Petition for Writ of Certiorari — Evangelista v. Gonzales

- No. : QO4 339 SEP3 - 2004

IN THEFICE OF THE CLERK

Supreme Court of the Anited Siates

ss <SKS><

LOUIS EVANGELISTA,

Petitioner,

-V-

JOHN ASHCROFT, Attorney General of the United States; MICHAEL J. GARCIA,

Acting Assistant Secretary of the U.S. Immigration and Customs Enforcement;

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MATTHEW L. GUADAGNO

Counsel of Record

KERRY WILLIAM BRETZ

JULES E. COVEN

BRETZ & COVEN, LLP

305 Broadway - Suite 100

New York, New York 10007

(212) 267-2555

DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024

1-800-531-2028

i

QUESTIONS PRESENTED FOR REVIEW

This case involves an issue left unresolved by this

Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001). In

INS v. St. Cyr, this Court held that the retroactive application

of amendments from 1996 to the Immigration and Nationality

Act could not be applied retroactively to aliens who pleaded

guilty prior to the enactment of those amendments. INS v. St.

Cyr was silent as to whether those amendments could be

applied retroactively to aliens that committed their criminal

conduct prior to those amendments, but were convicted

afterwards.

Petitioner, an alien with lawful permanent resident

status, engaged in criminal conduct prior to the enactment of

the Antiterrorism and Effective Death Penalty Act of 1996 (the

“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (April 24, 1996),

and the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (the “IIRIRA”), Pub. L. 104-208,

110 Stat. 3009-597 (September 30, 1996). AEDPA § 440(d)

placed limitations on the availability of a form of relief from

deportation proceedings found in former Immigration

Nationality Act § 212(c), 8 U.S.C. § 1182(c) (1995). ITRIRA

completely repealed INA § 212(c). AEDPA was enacted after

Mr. Evangelista’s jury trial. IIRIRA was enacted while he was

in prison. The Immigration Judge and the Board of

Immigration Appeals (“Board” or “BIA”) found that AEDPA

and IIRIRA barred Mr. Evangelista from applying for 212(c)

relief. Mr. Evangelista filed a habeas corpus petition

challenging his removal order. Both the District Court and

Court of Appeals upheld his removal order. The question

presented is:

aio

Whether the court of appeals erred when it applied

AEDPA § 440(d) and ITRIRA § 304(b) retroactively to hold

that the Petitioner, whose deportable criminal conduct occurred

prior to the statutes’ enactments, but who was convicted after

their enactments, is ineligible for a waiver of deportation under

INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996).

-iii-

PARTIES TO THE PROCEEDINGS

The Petitioner is Louis Evangelista.

The Respondents are John Ashcroft, the Attorney

General of the United States; Michael Garcia, the Acting

Assistant Secretary of U.S. Immigration and Customs

Enforcement; and U.S. Immigration and Customs

Enforcement. '

' The action below listed the following Respondents: John Ashcroft,

Attorney General of the United States; James Ziglar, Commissioner,

Immigration and Naturalization Service (“INS”); and Immigration and

Naturalization Service. Pursuant to FED. R. APP. P. 43(c)(2), Michael J.

Garcia, Acting Assistant Secretary of U.S. Immigration and Customs

Enforcement (“ICE”) substituted James Ziglar. Pursuant to the Homeland

Security Act of 2002, Pub. L. 107-296 (January 24, 2003), the U.S. ICE

substituted for the INS.

-jv-

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

PARTIES TO THE PROCEEDINGS ......

TABLE OF AUTHORITIES .............

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW ...................

ee,

STATUTORY PROVISIONS INVOLVED .

STATEMENT OF THE CASE ...........

I. STATUTORY AND CASE LAW

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II. MR. EVANGELISTA’S PROCEEDINGS .......

A. BACKGROUND ABOUT

LOUIS EVANGELISTA ....

B. MR. EVANGELISTA’S

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REMOVAL PROCEEDINGS BEFORE

THE IMMIGRATION JUDGE

iv MR. EVANGELISTA’S APPEAL

TO THE BOARD OF IMMIGRATION

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-\V-

D. MR. EVANGELISTA’S DISTRICT

COURT PROCEEDINGS .............. 9

E. MR. EVANGELISTA’S PROCEEDINGS

BEFORE THE COURT OF APPEALS.... 9

REASONS FOR GRANTING THE WRIT ............ 10

I.

Il.

iil.

IV.

THIS COURT’S DECISION IN INS v.

