                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2004

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Precedential or Non-Precedential: Precedential

Docket No. 02-4602




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                     PRECEDENTIAL           Counsel for Petitioners

   UNITED STATES COURT OF                   Steven A. Morley (Argued)
APPEALS FOR THE THIRD CIRCUIT               Morley, Surin & Griffin, P.C.
                                            Constitution Place
                                            325 Chestnut Street, Suite 1305-P
               No. 02-4602                  Philadelphia, Pennsylvania 19106

                                            Counsel for Respondent
 KI SE LEE; HYANG MAHN YANG,
                                            Peter D. Keisler
                             Petitioners    Assistant Attorney General
                                            Civil Division
                    v.                      Linda S. Wernery
                                            Senior Litigation Counsel
 JOHN ASHCROFT, Attorney General            Office of Immigration Litigation
       of the United States,                Lyle D. Jentzer (Argued)
                                            Trial Attorney
                             Respondent     Douglas E. Ginsburg, Esq.
                                            Michael P. Lindemann, Esq.
                                            John M. McAdams Jr., Esq.
 ON PETITION FOR REVIEW OF AN               John D. Williams, Esq.
    ORDER OF THE BOARD OF                   Office of Immigration Litigation
     IMMIGRATION APPEALS                    Civil Division
  (Nos. A38 656 406, A36 775 995)           United States Department of Justice
                                            P.O. Box 878, Ben Franklin Station
                                            Washington, DC 20044-0878
        Argued: December 5, 2003

    Before: SLOVITER and ALITO,
Circuit Judges, and OBERDORFER,*                    OPINION OF THE COURT
District Judge

       (Opinion Filed: May 19, 2004)
                                            OBERDORFER, Senior District Judge:
                                                        In this appeal we consider the
                                            question of whether a conviction for filing
                                            a false tax return, in violation of 26 U.S.C.
   *
        The Honorable Louis F.              § 7206(1) of the Internal Revenue Code, is
Oberdorfer, Senior District Judge for the   an “aggravated felony” as defined by
District of Columbia, sitting by            s e c t i o n 1 0 1 ( a ) (4 3 ) ( M ) ( i ) o f t h e
designation.                                Immigration and Naturalization Act, 8
U.S.C. § 1101(a)(43)(M)(i). We conclude           information further alleged that, in the
that it is not, and, therefore, that the          three tax years at issue, petitioners
petitioners’ convictions do not render them       understated their income by $112,453,
removable. Accordingly, we will grant the         causing a tax deficiency of $55,811.
Petition for Review of the decision and           Departing downward substantially, each
vacate the order of removal against the           petitioner was sentenced to three years
petitioners.                                      probation, a condition of which was three
                                                  months h o me co n fi ne m en t, with
          I. BACKGROUND
                                                  permission to leave for work, medical
       The relevant facts are not                 services, etc., one hundred hours of
complicated. The petitioners, Ki Se Lee           community service, and the payment of all
and Hyang Mahn Yang, are husband and              taxes, interest and penalties due to the
wife. They are both natives and citizens of       IRS.3 AR 110.
Korea, but they have resided in the United
                                                         Thereafter, in November 1997, the
States as lawful permanent residents since
the 1980s. 1 They have grown children
who are United States citizens.
                                                         under the penalties of
        For many years, the petitioners                  perjury, and which he does
operated a dry cleaning business in                      not believe to be true and
Philadelphia. In May 1997, they pled                     correct as to every material
guilty to a three-count information, which               matter
charged them with filing false income tax
returns for 1989, 1990 and 1991, all in                  ...
violation of 26 U.S.C. § 7206(1). 2 The
                                                         shall be guilty of a felony
                                                         and, upon conviction
   1
       Petitioner Yang entered the                       thereof, shall be fined not
United States in 1980; petitioner Lee                    more than $100,000
entered in 1984.                                         ($500,000 in the case of a
                                                         corporation), or imprisoned
   2
      In relevant part, section 7206                     not more than 3 years, or
provides that                                            both, together with the
                                                         costs of prosecution.
       any person who . . . (1) . . .
       Willfully makes and                        26 U.S.C. § 7206.
       subscribes any return,
                                                     3
       statement, or other                               The petitioners’ Sentencing
       document, which contains                   Guideline range was 4 to 10 months
       or is verified by a written                confinement, one year supervised
       declaration that it is made                release, and a $1,000 to $10,000 fine.

