Ninth Circuit

AGGRAVATED FELONY - FRAUD OFFENSE - TAX OFFENSE NOT LISTED IN (M)(ii) CAN CONSTITUTE FRAUD OFFENSE AGGRAVATED FELONY UNDER (M)(i)
Kawashima v. Gonzales, ___ F.3d ___, 2007 WL 2702330 (9th Cir. Sept. 18, 2007) (federal conviction for subscribing to a false statement on a tax return, in violation of 26 U.S.C. 7206(1), qualifies as an "aggravated felony" under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), despite argument that (M)(i) is inapplicable in this case, reasoning that (M)(ii)'s specific reference to 7201 indicates Congress's intent to exclude all federal tax offenses from the definition of aggravated felonies under the more general subsection (M)(i)).

AGGRAVATED FELONIES - TAX OFFENSES - CONVICTIONS OF VIOLATING STATUTES OTHER THAN 26 U.S.C. 7201 CANNOT CONSTITUTE TAX OFFENSE AGGRAVATED FELONIES UNDER INA 101(a)(43)(M)(ii)
Kawashima v. Gonzales, ___ F.3d ___, ___, n.3, 2007 WL 2702330 (9th Cir. Sept. 18, 2007) (federal convictions for subscribing to a false statement on a tax return, in violation of 26 U.S.C. 7206(1), and aiding and abetting in the preparation of a false tax return, in violation of 26 U.S.C. 7206(2), cannot qualify as an "aggravated felony" under INA 101(a)(43)(M)(ii), 8 U.S.C. 1101(a)(43)(M)(ii), because that provision is limited to tax offenses in violation of 7201); following United States v. Roselli, 366 F.3d 58, 62 n.5 (1st Cir. 2004).

Other

SAFE HAVEN - AGGRAVATED FELONY FRAUD - TAX FRAUD
A plea to a violation of 26 U.S.C. 7206(2) does not constitute an aggravated felony. INA 101(a)(43)(M)(ii), 8 U.S.C. 1101(a)(43)(M)(ii) ["is described in section 7201 of the Internal Revenue Code of 1986 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000"]). See Evangelista v. Ashcroft, 359 F.3d 145, 149-53 (2004); Lee v. Ashcroft, 368 F.3d 218 (2004) (federal conviction of violating 7206(a) is not an aggravated felony, since Congress specified only one tax crime (Section 7201) as an aggravated felony). It may be a crime involving moral turpitude.

Possible alternative dispositions include a plea to a violation of 26 U.S.C. 7203 (willful failure to file return supply information, or pay tax), a misdemeanor, and 26 U.S.C. 7202 (willful failure to collect or pay over tax), a felony.

A plea to multiple violations of INA 274A(a)(1)(A), would constitute a "pattern or practice" violation of INA 274A(f), 8 U.S.C. 1324a (f), a misdemeanor punishable by a fine of not more than $3,000 for each alien with respect to whom such a violation occurs, imprisonment for not more than six months for the entire pattern or practice, or both.

AGGRAVATED FELONY " FRAUD OFFENSE " SUPREME COURT GRANTS CERT IN KAWASHIMA
The Supreme Court granted certiorari in Kawashima v. Holder, 615 F.3d 1043, 1054 (9th Cir. 2007) (tax offenses of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. 7206(1) and (2) were fraud or deceit aggravated felonies, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), even though they were not listed among the specific tax offenses in INA 101(a)(43)(M)(ii), 8 U.S.C. 1101(a)(43)(M)(ii)). The question presented is: Whether, in direct conflict with the Third Circuit, the Ninth Circuit erred in holding that Petitioners convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. 7206(1) and (2) were aggravated felonies involving fraud and deceit under 8 U.S.C. 1101(a)(43)(M)(i), and Petitioners were therefore removable.