Offense
Forgery
Aggravated Felony (AF)
Get 364 or less on each count to avoid AF as forgery, or counterfeiting.1Conviction for forgery or for counterfeiting is an aggravated felony if a sentence of a year or more is imposed on any single count. See 8 USC § 1101(a)(43)(R), INA § 101(a)(43)(R) and see § N.6 Aggravated Felonies. Immigration counsel can investigate whether § 470 might be overbroad compared to the generic definition. However, in a split opinion the Ninth Circuit held that § 470a is an aggravated felony as “forgery” if a year or more is imposed, including if the offense involves photocopying a drivers’ license with intent to commit forgery. See Escobar Santos v. Garland, 4 F.4th 762 (9th Cir. 2021). See § N.4 Sentence.
Also, AF as deceit if loss to victim/s exceeds $10,000.
See Advice and see PC 484.
Crime Involving Moral Turpitude (CIMT)
Yes CIMT. To avoid a CIMT, see 529(a)(3), 530.5, 496.
Other Removal Grounds
No other removal ground.
Advice and Comments
To surely avoid AF for 470 or 470a, D must avoid 1 yr imposed on any single count or loss to victim/s exceeding $10,000.Either one will create an AF. If either one of these is present, try to plead to a different offense such as PC 487. See PC 484, below. Otherwise, consider these strategies.
AF with $10k loss. A crime involving fraud or deceit is an AF if loss to victim/s exceeds $10k. To avoid this, plead to 487 grand theft, defined by PC 484. If that is not possible, plead to one count 470 and state in the plea agreement that the loss to the victim/s was, e.g., $9k. If restitution of more than $10k must be ordered at sentencing, include a Harvey waiver and a statement (for immigration judge’s benefit) that the restitution is based on uncharged conduct or dropped counts. While there is no case on point, this follows Supreme Court statements.2Conviction of an offense that involves fraud or deceit is an aggravated felony if the loss to the victim/s exceeds $10,000. 8 USC 1101(a)(43)(M). The Supreme Court held that the amount of loss is a “circumstance specific” factor that does not come within the categorical approach, and that evidence from outside the reviewable record of conviction may be used to prove the amount. However, the loss amount must be tethered to the offense of conviction and cannot be based on acquitted or dismissed counts or general conduct. Nijhawan v. Holder, 557 U.S. 29, 42 (2009). If possible, defenders should supply both a Harvey waiver and spell it out by stating that additional restitution is based on dropped charges or uncharged conduct, because immigration officials may not be familiar with Harvey waivers. See further discussion of these issues in state and national Nijhawan practice advisories, by searching for Nijhawan at www.ilrc.org/crimes and www.nipnlg.org.
AF with 1 year. To craft a disposition where a sentence of less than 1 yr is imposed for immigration purposes, but the person actually serves more than 1 year, see § N.4 Sentence.
But if 1 yr imposed cannot be avoided, go to 484, 487, 475(c), 529(a)(3), 530.5, or other offenses involving fraud or deceit that do not involve a false instrument and that can take a year. For past convictions, imm counsel can investigate arguments that PC 470 is broader than generic forgery or counterfeiting. That will not work if there also is $10k loss.
Prop 47: Note that immigration authorities will assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.3See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a), because federal law will not give retroactive effect to a state criminal reform statute that purports to change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014).