                                              2
INS charged petitioners with being                      Revenue Code of 1986
removable for having been convicted of an               (related to tax evasion) in
“aggravated felony,” as defined by section              which the revenue loss to
101 (a)(43 )(M )(i) and (ii) of th e                    the Government exceeds
Immigration and Naturalization Act. See                 $10,000; . . .
8 U.S.C. § 1101(a)(43)(M). Section
                                                 8 U.S.C. § 1101(a)(43)(M)(i) & (ii). The
101(a)(43)(M) includes in the felonies
                                                 petitioners moved to terminate removal
classified as “aggravated” for purposes of
                                                 proceedings on the ground that a
deportation:
                                                 conviction for violating section 7206(1) of
       An offense that -                         the Internal Revenue Code was not an
                                                 aggravated felony under either subsection
       (i)    involves fraud or
                                                 (M)(i) or (M)(ii). The immigration judge
       deceit in which the loss to
                                                 denied their motion, ruling in July 1998
       the victim or victims
                                                 that petitioners’ convictions rendered them
       exceeds $10,000; or
                                                 removable under either subsection. App.
       (ii)   is described in §                  47. He ordered each petitioner “removed
            4
       7201[ ] of the Internal                   to the Republic of (South) Korea.” App.
                                                 48.

   4
                                                        On December 2, 2002, the Board of
      In relevant part, section 7201
                                                 Imm igration Appeals affirmed the
provides:
                                                 immigration judge’s decision without
                                                 opinion, making it the final agency
       Attempt to evade or defeat
                                                 decision. See 8 C.F.R. § 1003.1(e)(4).
       tax.
                                                 The petitioners seek review.

       Any person who willfully                             II. DISCUSSION
       attempts in any manner to
                                                        On appeal, the petitioners challenge
       evade or defeat any tax
                                                 the immigration judge’s order of removal
       imposed by this title or the
                                                 on the ground that their convictions for
       payment thereof shall, in
                                                 violating 8 U.S.C. § 7206(1) do not qualify
       addition to other penalties
                                                 as aggravated felonies under either 8
       provided by law, be guilty
                                                 U.S.C. § 1101(a)(43)(M)(i) or (ii), and,
       of a felony and, upon
                                                 therefore, that they are not removable
       conviction thereof, shall be
       fined not more than
       $100,000 ($500,000 in the
       case of a corporation), or
       imprisoned not more than 5                       prosecution.
       years, or both, together
       with the costs of                         26 U.S.C. § 7201.

