M)(i).  See § 19.72, infra.


In Valansi v. Ashcroft,[526] the Third Circuit found that the “fraud or deceit” aggravated felony category was not limited only to fraud offenses:


we determine whether the phrase “offense that--involves fraud or deceit” has a plain meaning.  The word “involves” means “to have within or as part of itself” or “to require as a necessary accompaniment.”  Webster’s Third New International Dictionary at 1191.  Thus, an offense that “involves fraud or deceit” is most naturally interpreted as an offense that includes fraud or deceit as a necessary component or element.  It does not require, however, that the elements of the offense be coextensive with the crime of fraud.[527]


In seeking to define “deceit” the court stated:


The term “deceit” also is not defined in the INA. However, it is commonly perceived as “[t]he act of intentionally giving a false impression,” Black’s Law Dictionary 413 (7th ed.1999), or “the act or process of deceiving,” which is in turn defined as “to cause to believe the false.”  Webster’s Third New International Dictionary of the English Language Unabridged 584 (3d ed.1993).[528]


Once defined, the Third Circuit examined the scope of this ground, and held that a conviction for misapplication of bank funds under 18 U.S.C. § 656, which requires an intent to defraud or injure was not categorically an offense involving fraud or deceit.[529]

See discussion under “Fraud,” § 19.74, infra regarding the $10,000 loss to the victim requirement.


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

[525] See § 19.9, supra.

[526] Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. Jan. 23, 2002).

[527] Id. at 209-210.

[528] Id. at 209.

[529] Id. at 211.  But see Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001) (conviction under 18 U.S.C. § 656, misapplication of bank funds, falls within fraud/deceit aggravated felony definition because jury must find the defendant knowingly participated in a deceptive or fraudulent transaction).  Moore did not address the argument in Valansi that an intent to injure does not establish fraud or deceit, and is therefore not persuasive on the question of the statute’s divisibility.



Kawashima v. Holder, 132 U.S. 1166, 1172 (Feb. 21, 2012) ("When subparagraph (M) was enacted, the term deceit meant the act or process of deceiving (as by falsification, concealment, or cheating). Webster's Third New International Dictionary 584 (1993). Mr. Kawashima's conviction under 7206(1) establishes that he knowingly and willfully submitted a tax return that was false as to a material matter. He therefore committed a felony that involved deceit.).