Aggravated Felony (AF)
AF if loss to gov’t exceeds $10,000.
See § N.11 Burglary, Theft and Fraud and see Advice.
Crime Involving Moral Turpitude (CIMT)
Yes CIMT. Consider PC 529(a)(3), 530.5.
Other Removal Grounds
No other removal ground.
Advice and Comments
AF: If loss > $10k, try hard to plead to offense that does not involve deceit (e.g., PC 484) along with this offense and put loss on the second offense.
Or plead to one count (e.g., one month) with loss less than $10k, and make separate civil agreement to repay more. However, that might not work for 10980.1Cal. Welf. & Inst. Code § 10980(c) provides that in setting restitution to the state agency, the agency’s “loss” should be calculated as the amount the government overpaid. This factor makes welfare fraud potentially riskier than even the regular fraud/deceit case. See discussion in Ferreira v. Ashcroft, 390 F.3d 1091, 1098 (9th Cir. 2004), although note that there the defendant stated in the guilty plea that restitution exceeded $10,000. If it is possible to plead to theft, or to perjury, forgery, etc. without a one-year sentence, counsel should do so. If a plea must be taken to welfare fraud, counsel should write a written plea agreement to one count of fraud where the government lost less than $10,000 (or more than one count where the aggregate is less than $10,000). At sentencing, accept restitution of more than $10,000 with a Harvey waiver and, for the immigration judge’s benefit, a statement that the rest of the funds are being repaid based on dropped charges or uncharged conduct. See Chang v. INS, 307 F.3d 1185 (9th Cir. 2002). Note that both Chang and Ferreira, supra, were published before Nijhawan v. Holder, 557 U.S. 29, 42 (2009), which further defined the aggravated felony. For further discussion see Pen C § 470, above.
This offense is not theft and therefore OK to take 1 yr sentence, unless commission requires perjury.