(A)  Proof of Loss.  In general, the assessment of the immigration consequences of a criminal conviction is limited to the elements of the offense as established by the record of conviction, and the immigration or federal courts may not resort to information outside the record of conviction to bring a conviction within a ground of deportation.  See Chapter 16, supra.

 

                The Ninth Circuit has adopted this position in regards to establishing loss to the victims, at least in the context of a jury trial conviction.  In Li v. Ashcroft, [763] the court held that when looking to an offense that does not require, as an essential element, a finding that a specific loss, or any loss, occurred, the court could resort to the record of conviction to determine the amount of loss.[764] 

 

                The court found that, in the jury trial context, an amount of loss in excess of $10,000 must have been specifically found by the jury.  To establish deportability, the immigration authorities had offered into evidence the criminal charge (which did contain sufficient facts to establish the fraud offense and the required amount of loss) and the judgment, which merely recited that the defendant had been found guilty of the charges, but which did not state, “as charged in the information.”[765]  The court found that it could not sustain a finding of deportability on the basis of that record because the record provided no assurance that the jury itself had made a finding that the loss to the victims was the same as the loss charged in the information:

 

Our later cases have cited our conclusion in Parker that the verdict form must confirm the requisite factual findings when the jury instructions are absent. See, e.g., United States v. Fish, 368 F.3d 1200, 1203 n. 2 (9th Cir. 2004); United States v. Franklin, 235 F.3d 1165, 1170 n. 5 (9th Cir. 2000).  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.[766]

 

The court also rejected the argument that the amount of loss could be proven by looking to findings made by the sentencing judge:

 

A finding by the sentencing judge by a preponderance of the evidence that Petitioner and his associates were responsible for losses amounting to much more than $10,000 does not satisfy the categorical approach, however, because it does not satisfy the requirement that the defendant have been convicted of each element of the generic crime.[767]

 

The court expressed no opinion as to whether a sentencing fact found beyond a reasonable doubt by either a jury or a judge would qualify as a “conviction” of that fact, or whether a defendant’s admission of a specific sentencing fact would suffice.

 

The Eleventh Circuit analysis largely coincides with that of the Ninth.  In Obasohan v. United States Att’y Gen.,[768] the court found that a conviction for conspiracy to use a counterfeit access device,[769] with a restitution order of $37,000, was not an aggravated felony fraud offense.  The court strongly suggested that the offense could not be aggravated felony fraud because (although the petitioner conceded the offense did involve fraud), loss to the victim was not an element of the offense.[770] 

The restitution was not based on the conspiracy charge to which Obasohan pled guilty, nor on the overt acts to which Obasohan admitted by pleading guilty.  Rather, the order was based on additional conduct that was alleged only in the PSI: the fraudulent use of particular credit cards-which would constitute a substantive offense rather than a conspiracy. Obasohan objected to the PSI's assertion that he had used the credit cards associated with the losses.  Obasohan therefore did not admit, adopt, or assent to the factual findings that formed the basis of the restitution order. Furthermore, while a sentencing court in the criminal context may order restitution not only for convicted conduct but also for a broad range of relevant conduct, the plain language of the INA requires that an alien have been convicted of an aggravated felony to be removable. The INA does not authorize removal on the basis of the relevant conduct that may be considered at sentencing. Rather, what constitutes an “aggravated felony” for purposes of the INA must be tethered to convicted conduct. Relevant conduct for sentencing purposes, on the other hand, may include criminal conduct that was not charged. See United States v. Ignancio Munio, 909 F.2d 436, 438-39 (11th Cir. 1990). Relevant conduct may also include acquitted conduct. United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997); United States v. Averi, 922 F.2d 765, 766 (11th Cir. 1991). Indeed, we have held that relevant conduct for sentencing purposes may even include losses caused by criminal conduct that cannot be prosecuted because those acts fall outside the statute of limitations. See United States v. Behr, 93 F.3d 764, 765-66 (11th Cir. 1996). See also United States v. Dickerson, 370 F.3d 1330, 1342-43 (11th Cir. 2004). [9]

The court also found that any loss must be proven in criminal court by clear and convincing evidence.[771]  The court noted that a restitution amount found by a sentencing court may be based upon “factual findings regarding conduct and loss amounts that were not charged, proven or admitted.”[772]

 

The Third Circuit found that, while evidence of the loss to the victim must be found within the confines of the record of conviction,[773] it is not required that the statute of conviction require proof of loss.[774]  The court also does not seem to require proof of loss beyond a reasonable doubt, as the Ninth Circuit did in Li, supra.  The First Circuit has similarly found that loss to the victim may be determined by looking to any information available in the record of conviction, including a restitution order.[775]

 

Without presenting any analysis, the Seventh Circuit found that a federal conviction for conspiracy to bribe a federal official in order to obtain forged green-cards was a fraud offense involving a loss to the victim exceeding $10,000, where the defendant personally received more than $10,000 in payment from undocumented noncitizens in payment for the forged cards.[776]  This decision seems wrong in many respects.  For one, the fact that the defendant ultimately received $10,000 in payment for the forged documents does not mean that the “victim” (the government? the noncitizens?) lost that amount.  The court also found that this offense was an aggravated felony forgery offense, and the bulk of the decision involved jurisdictional issues.  Therefore, counsel should argue that the court’s fraud finding should be considered dictum.

[777] Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19. 2004) (conviction of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).  It also held that a conviction of making a false statement to a United States official, in violation of 18 U.S.C. § 1001, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition.

