18 U.S.C. § 286 Tax-Refund Conspiracy Categorically “Involves Fraud or Deceit” Under INA § 1101(a)(43)(M)(i), with Loss Proven Circumstance-Specifically via Indictment and Restitution

Agyei Tabi v. Attorney General United States of America (3d Cir. Mar. 18, 2026) (not precedential)

1. Introduction

This immigration case concerns whether a federal conviction for conspiracy to defraud the United States through false tax refund claims constitutes an “aggravated felony” under the Immigration and Nationality Act (INA), thereby making the noncitizen removable.

Parties: Petitioner Agyei Asare Tabi, a citizen of Ghana, sought review of a final removal order entered by the Board of Immigration Appeals (BIA). The respondent is the Attorney General of the United States, defending the Department of Homeland Security’s removal charge.

Background: In 2007, Tabi pleaded guilty to a one-count indictment charging conspiracy to defraud the United States in violation of 18 U.S.C. § 286, involving at least 550 fraudulent tax returns claiming more than $1.3 million in refunds. He received a 30-month sentence and a restitution order for $161,207.18. After a long gap following a supervised-release warrant, he was apprehended in 2023 at an airport while attempting to return to Ghana.

Key issues:

• Whether a conviction under 18 U.S.C. § 286 categorically “involves fraud or deceit” under 8 U.S.C. § 1101(a)(43)(M)(i).
• Whether the Government proved, by clear and convincing evidence, that the “loss to the victim or victims exceeds $10,000,” as required by § 1101(a)(43)(M)(i).

Procedurally, the Immigration Judge (IJ) sustained the aggravated-felony removability charge. Tabi did not apply for relief from removal after being warned that failure to do so would waive such claims. The BIA dismissed his appeal, and the Third Circuit denied his petition for review.

2. Summary of the Opinion

The Third Circuit held that:

• A conviction under 18 U.S.C. § 286 “categorically qualifies as a conspiracy to commit an offense involving fraud,” because the statute criminalizes conspiracies “to defraud” the United States by obtaining or aiding the payment of a false, fictitious, or fraudulent claim.
• The Government established the $10,000 loss threshold through the circumstance-specific inquiry endorsed by the Supreme Court, relying on the indictment’s allegations and the restitution order ($161,207.18).

On that basis, the court affirmed the BIA’s aggravated-felony determination and denied the petition for review.

3. Analysis

A. Precedents Cited

The opinion is largely an application of established aggravated-felony methodology—especially the distinction between (i) the categorical approach for “fraud or deceit” and (ii) the circumstance-specific inquiry for the “loss” element.

1) Standards of review and framing aggravated-felony analysis

• Lanoue v. Att'y Gen., 142 F.4th 121 (3d Cir. 2025): The panel cited Lanoue for de novo review of whether a conviction qualifies as an aggravated felony—confirming that the removability classification is a legal question.
• Al-Sharif v. U.S. Citizenship & Immigration Servs., 734 F.3d 207 (3d Cir. 2013) (en banc): Used to explain that when removability is premised on a conspiracy aggravated felony under § 1101(a)(43)(U), courts examine the substantive offense elements; here, that leads back to the fraud aggravated felony definition in § 1101(a)(43)(M)(i).
• Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. 2004): Cited for the proposition that if the underlying object offense fits an aggravated felony definition, the conspiracy can qualify by virtue of subsection (U) even if conspiracy elements do not themselves mirror the substantive category. The Third Circuit cited it to illustrate the analytic structure rather than to break new doctrinal ground.

2) Defining “involves fraud or deceit” and applying the categorical approach

• Bobb v. Att'y Gen., 458 F.3d 213 (3d Cir. 2006): Quoted for the breadth of § 1101(a)(43)(M)(i) because it covers offenses that “involve” fraud or deceit, not merely those labeled “fraud.”
• Kawashima v. Holder, 565 U.S. 478 (2012): The central Supreme Court authority for two points: (i) “involves fraud or deceit” means the statute of conviction must have elements that necessarily entail fraudulent or deceitful conduct; and (ii) courts use a categorical approach to decide the fraud-or-deceit component.
• Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002): Cited for the common meaning of “defraud,” reinforcing that “defraud” inherently connotes deception/trickery—supporting the conclusion that § 286 necessarily entails deceitful conduct.
• Moncrieffe v. Holder, 569 U.S. 184 (2013): Cited for the canonical articulation of the categorical approach: presume conviction rests on the least of the acts criminalized and compare to the federal generic definition.
• United States v. Saybolt, 577 F.3d 195 (3d Cir. 2009): A criminal-law interpretive precedent used to emphasize that § 286 criminalizes only conspiracies with a particular purpose—“the conspiracy must be ‘to defraud.’” That element helped the panel conclude fraud/deceit is inherent in every § 286 conviction.

