Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. Apr. 22, 2008) ("[A] conviction under 26 U.S.C. 7206(1) for filing a false tax return constitutes an aggravated felony for purposes of 8 U.S.C. 1101(a)(43)(M) if that offense involved a loss of $10,000 or more. ... The PSR could be considered under the circumstances presented here, particularly given that Arguelles-Olivares admitted in the underlying criminal proceedings that the amounts of loss reflected in the PSR were correct.").



For some unknown reason, ICE failed to include the plea agreement or plea colloquy in the Immigration Court record. ICE admitted the criminal information and judgment of conviction, but neither referred to a specific amount of loss. To establish that the amount of loss suffered by the government was greater than $10,000, the Immigration Judge admitted the Pre-Sentence Report prepared for the guilty plea over the petitioners objection. The PSR contained a chart stating losses in excess of $70,000, and a statement from the probation officer that the defendant had agreed to the amounts listed. The defendant/petitioner never objected to the PSR or any of its factual representations.



On appeal to the BIA, and before the Fifth Circuit, the petitioner argued that reference to the PSR violated the Taylor-Shepherd "modified categorical approach" (which limits the documents a subsequent court can consider when evaluating whether a prior conviction establishes the predicate for a collateral consequence). The Fifth Circuit had previously applied Taylor-Shepherd when evaluating whether prior convictions established removability, and in criminal and sentencing cases had rejected government attempts to bring PSRs within Taylor-Shepherds scope. However, in Arguelles-Olivares, the panel held that the policies behind the modified categorical approach did not fully justify its application when considering the amount of loss to the victim under (43)(M). The court felt it was permissible to consult the PSR even though that document would not be the type normally permitted by Taylor-Shepherd. Apparently "amount of loss" from a fraud conviction for purposes of removal is sui generis.



In a related sub-issue, but one which might inspire a separate amicus, the panel held that the Immigration Court could admit and rely on the PSR, even though the government never moved to unseal any portion of the report. Given the confidential nature of PSRs, this would be improper procedure, but the Fifth Circuit panel stated that Arguelles-Olivares made no attempt during the immigration proceedings to seek an injunction or order from the district court to maintain the confidentiality of the PSR. He did not identify any provisions of the PSR that would jeopardize his own privacy or the governments interest in maintaining the trust of third-party witnesses by keeping the PSR confidential. Slip op. at 16.



DISSENT: "In my opinion, the majority incorrectly decides two important res nova immigration law issues. First, the majority joins the less meritorious side of a circuit split, giving no weight whatever to the INAs designation of tax evasion as the sole tax offense explicitly named as an "aggravated felony"; the majority does not even attempt to explain away the sharp clash between its alien- hostile statutory construction and the traditional principle of construing uncertain statutes in favor of aliens. Second, and more grievous, the majority refuses to follow our circuit precedents that have consistently applied the Supreme Courts Taylor-Shepard "modified categorical approach" in removal cases; instead, it approves the BIAs looking outside the record of the aliens conviction to find an aggravated felony based upon a paper trial of underlying facts contained in his PSR. In so doing, the majority creates a circuit split from the four circuits unanimously holding such use of PSRs is improper under the Taylor-Shepard modified categorical approach; and it disregards the numerous decisions of our own prior panels consistently applying the Taylor-Shepard methodology in sentencing cases. The majoritys second decision is particularly unfortunate because it exposes aliens in this Circuit to the potential of unfair practices, inequality of justice, and deportations based on constructive paper trials without juries rather than on records of judicial convictions."