[763] Id. at 897.  See also § 16.7, supra.

[764] Id. at 898.  Compare United States v. Alvarez, 972 F.2d 1000, 1105-1106 (9th Cir. 1992) (per curiam) (record of conviction sufficient if proven by an information that alleged the requisite elements of the generic crime and a jury’s verdict form stating that it found the defendant guilty “as charged in the Information.”).

[765] See Li v. Ashcroft, 389 F.3d at 889 (9th Cir. 2004).

[766] Ibid.

[767] Obashohan v. United States Att’y Gen., 479 F.3d 785 (11th Cir. Feb. 23, 2007).

[768] 18 U.S.C. § § 1029(a)(1), (b)(2).

[769] Id. at 789, n.7.  The court noted that while 18 U.S.C. § 1029(a)(2) requires a minimum showing of loss of $1,000, the offense of conviction in this case, 18 U.S.C. § 1029(a)(1) does not require any showing of loss. 

[770] Obasohan v. U.S. Attorney General, 479 F.3d 785, 790 (11th Cir. February 23, 2007) (footnotes omitted) (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, was insufficient to establish deportability), citing Knutsen v. Gonzales, 429 F.3d 733, 739-40 (7th Cir. 2005) (vacating removal order based on admission of loss caused by relevant conduct and contained in restitution order; holding that inquiry should focus narrowly on losses “particularly tethered to convicted counts alone.”). See also Khalayleh v. INS, 287 F.3d 978, 979-80 (10th Cir. 2002) (conviction constituted aggravated felony where although defendant pled guilty to only one count in indictment, that count incorporated by reference a scheme to defraud that admittedly caused losses in excess of $10,000); Chang v. INS, 307 F.3d 1185, 1191 (9th Cir. 2002) (vacating removal order based on restitution award in excess of $10,000 where amount of loss admitted in the plea agreement was less than the requisite amount); Munroe v. Ashcroft, 353 F.3d 225, 227 (3d Cir. 2003) (conviction constituted aggravated felony where defendant pled guilty to fraud charges that alleged loss in excess of $10,000, even though sentencing court later reduced restitution amount to $9,999); Ferreira v. Ashcroft, 390 F.3d 1091, 1099 (9th Cir. 2004) (conviction constituted aggravated felony where charging document alleged loss, and plea agreement set restitution at $22,305 for fraud conviction); Conteh v. Gonzales, 461 F.3d 45, 55-56 (1st Cir. 2006) (conviction constituted aggravated felony where defendant was convicted of a conspiracy charge which also alleged overt acts in furtherance of the conspiracy that caused losses in excess of $10,000).

[771] Id. at 791. (“Because the sentencing court was entitled to base its restiution order on factual findings made by a lower standard of proof, it was error for the IJ to conclude that the order, standing alone, constituted ‘clear, unequivocal and convincing’ proof of the loss . . .”).

[772] Ibid.

[773] See § § 16.15-16.33, supra.

[774] Alaka v. Attorney General, 456 F.3d 88 (3d Cir. Jul. 18, 2006) (statute defining fraud offense aggravated felony, INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), by referring to the amount of the loss to the victim, invites inquiry beyond the elements of the offense to determine the amount of loss).  See also § 16.7, supra, for a discussion of the Third Circuit’s “extra element” method of analysis.

[775] Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006) (BIA may look to restitution amount to determine loss to the victim).  See also § 16.7, supra.

[776] Petrov v. Gonzales, 464 F.3d 800 (7th Cir. Oct. 6, 2006) (federal conviction of conspiracy to bribe federal officials to provide bogus “green cards” as part of an immigration fraud scheme, for which defendant received more than $10,000, constituted a fraud offense aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i)).

AGGRAVATED FELONY " FRAUD OFFENSES " LOSS MUST BE TIED TO COUNT OF CONVICTION
The Supreme Court held that to constitute a fraud aggravated felony, the loss to the victim resulting from the conviction must be tied or tethered to the specific count of conviction, rather than other offenses or dismissed counts. Nijhawan v. Holder, supra, 557 U.S. at 42 (the loss must be tied to the specific counts covered by the conviction. Brief for Respondent 44; see, e.g., Alaka v. Attorney General of United States, 456 F.3d 88, 107 (C.A.3 2006) (loss amount must be tethered to offense of conviction; amount cannot be based on acquitted or dismissed counts or general conduct); Knutsen v. Gonzales, 429 F.3d 733, 739"740 (C.A.7 2005) (same).). Moreover, the Ninth Circuit has previously held that where a plea agreement specifies a certain individual transaction, and the loss from that transaction does not exceed $10,000, the immigration authorities are limited to the loss specified in the plea agreement, even though total restitution in excess of $10,000 for the specific loss attributable to the count of conviction plus other relevant conduct and dismissed counts). Chang v. INS, 307 F.3d 1185 (9th Cir. 2002).

AGGRAVATED FELONY - LOSS TO THE VICTIM
National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 982-983, 125 S.Ct. 2688 (June 27, 2005) ("A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. . . . Only a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction. " [emphasis added]).

