Safe Havens

(G)  Relationship to Other Grounds.  This plea also might be preferable to pleading to tax evasion or fraud against a government agency, since fraud is a moral turpitude offense.  It might possibly be a safe plea to a charge of deceit, fraud or tax evasion against the government where the loss to the victims(s) or government is $10,000 or more, a separate aggravated felony.[701]  Counsel still should be alert to the possibility that the immigration authorities will call this “deceit” or fraud and charge the person under the “fraud or deceit” aggravated felony ground.  In defense, counsel can assert the fact that one does not need an intent to defraud or even “deceive” to be convicted under 18 U.S.C. § 1001(a)(2), and therefore the person has not been convicted of an offense involving deceit or fraud. 

            Another argument is that Congress used specific offense titles with specific penalties to delineate specific aggravated felonies: fraud requires a loss to the victim of $10,000, while perjury requires a one-year sentence imposed.  The INS should not be allowed to mix and match these requirements to try to fashion a new aggravated felony — perjury with $10,000 loss, or fraud with one year sentence imposed — that was not specified by Congress, especially given that these statutes should be construed narrowly in view of deportation and other high stakes involved.[702]  One can argue the specifically tailored provision controls over the more general.

            However, given the loose definition of “deceit,” the lack of legal standards, and the unpredictability of courts, we do not know how successful these arguments will be, and counsel should take all measures possible to ensure the record of conviction does not establish that a loss of $10,000 was suffered.[703] 

            It is also possible to argue that if a conviction falls within two different grounds, it must meet the requirements of both before it can trigger deportation as an aggravated felony.  See § 7.81(B)(2), supra.

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

[702] See, e.g., Barber v. Gonzales, 347 U.S. 637, 642, 74 S.Ct. 822, 825 (1954); Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376 (1948) (“To construe this statutory provision less generously to the alien might find support in logic.  But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.”).  See § 5.25, supra.

[703] See K. Brady, California Criminal Law And Immigration § 9.14 (2004).