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).

Second Circuit

AGGRAVATED FELONY - THEFT - CONNECTICUT LARCENY IN SECOND DEGREE
Plummer v. Ashcroft, 258 F.Supp.2d 43 (D.Conn. 2003) (Connecticut conviction of larceny in the second degree, in violation of CGSA 53a-123(a)(3), with a sentence imposed of one year or more, constitutes an aggravated felony under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G)).

Fifth Circuit

AGGRAVATED FELONY - FRAUD - FRAUD OFFENSE
Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. April 22, 2008), revised opinion, (5th Cir. Feb. 5, 2009) (federal conviction of knowingly filing a false tax return, in violation of 26 U.S.C. 7206(1), constituted a fraud offense aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), if the loss to the victim is in excess of $10,000, for purposes of triggering deportability); accord, Kawashima v. Gonzales, 503 F.3d 997, 1000-01 (9th Cir. 2007); contra, Lee v. Ashcroft, 368 F.3d 218, 220 (3d Cir. 2004).

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.