Congress is not presumed to overrule existing law sub silentio. The categorical analysis and divisible statute rules were in place before the recent immigration legislation was enacted. There are strong arguments that the BIA's decision in Matter of Babaisakof, 24 I. & N. Dec. 306 (BIA 2007), does not qualify as the type of subsequent administrative interpretation under the Supreme Court's test in Brand X that can abrogate the Ninth Circuit fraud decisions. See Brand X, supra, 545 U.S. at 982: "A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion." In Chang v. INS, 307 F.3d 1185 (9th Cir. 2002), the Ninth Circuit's language suggests its decision was based on the "unambiguous terms" of INA 101(a)(43)(M)(i) and the statutory definition of conviction at INA 101(a)(48)(A): "To adopt the government's approach would divorce the $10,000 loss requirement from the conviction requirement, see 8 U.S.C. 1227(a)(2)(A)(iii) (providing that an alien is deportable 'who is convicted of an aggravated felony'." Chang v. INS is the type of circuit decision that the Court in Brand X said is not subject to abrogration by a later administrative interpretation. The argument may not be as strong for Matter of NAM, 24 I. & N. Dec. 336 (BIA 2007) (offense need not be an aggravated felony to be a particularly serious crime for withholding purposes), or in other circuits, but in the Ninth Circuit, because Chang was linked to statutory construction and not just the Taylor/Shepard analysis, the BIA's later interpretation cannot overrule the Ninth Circuit's decision in Chang v. INS. Li v. Ashcroft, 389 F.3d 892 (9th Cir. 2004), or the other 9th Circuit fraud cases, may offer additional support. Thanks to Dan Kesselbrenner.

BIA

RECORD OF CONVICTION - RESTITUTION ORDER - FAILURE TO CONSTITUTE CLEAR AND CONVINCING EVIDENCE OF NATURE OF CONVICTION WHERE RESTITUTION AWARD MAY BE BASED ON PREPONDERANCE OF THE EVIDENCE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington restitution order, contained in judgment, indicating that the respondent owed no restitution to his "child victim" did not "constitute clear and convincing evidence that the respondent was convicted of abusing a child. Specifically, in Washington the facts upon which a restitution award may be based need only have been proven to the judge by a preponderance of the evidence. State v. Dennis, 6 P.3d 1173, 1175 (Wash. Ct. App. 2000). As a result, they do not constitute proof of the defendant's "convicted conduct," which must have been proven beyond a reasonable doubt or admitted as part of a plea.").

AGGRAVATED FELONY - FRAUD - LOSS OF VICTIM - RESTITUTION
Matter of Cabrera, 24 I. & N. Dec. 459 (BIA Feb. 27, 2008) (costs and surcharges imposed in Florida deferred adjudication proceeding constitute a form of "punishment" or "penalty" for purposes of establishing that a noncitizen has suffered a "conviction" within the meaning of INA 101(a)(48)(A)). Note: the court here sought to establish a national standard (rather than relying on Florida state law), and includes amounts paid in restitution as a cost equaling "punishment."

AGGRAVATED FELONY - FRAUD - LOSS TO THE VICTIM
Matter of Babaisakov, 24 I. & N. Dec. 306 (BIA Sept. 28, 2007) (IJ erred in failing to examine presentence report to determine whether noncitizen had been convicted of an aggravated felony fraud offense, with a loss of $10,000 or more; the loss to the victim requirement under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), is an "extra element" that may be determined (1) without application of the categorical or divisible statute analysis; and (2) by looking beyond the record of conviction to "any evidence admissible in removal proceedings bearing on the loss to the victim," including testimony in immigration court).

NOTE: This is an insupportable decision, building upon the BIAs analysis in Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007). It is extremely likely to be overturned or limited (if appealed), as the case arose in the Third Circuit, which, while allowing proof of a portion of a ground of deportation beyond the elements of the offense of conviction, requires that the extra element be found by examination of the record of conviction, and not beyond. See Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004); Alaka v. Attorney General, 456 F.3d 88 (3d Cir. Jul. 18, 2006) (cannot look to dismissed counts; limiting examination to the indictment, plea, verdict, sentence, and any explicit factual findings by the trial judge."), citing Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254 (2005). The BIA decision in fact cites the Third Circuit as already having made a holding contrary to the BIAs holding. Matter of Babaisakov, 24 I&N Dec. at 316.

Thus the BIA is blatantly ignoring the rule that the court must follow the law of the circuit in which the case arose. Matter of Anselmo, 20 I. & N. Dec. 25 (BIA 1989). While on the one hand suggesting that it is following Alaka (see, e.g., Babaisakov, n.8), the decision concludes with the following: "We leave for another day any questions that may arise with respect to circuit law that may be in tension with this decision, as we ordinarily follow circuit law in cases arising within a particular circuit and the grounds for any departure would need to be developed in the context of specific cases." Matter of Babaisakov, supra, 24 I. & N. Dec. at 322 (emphasis supplied). Apparently the BIA no longer feels it needs follow the law of the circuit courts.

The only basis on which this case might not be overruled is the fact that the criminal trial judge "affirmatively adopted" the PSR without change, thus arguably making the PSR an explicit factual finding by the trial judge, and so any discussion of abandoning the categorical analysis or allowing examination of any admissible evidence could be read as dictum. Only the First Circuit has suggested an analysis similar to that presented in this case. See Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006).

AGGRAVATED FELONY - FRAUD OFFENSE -- LOSS TO VICTIM
De Vega v. Gonzales, __ F.3d __, 2007 WL 2696489 (1st Cir. Sept. 17, 2007) (Massachusetts conviction of larceny of property valued at more than $250.00 and false representations to the Department of Public Welfare in order to secure support, based on noncitizen's admission of sufficient facts to warrant a finding of guilt [even though the court did not make an actual finding of guilt], and restitution in excess of $10,000 was ordered by the court, constituted fraud offense aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i) where IJ properly inferred actual loss to the victim in excess of $10,000).