                                             3
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).5         are right, judicial review of the removal
As the government now concedes that                 orders is not precluded, and they will be
subsection (M)(ii) does not apply, we need          vacated for failing to allege a removable
only consider whether the petitioners’              offense. If the petitioners are wrong, we
convictions meet the definition of                  lack jurisdiction to inquire any further into
aggravated felony in subsection (M)(i).             the merits, and the removal order will
                                                    stand.
A.       Jurisdiction
                                                    B.   Have the Petitioners Been
        As an initial matter, we consider the
                                                    Convicted of an Aggravated Felony?
government’s contention that under 8
U.S.C. § 1252 (a)(2)(C) w e lack                            The petitioners argue that no
jurisdiction to review the petitioners’ order       conviction under section 7206(1) for filing
of removal. That provision states that “no          false tax returns can satisfy the definition
court shall have jurisdiction to review any         of aggravated felony in 8 U.S.C. §
final order of removal against an alien who         1101(a)(43)(M)(i). We apply de novo
is removable by reason of having                    review to this purely legal question of
committed a criminal offense covered in             statutory interpretation that governs our
section . . . 1227(a)(2)(A)(iii).”        As        own jurisdiction. See Valansi, 278 F.3d at
recen tly explained, however, this                  207.
jurisdiction-stripping provision comes into
                                                           “The first step in interpreting a
play only when two facts exist: “(1) the
                                                    statute is to determine ‘whether the
petitioner is an alien (2) who is deportable
                                                    language at issue has a plain and
by reason of having been convicted of one
                                                    unambiguous meaning with regard to the
of the enumerated offenses.” Drakes v.
                                                    particular dispute in the case.’” Id. at 209
Zimski, 240 F.3d 246, 247 (3d Cir. 2001).
                                                    (quoting Marshak v. Treadwell, 240 F.3d
We necessarily have jurisdiction “to
                                                    184, 192 (3d Cir. 2001)). If the statutory
determine whether these jurisdictional
                                                    meaning is clear, our inquiry is at an end.
facts are present.” Id.; see Valansi v.
                                                    Id. If the statutory meaning is not clear,
Ashcroft, 278 F.3d 203, 207 (3d Cir.
                                                    we must try to discern Congress’ intent
2002). We are thus not precluded from
                                                    using the ordinary tools of statutory
reviewing the petitioners’ argument that
                                                    construction.            See INS v.
they have not been convicted of an
                                                    Cardoza-Fonseca, 480 U.S. 421, 447-48
“enumerated offense.” If the petitioners
                                                    (1987). “If, by employing traditional tools
                                                    of statutory construction, we determine
     5
       In relevant part, section                    that Congress’ intent is clear, that is the
1227(a)(2)(A)(iii) provides that “[a]ny             end of the matter.” Valansi, 278 F.3d at
alien who is convicted of an aggravated             208 (quoting Bell v. Reno, 218 F.3d 86, 90
felony at any time after admission is               (2d Cir. 2000)). If we are unable to
deportable.” 8 U.S.C. §                             discern Congress’ intent using the normal
1227(a)(2)(A)(iii).                                 tools of statutory construction, we will

                                                4
generally give deference to the Board’s            but look to the provisions of the whole
interpretation, so long as it is reasonable.       law, and to its object and policy.”)
Id.                                                (internal citations and quotations omitted).
        We thus begin our analysis with the                Here, these broader considerations,
statutory language of subsection (M)(i). It        specifically the presence of subsection
may be argued that the petitioners’                (M)(ii), preclude a conclusion that the
convictions under section 7206(1) for              statutory language of subsection (M)(i)
filing false tax returns clearly involve           clearly and unambiguously covers a
“fraud and deceit,” as required by                 section 7206(1) conviction. Subsections
subsection (M)(i), and that we need look           (M )(i) and (M )(ii) were ena cted
no further. However, the precise question          simultaneously in 1996. Subsection (M )(i)
before us is whether the statutory language        has a general application – the gamut of
makes it plain and unambiguous that                state and federal crimes involving fraud
subsection (M)(i) covers convictions for           and deceit causing losses over $10,000.
violating section 7206(1). This question           Subsection (M)(ii) zeroes in on the crime
cannot be answered solely by looking at            of federal tax evasion, as described in
“the language itself”; we must also be             section 7201 of the Internal Revenue
cognizant of “the specific context in which        Code, 26 U.S.C. § 7201; it is silent about
that language is used, and the broader             any other criminal tax offenses. Gross
context of the statute as a whole.” Id. at         examination of (M) leaves obvious
209; cf. United States Nat’l Bank of               questions: Why does subsection (M)
Oregon v. Independent Ins. Agents of               include both a ge neral p rovisio n
America, Inc., 508 U.S. 439, 454-55                encompassing “fraud and deceit” and
(1993) (“A statute’s plain meaning must be         specific provision directed solely at the
enforced, of course, and the meaning of a          offense of federal tax evasion?           If
statute will typically heed the commands           subsection M(i) applies to tax offenses,
of its punctuation.      But a purported           what is the purpose of subsection (M )(ii)?
plain-meaning analysis based only on               Does the juxtaposition of subsections
punctuation is necessarily incomplete and          (M)(i) and (M)(ii) signal an intent to
runs the risk of distorting a statute's true       exclude other tax offenses from the
meaning. Along with punctuation, text              definition of aggravated felonies in (M)(i)?
consists of words living ‘a communal               That subsection (M)(i) raises these
existence,’ in Judge Learned Hand’s                questions demonstrates that its language
phrase, the meaning of each word                   does not have a plain and unambiguous
informing the others and all in their              meaning, at least not as applied to a
aggregate tak[ing] their purport from the          conviction under section 7206(1) of the
setting in which they are used. Over and
over we have stressed that [i]n expounding
a statute, we must not be guided by a
single sentence or member of a sentence,

