Aggravated Felonies
§ 5.56 2. Loss to the Victim(s)
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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.[440] Money laundering is also an aggravated felony if the amount of funds laundered exceeds $10,000.[441] See § 5.60 (money laundering), 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 restitution voluntarily, in order to have a lower sum reflected on the record.
The courts are not allowed to go beyond the record of conviction to determine the amount of loss. 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 § 4.6, supra.
[440] INA § 101(a)(43)(M), 8 U.S.C. § 1101(a)(43)(M).
[441] INA § 101(a)(43)(D), 8 U.S.C. § 1101(a)(43)(D).