ST. CYR HAS IMPLICITLY OVERRULED

‘THE SECOND CIRCUIT’S DECISION IN

DOMOND v. ASHCROFT ................-. 10

THIS COURT HAS NEVER REQUIRED

THAT THERE ONLY BE A QUID PRO QUO

AND RELIANCE IN ORDER FOR A STATUTE

TO BE IMPERMISSIBLY RETROACTIVE .... 12

THE SECOND CIRCUIT FAILED TO

mas = ee THAT THIS COURT

Y UTILIZES ANALYSIS

FROM EX POST FACTO CASES IN

DETERMINING WHETHER A STATUTE IS

ig tos: | ere errr ye ron ay eras 14

THE SECOND CIRCUIT FAILED TO

FOLLOW THIS COURT’S HOLDING IN

HUGHES AIRCRAFT v. UNITED STATES

ex rel. Schumer THAT THE ELIMINATION

OF A DEFENSE IN CIVIL PROCEEDINGS

HAS AN IMPERMISSIBLE RETROACTIVE

PME i vcd asuwevaksdkeneeee ew 17

CATLTARIIN ooc vk scuevewsnaxaestreeeeeeeeeees 19

-Vi-

TABLE OF AUTHORITIES

FEDERAL CASES:

Alvarez-Portillo v. Ashcroft, 280 F.3d 858

Daa BOGE 60d enctanseuneansendeee 15, 16

Beharry v. Ashcroft, 329 F.3d 51 (2d Cir. 2003)......... 5

Beharry v. Reno, 183 F. Supp. 2d 584 (E.D.N.Y. 2002),

rev'd sub nom. Beharry v. Ashcroft, 329 F.3d 51

COEUR. SEED 0. 06bbndskueueaed bile ete 9

Beazell v. Ohio, 269 U.S. 167 (1925) ............. 14-15

Carmell v. Texas, 529 U.S. 513 (2000) ............... 15

Collins v. Youngblood, 497 U.S. 37 (1990) ........ 14, 16

Domond v. INS, 244 F.3d 81 (2d Cir. 2001) ....... passim

Evangelista v. Ashcroft, 359 F.3d 145 (2d Cir. 2004)... 1,9

Francis v. INS, 532 F.2d 268 (2d Cir. 1976) ............ 2

Henderson v. INS, 157 F.3d 106 (2d Cir. 1998),

cert. denied sub nom. Reno v. Navas, 526 U.S.

POPS CHSOEE cncbedetsuceenseeeele ee 3

Hibbert v. Ashcroft, No. 02-2281, 2003 WL 21466746

(26 CH. SENG DO, SOGGD ce wcuccqueunssceaueuvae 5

Hughes Aircraft v. ex. Rel. Schumer,

~y Bie Bi.) Pree ee 14, 16, 17

-vii-

INS v. St. Cyr,

ee es PE bs ceeeénssscducewens passim

Be as OE A ok hnbssciceseecee. passim

Lindsey v. Washington, 301 U.S. 397 (1937) .......... 15

Lynce v. Mathis, 519 U.S. 433 (1997) ................ 15

Maria v. McElroy, 68 F.2d 206 (E.D.N.Y. 1999) ........ 3

Martin v. Hadix, 527 U.S. 343 (1999) ................ 12

Miller v. Florida, 482 U.S. 423 (1987) .............. 15

Mohammed y. Reno, 309 F.3d 95 (2d Cir. 2002) .... 4,5,9

Mohammed v. Reno, 205 F. Supp. 2d 39

(E.D.N.Y. 2002), stay vacated, 309 F.3d 95

PE ES cknasnsavadsreesarorte 4,9, 11

Pena-Rosario v. Reno, 83 F. Supp. 2d 349

SME CMI = siding bécdoncsodacedsczaxes 3

Pounnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004)... . 13

Pottinger v. Reno, 51 F. Supp. 2d 349

ey MN ch ncdauvoadesaueisesnceneee 3

Rankine v. Reno, 319 F.3d 93 (2d Cir. 2002) ..... 5, 12, 13

Rivers v. Roadway Exp. Inc., 511 'J.S. 298 (1994)... 13, 14

-Vili-

St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000),

aff'd, INS v. St. Cyr, 533 U.S. 289 (2001) ..... 3,4

United States v. Brady, 26 F.3d 282

NP Pe eds a eller cas apa dak eue a 15

United States v. Evangelista, 122 F.3d 112

RE rae ae rare a ere 7

United States v. Minicone, 960 F.2d 1099

MR ic eck Ce aed anes are Gace 02 4 e eka are 15

Weaver v. Graham, 450 U.S. 24(1981) .............. 15

FEDERAL STATUTORY AUTHORITIES:

Antiterrorism and Effective Death Penalty Act of 1996

(the “AEDPA”), Pub. L. 104-132, 110 Stat.1214

Sos vee nk Poss eaca nee ceaen 1,2

Se 50-9 5400 545046584600 ae Sa 1,2, 3,5, 18

Pe ee Es br devteroaeeunusewnsa cds ili

Homeland Security Act of 2002, Pub. L. 107-296

SY Se. SD <n awaken en adn acieeie ewen ill

Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (the “ITRIRA”), Pub. L. 104-208, 110

