Insurance fraud is ubiquitous. It is about more than just fraud, because if it succeeds, it also means abuse and theft from the scams. The Second Circuit Court of Appeal, Charran D aneshwar Rampersaud v. William P. Barr United States Attorney General, Docket No. 19-825, United States Court of Appeals for the Second Circuit (August 19, 2020) did not understand how it worked and found a breach of evidence sufficient to require an arrest warrant to determine the amount taken by the fraud.
Charran Daneshwar Rampersaud, a non-citizen residing in the United States, asked the Second Circuit to reverse a decision of the Immigration Appeals Board (BIA) which found him removed as a felony for being convicted of fraud with a loss to the victims. exceeding $ 10,000. The immigration judge found that Rampersaud reached the $ 10,000 threshold because he was ordered to pay more than $ 77,000 in compensation from his conviction for a single insurance fraud and a single count of grand theft, and the BIA confirmed. In 2010, he was convicted of a number of insurance frauds and a number of major robberies. The BIA's conclusion that Rampersaud was a serious criminal was based on his conviction for insurance fraud.
In the 2010 Westchester County Criminal Proceedings, Rampersaud pleaded guilty to a number of third-degree insurance frauds and a fourth-degree mass theft bill and was ordered to pay $ 77.199 in repayment without any indication of whether the repayment decision was in favor of the victims of the insurance fraud, the size or both.
Rampersaud committed the insurance fraud on 3 August, 27 September and 1 November 2007, through measures related to his submission to insurers of materially false claims of damage to property of a BMW car from 2002. The complaint alleged that he committed the major larcenies on 13 July , August 10 and October 6, 2007, by stealing on two occasions from MetLife Insurance Company and on one occasion from Grange Insurance Company.
Rampersaud moved to end removal proceedings and argued, in the relevant part, that his conviction for insurance fraud was not a felony because $ 77,199 in repayment did not measure the actual loss to the victim and there was no other evidence that the victim's loss exceeded $ 10,000.
Like IJ, BIA did not consider the possibility that anything other than $ 10,000 or less of the repayment amount could only be attributed to the large scale, much less give any analysis of why this was not the case.
A non-citizen convicted of a felony at any time after being taken into the United States is removed. The Charter allows the removal of and offenses involving fraud or deception where the loss to the victim or victims exceeds $ 10,000.
Whether Rampersaud's insurance fraud convicts qualifies as an aggravated felony
The Supreme Court has instructed that the issue of a non-citizen's fraud meets the $ 10,000 monetary threshold must be assessed on a circumstantial basis, not a categorical interpretation. According to this approach, courts investigate the specific circumstances surrounding a criminal's fraud and deception at a specific time. The second circle concluded that the BIA failed to analyze the issue before it. Specifically, the BIA and IJ failed to consider whether more than $ 10,000 in casualty losses were tied to the specific number covered by Rampersaud's conviction for insurance fraud. crime, of which only one was a fraudulent crime that supported his removal. All $ 77,199 (or at least as much as $ 10,000 or less) could have come not from the insurance fraud but from the large size or even from the unlawful criminal conduct that was part of the same transaction as the size.  It is true that in some cases a compensation amount can reliably lead to loss for the victims of a fraudulent offense, but that principle is not consistent where the repayment amount covered two separate convictions and where the government did not point to any evidence that than $ 10,000 of the repayment was specifically due to the relevant offense of fraud or deception.
If the evidence showed that the insurance fraud and the large debt payment were part of a "single criminal transaction", the result here may well be different. In such a case, any monetary losses attributable to the grand conviction would undoubtedly also have been linked to the insurance fraud, since all the allegations would have been based on the same criminal conduct.
The second circuit ruled that the BIA relied on insufficient analysis to conclude that the $ 77,199 reimbursement decision on its own showed that Rampersaud's insurance fraud caused more than $ 10,000 in casualty losses restored the case, possibly including the BIA's grounds for attribute to the insurance fraud more than $ 10,000
To steal, on two occasions from MetLife insurance companies and on one occasion from Grange insurance companies, the victims of the crime did only insurance companies. This is what insurance fraud is all about stealing from an insurance company. The other circle, in my view, erred in concluding that the BIA failed to analyze the issue before it. Facts recited by the other circle that the only victims of the crimes were insurance companies which made it clear that there was a single criminal transaction related to the claim of damage to a BMW. The second circle, if it had been presented with facts about the crimes, the result, as the court held, should have been different.
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to working as an insurance consultant specializing in insurance coverage, insurance management, insurance operations and insurance fraud almost equal to insurance policyholders. He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims lawyer and more than 52 years in the insurance industry. He is available at http://www.zalma.com and email@example.com.
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