Aggravated Felonies

(F)  Relationship with Other Aggravated Felony Categories.  There are occasions where a single conviction may fall within more than one section of the aggravated felony definition.  If a conviction for perjury[437] or theft,[438] for example, involved an act of fraud or deceit, and there was a loss of $10,000, the DHS might charge the perjury conviction under the fraud or deceit ground even if the sentence imposed was less than one year.  However, because the courts may not look beyond the record of conviction to establish the elements of the offense, see § 4.16, supra, counsel may be able to protect a defendant with a conviction of theft with a loss in excess of $10,000, but no one-year sentence imposed, by ensuring that the record of conviction does not establish that the offense “involve[d]” fraud or deceit.

Counsel may also argue that if a conviction falls within two aggravated felony categories, the requirements of both must be met to trigger removal.  The Third Circuit has held that a conviction that fell within both the theft offense and fraud offense categories must meet both the one year sentence imposed requirement of the theft category, and the loss in excess of $10,000 requirement of the fraud category, before it will trigger deportation as an aggravated felony.[439]  The court reasoned that when an offense is both an aggravated felony theft offense and an offense involving fraud or deceit (“a hybrid offense”), the term “theft offense” INA § 101(a)(43)(G) becomes a sub-class of the term any “offense” in INA § 101(a)(43)(M)(i).  Imagine a diagram with (M)(i) (any offense) as the outer circle and (G) (any offense that involves theft) as the inner circle.  Since everything in the inner circle must have all the characteristics of the outer circle, all such hybrid offenses must both be punishable by at least one year in prison, and the victim must have suffered a loss of at least $10,000 or more. Where the $10,000 requirement (part of the bigger circle) is not met, the offense cannot be an aggravated felony.  This argument could be applied to other aggravated felony categories as well.

[437] INA § 101(a)(S), 8 U.S.C. § 1101(a)(S).

[438] INA § 101(a)(G), 8 U.S.C. § 1101(a)(G).

[439] Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. May 7, 2004) (Pennsylvania conviction of theft by deception, in violation of 18 Pa. Cons. Stat. Ann. § 3922(a), with an indeterminate sentence from a minimum of six months to a maximum of 23 months, does not trigger removal as an aggravated felony fraud conviction, since the loss to the victim was under $10,000, and because it is a hybrid offense, as a theft offense as well as a fraud offense, it must qualify as an aggravated felony under both categories or it does not trigger removal).