                                               5
Internal Revenue Code. 6 Therefore, we               tax evasion under section 7201, the
must turn to the traditional tools of                Supreme Court has stated that an
statutory construction to see if they assist         “affirmative willful attempt [to evade] may
in discerning Congress’ intent.                      be inferred from . . . any conduct, the
                                                     likely effect of which would be to mislead
        We start with the principle that if at
                                                     or to conceal.” Spies v. United States, 317
all possible, we should ado pt a
                                                     U.S. 492, 499 (1943) (emphasis added).
construction which recognizes each
                                                     Accordingly, the goal of avoiding
element of the statute. See Acceptance
                                                     surplusage in construing a statute is
Ins. Co. v. Sloan, 263 F.3d 278, 283 (3d
                                                     satisfied only if subsection (M)(i) does not
Cir. 2001) (recognizing that it is an “axiom
                                                     apply to tax offenses.
of statutory construction that whenever
possible each word in a statutory provision                 Another “commonplace [rule] of
is to be given meaning and not to be                 statutory construction” is that the “specific
treated as surplusage”) (internal quotations         governs the general.” Doe v. National Bd.
omitted). The only construction that                 of Medical Examiners, 199 F.3d 146, 154-
satisfies this principle is the one suggested        55 (3d Cir. 1999) (quoting Morales v.
by the petitioners: that subsection (M)(i)           Trans World Airlines, Inc., 504 U.S. 374,
does not apply to tax offenses. If the               384 (1992)); see also Fourco Glass Co. v.
government’s proposed construction were              Transmirra Products Corp., 353 U.S. 222,
adopted, and we were to hold that any tax            228 (1957) (“The law is settled that
offense involving fraud and deceit over              however inclusive may be the general
$10,000 was an aggravated felony under               language of a statute, it will not be held to
subsection (M)(i), subsection (M )(ii)               apply to a matter specifically dealt with in
would be mere surplusage. We have                    another part of the same enactment.”),
considered the government’s contention               quoted in Doe v. National Bd. of Medical
that there could be a case where a                   Examiners, 199 F.3d at 155. As explained
conviction for tax evasion would not                 by the Supreme Court, “where Congress
involve fraud or deceit, in which case               includes particular language in one section
subsection (M)(ii) would exist simply to             of the statute but omits it in another
catch any cases not covered by subsection            section of the same act, it is generally
(M)(i), but the government has not                   presumed that Congress acts intentionally
identified, and we are unable to envision,           and purposely in the disparate inclusion or
what that case might be. Indeed, in                  exclusion.” Cardoza-Fonseca, 480 U.S. at
addressing what conduct might constitute             447-48; see also Albright v. Oliver, 510
                                                     U.S. 266, 273 (1994). Moreover, “[t]his
                                                     principle has special force when Congress
   6
        But see Abreu-Reyes v. INS, 292              has targeted specific problems with
F.3d 1029, 1037 (9th Cir. 2002) (denying             specific solutions in the context of a
petition for review), withdrawn on other             general statute.” Doe v. National Bd. of
grounds, 350 F.3d 966 (9th Cir. 2003).               Medical Examiners, 199 F.3d at 155. And