3) Proving the $10,000 loss element through a circumstance-specific inquiry

• Nijhawan v. Holder, 557 U.S. 29 (2009): The controlling authority distinguishing elements-based categorical analysis from a circumstance-specific approach for the “loss” requirement in § 1101(a)(43)(M)(i). The panel relied on Nijhawan to approve the use of “sentencing-related material,” including restitution, to determine the amount of loss.
• Singh v. Att'y Gen., 677 F.3d 503 (3d Cir. 2012): Cited for the burden: the Government must establish the loss amount by “clear and convincing” evidence in removal proceedings.
• Rad v. Att'y Gen., 983 F.3d 651 (3d Cir. 2020): Cited to identify acceptable documents for the circumstance-specific inquiry—“the indictment, judgment, presentence investigation report, and any other sentencing-related material.”
• Chiao Fang Ku v. Att'y Gen., 912 F.3d 133 (3d Cir. 2019): Reinforces the scope of permissible record materials used to establish loss.
• Alaka v. Att'y Gen., 456 F.3d 88 (3d Cir. 2006), overruled on other grounds by Bastardo-Vale v. Att'y Gen., 934 F.3d 255 (3d Cir. 2019) (en banc): Quoted for the proposition that removability is predicated on a convicted offense resulting in losses greater than $10,000; the overrule note signals Alaka’s partial displacement but preserves the relevance of the quoted point as used here.

B. Legal Reasoning

1) Fraud/deceit: categorical fit of 18 U.S.C. § 286

The court’s fraud/deceit analysis is straightforward: 18 U.S.C. § 286 requires an agreement “to defraud the United States” by obtaining (or aiding to obtain) payment of a “false, fictitious or fraudulent claim.” Because “defraud” is inherently deceptive and because the statute’s object is the procurement of payment on false claims, the panel concluded that the least conduct criminalized by the statute necessarily entails “fraud or deceit” as required by § 1101(a)(43)(M)(i).

Notably, the court emphasized that Tabi did not “meaningfully challenge” the BIA’s categorical conclusion; nevertheless, it independently confirmed the statutory match using the definitions and methodology drawn from Kawashima v. Holder, Valansi v. Ashcroft, and Moncrieffe v. Holder.

2) Loss: circumstance-specific proof exceeding $10,000

For loss, the court followed Nijhawan v. Holder and used a circumstance-specific inquiry—allowing consultation of reliable sentencing-related materials rather than confining analysis to statutory elements. The panel approved reliance on:

• the indictment (alleging at least 550 fraudulent returns and more than $1.3 million in claimed refunds), and
• the restitution order stating $161,207.18 payable to the IRS.

Those documents, the court held, provided “clear and convincing” evidence that the loss exceeded $10,000, satisfying the INA’s monetary threshold.

C. Impact

Although non-precedential, the decision is a clean, practice-relevant synthesis of existing doctrine that may influence briefing and adjudication in similar cases within the Third Circuit:

• Tax-related conspiracy convictions under 18 U.S.C. § 286 are likely to be treated as per se “fraud or deceit” offenses for INA aggravated-felony purposes, because the “to defraud” element is built into the statute.
• Loss litigation will turn on sentencing records (indictment allegations tied to the count of conviction, restitution orders, PSRs, and judgments), consistent with Nijhawan and Third Circuit cases like Rad and Chiao Fang Ku.
• Practical consequence for respondents: where the record contains a restitution figure above $10,000, contesting the loss threshold becomes difficult; challenges may instead focus on whether the loss is sufficiently tethered to the “offense of conviction” and whether the relied-upon materials are reliable and properly linked under Nijhawan’s fairness concerns.
• Procedural caution: the opinion underscores that failing to apply for relief before the IJ after warning can result in waiver, leaving only the removability classification to contest on appeal.

4. Complex Concepts Simplified

• “Aggravated felony” (immigration meaning): A term of art in the INA that triggers severe immigration consequences (including mandatory removal in many cases). It does not require the offense to be “aggravated” or a “felony” under state or federal labeling.
• Categorical approach: The court looks at the statute’s elements, not the person’s real-world conduct. If the least conduct criminalized by the statute still necessarily involves fraud or deceit, the conviction qualifies.
• Circumstance-specific approach (for “loss”): For the dollar-loss requirement in § 1101(a)(43)(M)(i), the court may look beyond statutory elements to certain reliable case documents (e.g., restitution orders) to determine the actual loss amount connected to the conviction.
• Clear and convincing evidence: A higher standard than “more likely than not,” requiring the Government to show it is highly probable the loss exceeded $10,000.
• Restitution vs. “loss”: Restitution is often strong evidence of loss, but the legal question is whether the loss “resulted” from the offense of conviction; Nijhawan permits reliance on restitution where it fairly reflects that loss.

5. Conclusion

The Third Circuit’s disposition affirms two core propositions in aggravated-felony fraud cases: (1) 18 U.S.C. § 286 is categorically a fraud/deceit offense for INA purposes because the statute requires a conspiracy “to defraud” through false claims; and (2) the “loss exceeds $10,000” requirement is established through a circumstance-specific inquiry using reliable sentencing materials, with restitution orders serving as powerful proof. Even as a non-precedential opinion, the case provides a clear roadmap for how the Third Circuit applies Kawashima v. Holder and Nijhawan v. Holder to tax-fraud conspiracy convictions in removal proceedings.