CRIMINAL AND IMMIGRATION CONSEQUENCES OF FRAUD OR OFFENSES 

By Roman P. Mosqueda, Esq. 

            Federal and state criminal fraud or deceit statutes such as mail fraud (18 U.S.C. 1341) or false statement (18 U.S.C. 1001) or embezzlement (§ 503, C.A. Penal Code) are often broadly written and cover a broad range of conduct.

            Thus, a single pattern of offense conduct may be prosecuted under several code sections.  The prosecutor decides which code section to use in the complaint or indictment.

            The felony offense of mail fraud carries a maximum of five years imprisonment, three years of supervised release, $250,000 fine and $100 special assessment.  And the felony offense of false statement also carries the same penalty, fine and special assessment.

            Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted, as defined by Section 503 of the California Penal Code. It is punishable in the manner prescribed for theft of property of the value or kind embezzled, by Section 514 of the California Penal Code.

            For grand theft, when the money, labor or property taken exceeds four hundred dollars ($400) in value, the penalty is imprisonment in a county jail not exceeding one year or in state prison.  And for petty theft in other cases, the penalty is fine not exceeding one thousand dollars ($1,000), or imprisonment in the county jail not exceeding six months, or both.           

Fraud Offenses As Aggravated Felonies: 

            Under Section 101(a)(43)(M) of the Immigration and Nationality Act, an offense that: involves fraud or deceit in which loss to the victim or victims exceeds $10,000, or involves tax evasion in which the revenue loss to the Government exceeds $10,000, is an aggravated felony.

            In a case of the author in which a Thai importer was charged with receiving, transporting, and selling goods imported contrary to law, in violation of the second paragraph of 18 U.S.C. 545, Chief Judge Consuelo B. Marshall of the United States District Court, Central District of California, in Los Angeles, rejected the recommendation of the U.S. Probation Officer, agreed with the author, and used the Tax Table, instead of the Theft Table, in sentencing the defendant to informal probation for three years, no imprisonment, fine of $15,551 and $100 of special assessment.

            In using the Tax Table, the loss of tax to, or duty evaded from, the Government was less than $10,000, computed at 25 percent of the fair market value of the goods imported contrary to law.  If the Theft Table were used, the loss to the Government exceeded $10,000, thereby making the offense an aggravated felony, even though no jail time was imposed.

            It is also important to note that the amount of fine is not the amount of loss to the victims(s).  The amount of restitution to the victim is usually the amount of loss to the victim.

            In federal crimes, the sentencing Judge is strictly bound by the Sentencing Guidelines provided by the Sentencing Reform Act and established by the United States Sentencing Commission.  State Judges have more leeway in sentencing according to the California Penal Code.

            But whether under federal or state penal codes, offenses that involve fraud or deceit or tax or duty evasion, in which loss to the victim or victims exceed $10,000, are classified as aggravated felonies under federal immigration law. 

Immigration Consequences of Aggravated Felonies: 

            An alien, including a lawful permanent resident, convicted of an aggravated felony is removable (deportable) from the United States. After service of jail time, the U.S. Citizenship and Immigration Services issues and serves the alien with a Notice To Appear, which places him/her in removal proceedings with the Immigration Court, and usually holds him/her in detention.

            There is no relief of cancellation of removal even for lawful permanent residents who are convicted of an aggravated felony. His/her only available relief is withholding of removal and/or protection under the United Nations Convention Against Torture.

            The alien has to prove that, more likely than not, he/she would be persecuted, if he/she were returned to his/her home country, to be eligible for withholding of removal; or that he/she would, more likely than not, be tortured, to be eligible for protection under the Convention Against Torture.

            It cannot be overemphasized that a naturalized United States citizen cannot be removed or deported from the United States.  And the vote of a citizen is the basic form of political empowerment.