Note: Defendant was charged with one count of larceny in excess of $250.00, and one count of making false representations to the department of welfare in order to secure support. "The IJ noted that the restitution was technically imposed in response to the larceny charge, which the IJ found not to be an aggravated felony, but held that the distinction was immaterial because the two charges were coterminous in terms of the dates of occurrence on the complaint form and the sentence imposed relate[d] clearly to both counts." Id. at *4. The First Circuit found the IJ could properly infer from the record that the two charges were part of a single scheme of criminal misconduct, and therefore the restitution amount reflected the loss of both the larceny and the fraud jointly.

This decision improperly attributes a restitution order related to a conviction of larceny, rather than fraud, to a dismissed fraud offense, to find an aggravated felony. The restitution order was not based on a "conviction" of a fraud offense, but rather a theft offense. Therefore, this larceny conviction did not properly constitute a fraud aggravated felony.

AGGRAVATED FELONY - FRAUD - LOSS TO THE VICTIM
Martinez v. Mukasey, ___ F.3d ___, 2007 WL 3358397 (5th Cir. Nov. 14, 2007) (per curiam) (where the indictment charges a loss in excess of $1,500, and the plea agreement indicates $11,000 in restitution, the amount of restitution may be used to determine loss to the victim, since charge and restitution amount are not inconsistent).

Second Circuit

AGGRAVATED FELONY - FRAUD - LOSS TO THE VICTIM - RESITUTION
Dulal-Whiteway v. US Dep't of Homeland Sec., 501 F.3d 116 (2d Cir. Sept. 19, 2007) (neither a PSR, nor a statement of restitution, are included in the record of conviction; "Though the Shepard Court did not address the issue of a restitution order, its logic clearly excludes such a document [from the record of conviction]. The restitution set by a judge is based on a loss amount established by a preponderance of the evidence and need not be tied to the facts admitted by a defendant's plea. See 18 U.S.C. 1664(e) (Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence.); United States v. Reifler, 446 F.3d 65, 118 (2d Cir. 2006) (rejecting defendants' contentions that the orders requiring them to make restitution for loss amounts not admitted in their plea allocutions violated their rights under the Sixth Amendment as enunciated in [United States v.] Booker, [543 U.S. 220 (2005) ], because the principle that jury findings, or admissions by the defendant, establish the maximum authorized punishment has no application to MVRA orders of restitution). In other words, the amount of restitution is not constrained by facts on which the plea necessarily rested."; "the BIA may rely only upon facts actually and necessarily found beyond a reasonable doubt by a jury or judge in order to establish the elements of the offense, as indicated by a charging document or jury instructions. For convictions following a plea, the BIA may rely only upon facts to which a defendant actually and necessarily pleaded in order to establish the elements of the offense, as indicated by a charging document, written plea agreement, or plea colloquy transcript."), disagreeing with Conteh v. Gonzales, 461 F.3d 45 (1st Cir.2006).

Third Circuit

AGGRAVATED FELONY " FRAUD OR DECEIT " LOSS TO THE VICTIM
Singh v. Att'y General, 677 F.3d 503 (3d Cir. Apr. 16, 2012) (federal conviction of knowingly making a false statement under penalty of perjury in a bankruptcy proceeding in violation of 18 U.S.C. 152(3), did not trigger removal-deportation as an aggravated felony fraud conviction, because government failed to show that actual loss to the victim exceeded $10,000.00). NOTE: This case agrees with Pierre v. Holder 588 F.3d 767 (2d Cir. 2009), in finding that to be a fraud or deceit aggravated felony, there must be a actual loss, rather than merely an intended or attempted a loss, in excess of $10,000. The court suggests, however, that the government should have charged the respondent under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), to capture intended loss.

AGGRAVATED FELONY " FRAUD OR DECEIT " LOSS TO THE VICTIM " RESTITUTION ORDER
Singh v. Att'y General, 677 F.3d 503 (3d Cir. Apr. 16, 2012) (rejecting Government argument that $54,000 restitution order proved actual loss in excess of $10,000; "First, its reliance on the MVRA ["Mandatory Victims Restitution Act"] is misplaced because the record shows that the sentencing court issued restitution pursuant to an express agreement by the parties, not the MVRA. Second, the law governing restitution issued pursuant to a party agreement shows that such orders are not limited to actual losses from the offense of conviction. Third, even if the court's restitution order reflected a judicial finding of loss, Nijhawan and our own precedent make clear that we need not take the order at face value for removal purposes, particularly when, as here, it conflicts with undisputed facts in the sentencing material.").

AGGRAVATED FELONY " FRAUD OFFENSE " LOSS TO THE VICTIM
Doe v. Attorney General, 659 F.3d 266 (3d Cir. Sept. 8, 2011) (in evaluating the amount of loss to the victim in excess of $10,000, necessary to establish an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), a court must limit itself to consideration of the loss tethered to the alien's specific offense of conviction.); see Alaka v. Att'y Gen., 456 F.3d 88, 106 (3d Cir.2006) (it was legal error for the IJ to consider the amount of intended loss for all of the charges rather than the single count for which she was convicted.); Nijhawan v. Holder, """ U.S. """", 129 S.Ct. 2294, 2303, 174 L.Ed.2d 22 (2009).