                                                 6
it applies “particularly when the two               no help in discerning Congress’ intent in
[provisions] are interrelated and closely           enacting subsection (M)(i),8 the history
positioned, both in fact being parts of the         and structure of the criminal tax laws
same statutory scheme.” Id. (internal               persuade us that in enacting subsection
quotations omitted).                                (M)(ii), Congress intended to single out
                                                    tax evasion as the only tax crime that is a
       The statutory section at issue here is
                                                    removable offense. See United States
a perfect example of this phenomenon.
                                                    Nat'l Bank of Or. v. Indep. Ins. Agents of
Subsections (M)(i) and (M)(ii) were
                                                    America, Inc., 508 U.S. 439, 455 (1993)
adopted at the same time, appear adjacent
                                                    (“Statutory construction is a holistic
to each other, and are the only two parts of
                                                    endeavor and, at a minimum, must account
subsection (M), within a statute with
                                                    for a statute’s full text, language[,] as well
many, many subsections. Subsection
                                                    as punctuation, structure, and subject
(M)(i) is a general provision covering
                                                    matter.”) (internal quotations and citations
“fraud and deceit”; subsection (M)(ii) is a
                                                    omitted), quoted in Tineo v. Ashcroft, 350
very specific provision that only applies to
                                                    F.3d 382, 391 (3d Cir 2003).
federal tax evasion. Accordingly, the
principle that the specific governs the                    As the Supreme Court explained
general also favors the interpretation that         many years ago, tax “evasion” is the
subsection (M)(ii) identifies the only              “capstone” of tax law violations. See
removable tax offense, tax evasion, while           Spies, 317 U.S. at 497. A felony since at
subsection (M)(i) does not apply to tax             least 1903, it has long been recognized as
offenses.7                                          “the gravest of offenses against the
                                                    revenues.” Id. at 499. In his opinion for
     While the legislative history of the
                                                    the Court in Spies, Justice Robert Jackson
Immigration and Naturalization Act offers
                                                    (a former General Counsel for the Bureau
                                                    of Internal Revenue, Assistant Attorney
   7
        See also Abreu-Reyes, 292 F.3d at           General for the Tax Division, Solicitor
1037 (Paez, J., dissenting) (“That                  General, and Attorney General), after
Congress included a separate statutory
provision for tax evasion demonstrates
                                                       8
that it did not intend to include tax                      In 1996, Congress vastly
offenses within the “fraud or deceit” text.         expanded the number and types of
Rather, as the statute reflects, Congress           offenses that qualified as aggravated
drew a distinction between tax offenses             felonies. See Illegal Immigration
and other crimes involving fraud and                Reform and Immigrant Responsibility
deceit. Congress then targeted only the             Act of 1996 (IIRIRA), Pub. L. 104-208,
more egregious act of tax evasion, and              110 Stat. 3009 (1996). For the most part,
only when the loss to the government                these changes were adopted without any
exceeds $10,000, as sufficiently serious            discussion of their particular purpose.
to warrant removal.”)

