Some courts in immigration cases assume that the amount of restitution ordered by the convicting criminal court is the same as the amount of loss to the victim for purposes of finding the noncitizen is an aggravated felon.  See § 7.82, infra.  An immigration judge may find, for example, that the restitution order alone proves that a conviction constitutes a fraud offense with a loss to the victim(s) in excess of $10,000.[164]  While this assumption may be correct in some cases, the amount of restitution is not always indicative of the actual loss to the victim as the result of a conviction.  In one case, for example, a loss to the victim of $10,000 or more was found despite the fact that the restitution order was for less than that amount.[165]  Arguably, absent other proof of the loss, the restitution amount should never be relied upon to determine the loss to the victim, because it would be impossible to tell whether, in that particular case, the restitution amount accurately reflects the loss to the victim.  This is true for a number of reasons:

First, the restitution amount may be a sum of the loss to all of multiple victims in a multiple-count judgement.  However, for aggravated felony purposes, the amount of loss to a victim is not in the aggregate, but is determined by the loss to the victim that results from an individual count.[166]

 

Second, even in a single count case, the restitution amount may be more than the total loss to the victim.  A “restitution” amount ordered by a criminal court may include more than just money to be paid to the actual victim of the crime, and may include other sundry fines, investigation costs, interest, and contributions to victim restitution funds.  Where the restitution ordered was just over $10,000, it is certainly possible that actual the loss to the victim was around $9,500, and the other $500 covers court costs and fines, or other non-loss items.

 

Third, restitution can be ordered in some jurisdictions for acquitted defenses.[167]  Therefore, restitution can be ordered for offenses other than the offense of conviction.  This gives rise to the argument that the amount of restitution ordered is not a valid reflection of the amount of loss flowing from the specific offense of conviction.  It would run counter to the law to allow deportation for a conviction on the basis of restitution ordered for offenses, especially acquitted offenses, other than the offense of conviction.

 

Fourth, there may be other, contrary, evidence available in the record of conviction that would show a different amount of loss, such as language in a plea agreement, or in the indictment itself.  In particular, where the plea agreement determines the amount of loss from the particular count of conviction, it governs and the conviction should not be considered an aggravated felony fraud offense even if the restitution ordered is in excess of the required amount.

 

The Ninth Circuit has stated that a finding of loss by a sentencing judge, applying a preponderance of the evidence standard, is insufficient by itself to demonstrate that the offense is an aggravated felony, since there is no evidence that the defendant was found to have caused such loss beyond a reasonable doubt, or that the defendant actually admitted to the loss.[168]  This same reasoning should apply to orders of restitution, which are based on findings also made by the sentencing judge, or even by the probation department.

[164] Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. Dec. 1, 2004) (California conviction of welfare fraud, in violation of Welf. & Inst. Code § 10980(c)(2), constitutes an offense involving fraud or deceit with a loss to the victim in excess of $10,000, for purposes of qualifying as an aggravated felony as defined under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) triggering deportation, where the plea agreement — part of the record of conviction — sets the amount of restitution at $22,305 and where the California courts are required under California Penal Code § 1202.04(f) to set restitution based on the loss to the victim).

[165] Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. Dec. 16, 2003) (New Jersey theft by deception, N.J.S.A. 2C: 20-4, held to be aggravated felony fraud conviction under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), for deportation purposes where actual loss to victim exceeded $10,000, even though sentencing judge reduced amount of restitution from $11,522 to $9,999, since critical fact is amount of loss, not restitution amount).

[166] Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (conviction of bank fraud for knowingly passing a $605.30 bad check held not to constitute an aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), as a conviction of an offense involving fraud for which the loss to the victim(s) exceeded $10,000, even though losses resulting from the entire scheme described in the PSR exceeded $30,000, since plea agreement specified loss from the count of conviction as $605.30).

[167] People v. Percelle, 126 Cal.App.4th 164 (Sixth Dist. 2005) (while defendant who was acquitted of an offense and was not granted probation could not be ordered to pay restitution for losses arising out of the offense of acquittal, the defendant could be ordered to pay restitution for acquitted offenses if probation had been granted).

[168] Li v. Ashcroft, 389 F.3d 892, 898 (9th Cir. November 19, 2004) (finding by sentencing judge does not satisfy categorical analysis requirement to show defendant was convicted of each element of the aggravated felony offense).

Ninth Circuit

AGGRAVATED FELONY - FRAUD - RESTITUTION - CALIFORNIA
"California law provides that a restitution order in favor of a government agency shall be calculated based on the actual loss to the agency." In considering a California welfare fraud conviction, the Ninth Circuit cited California Penal Code 1202.4(f) (providing that a victim of crime shall receive restitution directly from a defendant "in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court") and People v. Crow, 6 Cal.4th 952, 954-55, 26 Cal.Rptr.2d 1, 864 P.2d 80 (1993) for the proposition that under California law, a restitution order must equal the loss to the victim. Ferreira v Ashcroft, 390 F.3d 1091, 1099-1100 (9th Cir. 2004).      To be sure of avoiding an aggravated felony conviction, counsel should get a Chang v. I.N.S., 307 F.3d 1185 (9th Cir. 2002)-style written plea agreement to plead guilty to a count (say, one month of welfare) in which the loss to the victim is set at $10,000 or less. This distinguishes Ferreira so it is not completely on point, but leaves open the possibility that immigration or federal court would feel the second distinguishing feature identified by Ferreira - the assertion that under California law restitution equals loss to the victim -- would be sufficient to distinguish Changs result and find that the conviction is an aggravated felony. The following are initial suggestions.      (1) If a plea can be put off until the person pays back enough of the money so that the plea agreement can reflect a loss to the victim and restitution payment of under $10,000, the court would not order restitution in excess of $10,000, and the record of conviction would not establish the conviction as a fraud aggravated felony.      (2) Sometimes judges order restitution "in an amount as determined by probation." See California Penal Code 1202.4(f) ("If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court." See also People v. Lunsford, 67 Cal.App.4th 901 (1998) (restitution order directing agency to determine amount of restitution was enforceable, where proper amount of restitution could not be ascertained at time of sentencing.)  Defense counsel can insist that in return for a plea, the amount of restitution shall be determined by the probation officer. It is at least arguable that the subsequent determination by the probation officer would not be part of the "record of conviction" and not be reviewable in a subsequent immigration or federal proceeding.      (3) Except for a specific statute covering a specific type of fraud, many crimes involving fraud or deceit might possibly also be considered theft offenses in that someone is deprived of property. A plea to the first clause of California Penal Code 484 "... who shall feloniously steal, take, carry, lead, or drive away the personal property of another" does not have fraud or deceit as an element. If restitution was ordered in an amount exceeding $10,000, for a conviction based on the first clause of Penal Code 484, there would be no fraud aggravated felony, provided no sentence of one year or more was imposed.      (4) To avoid an aggravated felony for crimes of theft with a sentence imposed of one year or more, a defendant can plead to Penal Code 484 "in the exact language of the statute" or simply add a new count to the complaint to state merely "violation of Penal Code 484" without any other verbiage. Under United States v. Corona-Sanchez, 291 F.3d 1201, 1207-08 (9th Cir. 2002) (en banc), this would not be an aggravated felony even with a sentence imposed of one year or more because it is overbroad. To the extent that the charge to which a plea is entered alleges the separate clauses in the statute in the disjunctive, a defendant could even be ordered to pay restitution of $10,000 or more, and this would not be an aggravated felony.       (5) If a civil suit had been brought, a restitution order in a criminal case could provide that restitution would be paid according to the civil suit settlement.      Thanks to Kathy Brady and Michael Mehr for this analysis.