AGGRAVATED FELONY " FRAUD OFFENSE " LOSS TO THE VICTIM
Doe v. Attorney General, 659 F.3d 266 (3d Cir. Sept. 8, 2011) (Rodov pled guilty not to a single fraudulent transaction but to aiding and abetting the whole of a large-scale criminal endeavor, so the record established the loss from the offense of conviction was in excess of $10,000, sufficient to establish that the offense was an aggravated felony fraud offense under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i)); see Khalayleh v. INS, 287 F.3d 978, 980 (10th Cir. 2002) (Count Two of the indictment did not allege a discrete fraud involving only the $9,308 check. It alleged a scheme to defraud that encompassed a number of checks.... The offense of conviction was the entire scheme charged in Count Two of the indictment. Hence, the loss to be measured is the loss resulting from that scheme.).

AGGRAVATED FELONY - FRAUD - SECURITIES FRAUD WITHHOLDING OF REMOVAL - PARTICULARLY SERIOUS CRIME
Kaplun v. Holder, 602 F.3d 260 (3d Cir. Apr. 9, 2010) (federal conviction for violation of 15 U.S.C. 77q, 77x, securities fraud, is an aggravated felony fraud offense under INA 101(a)(43)(M)(i), where PSR, to which defendant entered no objection, indicated a loss in excess of $10,000; BIA did not err in finding securities fraud with a loss between $700,000-900,000 was a particularly serious crime for purposes of withholding of removal).

AGGRAVATED FELONY - FRAUD OFFENSE - LOSS OVER $10,000
Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. May 2, 2008) (federal conviction of conspiracy to commit bank fraud, in violation of 18 U.S.C. 371, constituted a fraud offense aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), despite an argument the jury did not find any loss amount over $10,000, since noncitizen stipulated in criminal court for sentencing purposes the loss to the victims was in excess of $100 million, affirming BIA holding that loss was not a necessary element of the offense since it "was used as a qualifier, in a way similar to length of sentence provisions in other aggravated felony subsections."; "taken together, the indictment, judgment of conviction, and stipulation provide clear and convincing evidence that the requisite loss was tied to Nijhawans offense of conviction"), citing Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004).

AGGRAVATED FELONY - FRAUD - LOSS TO THE VICTIM
Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. May 2, 2008) (rejecting argument that loss must be established beyond a reasonable doubt by criminal court: "we should not raise an aspect of an immigration statute to the level of an element of a criminal offense, as the dissent urges, merely because requiring that it be a part of the conviction eases a courts decision-making process.")

Fourth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - MALICIOUS BURNING OF PROPERTY CONSTITUTES CRIME OF VIOLENCE
Mbea v. Gonzales, ___ F.3d ___, 2007 WL 852346 (4th Cir. March 22, 2007) (District of Columbia conviction of malicious burning of property, in violation of D.C.Code 22-401 (1994) [current version at D.C.Code Ann. 22-301 (2000)], with an indeterminate sentence from 18 months to five years imprisonment, constitutes a crime of violence, under 18 U.S.C. 16(a), and therefore an aggravated felony which renders him statutorily ineligible for cancellation of removal under INA 240(A)(a) and for a hardship waiver under INA 212(h)(1)(B), since: "Fire is itself a physical force. Indeed, the Oxford English Dictionary defines "physical force" as, inter alia, "an influence acting within the physical world, a force of nature." See Oxford English Dictionary (2003). Fire is nothing if not a "force of nature" that exerts an influence "within the physical world." For fire not only has the power to provide warmth and light, but also the power to destroy."); see United States v. Mitchell, 23 F.3d 1, 2 n.3 (1st Cir. 1994) (per curiam) (holding that federal arson as set forth in 18 U.S.C. 844(i) is a "crime of violence" under 18 U.S.C. 3156(a)(4)); United States v. Marzullo, 780 F.Supp. 658, 662 & n. 7 (W.D.Mo. 1991) (same); United States v. Shaker, 665 F.Supp. 698, 702 n. 4 (N.D.Ind. 1987) (same). http://caselaw.lp.findlaw.com/data2/circs/4th/051204p.pdf

Fifth Circuit

AGGRAVATED FELONY " MONEY LAUNDERING " LOSS TO VICTIM " PRESENTENCE REPORT
United States v. Mendoza, ___ F.3d ___, 2015 WL 1591244 (5th Cir. Apr. 9, 2015) (information in presentence investigation report was sufficient to prove conviction was money-laundering aggravated felony, under INA 101(a)(43)(D), 8 U.S.C. 1101(a)(43)(D), for illegal re-entry sentencing purposes, because the $10,000 requirement for the amount of funds laundered is a circumstance-specific element of the aggravated felony definition, which could be proven by evidence outside the elements of the offense and outside the traditional record of conviction); see United States v. Alaniz, 726 F.3d 586, 619 (5th Cir.2013) (Generally, a PSR bears sufficient indicia of reliability to permit the sentencing court to rely on it at sentencing. In the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it. (internal alterations and quotation marks omitted)).