Stat. 3009-546 (September 30, 1997) ......... 2-3

IIRIRA § 304(b)... os. ss sce Peery pees ii, 3, 18

-1X-

Immigration and Nationality Act (“INA”) § 101(a)(43), 8

Ria COIN acne chechsnedcueesascar 7

INA § 101(a)(43)(M)(ii),

8 U.S.C. § 1101(a)(43)(M){ii) ............... 7,8

INA § 212(c), 8 U.S.C. § 1182(c)

(1994) (repealed 1996)...............4.. passim

INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)

(Supp. V 1999)....... Te TOR ae fence eee cence 7

oe ye Re Te 8 o>. rer re re re oe 7

INA § 240A(a), 8 U.S.C. § 1229b(a) (Supp. V 1999) ..... 3

Pe ooo kee detent eeanl ashes 6, 7,9

y BER fee Eo || ne pee ee ere ee |

ADMINISTRATIVE CASE LAW:

Matter of Silva, 161 & N Dec. 26 (BIA 1976) .......... 2

-X-

APPENDICES

Appendix A (Court of Appeals’ Judgment Affirming the

District Court’s Denial of Habeas Corpus Petition, February

pe OP re eT Oe er ey Binary la

Appendix B (Memorandum and Order of the

District Court Deny'ng the Habeas Corpus Petition,

ge Re rere rere rr rere err Ty 21a

Appendix C (Decision of the Board of Immigration

PDO, COTO Ti, MOOD oo 5 kk cbc bee asnnedbanses 37a

Appendix D (Memorandum of Decision and Order of the

Immigration Judge Denying the Motion to Reconsider,

PS Sp OUD sno hae ek eke ced ehee Kah ee eee 46a

Appendix E (Oral Decision of the Immigration

UE, FARE BAA 4 05 648s caG ewe eceeukiGeus 48a

Appendix F (Court of Appeals’ Denial of the Petition for

Rehearing and Rehearing En Banc, June 9, 2004) ..... 53a

Appendix G (Statutory Provisions Involved) ......... 55a

ae

PETITION FOR A WRIT OF CERTIORARI

Louis Evangelista respectfully petitions for a writ of —

certiorari to review the judgment of the United States Court of

Appeals for the Second Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals, which dismissed

Mr. Evangelista’s appeal (App. la) is reported. See Evangelista

v. Ashcroft, 359 F.3d 145 (2d Cir. 2004). The order denying

his petition for rehearing and hearing en banc is not reported.

(App. 53) The order by the District Court dismissing Mr.

Evangelista’s habeas corpus petition is not reported. (App.

21a). The decision and order of the Immigration Judge (App.

46a & 48a) and the Board of Immigration Appeals (App. 37a)

are unreported .

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(a). The judgment of the court of appeals was

entered on February 23, 2004. On April 15, 2004, Mr.

Evangelista timely filed a petition for panel rehearing and

rehearing en banc. The petition for panel rehearing and

rehearing en banc was denied on June 9, 2004.

STATUTORY PROVISIONS INVOLVED

Reprinted in the appendix to this petition are former

Immigration and Nationality Act § 212(c), 8 U.S.C. § 1182(c)

(1995) (App. 55a), Section 440(d) of the Antiterrorism and

Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat.

1214 (April 24, 1996) (App. 55a), Immigration and Nationality

mo

Act § 212(c), 8 U.S.C. § 1182(c) (1997), as amended by

AEDPA § 440(d) (App. 55a), and Section 304(b) of the Illegal

Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. 104-208, 110 Stat. 3009-546 (September 30,

1996) (App. 56a). This matter does not involve any

Constitutional provisions.

STATEMENT OF THE CASE

I. STATUTORY AND CASE LAW

BACKGROUND

For decades prior to the immigration law amendments

of 1996, lawful permanent resident immigrants charged with

committing a crime had a statutory right to seek a waiver of any

resulting charge of excludability or deportability under Section

212(c) of the Immigration and Nationality Act (“INA”),

provided the immigrant had been lawfully domiciled in the

United States for seven years. See former INA § 212(c), 8

U.S.C. § 1182(c) (1994), as added by Immigration and

Nationality Act of 1952; see also Francis v. INS, 532 F.2d 268

(2d Cir. 1976) (holding that 212(c) relief is available in

deportation as well as exclusion proceedings); Matter of Silva,

16 I & N Dec. 26 (BIA 1976) (adopting and applying the

Francis holding nationwide). The 212(c) waiver was

unavailable only for individuals convicted of “aggravated

felonies” for which they had served five or more years in

prison. See former INA §212(c), 8 U.S.C. § 1182(c) (1994).