                                                7
outlining the then civil and criminal               To the extent that any ambiguity lingers,
“penalties imposed by Congress to enforce           we note that there is a “longstanding
the tax laws,” 9 id. at 495, concluded that         principle of construing any lingering
“[t]he climax of this variety of sanctions is       ambiguities in deportation statutes in favor
the serious and inclusive felony, defined to        of the alien.” INS v. Cardoza-Fonseca,
consist of a willful attempt in any manner          480 U.S. 421, 449 (1987) (principle is a
to evade or defeat the tax,” id. at 497             corollary to the rule of lenity that applies
(emphasis added). Thus, for Congress to             in construing criminal statutes); see also
select tax evasion as the “aggravated” tax          INS v. St. Cyr, 533 U.S. 289 (2001); see
felony, justifying removal of an alien who          also Valansi (“This rule of construction . .
committed it, while sparing lesser tax              . may be applied as a canon of last resort to
felons, is thoroughly consistent with the           determine the intent of Congress on an
history and structure of criminal tax               ambiguous issue.”). The facts of the
offenses.                                           present case highlight the reason this
                                                    principle exists: it is a plain fact that in
       In the end, after considering various
                                                    reality neither the prosecution, nor the
tools of statutory construction, we believe
                                                    sentencing judge involved in the
that Congress’ intent is clear: in enacting
                                                    prosecution, plea and sentencing of
subsection (M)(ii), it intended to specify
                                                    petitioners, treated their offense as
tax evasion as the only deportable tax
                                                    “aggravated.” The prosecution acquiesced
offense; it follows that it did not intend
                                                    in, if it did not negotiate, a plea agreement,
subsection (M)(i) to cover tax offenses.10
                                                    and the judge imposed a sentence
                                                    characteristic of a misdemeanor, not a
                                                    felony – much less an “aggravated one”
   9
       These sanctions ranged from civil            (however it be defined). See Francis v.
delinquency penalties ranging from 5 to             Reno, 269 F.3d 162, 170-71 (3d Cir. 2001)
25 percent to criminal penalties                    (noting that the importance of this
calibrated from misdemeanors (e.g.                  principle is highlighted “given the changes
former § 145(a)) to tax evasion,                    in immigration law effectuated by the
punishable as a felony and carrying a               [1996 amendments to the Immigration and
maximum penalty of 5 years confinement
and a $5,000 fine (former § 145(b), now
§ 7201).
   10
        We note that if we had not                  opinion indicates only approval of the
reached this conclusion, we would                   outcome, not the immigration judge’s
confront the question of whether we                 reasoning), and where the meaning of the
should defer to the Board’s interpretation          statutory provision depends, in part, on
in a situation where the Board itself has           an understanding of the Internal Revenue
not ruled on the issue before us, see 8             Code, a subject on which the Board has
C.F.R. 1003.1(e)(4) (affirmance without             no expertise.

                                                8
Nationality Act]).” 11                           order of the IJ is granted with directions to
                                                 vacate the removal orders with respect to
       Accordingly, we conclude that the
                                                 the petitioners.
petitioners’ conviction for violating
section 7206(1) of the Internal Revenue
Code is not a removable offense under 8
U.S.C. § 1101(a)(43)(M)(i). That decision
makes it unnecessary to consider the
petitioners’ argument that the record does
not establish a loss of $10,000.
          III. CONCLUSION
       The Petition for Review of the
decision of the BIA approving the removal


   11
       Our dissenting colleague
speculates that “If Congress had not
wanted subsection M(i) to apply to ‘tax
offenses,’ Congress surely would have
included some language in that provision
to signal that intention.” But Congress is
chargeable with knowledge of the same
well-established principles of statutory
construction which we feel compelled to
apply. If Congress had not intended us
to apply them, it surely would have
signaled to that effect.

        Further, our colleague also
speculates that Congress may have
enacted M(ii) “simply to make certain
even at the risk of redundancy that tax
evasion qualifies as an ‘aggravated
felony.’” It may be that Congress will
wish to broaden the categories of
aggravated felony to include other or all
tax felonies. But we must interpret what
it has written by well-recognized rules of
statutory construction, unaided by
speculation.