Seventh Circuit

AGGRAVATED FELONY - FRAUD OFFENSE - THEFT OF FINANCIAL IDENTITY - LOSS - WHETHER INTENDED LOSS IS SUFFICIENT
Eke v. Mukasey, 512 F.3d 372 (7th Cir. Jan. 7, 2008) (Illinois conviction of identity theft, under 720 ILCS 5/16G-15(a) (using another person's identity information "to fraudulently obtain credit, money, goods, services, or other property."), probably constituted an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), for purposes of supporting an expedited removal order under INA 238(b), 8 U.S.C. 1228(b)), since an intended loss in excess of $10,000 was sufficient, as opposed to an actual loss: "For what it is worth, we think that Judge Wallace, who argued that intended loss could be considered for subsection (M), had the better of the exchange.") (dictum)), citing Kharana v. Gonzales, 487 F.3d 1280, 1282 n.3 (9th Cir. 2007) (dictum); but see id. at 1286 (Wallace, J., concurring).

AGGRAVATED FELONY - FRAUD OFFENSE - LOSS - INTENDED LOSS - ANALOGY TO GUIDELINES RULE
Eke v. Mukasey, 512 F.3d 372 (7th Cir. Jan. 7, 2008) ("Furthermore, reading subsection (M) to include intended loss is consistent with the way that loss is defined for purposes of the sentencing guidelines. This court has held that the guidelines call for the use of intended loss in fraud cases, where intended loss is greater than actual loss. United States v. Saunders, 129 F.3d 925, 932 (7th Cir.1997). Indeed, an unused line of credit is generally viewed as an intended loss. See, e.g., United States v. Mei, 315 F.3d 788, 792 (7th Cir.1993) ("[I]n determining an intended loss courts focus on the amount that the scheme placed at risk, not the amount of money or property stolen."); United States v. Lin, 410 F.3d 1187, 1191-93 (10th Cir.2005) (estimating intended loss in credit card fraud by aggregating the limits on the unused credit cards); United States v. Sowels, 998 F.2d 249, 251 (5th Cir.1993) (calculating loss from credit card fraud as the aggregated credit limits of the cards).").

Eighth Circuit

AGGRAVATED FELONY - FRAUD OFFENSE - LOSS TO VICTIM
Tian v. Holder, 576 F.3d 890 (8th Cir. Aug. 19, 2009) (loss to the victim determination must be tied to the count of conviction, and cannot include loss arising from dismissed counts).

AGGRAVATED FELONY - FRAUD OFFENSE - LOSS AMOUNT - INVESTIGATIVE COSTS INCURRED BY VICTIM CONSTITUTE LEGITIMATE LOSS TO VICTIM
Tian v. Holder, 576 F.3d 890 (8th Cir. Aug. 19, 2009) (federal conviction of unauthorized access to a computer, in violation of 18 U.S.C. 1030(a)(4), qualifies as a fraud or deceit aggravated felony, because the victim's investigative costs to determine whether defendant caused any damage constitute a legitimate loss factor), following Nijhawan v. Holder, 557 U.S. __, 129 S.Ct. 2294 (2009) (fraud offense aggravated felony statute, INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i) "calls for a circumstance-specific, not a categorical, interpretation" so the $10,000 threshold "applies to the specific circumstances surrounding an offender's commission of a fraud and deceit crime on a specific occasion.").

NOTE: The defendant conceded at sentencing that the investigative costs were directly related to the count of conviction. However, the court stated that even assuming that was not the case, the defendant had not identified any evidence that showed otherwise. This is arguably an impermissible shift of burden.

AGGRAVATED FELONY - FRAUD OFFENSES - UNAUTHORIZED ACCESS TO COMPUTER
Tian v. Holder, 576 F.3d 890, 895 (8th Cir. Aug. 19, 2009) (federal conviction of unauthorized access to a computer, in violation of 18 U.S.C. 1030(a)(4), qualifies as a fraud or deceit aggravated felony under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), because respondent conceded as much; thus, the question whether this conviction qualified as such was not presented to the court of appeal).

AGGRAVATED FELONY - FRAUD OFFENSES - LOSS AMOUNT INCLUDES INVESTIGATIVE COSTS
Tian v. Holder, 576 F.3d 890, 895-896 (8th Cir. Aug. 19, 2009) ("Both the IJ and the BIA made clear that their findings concerning the amount of the loss were premised on the investigative costs incurred by Parametric. The IJ specifically noted that at a minimum, the investigative costs incurred by [Parametric], in the amount of $29,800, are properly considered a loss to the victim[ ]. And the BIA reasoned that because the investigative costs alone, incurred by [Parametric], are more than $10,000, and these costs were incurred because of [Tian's] unauthorized computer use, ... [Tian's] crime constitutes an aggravated felony.").

Ninth Circuit

AGGRAVATED FELONY " FRAUD OFFENSES " LOSS AMOUNT " CANNOT INCLUDE LOSSES INCURRED PRIOR TO MOMENT DEFENDANT JOINED THE CONSPIRACY
United States v. Rice, ___ F.3d ___, 2015 WL 265459 (9th Cir. Jan. 22, 2015) (reversing sentence for conspiracy to commit money laundering offense, in violation of 18 U.S.C. 1956(a)(3)(A), since district court improperly based the sentence and restitution order on a loss amount that included money laundered before the defendant joined the conspiracy).

AGGRAVATED FELONY " FRAUD OFFENSES " LOSS AMOUNT " MEDICARE PRESUMPTIVE LOSS AMOUNT
United States v. Popov, 742 F.3d 911 (9th Cir. Feb. 11, 2014) (in federal health care fraud prosecutions, the amount billed to an insurer constitutes sufficient evidence to establish the intended loss by a preponderance of the evidence, if not rebutted).