In 1996, Congress amended the Immigration and

Nationality Act twice. First, in section 440(d) of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”),

Congress barred 212(c) waivers for several categories of

criminal offenses. Pub. L. No. 104-132, 110 Stat. 1214 (1996).

Subsequently, in section 304(b) of the Illegal Immigration

3

Reform and Immigrant Responsibility Act (“IIRIRA”),

Congress repealed 212(c) and replaced it with a form of relief

called “cancellation of removal” that is unavailable for

individuals convicted of any aggravated felony, regardless of

time served. INA § 240A(a), 8 U.S.C. § 1229b(a) (Supp. V

1999).

_ In 1998, the Second Circuit held that Congress did not

intend for AEDPA § 440(d) to be applied in deportation cases

that were pending when AEDPA was enacted. Henderson v.

INS, 157 F.3d 106 (2d Cir. 1998), cert. denied sub nom. Reno

v. Navas, 526 U.S. 1004 (1999). |

In September 2000, after finding Congress’s intent

unclear with respect to the application of AEDPA 440(d) and

IIRIRA 304(b) to pre-enactment convictions in deportation

cases not yet pending on the effective dates of these laws, the

Second Circuit applied the traditional presumption against

retroactive application of a new civil statute and held that the

AEDPA and IIRIRA bars to applying for 212(c) relief do not

extend to a lawful permanent resident who pled guilty or nolo

contendere to an otherwise qualifying crime prior to the

enactment dates of these laws. St. Cyr v. INS, 229 F.3d 406

(2d Cir. 2000). The Second Circuit’s decision in St. Cyr

included a brief discussion, not necessary to the holding of that

case, suggesting that the AEDPA and IIRIRA bars may

otherwise be permissibly applied to pre-enactment conduct. Id.

at 419. Prior to St. Cyr, several district courts within the

Second Circuit had concluded that AEDPA and IIRIRA could

not be applied retroactively to criminal conduct that had

occurred prior to the enactment of those statutes. See Pottinger

v. Reno, 51 F. Supp. 2d 349, 362 (E.D.N.Y. 1999); Maria v.

McElroy, 68 F.2d 206, 229-230 (E.D.N.Y. 1999); Pena-Rosario

v. Reno, 83 F.Supp. 2d 349, 365-66 (E.D.N.Y. 2000).

-4.

While the St. Cyr case was pending before the Supreme

Court, the Second Circuit held in Domond v. INS, 244 F.3d 81

(2d Cir. 2001), that the AEDPA and IIRIRA bars may be

applied to individuals whose underlying criminal conduct

occurred before the enactment of the 1996 immigration law

amendments, but whose convictions occurred post-enactment.

Id. at 86. In reaching its holding, the Domond panel reasoned

that because 212(c) waivers are a form of discretionary relief,

their loss “does not impose a new legal consequence on [an

alien’s] pre-AEDPA criminal conduct.” Id. at 85-86.

On appeal, the Supreme Court in INS v. St. Cyr, 533

U.S. 289 (2001), upheld the Second Circuit’s holding that the

AEDPA and IIRIRA bars do not apply to pre-enactment pleas,

but did not address the lower Court’s dicta regarding the

application of the statutes to pre-enactment conduct. However,

the Supreme Court held in St. Cyr that the loss of a “significant

likelihood of receiving § 212(c) relief,” even though such relief

is discretionary, constitutes a new legal effect that is

impermissibly retroactive. 533 U.S. at 321-325. While the

decision in Domond was not discussed, the Supreme Court’s

holding in St. Cyr directly contradicts the rationale of the

Domond decision.

The first precedent decision to address the viability of

Domond after St. Cyr was Mohammed v. Reno, 309 F.3d 95

(2d Cir. 2002). This decision vacated a stay of removal issued

by Judge Gleeson in Mohammed v. Reno, 205 F. Supp. 2d 39

(E.D.N.Y. 2002). Judge Gleeson followed Domond, but called

its holding into question and granted a stay of removal to Mr.

Mohammed, so that he could appeal the court’s decision.

Judge Gleeson noted that under this Court’s

retroactivity analysis that was established in Landgraf v. USI

-5-

Film Prod., 511 U.S. 244, 270 (1994), reliance is only one of

the benchmarks for determining retroactive effect; there is also

fair notice, and settled expectations. 205 F. Supp. 2d at 44-45.

Judge Gleeson concluded that applying fair notice and settled

expectations, AEDPA § 440(d) has an impermissible

retroactive effect upon aliens that committed criminal acts prior

to AEDPA’s enactment, but were convicted afterwards. 205 F.