                                             9
Lee v. Ashcroft                                      return and causing a tax loss of more than
                                                     $10,000 satisfies these elements. “Fraud”
No. 02-4602
                                                     or “deceit” is a necessary element of 26
ALITO, Circuit Judge, dissenting                     U.S.C. § 7206(1), which makes it a crime
                                                     to make or subscribe “any return,
        I must respectfully dissent because
                                                     statement, or other document” that the
I believe that the offense of filing a false
                                                     defendant “does not believe to be true and
tax return and thereby causing a tax loss of
                                                     correct as to every material matter.” In
more than $10,000 falls squarely within
                                                     addition, causing a tax loss of more than
the definition of an “aggravated felony” in
                                                     $10,000 results in a qualifying “loss to the
8 U.S.C. § 1101(a)(43)(M)(i). Accord
                                                     victim,” i.e., the United States Treasury.
Abreu-Reyes v. INS, 292 F.3d 1029 (9 th
Cir. 2002), withdrawn on other ground,
350 F.3d 966 (9 th Cir. 2003).                               Despite the clarity of subsection
                                                     M(i), the majority concludes that this
       The term “aggravated felony” is
                                                     provision does not apply to tax offenses.
defined to include:
                                                     Invoking two venerable canons of
       (M) an offense that -                         statutory interpretation (viz., that statutes
                                                     should be read if possible to avoid
             (i) involves fraud or
                                                     surplusage and that the specific should
       deceit in which the loss to
                                                     take precedence over the general), the
       the victim or victims
                                                     majority reasons as follows. The provision
       exceeds $10,000; or
                                                     that directly follows subsection (M)(i), i.e.,
                (ii) is described in                 8 U.S.C. §1101(43)(M )(ii), specifically
       section 7201 of Title 26                      provides that the offense of tax evasion
       (relating to tax evasion) in                  (26 U.S.C. § 7201) is an aggravated
        which the revenue loss to                    felony. This specific provision would not
       the Government exceeds                        have been needed if (M)(i) applied to tax
       $10,000 . . . .                               offenses, because tax evasion is an offense
                                                     that involves fraud or deceit. Therefore,
8 U.S.C. § 1101(43)(M)(emphasis added).
                                                     Congress must have intended that (M)(i)
        Thus, subsection (M )(i) sets out two        not apply to “tax offenses.”
requirements. First, the offense must
                                                            I must disagree with this analysis
“involve fraud or deceit.” This means that
                                                     for two reasons. First and most important,
the offense must include “fraud or deceit
                                                     this analysis fails to account for the
as a necessary component or element.”
                                                     language of subsection M(i). If Congress
Valansi v. Ashcroft, 278 F.3d 203, 210 (3d
                                                     had not wanted subsection M(i) to apply to
Cir. 2002). Second, “the loss to the victim
                                                     “tax offenses,” Congress surely would
or victims” must exceed $10,000.
                                                     have included some language in that
       The offense of filing a false tax             provision to signal that intention. As

                                                10
adopted, however, subsection M (i)                           evade or defeat any tax
contains no such hint. In order to argue                     imposed by this title or the
that the filing of a false tax return does not               payment thereof shall, in
come within the language of subsection                       addition to other penalties
M(i), one would have to argue either that                    provided by law, be guilty
the term “victim” was not meant to apply                     of a felony . . . .
to the Treasury or that the term “loss” does
not include a tax loss. However, both of
these arguments fail to comport with                  26 U.S.C. § 7201.
ordinary usage. See United States v.
Fleming, 128 F.3d 285, 288 (6 th Cir.
1997)(“In tax fraud cases, we consider the                   This offense has three elements: “1)
United States Treasury the victim.”);                 the existence of a tax deficiency, 2) an
U.S.S.G. § 2T4.1 (“Tax Loss” table).                  affirmative act constituting an attempt to
                                                      evade or defeat payment of the tax, and 3)
        Second, the majority errs in
                                                      willfulness.” United State v. McGill, 964
inferring from subsection M(ii) that
                                                      F.2d 222, 229 (3d Cir.), cert. denied, 506
Congress believed that subsection M(i) did
                                                      U.S. 1023 (1992). See also United States
not reach tax offenses. Subsection M(ii)
                                                      v. Voigt, 89 F.3d 1050, 1089 (3d Cir.
may have been enacted simply to make
                                                      1996). In this context, willfulness requires
certain – even at the risk of redundancy –
                                                      proof that the defendant knew that his or
that tax evasion qualifies as an aggravated
                                                      her conduct was unlawful. Cheek v.
fe lo ny.      W h i le goo d sta t u t o ry
                                                      United States, 498 U.S. 192, 201 (1991).
draftsmanship seeks to avoid surplusage,
other goals, such as certainty and the
avoidance of litigation, are sometimes
                                                               Neither “fraud” nor “deceit” is
more important. Here, those responsible
                                                      mentioned in the statute as a necessary
for drafting the provisions in question may
                                                      element of tax evasion. The statute applies
have had a measure of doubt that
                                                      to the willful attempt “in any manner to
subsection M(i) would be interpreted as
                                                      evade or defeat any tax imposed by this
covering all (or any) evasion cases, and
                                                      title or the payment thereof.” 26 U.S.C. §
subsection M(ii) may have been added to
                                                      7201 (emphasis added). Likewise, leading
dispel any such uncertainty.
                                                      cases interpreting this language do not
                                                      hold that fraud or deceit is an element of
                                                      the offense. In Spies v. United States, 317
       The tax evasion statute provides in
                                                      U.S. 492 (1943), the Supreme Court
relevant part as follows:
                                                      emphasized the breadth of the statutory
                                                      language:
       Any person who willfully
       attempts in any manner to

