Criminal Defense of Immigrants

 

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.