Safe Havens

The aggravated felony definition includes “an offense that -- (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 . . . .”[217] See § 7.102, supra.

To avoid this particular form of aggravated felony is relatively easy: the client should just plead to something other than a violation of 26 U.S.C. § 7201.  Then, the violation cannot fairly be said to be “described in section 7201” and will not meet this particular definition.  For example, a violation of 26 U.S.C. § 7203 (willful failure to supply required information) would avoid the “§ 7201” form of aggravated felony.

A violation of 26 U.S.C. § 7203 (willful failure to supply required information) may not be considered to “involve[] fraud or deceit . . . .”  The United States Supreme Court has defined “willfulness” for tax fraud purposes as the voluntary intentional violation of a known legal duty.[218]  Where, however, the duty violated is the duty to provide required information, it is not clear that the offense “involves fraud or deceit . . . .”  It could be committed out of laziness or to reduce the expense of compliance, rather than to defeat a tax.  If the immigration court concludes that it does not necessarily involve fraud or deceit, then it would not trigger deportation as an aggravated felony, and should not constitute a crime of moral turpitude.[219]  See § 7.106, supra.

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

[218] United States v. Pomponio, 429 U.S. 10, 12 (1976).  See also Ratzlaf v. United States, 510 U.S. 135 (1994) (for statute requiring that it be “willfully violated,” government must prove that the accused possessed knowledge that the conduct was unlawful).

[219] See Matter of R, 4 I. & N. Dec. 176 (BIA 1950) (intent to defraud is not an element of § § 396 and 401 of the German Tax Code — possession of untaxed chocolate, depriving the state of revenue — and therefore is not a CMT).