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).

In Matter of Kaneda, 16 I. & N. Dec. 677, 679-680 (BIA 1979), the BIA stated:



We have held that where a conviction is revoked and the charge dismissed by a trial judge that conviction cannot be used to sustain a finding of deportability. Matter of G, 7 I. & N. Dec. 171 (BIA 1956). We have also specifically held that when the Service claims that a trial judge lacked authority to dismiss a criminal charge after a conviction, such lack of jurisdiction must be affirmatively shown. Matter of Sirhan, 13 I. &N. Dec. 592 (BIA 1970); Matter of O'Sullivan, 10 I. &N. Dec.

Berhe v. Gonzales, ___ F.3d ___, 2006 WL 2729689 (1st Cir. Sept. 26, 2006) (to determine whether a state drug offense is an aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), the court examines whether the underlying offense would have been punishable as a felony if it had been prosecuted under federal law, and is not bound by the fact that the conviction is a misdemeanor under state law).

Berhe v. Gonzales, ___ F.3d ___, 2006 WL 2729689 (1st Cir. Sept. 26, 2006) (Massachusetts conviction of misdemeanor possession of marijuana with intent to distribute, in violation of Mass. Gen. Laws ch. 94C, 32C(a), constituted an aggravated felony drug trafficking conviction under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), despite its classification as a misdemeanor under state law, because it had an element of distribution and would therefore have been a felony if it had been prosecuted in federal court).

Berhe v. Gonzales, ___ F.3d ___, 2006 WL 2729689 (1st Cir. Sept. 26, 2006) (Massachusetts 1996 conviction of misdemeanor simple possession of crack cocaine under Mass. Gen. Laws ch. 94C, 34, and Massachusetts 2003 misdemeanor conviction of simple possession of crack cocaine, were not aggravated felony drug trafficking convictions under INA 101(a)(43)(B), 8 U.S.C.

United States v. Graham, 169 F.3d 787
(3d Cir. Mar. 5, 1999), cert. denied, 528 U.S. 845 (1999)
(New York conviction of petit larceny with sentence imposed
of one year or more was "aggravated felony" under
INA § 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for purposes
of illegal re-entry sentencing enhancement, even though it
was a misdemeanor under state law).

Soliman v. Gonzales, 419 F.3d 276 (4th Cir. Aug.

United States
v. Dabeit, 231 F.3d 979 (5th Cir. Oct. 30, 2000), cert. denied,
531 U.S. 1202, 121 S.Ct. 1214 (2001) (federal conviction for
conspiracy to perpetrate a checking and savings account kite
scheme, in violation of 18 U.S.C. § 2113(b), was an "aggravated
felony," under an attempted theft theory of INA § 101(a)(43)(G),
(U), 8 U.S.C.

United States v. Mejia-Barba, 327
F.3d 678 (8th Cir. May 5, 2003) (Iowa conviction of identity
theft, in violation of Iowa Code § 715A.8, constitutes aggravated
felony as a "theft offense" as defined in INA §
101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for purposes of
eight-level sentence enhancement under United States Sentencing
Guideline § 2L1.2(b)(1)(C), for illegal re-entry conviction).

United States v. Vidal, 426 F.3d
1011 (9th Cir. Oct. 24, 2005) (California conviction of unlawful
taking of a vehicle, in violation of Vehicle Code § 10851,
constitutes an aggravated felony under the, for purposes of
an eight-level increase in the base offense level for an illegal
re-entry sentence).