                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-29-2006

Serafino v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2720




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                                                            NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                 Nos. 05-2720 / 3577


                               ANTONIO SERAFINO,

                                                            Petitioner
                                          v.

              ATTORNEY GENERAL OF THE UNITED STATES;
          SECRETARY OF DEPARTMENT OF HOMELAND SECURITY;
           BUREAU OF IMMIGRATION & CUSTOMS ENFORCEMENT;
               GREG KENDRICK, Newark Field Office Director,
               United States Immigration & Customs Enforcement,

                                                            Respondents


                       On Petition for Review from Orders of the
                         United States Department of Justice
                            Board of Immigration Appeals
                                 BIA No. A42 152 486


                   Submitted Pursuant to Third Circuit. LAR 34.1(a)
                                   June 29, 2006

    Before: BARRY, VAN ANTWERPEN and JOHN R. GIBSON*, Circuit Judges

                                 (Filed June 29, 2006)




* The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit
Court of Appeals, sitting by designation.
                               OPINION OF THE COURT




Van Antwerpen, Circuit Judge:

       Petitioner Antonino Serafino brings these consolidated appeals from two separate

proceedings he initiated in the spring of 2005. The first, a habeas corpus petition for

relief from an order of removal, was filed on May 9, 2005, and was shortly thereafter

transferred to this Court for adjudication pursuant to the REAL ID Act. The second, a

motion for relief pursuant to former section 212(c) of the Immigration and Nationality

Act (“INA” or “Act”), was filed with the Board of Immigration Appeals (“BIA”) on April

22, 2005. On July 11, 2005, the BIA denied that motion and Serafino appealed to this

Court. This Court thereafter consolidated Serafino’s appeal with his habeas petition. We

have jurisdiction pursuant to 8 U.S.C. § 1252(a) and for the following reasons will affirm

the BIA’s decision and deny the habeas petition.

                                             I.

       We summarize the procedural history of this case only briefly, as the parties are

familiar with it. Serafino was convicted on January 24, 1997, of tax evasion in violation

of 26 U.S.C. § 7201. The former INS charged him with removability. Serafino received

a hearing before an Immigration Judge, lost, and appealed to the BIA. On April 17, 2003,

the BIA, in a Per Curiam opinion, found no merit to Serafino’s contention that his

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conviction for tax evasion pursuant to 26 U.S.C. § 7201 constituted neither an aggravated

felony offense as defined by the Act nor a crime involving moral turpitude. The BIA also

rejected Serafino’s claim for relief pursuant to § 212(c), as amended by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), because the crime to which he had

pleaded guilty was an aggravated felony.

       This Court subsequently dismissed Serafino’s first petition for review on February

23, 2004, on the ground that this Court lacked jurisdiction over a petition for review filed

by an alien who had committed an aggravated felony.

       On April 22, 2005, Serafino moved to reopen his case for the purposes of again

seeking § 212(c) relief. The BIA denied the motion on the grounds that § 212(c) “does

not apply to an alien who is deportable by reason of having committed any criminal

offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D) of the Act.” The BIA cited §

440(d) of AEDPA as amended by § 306(d) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”). As stated, Serafino subsequently filed

a petition for habeas corpus relief on May 9, 2005. That petition and Serafino’s appeal of

his denied motion to reopen are now before this Court.

                                             II.

       We exercise plenary review of the BIA’s legal decisions. See Partyka v. Attorney

General, 417 F.3d 408, 411 (3d Cir. 2005). As to whether a determination of the BIA “is

entitled to Chevron deference, Chevron, U.S.A. v. Natural Res. Def. Council, Inc., 467



                                             3
U.S. 837 . . . (1984) . . . . [W]e owe no deference to [the BIA’s] interpretation of” statutes

it does not normally administer, such as the federal statutory scheme for taxation. Id; see

also Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004) (explaining that we afford

Chevron deference to the BIA’s determination that a particular crime involves moral

turpitude but we accord no deference to the BIA’s determination of “the elements . . . of a

particular criminal statute deemed to implicate moral turpitude”).

                                              III.

       Serafino first argues that his tax conviction does not constitute an aggravated

felony within the meaning of 8 U.S.C. § 1101(a)(43)(M)(ii). As stated, this Court

previously dismissed Serafino’s first petition for review on February 24, 2004, on the

ground that we lack jurisdiction over petitions for review filed by aliens who have

committed aggravated felonies. Serafino v. Attorney General, 03-2461 (3d Cir. February

24, 2004) (holding Court lacked jurisdiction to consider Serafino’s petition because his

conviction under 26 U.S.C. § 7201 was a conviction for an aggravated felony and review

was therefore statutorily precluded pursuant to 8 U.S.C. § 1252(a)(2)(C)). As a result,

Serafino is collaterally estopped from again challenging whether his conviction is an

aggravated felony. See, e.g., Mosley v. Wilson, 102 F.3d 85, 91 (3d Cir. 1996); Patel v.

