Criminal Defense of Immigrants

Fraud, deceit, and tax evasion are aggravated felonies only if the “loss to the victim” or revenue loss to the government is $10,000 or more.[760]  Money laundering is also an aggravated felony if the amount of funds laundered exceeds $10,000.[761]  See § 19.77, infra.  Important questions remain unanswered regarding these categories.  What is the meaning of “loss to the victim” or government, or amount of funds?  What evidence may the immigration authorities use to establish the amount of loss?  What is the effect of repayment of the funds?  What if there was no actual loss? 

                The safest strategy is to avoid any reference in the record of conviction to any loss in an amount in excess of $10,000, including in any restitution order.  In some cases the defendant may be able to delay conviction and sentencing for some period while s/he pays down the restitution voluntarily, in order to have a restitution order of $10,000 or less reflected on the record.

                The courts are generally not allowed to go beyond the record of conviction to determine the amount of loss.[762]  Beyond this limitation, however, the courts are divided, and often unclear, regarding the various issues involved in how to determine loss to the victim.  See also § 16.7, supra.  For suggestions regarding tactics to avoid a record of conviction establishing a loss in excess of $10,000, see § 10.20, supra.

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

[761] INA § 101(a)(43)(D), 8 U.S.C. § 1101(a)(43)(D).

[762] But cf. Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007) (federal conviction of conspiracy to entice interstate travel to engage in prostitution, in violation of 18 U.S.C. §   2422(a), constituted aggravated felony under INA § 101(a)(43)(K)(ii), 8 U.S.C. § 1101(a)(43)(K)(ii), where the offense was committed for “commercial advantage,” since it was evident from the record of proceeding, including the respondent’s testimony, that he knew that his employment activity was designed to create a profit for the prostitution business for which he worked, based on records outside the record of conviction).  For further discussion of this case see § 16.7, supra.