                                                 11
        Congress did not define or                    that no defendant would ever be convicted
        limit the methods by which                    of tax evasion without proof of fraudulent
        a willful attempt to defeat                   or deceitful conduct, the drafters might
        a n d evade m ight b e                        have been concerned that some courts
        accomplished and perhaps                      would hold that tax evasion falls outside
        did not define lest its effort                the scope of subsection M(i) because
        to do so result in some                       neither “fraud” nor “deceit” is a formal
        unexpected limitation. Nor                    element of the offense. See Valansi, 278
        would we by definition                        F.3d at 210 (in determining whether an
        constrict the scope of the                    offense involves “fraud or deceit,” we look
        Congressional provision that                  to the necessary elements of the offense of
        it may be accomplished “in                    conviction).     Thus, given the choice
        any manner.”                                  between (a) the risk that some or all tax
                                                      evasion cases would not be covered and
                                                      (b) the inclusion of a potentially redundant
Id. at 499.12                                         statutory provision, the drafters might have
                                                      selected the latter option.

        In light of the statutory language
and the case law, cautious drafters might                    For these reasons, I think that it is
have concluded that it was prudent to add             unwarranted to infer from subsection M (ii)
subsection M(ii) for at least two reasons.            that subsection M(i) was not intended to
First, even if the drafters, like the majority        reach “tax offenses.” I would heed the
in this case (see Maj. Op. at 9-10), could            clear language of subsection M(i)13 and
not think of an evasion case that did not
involve fraudulent or deceitful conduct,                 13
                                                           Even if the statutory language were
the drafters might not have trusted their
                                                      ambiguous, I would defer to the BIA’s
ability to anticipate every possible variety
                                                      reasonable interpretation that § 7206(1)
of evasion case and might have added
                                                      is an aggravated felony. See I.N.S. v.
subsection M(ii) just to be sure that no
                                                      Aguirre-Aguirre, 526 U.S. 415, 424
evasion case fell outside the definition.
                                                      (1999)(“Because the Court of Appeals
Second, even if the drafters were certain
                                                      confronted questions implicating ‘[the
                                                      BIA’s] construction of the statute which
   12
     Although the Court went on to                    it administers,’ the court should have
provide a list of deceitful activities from           applied the principles of deference
which an “affirmative willful attempt”                described in Chevron”); Valansi, 278
could be inferred, the Court took pains to            F.3d at 208 (“Despite our exercise of de
note that this list was furnished “[b]y               novo review, we will give deference to
way of illustration, and not by way of                the agency’s interpretation of the
limitation.” 317 U.S. at 499.                         aggravated felony definition if

                                                 12
hold that the offense of filing of a false tax
return and causing a tax loss of more than
$10,000 is an aggravated felony.




Congress’s intent is unclear”); Lukwago
v. Ashcroft, 329 F.3d 157, 166 (3d Cir.
2003)(“W e must review the BIA’s
statutory interpretation of the INA under
the deferential standard of Chevron.”).
Appellants argue that when the INA is
ambiguous we should invoke the rule of
lenity and find in the alien’s favor. See,
e.g., I.N.S. v. Cardoza- Fonseca, 480
U.S., 421, 449 (1987); I.N.S. v. St. Cyr,
533 U.S. 289, 320 (2001). The rule of
lenity, however, is reserved for situations
in which the normal rules of statutory
interpretation are unhelpful. See St. Cyr,
533 U.S. at 320, n. 45 (“[T]he cases and
rules cited by Petitioner are
distinguishable because ‘[w]e only defer,
however, to agency interpretations of
statutes that, applying the normal “tools
of statutory construction,” are
ambiguous.’”)

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