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 . . . .”[1099]  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 cannot trigger deportation under this category.[1100]  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 for removal purposes[1101] because “defeating a tax” and “evading a tax” are interchangeable terms.[1102]

 

A safer plea in a tax-evasion case is a plea to a violation of 26 U.S.C. § 7206(1),[1103] 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,”[1104] because the statute of conviction does not mention deceit or intent to defraud, the Ninth Circuit, in a now vacated case, held that a federal tax evasion conviction constituted a conviction of an offense involving fraud, for purposes of this ground of deportation.[1105] 

While the government may or may not be considered a “victim” for purposes of the fraud aggravated felony,[1106] this issue should be irrelevant when the offense involves “tax evasion.”[1107]

[1099] INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii).

[1100] 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 a conviction under 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)).

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

[1102] 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).

[1103] See also 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.

[1104] See INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[1105] 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).

[1106] INA § 101(a)(43)(M)(i); 8 U.S.C. § 1101(a)(43)(M)(i). 

[1107] See § 19.74, supra.

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).

Seventh Circuit

AGGRAVATED FELONY - AUTO BURGLARY
Vaca-Tellez v. Mukasey, 540 F.3d 665 (7th Cir. Sept. 2, 2008) (Illinois conviction for auto burglary with intent to commit theft, in violation of 720 ILCS 5/19-1(a) is an aggravated felony attempted theft for immigration purposes).

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

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.