Aggravated Felonies

The aggravated felony definition includes “an offense that . . . is described in § 7201 of the Internal Revenue Code of 1986 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000 . . . .”[711]  This category therefore has the following elements:

            (1) a conviction of an offense

            (2) described in Internal Revenue Code § 7201 (relating to tax evasion)

            (3) in which the revenue loss to the Government exceeds $10,000.

If the conviction is not under the specified statute, it arguably cannot trigger deportation under this category.[712]  If the record of an analogous state conviction does not establish the defendant was convicted of elements that unquestionably fit within the substantive elements of the listed federal statute, the conviction does not trigger deportation under this category.

A federal conviction of 26 U.S.C. § 7201, “defeating a tax,” is an offense “relating to tax evasion,” under that statute, and therefore constitutes an aggravated felony under INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii) for removal purposes because “defeating a tax” and “evading a tax” are interchangeable terms.[713]

An alternate plea to a violation of Internal Revenue Code § 7201 in a tax-evasion case is a plea to § 7206(1), which is not listed in the aggravated felony definition.  While this offense arguably should not constitute an aggravated felony as an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,”[714] because the section does not mention deceit or intent to defraud, the Ninth Circuit in a vacated case held that a federal tax evasion conviction constituted a conviction of an offense involving fraud, for purposes of this ground of deportation.[715]  In Balogun v. United States Attorney General,[716] 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.”[717]  Where this issue has not yet been decided counsel may argue that government cannot be a victim for restitution purposes, [718] and since there is no victim, there can be no loss “to the victim.”[719]  

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

[712] Lee v. United States, 368 F.3d 218 (3d Cir. May 19, 2004) (federal conviction of filing false income tax returns, in violation of 26 U.S.C. § 7206(1), is not an aggravated felony, as defined by INA § 101(a)(43)(M), 8 U.S.C. § 1101(a)(43)(M), for immigration purposes, as INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii) specifically covers tax evasion, and INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) does not, since to hold otherwise would render INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii) mere surplusage); Abreu-Reyes v. INS, 292 F.3d 1029 (9th Cir. 2002), 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 finding 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)).

[713] Evangelista v. Ashcroft, 359 F.3d 145 (2d Cir. 2004) (federal conviction of attempt to evade or defeat tax in violation of 26 U.S.C. § 7201, charged as attempting to avoid an amount of tax liability in excess of $300,000, constituted an aggravated felony, under INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii), for deportation purposes), cert. denied, 125 S.Ct. 1293 (2004).

[714] See INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[715] 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), earlier mandate withdrawn, petition for rehearing granted, prior opinion withdrawn, petition for review granted, 350 F.3d 966 (9th Cir. Nov. 21, 2003).

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

[717] 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).

[718] 18 U.S.C. § 3663(a)(2) (“the term ‘victim’ means a person directly and proximately harmed as a result of the commission of an offense” (emphasis supplied)).

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