concurring in the judgment:
Kharana is deportable if she was “convicted of an aggravated felony,” 8 U.S.C. § 1227(a) (2) (A) (iii), which is defined as an “offense ... involving] fraud or deceit in which the loss to the victim or victims exceeds $10,000,” 8 U.S.C. § 1101(a)(43)(M)(i). There is no dispute that Kharana’s conviction under California Penal Code § 532(a) was for an offense involving “fraud or deceit.” However, because section 532(a) does not require that the victim or victims incur loss, Kharana’s statute of conviction is not a categorical match for subsection (M)(i). See Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).
We may look to the state charging document, among other things, to determine whether Kharana’s conviction involved loss to her victims exceeding $10,000. See Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir.2004). The felony complaint states that Kharana “did knowingly and designedly, and by false and fraudulent representation and pretense, defraud” her victims of more than $77,000. The felony complaint thus indicates losses that far exceed those required to qualify Kharana as an aggravated felon. One would think that would end the matter.
Kharana suggests, however, that because she made full restitution before the date of her sentencing, the loss to her victims did not exceed $10,000, and therefore her conviction does not qualify as an aggravated felony.
The Immigration and Nationality Act (INA) does not define “loss to the victim or victims,” but the issue has been raised in cases. In In re Onyido, the petitioner fraudulently sought a $60,000 payment from an insurance company on a medical policy, but agreed to settle for $15,000. 22 I. & N. Dec. 552, 553 (BIA 1999) (en banc). When he arrived at a meeting to sign a release and collect the $15,000, he was arrested. Id. at 554. After the petitioner was convicted under state law for fraud, an Immigration Judge (IJ) held that he was deportable under subsection (M)(i) as well as under 8 U.S.C. § 1101(a)(43)(U), which defines an aggravated felony as “an attempt or conspiracy to commit an offense described in [section 1101(a)(43) ].” Id. at 553-54.
The Board of Immigration Appeals (Board) affirmed the IJ’s subsection (U) *1286determination and rejected the petitioner’s contention that the subsection requires the victim to have suffered an “actual loss” that exceeds $10,000. Id. at 554. Although the petitioner had not been convicted of attempted fraud, the Board reasoned that his “actions support a conviction for attempted fraud which is a lesser included offense within a conviction for fraud under Indiana law.” Id. According to the Board, the petitioner’s failure to obtain the $15,000 therefore had “no consequence” under subsection (U). Id. The Board did not address whether the petitioner was also deportable under subsection (M)(i). Id. at 554-55.
We interpreted Onyido in Li v. Ashcroft, where the petitioner was convicted of eight fraud-related federal offenses. 389 F.3d 892, 894-97 (9th Cir.2004). The former Immigration and Naturalization Service (INS) charged the petitioner as removable under section 1227(a)(2)(A)(iii) as one who had committed an aggravated felony as defined in subsections (M)(i), (U), and 8 U.S.C. § 1101(a)(43)(G), which defines an aggravated felony as “a theft offense ... for which the term of imprisonment [is] at least one year.” Id. at 894. The IJ agreed with the INS with respect to subsections (M)(i) and (U) and did not rule on the argument under subsection (G). Id. at 894-95. The Board affirmed. Id. at 895.
On petition for review, we held that the record of conviction was not adequate to establish that the jury actually found the requisite amount of loss. Id. at 899. Our discussion of the generic crimes at issue in the case is revealing. Citing Onyido, we set forth the two elements of the subsection (M)(i) generic crime — fraud and loss— and stated that either “[potential or intended loss” satisfy the second element under subsection (U). Id. at 896 n. 8. Li thus establishes Onyido’s holding as the law of this circuit. Cf. Sui v. INS, 250 F.3d 105, 115 (2d Cir.2001) (according Onyido deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and holding that the Board’s interpretation of subsection (U) was reasonable).
Arguably, Li went on to answer the question left open by Onyido-. whether intended loss can satisfy subsection (M)(i)’s loss requirement. Without differentiating between the generic crimes set forth in subsections (M)(i) and (U), Li stated that “if the record of conviction demonstrates that ... Petitioner caused, or intended to cause, a loss ... of more than $10,000, the modified categorical approach will be satisfied.” 389 F.3d at 897 (emphasis added). Li suggests that Khar-ana’s argument concerning her victims’ losses after restitution is mistaken because intended loss satisfies subsection (M)(i)’s loss requirement, and it is undisputed that her record of conviction establishes her intent to defraud her victims of an amount in excess of $10,000.
In any case, this is the proper interpretation of subsection (M)(i), and I support it. By its plain terms, subsection (U) does not provide any additional gloss on the term “loss” as it appears in subsection (M)(i). “Loss” therefore has the same meaning regardless of whether the alien is charged under subsections (M)(i) or (U). Because we have held that “loss” means intended loss under subsection (U), this holding applies with equal force under subsection (M)(i).