AGGRAVATED FELONY " FRAUD " LOSS REQUIREMENT " FEDERAL RESTITUTION
United States v. Meredith, 685 F.3d 814 (9th Cir. Jun. 26, 2012) ([W]e have held that restitution orders can include losses caused by related conduct for which the defendant was not convicted.); citing United States v. Brock"Davis, 504 F.3d 991, 998"99 (9th Cir. 2007).

SENTENCE " FEDERAL " RESTITUTION AGGRAVATED FELONY " FRAUD OFFENSES " LOSS AMOUNT " RESTITUTION
SENTENCE " FEDERAL " RESTITUTION AGGRAVATED FELONY " FRAUD OFFENSES " LOSS AMOUNT " RESTITUTION United States v. Tsosie, ___ F.3d ___, 2011 WL 1758785 (9th Cir. May 10, 2011) (vacating district courts judgment ordering restitution for expenses incurred by victim's mother in case involving abusive sexual contact in violation of 18 U.S.C. 2244(a)(1), as the award was issued in violation of the procedural and evidentiary requirements of 18 U.S.C. 3664).

AGGRAVATED FELONY - FRAUD OFFENSES
United States v. Batson, 608 F.3d 630 (9th Cir. Jun. 21, 2010) (under federal law, 18 U.S.C. 3663(a)(1)(A), restitution ordered by the court must relate only to the offense of conviction when that offense does not involve an element of a scheme, conspiracy, or pattern of criminal activity), following Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990).

AGGRAVATED FELONY - FRAUD OFFENSES - FALSE STATEMENT
Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. Jul. 1, 2008) (per curiam) (federal conviction for subscribing to a false statement on a tax return, in violation of 26 U.S.C. 7206(1), with plea agreement stipulating that the "total actual tax loss" for the purpose of determining his offense level under the Sentencing Guidelines was $245,126, did not categorically constitute a fraud aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), since the statute of conviction is entirely missing an element requiring proof of a monetary loss in excess of $10,000; the court may not consult the record of conviction because the statute is not divisible), following Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc) (when the crime of conviction is missing an element of the generic crime altogether, we can never find that "a jury was actually required to find all the elements of" the generic crime.").

AGGRAVATED FELONY - FRAUD OFFENSES - FALSE STATEMENT
Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. Jul. 1, 2008) (per curiam) (federal conviction for aiding and assisting in the preparation of a false tax return qualify as "aggravated felonies" return, in violation of 26 U.S.C. 7206(2), did not categorically constitute a fraud aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), since the statute of conviction is entirely missing an element requiring proof of a monetary loss in excess of $10,000; the court may not consult the record of conviction because the statute is not divisible), following Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc) (when the crime of conviction is missing an element of the generic crime altogether, we can never find that "a jury was actually required to find all the elements of" the generic crime.").

AGGRAVATED FELONY - FRAUD OFFENSE - TAX OFFENSE NOT LISTED IN (M)(ii) CAN CONSTITUTE FRAUD OFFENSE AGGRAVATED FELONY UNDER (M)(i)
Kawashima v. Gonzales, ___ F.3d ___, 2007 WL 2702330 (9th Cir. Sept. 18, 2007) (federal conviction for subscribing to a false statement on a tax return, in violation of 26 U.S.C. 7206(1), qualifies as an "aggravated felony" under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), despite argument that (M)(i) is inapplicable in this case, reasoning that (M)(ii)'s specific reference to 7201 indicates Congress's intent to exclude all federal tax offenses from the definition of aggravated felonies under the more general subsection (M)(i)).

AGGRAVATED FELONIES - TAX OFFENSES - CONVICTIONS OF VIOLATING STATUTES OTHER THAN 26 U.S.C. 7201 CANNOT CONSTITUTE TAX OFFENSE AGGRAVATED FELONIES UNDER INA 101(a)(43)(M)(ii)
Kawashima v. Gonzales, ___ F.3d ___, ___, n.3, 2007 WL 2702330 (9th Cir. Sept. 18, 2007) (federal convictions for subscribing to a false statement on a tax return, in violation of 26 U.S.C. 7206(1), and aiding and abetting in the preparation of a false tax return, in violation of 26 U.S.C. 7206(2), cannot qualify as an "aggravated felony" under INA 101(a)(43)(M)(ii), 8 U.S.C. 1101(a)(43)(M)(ii), because that provision is limited to tax offenses in violation of 7201); following United States v. Roselli, 366 F.3d 58, 62 n.5 (1st Cir. 2004).

AGGRAVATED FELONY - FRAUD OFFENSE - LOSS - DEFENDANT WHO PAYS LOSS DOWN UNDER $10,000 HAS NOT AVOIDED A LOSS AMOUNT SUFFICIENT TO CONSTITUTE AN AGGRAVATED FELONY
Kharana v. Gonzales, 487 F.3d 1280 (9th Cir. May 29, 2007) (noncitizen who pleads guilty to fraud in misappropriating more than $10,000 but later repays the entire loss, so the victims have been made whole, has not "paid down" the "loss to the victims" below the statutory threshold so that her offense no longer qualifies as an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i)).

Lower Courts of Ninth Circuit

AGGRAVATED FELONY - FRAUD OFFENSES - LOSS - CALIFORNIA RESTITUTION CANNOT COMPENSATE VICTIM FOR PAIN AND SUFFERING
In re Imran Q., 57 Cal.Rptr.3d 233, Previously published at: 149 Cal.App.4th 581, (April 9, 2007) No. B188613 (reversing order that defendant pay close to $18,000 in restitution for injuring the victim in a hit and run, where trial court failed to recognize that some portion of the victim's civil settlement with defendant likely included compensation for the victim's pain and suffering, and the record does not show the parties or court attempted to allocate the settlement between economic damages supporting restitution and pain and suffering, which do not support restitution).

