Fraud Loss Over $10,000: How Restitution Orders Decide Aggravated Felony Cases

Fraud and deceit offenses become aggravated felonies when the loss to the victim or victims exceeds $10,000. That single number often decides whether a white-collar plea is survivable for a noncitizen. The Board's September 2026 decision in Matter of A-V-O- shows how immigration judges read restitution orders when they apply it.

The statutory test

Section 101(a)(43)(M)(i), part of the aggravated felony definition in 8 U.S.C. § 1101(a)(43), covers an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000. A separate clause, (M)(ii), covers tax evasion where the revenue loss to the Government exceeds $10,000. A conviction under either clause is an aggravated felony with consequences across the statute: deportability under section 237(a)(2)(A)(iii), ineligibility for cancellation of removal for permanent residents under section 240A(a)(3), and, for pleas or verdicts after September 17, 2026, the inadmissibility ground explained in our analysis of Matter of A-V-O-.

How the loss is measured

The loss amount does not have to match an element of a generic federal crime. In Nijhawan v. Holder (2009), the Supreme Court held that immigration judges apply a "circumstance-specific" approach and look at the actual loss connected to the conviction. In A-V-O- the Board repeated two limits drawn from Nijhawan: the loss must be tethered to the counts of conviction, and it cannot be based on acquitted or dismissed counts or on general conduct. It also confirmed that a restitution order is an appropriate source for the amount.

The restitution order in A-V-O-

The respondent's federal judgment stated a "total loss" of $345,100.14 and ordered her to pay restitution in that amount, jointly and severally with her co-defendants. She argued that the loss from her own conduct was only $3,450.42. The Board rejected the argument for two reasons. First, joint and several liability does not reduce one defendant's responsibility for the full loss; it only lets the victim collect from any of the defendants. Second, the indictment and her own factual proffer did not support the smaller figure.

Lessons for plea negotiations

• The judgment, the restitution order and the plea allocution are read together. Know before sentencing how the amount will be described and which count it is tied to.
• A plea to an offense that does not involve fraud or deceit may fall outside clause (M)(i), but that depends on the statute of conviction and the record.
• Theft offenses raise a different question: theft with a term of imprisonment of at least one year is an aggravated felony under clause (G). Compare New York grand larceny with the fraud analysis above.
• White-collar cases often look minor in criminal court and serious in immigration court; see white-collar crimes explained and blue-collar versus white-collar crime.
• Defense counsel must give accurate deportation advice before the plea, as required by Padilla v. Kentucky.

After the conviction

A permanent resident with a fraud aggravated felony faces removal with very limited relief. Someone who is not yet a resident and pleads after September 17, 2026 also faces the new admissibility bar. Federal court review of these cases is narrow, and delays at USCIS raise different issues; a case study involving a felony conviction and a delayed citizenship file shows what delay litigation can and cannot do.

Related Guides on This Site

See also What is Considered an Aggravated Felony for Immigration Purposes. See also Understanding New Yorks Petit Larceny Laws and Immigration Implications. See also Understanding the 212c Waiver for Aggravated Felony a Comprehensive Guide.

Disclosure: Criminal Immigration Law collaborates with the law firm that publishes Mandamus.com and N600K.com; some articles link to their guides. General information only, not legal advice.