Ashcroft, 294 F.3d 465, 468 (3d Cir. 2002).

       In turn, because of Serafino’s commission of an aggravated felony, he does not

qualify for § 212(c) relief as amended by the AEDPA. 8 U.S.C. § 1101(A)(43)(M)(ii)



                                               4
specifically includes among the list of aggravated felonies that render an alien deportable

“an offense that . . . is described in section 7201 of Title 26 . . . in which the revenue loss

to the Government exceeds $10,000[.]” The record establishes Serafino’s conviction

under this Title and a loss to the Government exceeding this amount, and therefore

Serafino plainly committed an aggravated felony as that term is defined under the Act.

Moreover, even though Serafino may be a lawful permanent resident, he ignores the fact

that 1996 amendments to 8 U.S.C. § 1182(h) render ineligible for relief those lawful

permanent resident aliens who have committed aggravated felonies. See, e.g., Lukowski

v. INS, 279 F.3d 644, 647-48 (8th Cir. 2002).

       What remains is whether 26 U.S.C. § 7201 contains an element of willful fraud

sufficient to render it a crime of moral turpitude. Here, the BIA concluded that because

“[t]he record reflects that [Serafino’s] conviction is based on his filing of fraudulent tax

returns, . . . we find that it is a crime involving moral turpitude.”

       We have held that “[w]hether an alien’s crime involves moral turpitude is

determined by the criminal statute and the record of conviction, not the alien’s conduct.”

Partyka, 417 F.3d at 411; Knapik, 384 F.3d at 88, 90-91; De Leon-Reynoso v. Ashcroft,

293 F.3d 633, 635 (3d Cir. 2002). We have referred to this as the “categorical” approach:

“Under this categorical approach, we read the applicable statute to ascertain the least

culpable conduct necessary to sustain a conviction under the statute.” Partyka, 417 F.3d

at 411 (citations omitted). As such, “[w]here a statute covers both turpitudinous and non-



                                               5
turpitudinous acts . . . it is ‘divisible[]’ and we then look to the record of conviction to

determine whether the alien was convicted under that part of the statute defining a crime

involving moral turpitude.” Id.

       Here, Serafino pleaded guilty to a one count information alleging a violation of 26

U.S.C. § 7201 (tax evasion), which provides: “Any person who willfully attempts in any

manner to evade or defeat any tax imposed by this title or payment thereof shall, in

addition to other penalties provided by law, be guilty of a felony . . . .” 26 U.S.C. § 7201.

Review of the record indicates that, in pleading guilty to the one count information,

Serafino acknowledged he “willfully and knowingly” attempted to evade taxes by filing

“false and fraudulent” returns. Under a plain reading of the statutory language of 26

U.S.C. § 7201, Serafino’s plea not only satisfies the statutory requirements for conviction

under that federal tax statute, but it also constitutes the commission of a crime of moral

turpitude, for the following reasons.

       While “[t]he INA does not define ‘moral turpitude,’ and, as this Court has

observed, the phrase ‘defies a precise definition,’” Partyka, 417 F.3d at 413 (internal

quotation omitted), the BIA defines “moral turpitude as conduct that is inherently base,

vile, or depraved, contrary to the accepted rules of morality and the duties owed other

persons, either individually or to society in general.” Id. (quoting Knapik, 384 F.3d at 89)

(additional citations omitted). “A longstanding test employed by the BIA to determine

the existence of moral turpitude, which we find persuasive in a removal proceeding, asks

whether the act is accompanied by a vicious motive or a corrupt mind.” Partyka, 417

F.3d at 413 (internal quotations omitted). Here, given the statutory requirements of §

                                               6
7201, we conclude that “willful” evasion inheres in the least culpable conduct of § 7201

and evidences a “corrupt mind.” Id. Accordingly, § 7201 is not divisible, and, applied to

the particular record of conviction in this case — which indicates Serafino pleaded guilty

to “willfully and knowingly” attempting to evade taxes by filing “false and fraudulent”

returns — we conclude the BIA did not err in concluding that Serafino’s conviction

constituted a crime of moral turpitude rendering him ineligible for deportation relief.

       We have considered the remaining arguments advanced by the parties and have

determined that no further discussion is necessary.

                                            IV.

       We will accordingly deny Serafino’s petition for habeas corpus relief and affirm

the decision of the BIA denying Serafino’s motion to reopen his case.




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