Supp. 2d at 46-48. Judge Gleeson also noted that the Ex Post

Facto Clause is used by this Court in its Landgraf analysis to

determine the retroactive effect of a statute. 205 F. Supp. 2d at

41.

In Mohammed v. Reno, 309 F.3d 95 (2d Cir. 2002), the

Second Circuit held that Domond remained good law, in light

of the Supreme Court’s decision in INS v. St. Cyr. The Second

Circuit’s determination that Domond remained good law only

addressed reliance and not fair notice and settled expectations.

309 F.3d at 102-103. Nor did the decision address the Ex Post

Facto cases of this Court. Since Mohammed, the Second

Circuit has repeatedly reaffirmed Domond without any detailed

analysis. See Rankine v. Reno, 319 F.3d 93 (2d Cir. 2002);

Beharry v. Ashcroft, 329 F.3d 51, 63 (2d Cir. 2003); Hibbert v.

Ashcroft, Dkt. No. 02-2281, 2003 WL 21466746 (2d Cir. June

20, 2003). In Mr. Evangelista’s case, the panel recognized that

Judge Gleeson had called Domond into question, but followed

Domond without directly addressing these issues. 359 F.3d at

154-55.

Despite the numerous precedent decisions onthis issue,

the Second Circuit has yet to issue a single decision evaluating

the retroactivity of AEDPA and IIRIRA under the fair notice

and reasonable expectation benchmarks. Nor has the Second

Circuit considered Ex Post Facto cases in its determinations

that AEDPA and IIRIRA are not impermissibly retroactive to

Mi

individuals like Mr. Evangelista.

II. MR. EVANGELISTA’S PROCEEDINGS

A. BACKGROUND ABOUT LOUIS

EVANGELISTA

Mr. Evangelista is a native and citizen of Italy. He was

born on December 24, 1940. He is sixty-three years old. He

was admitted to the United States on or about October 26,

1961, as a lawful permanent resident. Mr. Evangelista has

resided in the United States for forty-two years. In 1960, Mr.

Evangelista married Lucy Evangelista, who is a naturalized

United States citizen. The couple has five adult children who

were born in the United States.

On or about December 18, 1994, Mr. Evangelista was

arrested in the Eastern District of New York on federal income

tax charges. On February 25, 1995, a superseding indictment

was returned against him, which contained twenty six counts

relating to tax offenses, which involved events dating back to

1987. The twenty-sixth count was pursuant to 26 U.S.C. §

7201, which involves evading or defeating income tax.

According to count 26 of the indictment, Mr. Evangelista

attempted to “evade and defeat” a net income tax in the amount

of $335,830, which was assessed on negative income claimed

by Mr. Evangelista. According to count 26 of the indictment,

the events relating to this count occurred on or about June 14,

1991. At the time of Mr. Evangelista’s criminal conduct, he

was eligible for a waiver of deportability pursuant to INA §

212(c), 8 U.S.C. § 1182(c) (1995).

Mr. Evangelista entered a plea of not guilty to the

indictment. On February 28, 1996, a jury returned a verdict of

a.

guilty on all of the counts of the indictment charged against Mr.

Evangelista, including the charge under 26 U.S.C. § 7201. Mr.

Evangelista was sentenced to serve fifty-one months of

incarceration. Mr. Evangelista appealed his conviction to the

Second Circuit, which rendered a precedent decision upholding

his conviction. United States v. Evangelista, 122 F.3d 112, 114

(2d Cir. 1997).

B. MR. EVANGELISTA’S REMOVAL

PROCEEDINGS BEFORE THE

IMMIGRATION JUDGE

As a result of Mr. Evangelista’s conviction, the

Immigration and Naturalization Service (“Service”) issued a

Notice to Appear (“NTA”) against Mr. Evangelista on April 14,

1998. The NTA is the official charging document that informs

an alien that he or she is in removal proceedings and informs

the alien of the allegations of fact and charges of inadmissibility

or deportability being leveled against him or her. See INA §

239, 8 U.S.C. § 1229. The NTA indicated that as a result of his

having been convicted of 26 U.S.C § 7201, Mr. Evangelista

was removable pursuant to INA § 237(a)(2)(A)(iil), 8 U.S.C. §

1227(a)(2)(A){ii1), as an alien convicted of an aggravated felony

as defined in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43). The

NTA was orally amended to indicate that he was convicted of

an aggravated felony as defined in INA § 101(a)(43)(M)(i1), 8

U.S.C. § 1101(a)(43)(M)(ii), which is an offense that 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.”

