Lee v. Atty Gen USA

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Precedential or Non-Precedential: Precedential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.’”)

13