Aggravated Felonies

(E)  Government as Victim.  The aggravated felony definition also includes an offense that “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.[433]  Because both the “fraud and deceit” aggravated felony and this one fall under INA § 101(a)(43)(M), counsel have attempted to argue that these two aggravated felony categories are mutually exclusive, and that if the victim is the government, only a conviction under § 7201 will trigger removal as an aggravated felony.  The Ninth Circuit has held — in a now vacated opinion — that a federal tax evasion conviction other than § 7201 constituted a conviction of an aggravated felony fraud offense under INA § 101(a)(43)(M)(i) (fraud & deceit), thereby rejecting these arguments.[434]  In Balogun v. United States Attorney General,[435] the Eleventh Circuit found that the government could be a victim for purposes of INA § 101(a)(43)(M)(i), where the offense involved embezzlement of funds from the United States Government.  The court cited several cases in the context of the Victim and Witness Protection Act, where the government is also allowed to be treated as a “victim.”[436]

[433] INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii).

[434] Abreu-Reyes v. INS, 292 F.3d 1029 (9th Cir. June 10, 2002) (federal conviction of subscribing to a false tax return, in violation of 26 U.S.C. § 7206(1), fell within the definition of aggravated felony as a fraud offense under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), even though the statute of conviction was not listed in the “tax fraud” section of the aggravated felony statute, INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii)), earlier mandate withdrawn, petition for rehearing granted, prior opinion withdrawn, petition for review granted, 350 F.3d 966 (9th Cir. Nov. 21, 2003) (the entire opinion was vacated, including the holding that 26 U.S.C. § 7206(1) is an aggravated felony under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i)).

[435] Balogun v. United States Att’y Gen., 304 F.3d 1303 (11th Cir. Sept. 10, 2002).

[436] See, e.g., United States v. Gibbens, 25 F.3d 28 (1st Cir. 1994) (a local, state, or federal government entity may be considered a “victim” for purposes of 18 U.S.C. § 3663(a)(2) [Victim and Witness Protection Act], and may be awarded restitution under that section when it has suffered harm resulting from a defendant’s criminal conduct, as from fraud or embezzlement).