Before the Immigration Judge, Mr. Evangelista

ry

contended that he was not an aggravated felon.” He also sought

a waiver pursuant to former INA § 212(c). Mr. Evangelista

contended that since at the time of his criminal conduct he was

eligible for a waiver pursuant to INA § 212(c), he should

continue to remain eligible for that form of relief.

On April 11, 2000, the Immigration Judge issued an oral

decision. (App. 48a). The Immigration Judge found that Mr.

Evangelista was removable. The Immigration Judge concluded

that Mr. Evangelista was ineligible for 212(c) relief because

IIRIRA could be applied retroactively to him. Mr. Evangelista

filed a motion to reconsider with the Immigration Judge. On

June 2, 2000, the Immigration Judge denied the motion to

reconsider. (App. 46a). Mr. Evangelista filed timely appeals

with the Board of both the April 11, 2000, and the June 2, 2000,

orders from the Immigration Judge.

C. MR. EVANGELISTA’S APPEAL TO THE

BOARD OF IMMIGRATION APPEALS

On October 25, 2000, the Board rendered a decision

dismissing both of Mr. Evangelista’s appeals. (App. 37a). The

Board concluded that Mr. Evangelista was an aggravated felon.

The Board concluded that Mr. Evangelista was ineligible for

212(c) relief because IIRIRA’s repeal of 212(c) was retroactive.

2 Mr. Evangelista contended that since INA § 101(a)(43)(M)(ii) only made

tax evasion and not defeating taxes a removable offense, and that since his

indictment was phrased in the disjunctive, the Service was required to

prove by clear and convincing evidence that he had been convicted of

evading taxes, as opposed to defeating taxes. Mr. Evangelista raised this

issue to the Board, to the U.S. District Court, and to the U.S. Court of

Appeals. However, his removability is not the basis of this petition. This

petition is based solely upon his eligibility for 212(c) relief.

-9.

D. MR. EVANGELISTA’S DISTRICT

COURT PROCEEDINGS

On September 13, 2001, Mr. Evangelista filed a habeas

corpus petition in the Eastern District of New York. The

habeas corpus petition challenged Mr. Evangelista’s removal

order on the basis that the Service failed to establish that he was

removable, since it was not established that he had evaded

income taxes, as opposed to having defeated income taxes.

Mr. Evangelista also argued that IIRIRA could not be applied

retroactively to preclude him from applying for 212(c) relief

because his criminal conduct predated II[RIRA.

On November 22, 2002, U.S. District Judge Leonard D.

Wexler issued a Memorandum and Order dismissing Mr.

Evangelista’s habeas corpus petition. (App. 21a). Like the

Board, Judge Wexler, concluded that Mr. Evangelista had been

convicted of “evading” income taxes pursuant to 26 U.S.C. §

7201. In holding Mr. Evangelista ineligible for 212(c) relief,

Judge Wexler cited to Domond v. INS, 244 F.3d 81 (2d Cir.

2001) and Mohammed v. Reno, 309 F.3d 95 (2d Cir. 2002).

E. MR. EVANGELISTA’S PROCEEDINGS

BEFORE THE COURT OF APPEALS

Mr. Evangelista filed a timely notice of appeal to the

U.S. Court of Appeals for the Second Circuit. The Second

Circuit dismissed Mr. Evangelista’s appeal on February 23,

2004, in a precedent decision, Evangelista v. Ashcroft, 359

F.3d 145 (2d Cir. 2004). (App. la). The Second Circuit

recognized that the district courts in Mohammed v. Reno, 205

F. Supp. 2d 39 (E.D.N.Y. 2002), stay vacated, 309 F.3d 95 (2d

Cir. 2002) and Beharry v. Reno, 183 F. Supp. 2d 584 (E.D.N.Y.

2002), rev’d sub nom Beharry v. Ashcroft, 329 F.3d 51 (2d Cir.

-10-

2003) criticized its decision in Domond as being inconsistent

with St. Cyr. 359 F.3d at 154-55. Nevertheless, the Second

Circuit followed Domond without addressing these criticisms.

359 F.3d at 154-55. Mr. Evangelista filed a timely petition for

panel rehearing and rehearing en banc, which was denied on

June 9, 2004. (App. 53a). The instant petition for certiorari

seeks review of that court of appeals judgment.

REASONS FOR GRANTING THE WRIT

I. THIS COURT’S DECISION IN INS vy. ST.

CYR HAS IMPLICITLY OVERRULED THE

SECOND CIRCUIT’S DECISION IN

DOMOND vy. ASHCROFT

The Court should grant the petition for certiorari

because the decision relied upon by the Second Circuit to deny

Mr. Evangelista’s habeas corpus petition has been implicitly

overturned by this Court’s decision in INS v. St. Cyr. This

Court held in INS v. St. Cyr that despite the discretionary

nature of section 212(c), its elimination does have legal

consequences, and thus, impermissible retroactive effect. 533

U.S. at 325. The Supreme Court stated, “(t)here is a clear

difference, for the purposes of retroactivity analysis, between

facing possible deportation and facing certain deportation.”

