Safe Havens

 

(A)  Aggravated Felonies.  See § § 7.80-2, supra.

 

The statute includes as an aggravated felony “an offense that — (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000 . . . .”[139]  See also Fraud Against the Government, § 8.25, supra, and False Statement Offenses, § § 8.45, et seq., supra.

 

Second Circuit:

 

Sui v. INS, 250 F.3d 105 (2d Cir. May 11, 2001) (federal conviction of violating 18 U.S.C. § 513(a), possession of counterfeit securities with intent to deceive, does not constitute a deportable aggravated felony as a conviction of an offense involving fraud, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since the loss to the victims as a result of his actions did not exceed $10,000).

 

Third Circuit:

 

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) (West 1983 & Supp. 2000), 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 under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), 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).

When an offense is both an aggravated felony theft offense and an offense involving fraud or deceit (“a hybrid offense”), the term “theft offense”[140] becomes a sub-class of the term any “offense” in the fraud offense definition.[141]  Imagine a Venn 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.

Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. Jan. 23, 2002) (federal conviction for embezzling, in violation of 18 U.S.C. § 656, in excess of $400,000 in cash and checks from her employer (the First Union National Bank) was not a fraud offense aggravated felony as defined in section 8 U.S.C. § 1101(a)(43)(M)(i), for immigration purpose, since the offense could be committed with intent to defraud or injure).

 

Fifth Circuit:

 

United States v. Dabeit, 231 F.3d 979 (5th Cir. Oct.30, 2000), cert. denied, 531 U.S. 1202 (2001) (federal conviction for conspiracy to perpetrate a checking and savings account kite scheme, in violation of 18 U.S.C. § 2113(b), was an “aggravated felony,” under an attempted theft theory of INA § 101(a)(43)(G), (U), 8 U.S.C. § 1101(a)(43)(G), (U)(2000), so as to permit enhancement of the illegal re-entry sentence in defendant’s base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)).

 

Ninth Circuit:

 

Li v. Ashcroft, 389 F.3d 892 (9th Cir. November 19, 2004) (to prove aggravated felony fraud in which the loss to the victim exceeded $10,000, resulting from jury trial, DHS must show jury specifically found the requisite amount of loss).

United States v. Doe 374 F.3d 851 (9th Cir. July 06, 2004) (amount of restitution imposed must reflect the losses of identified victims).

United States v. Morgan, 376 F.3d 1002 (9th Cir. July 23, 2004) (district court erred in including interest and finance charges in calculation of total amount of loss for sentencing purposes).

 

United States v. Hickey, 367 F.3d 888 (9th Cir. April 30, 2004) (order of disgorgement of $1.1 million in civil action brought by SEC did not bar government from proceeding criminally against defendant, or from proving losses of more than $1.1 million).

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 presentence report exceeded $30,000, since plea agreement specified loss from the count of conviction as $605.30).

[139] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).  See N. Tooby, Aggravated Felonies § 5.31, Fraud (2003).

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

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