One of the biggest challenges for immigration to the US is a conviction for “aggravated felony”. An aggravated felony is a term of art created by Congress that guarantees deportation and prevents the usage of most immigration defenses. For example, under 8 U.S.C. § 1227(a)(2)(A)(iii), any alien who is convicted of an aggravated felony at any time after admission is deportable. A list of aggravated felonies is provided in US code and sometimes often explained by case law.
8 USC 1001 defines many immigration terms including part (43) which defines “aggravated felony” to include:
(A) murder, rape, or sexual abuse of a minor;
(B) illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18);
(D) an offense described in section 1956 of title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;
(F) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment at 5 least one year;
(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at 5 least one year;
(J) an offense described in section 1962 of title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;
(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18;
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or
(N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter 6
(O) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;
(P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter;
(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;
(T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and
(U) an attempt or conspiracy to commit an offense described in this paragraph.
As you see above in (M), under Federal Law 8 U.S.C. § 1101(a)(43)(M)(i) (“Subsection (M)(i)”). Subsection (M)(i) provides that an “aggravated felony,” for purposes of deportation, includes a conviction for “an offense that (i) involves fraud or deceit in which the loss to the victim exceeds $10,000.”
HOW TO AVOID AGGRAVATED FELONY
The way to avoid deportation is because of a criminal conviction where the loss to the victim is more than $10,000. Under Federal law, a theft conviction with a loss of less than 365 days and a loss of over $10,000 is an aggravated felony. But there is no need to admit to a loss over $10,000 even when there is a loss over $10,000.00. First, a theft conviction will not qualify as an aggravated felony. However, when a conviction involves crimes such as credit card fraud, it is important to avoid a loss of $10,000 because deportation for a crime involving fraud/deceit is mandatory when the loss is over $10,000.00. Yet, the loss cannot be based on dismissed counts. For illustration see: (Nijhawan v. Holder (2009) 557 U.S. 29, 42 [129 S.Ct. 2294, 2303] which states that
[loss amount must be tethered to the offense of conviction; the amount cannot be based on acquitted or
dismissed counts or general conduct]
In California, restitution can be based on dismissed counts under People v. Harvey (1979)
25 Cal.3d 754 (Harvey) which allows a “Harvey Waiver” that can base restitution on dismissed counts.
Thus to avoid deportation under a CIMT with a loss over $10,000 the defendant has to plead to count with a loss of less than $10,000 and give a “Harvey Waiver” for the dismissed counts so that restitution can be enforced through the Harvey Waiver in the amount of more than $10,000.
EXAMPLE: Defendant faces 2 counts of credit card fraud with count 1 against victim 1 with a loss of $9,000.00 and count 2 against victim 2 with a loss of $40,000. To avoid an aggravated felony, the defendant can agree to plead guilty to count 1 and through a plea negotiation get a dismissal of count 2. As a part of the settlement, the defendant has to give Harvey Waiver pursuant to People v. Harvey where the court can impose restitution payment for the dismissed count. The probation will be able to enforce the entire restitution amount of $49,000.00 because of the Harvey Waiver, however, the defendant will not face “aggravated felony” qualification in immigration court/USCIS because count 2 is dismissed, making the loss under Nijhawan v. Holder to be under $10,000.
Please call Los Angeles Criminal Defense Attorney at 323-464-6424 to give you a case-specific answer.