Tenth Circuit

AGGRAVATED FELONY - FRAUD OFFENSES - LOSS TO THE VICTIM - SENTENCE RELATED MATERIAL
Hamilton v. Holder, 584 F.3d 1284 (10th Cir. Oct. 27, 2009) (Immigration Judge properly examined sentencing-related material to determine the amount of loss to the victim for aggravated felony fraud purposes).

Eleventh Circuit

AGGRAVATED FELONY - FRAUD OFFENSE - LOSS TO THE VICTIM - RESTITUTION ORDER BASED ON CONDUCT NOT CHARGED, PROVEN, OR ADMITTED, AND WHICH WAS ISSUED BY THE CRIMINAL COURT UNDER A LOWER PREPONDERANCE STANDARD OF PROOF, WAS STANDING ALONE AN INSUFFICIENT BASIS TO SUPPORT AN IMMIGRATION JUDGE'S FINDING OF LOSS TO THE VICTIM IN EXCESS OF $10,000
Obasohan v. U.S. Attorney General, ___ F.3d ___, 2007 WL 548359 (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).

AGGRAVATED FELONY - FRAUD OFFENSE - LOSS TO THE VICTIM - RESTITUTION ORDER BASED ON CONDUCT NOT CHARGED, PROVEN, OR ADMITTED, AND WHICH WAS ISSUED BY THE CRIMINAL COURT UNDER A LOWER PREPONDERANCE STANDARD OF PROOF, WAS STANDING ALONE AN INSUFFICIENT BASIS TO SUPPORT AN IMMIGRATION JUDGE'S FINDING OF LOSS TO THE VICTIM IN EXCESS OF $10,000
Obasohan v. U.S. Attorney General, ___ F.3d ___, 2007 WL 548359 (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).

Other

CAL CRIM DEF " AGGRAVATED FELONY " FRAUD " MATERIALITY REQUIREMENT " PRACTICE ADVISORY
Based on the Supreme Court's definition of fraud and deceit in Kawashima v. Holder, 132 S.Ct. 1166 (Feb. 21, 2012), there is a reasonably good argument that conviction of any false statement offense that lacks materiality of a false statement as an essential element does not constitute a fraud or deceit aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i). Kawashima, supra, at ___ (We conclude that Mrs. Kawashima's conviction establishes that, by knowingly and willfully assisting her husband's filing of a materially false tax return, Mrs. Kawashima also committed a felony that involved deceit.)(emphasis added). California Penal Code 550(a) (false financial statements on an insurance claim) does not have an express statutory materiality requirement, but simply requires a false or fraudulent claim. Thanks to Dan Kesselbrenner. Cal Crim Def 13.1,

AGGRAVATED FELONY - FRAUD OFFENSES - LOSS AMOUNT - INTENDED LOSS - GUIDELINES ARGUMENT THAT FAIR MARKET VALUE OF ANY SECURITY MUST BE DEDUCTED IN COMPUTING INTENDED LOSS
The U.S. Sentencing Guidelines provide special rules for calculating mortgage fraud loss. In any case in which the loss results from a secured loan, the fair market value of the security is deducted from the loss. In essence, for secured loan cases, the Guidelines recognize that where there is a security, the defendant cannot have "intended" a loss without regard to the value of the security. See USSG 2B1.1, Application Note 3(E). The same argument could be made with respect to calculating the amount of intended loss in aggravated felony fraud cases under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i).

AGGRAVATED FELONY - FRAUD OFFENSES - LOSS TO THE VICTIM
Evan Jenness, Gaining the Upper Hand in Arguing Loss in Securities Fraud Cases, The Champion (Nat'l Ass'n of Crim. Defense Lawyers); http://www.jennesslaw.com/images/Gaining_the_Upper_Hand_in_Arguing_Loss_in_Securities_Fraud_Cases_-_The_Champion.pdf. (the government must prove a causal connection between the clients conduct and "loss" under the USSG, and that "loss" should be reduced for factors not proximately caused by, or reasonably foreseeable to, the client -- like market swings); see, e.g., United States v. Crandall, 525 F.3d 907, 912 (9th Cir. 2008) (court commented on the "volatile nature of the real estate market," which it characterized as "wholly independent of Defendants culpability."); United States v. Rutkoske, 506 F.3d 170 (2d Cir. 2007) (court must consider factors other than fraud that might have contributed to stock price decline when determining loss), cert. denied, 128 S. Ct. 2488 (2008); United States v. Olis, 429 F.3d 540, 545 (5th Cir. 2005) (defendant responsible only for losses caused directly by offense conduct); cf. United States v. Nacchio, 573 F.3d 1062 (10th Cir. 2009)(considering "gain" for purposes of insider trading sentencing under former USSG 2F1.2, and discussing how to disentangle what is caused by wrongdoing from what is not).

BIBLIO " AGGRAVATED FELONY " FRAUD OFFENSES " LOSS OVER $10,000
Ellis, Steer, & Allenbaugh, At a Loss for Justice: Federal Sentencing for Economic Offenses, American Bar Association, CRIMINAL JUSTICE Magazine, http://bit.ly/ktJJj2