533 U.S. at 325. This statement implicitly overrules Domond.

By contrast, in Domond the Second Circuit held that the

limitations on 212(c) relief created by AEDPA § 440(d) do not

have retroactive effect because 212(c) relief is discretionary.

244 F.3d at 85-86. Logic dictates that the Supreme Court’s

decision in INS v. St. Cyr cannot contradict Domond, yet not

eS

undermine Domond. In Mohammed v. Reno, United States

District Court Judge John Gleeson of the Eastern District of

New York recognized that the Supreme Court’s decision in St.

Cyr conflicts with Domond because this Court held that taking

away discretionary relief can have a retroactive effect. 205 F.

Supp. 2d at 44-45. However, in Mohammed, the Second

Circuit gave the following rationalization as to why Domond

has not been overturned:

We think the Domond quotation has been taken

too literally. The panel was obviously aware

that, prior to AEDPA, section 212(c) relief often

spared an alien from being removed from this

country. The panel’s statement is properly

understood to mean only that an order for

deportation was always imposed, even though

not always carried out. In any event, the

Supreme Court’s focus on the shift from

possible to certain deportation was explicitly

tied to the alien’s reliance on the prior

availability of discretionary relief in deciding to

plead guilty.

309 F.3d at 103.

The reasoning of the Mohammed panel is a post hoc

rationalization. Moreover, the Second Circuit’s decision in

Mohammed is flawed because reliance is not the sole

determinative factor in deciding whether a statute has an

impermissible retroactive effect. See Part II, infra.

-12-

Il. THIS COURT HAS NEVER REQUIRED :

THAT THERE ONLY BE A QUID PRO QUO

AND RELIANCE IN ORDER FOR A

STATUTE TO BE IMPERMISSIBLY

RETROACTIVE

- This Court should grant the petition for certiorari

because the Second Circuit has misinterpreted this Court’s

decision in INS v. St. Cyr. In St. Cyr, this Court stated that,

“(a)s we have repeatedly counseled, the judgment whether a

particular statute acts retroactively ‘should be informed and

guided by familiar considerations of fair notice, reasonable

reliance, and settled expectations.’” 533 U.S. at 321 (quoting

Martin v. Hadix, 527 U.S. 343, 357-58 (1999) (in turn quoting

Landgraf v. USI Film Prod., 511 U.S. 244, 270 (1994)). But in |

Domond and its progeny, the Second Circuit has read these |

words as if “fair notice,” “reasonable reliance,” and “settled |

expectations” were synonymous. As a result of its misreading |

of INS v. St. Cyr, the Second Circuit only considers whether |

there was reliance in order to determine whether a statute is |

impermissibly retroactive under the second tier of the Landgraf

test.

Moreover, the Second Circuit appears to be requiring

that there be a quid pro quo, as well. See e.g., Rankine v.

Reno, 319 F.3d 93, 100 (2d Cir. 2002) (“If they had pled guilty,

petitioners would have participated in the quid pro quo

relationship, in which a greater expectation of relief is provided

in exchange for forgoing a trial, that gave rise to the reliance

interest emphasized by the Supreme Court in St. Cyr.”). These

are requirements that this Court has never imposed. The St.

Cyr Court was just observing that there was reliance and a quid

pro quo present in Mr. St. Cyr’s case. The Court did not hold

that reliance and a quid pro quo were required in order to show

1%.

that a statute has an impermissible retroactive effect. Recently,

the Third Circuit in Pounnapula v. Ashcroft, 373 F.3d 480 (3d _

Cir. 2004), recognized that the type of reliance that requires a

quid pro quo is not the only way to establish that a statute is

impermissibly retroactive id. at 499. The Third Circuit in

Pounnapula stated:

We agree that the kind of quid pro quo inherent

in the acceptance of a piea agreement is one

way to prove reliance; as we note above, the

action and forbearance implicit in a quid pro

quo is strong evidence of reliance. But it is

surely not the only way to establish reliance,

much less the talisman that the INS makes it out

to be. An individual can rely or have settled

expectations about a state of affairs without

having to enter into an exchange to secure or

assure it.

373 F.3d at 499.

In Pounnapula, the Third Circuit rejected the Second

Circuit’s decision in Rankine and held that IIRIRA’s repeal of

212(c) could not be applied to an alien who turned down a plea

agreement and elected to go to trial in reasonable reliance of

212(c) relief. In light of Pounnapula, there is a circuit split

regarding whether a quid pro quo is necessary to demonstrate

that a statute is impermissibly retroactive.