This makes sense. In many cases, such as the one now before us, the fact of restitution will not be reflected in the record of a fraud conviction because restitution bears neither on the criminal act itself nor on the mental element required for criminal liability. Subsection (M)(i), in my view, should not be interpreted to require *1287the government to establish facts unrelated to the elements of a typical completed fraud offense. True, a person subject to prosecution for a fraud offense may offer evidence that she returned money or the like to her victim that she did not intend to obtain. But the weight of this evidence will be reflected in the fact-finder’s determination with respect to intended losses. This finding, in turn, will decide whether the criminal alien is eligible for deportation.
I disagree with the majority that this interpretation necessarily renders subsection (U) nugatory as it relates to subsection (M)(i). A criminal convicted only of attempting to commit an offense involving fraud or deceit may still be removable under the former section, but not the latter.
Once more, this should end our discussion. But based on two drive-by references to the United States Sentencing Guidelines (Guidelines) suggesting “a judge is required to make specific findings as to the amount of loss to compute defendant’s punishment,” the majority advances an unnecessary argument that I question.
The INA and the Guidelines are not necessarily “similar statutes ... to be interpreted in a similar manner.” United States v. Ressam, 474 F.3d 597, 602 (9th Cir.2007). The Supreme Court has described “deportation as a ‘purely civil action’ separate and distinct from a criminal proceeding.” United States v. Amador-Leal, 276 F.3d 511, 516 (9th Cir.2002), quoting INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). “[DJeportation is not punishment for the crime.” Id. The argument compares apples to oranges.
In addition, rebanee on the Guidelines is misplaced. Under the Guidelines, a defendant’s offense level increases with the amount of “loss” occasioned by her crime. U.S. Sentencing Guidelines Manual § 2Bl.l(b)(l) (2006). The sentencing court is instructed that “loss is the greater of actual loss or intended loss.” Id. at § 2B1.1 cmt. n. 3(A). “ ‘Actual loss’ means the reasonably foreseeable pecuniary harm that resulted from the offense,” whereas “‘[i]ntended loss’ [] means the pecuniary harm that was intended to result from the offense; and [ ] includes intended pecuniary harm that would have been impossible or unlikely to occur.” Id. at § 2B1.1 cmt. n. 3(A)(i), (ii). Regardless of which measurement of loss is used, the Guidelines require that the court “creditfj against loss” the amount the defendant returned to the victim before the offense was detected. Id. at § 2B1.1 cmt. n. 3(E)(i). This is so because “[rjepayments before detection show an untainted intent to reduce any loss.” United States v. Bright, 353 F.3d 1114, 1118 (9th Cir.2004) (quotation marks and citation omitted).
Credit against loss is not loss, and there is no credit-against-loss provision in the aggravated felony statute. Likewise, the intent to repay a loss is not the same as the absence of intent to cause a loss in the first instance. Therefore, to the extent Kharana may have made restitution, such restitution does not implicate, for subsection (M)(i) purposes, the amount of loss to her victims.
The majority, as I understand the argument, determines that Kharana does not in fact qualify for a downward departure under section 2B1.1 cmt. n. 3(E)(i) because she did not make restitution before her offense was detected. The majority thus concludes that even if Kharana’s eligibility for sentencing relief were relevant to our interpretation of subsection (M)(i), she does not satisfy the conditions of her own argument.
The majority has no basis for determining that Kharana made restitution at all, let alone only after her offense was detect*1288ed. Neither the Board nor the IJ made findings on the issue. The parties’ briefs are contradictory, the record of conviction is unrevealing, and oral argument did not clarify matters. Kharana’s counsel answered “Yes” to the question, “Is it true that on the date of her plea, the felony complaint accurately stated the losses caused by Mrs. Kharana’s conduct?” Tr. of Oral Argument at 0:40-0:55, Kharana v. Gonzales, No. 04-71335 (Feb. 14, 2007). But counsel also said that “the vast majority of the restitution, which was under $10,000, was paid before [Kharana] pled guilty to the crime.” Id. at 1:30-1:47. This latter statement leaves open the possibility that restitution occurred prior to detection.
The majority’s position is made all the more perplexing by its statement that Kharana is removable for having “caused actual losses in excess of $10,000.” Majority Op. at n. 3. The majority does not tell us what “actual loss” means or how it is calculated, and it does not explain why subsection (M)(i) encompasses this principle of loss. If actual loss necessarily excludes amounts returned to the victim, then why does the majority assume, without deciding, that the Guidelines’ credit-against-loss provision is relevant to our interpretation of subsection (M)(i)? If, on the other hand, actual loss accounts for amounts returned to the victim, then why does Kharana nevertheless qualify as an aggravated felon? The majority fails to answer these necessary questions.
Therefore, I would not address, in dicta or otherwise, when any restitution occurred. Kharana became deportable when she pled guilty to knowingly and fraudulently taking possession of the money. See CaLPenal Code § 532(a).