The Second Circuit’s requirement ofa quid pro quo and

reliance would result in a different outcome in Landgraf v. USI

Film Prod., 511 U.S. 244 (1994) and Rivers v. Roadway Exp.

Inc., 511 U.S. 298 (1994). This is because there was no

reliance or quid pro quo in Landgraf or Rivers. In both of these

-14-

cases, this Court held that statutes, which increased civil

liability, could not be applied retroactively to pre-enactment

conduct. In addressing whether AEDPA § 440(d) has an

impermissible retroactive effect for pre-enactment conduct, the

Second Circuit in St. Cyr stated it would “border on the absurd

to argue that” aliens would not have committed crimes if they

knew discretionary relief from deportation would not be

available. 229 F.3d at 418. Applying the Second Circuit’s

logic in Domond to Landgraf and Rivers, it would “border on

the absurd” to believe that tortfeasors would refrain from

tortious conduct, if they knew their monetary liability would be

increased at a later date. In other words, the outcomes of

Landgraf and Rivers would be different under Domond. St. Cyr

did not intend to overrule Landgraf and Rivers.

Ill. THE SECOND CIRCUIT FAILED TO

RECOGNIZE THAT THIS COURT

ROUTINELY UTILIZES ANALYSIS FROM EX

POST FACTO CASES IN DETERMINING

WHETHER A STATUTE IS RETROACTIVE

This Court should grant the petition for certiorari

because the Second Circuit has refused to utilize Ex Post Facto

analysis in Domond and its progeny. Domond, 244 F.3d at 87.

Because of this, Second Circuit retroactivity analysis is

different from this Court’s analysis. The Second Circuit was

correct in Domond that the Ex Post Facto Clause of the

Constitution does not apply to immigration proceedings. 244

F.3d at 87. However, in doing so, the Second Circuit ignored

the fact that this Court regularly looks to Ex Post Facto cases

by analogy when determining the retroactive effect of a civil

statute. See e.g., Hughes Aircraft v. United States ex. rel.

Schumer, 520 U.S. 939, 948 (1997) (citing Collins v.

Youngblood, 497 U.S. 37 (1990) and Beazell v. Ohio, 269 U.S.

-15-

167, 169-70 (1925)); Landgraf, 511 U.S. at 269 n.23 (citing

Miller v. Florida, 482 U.S. 423 (1987)). In fact, this Court

relied upon an Ex Post Facto case, Lindsey v. Washington, 301

U.S. 397 (1937), in its decision in INS v. St. Cyr. 533 US. at

325.

The term “fair notice,” which is one of the three

retroactivity benchmarks mentioned in St. Cyr, originated in

this Court’s Ex Post Facto cases. See e.g., Lynce v. Mathis,

519U.S. 433 (1997) (“this Court has consistently stressed ‘lack

of fair notice’ as one of the ‘central concerns of the Ex Post

Facto Clause.””) (emphasis added) (quoting Weaver v. Graham,

450 U.S. 24, 30 (1981)); accord Carmell v. Texas, 529 U.S.

513, 566 (2000); Miller v. Florida, 482 U.S. 423, 430 (1987).

In fact, “fair notice” is the benchmark in the Second Circuit’s

Ex Post Facto cases. See e.g., United States v. Brady, 26 F.3d

282, 291 (2d Cir. 1984) (“One of the principal aims of the Ex

Post Facto clause is to ensure that individuals have fair notice

of what conduct is criminally proscribed”). (emphasis added);

United States v. Minicone, 960 F.2d 1099, 1111 (2d Cir. 1992)

(noting that the purpose of the Ex Post Facto clause is both

reliance and fair notice). Since this Court’s decision in St. Cyr

considered one of the three benchmarks for determining

retroactivity to be “fair notice,” this Court was essentially

stating that Ex Post Facto cases are to be looked at in

determining whether a statute is impermissibly retroactive.

Contrary to the Second Circuit, the Eighth Circuit has

utilized Ex Post Facto cases in its_retroactivity analysis See

Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 867 (8th Cir. 2002).

In Alvarez-Portillo, the Eighth Circuit analyzed whether

IIRIRA’s amendments to the provisions of the INA relating to

reinstatement of prior deportation orders could be applied to

conduct that pre-dated its enactment. In doing so, the Eighth

|

-16-

Circuit utilized Ex Post Facto analysis to conclude that the

proper date for determining retroactive effect is the date of the

individual’s wrongful conduct. The Eighth Circuit stated:

The presumption against retroactivity of civil

statues is based in part on principles reflected in

the Ex Post Facto Clause, Article I, § 10, cl. 1,

of the Constitution. Landgraf, 511 U.S. at 266.

A core ex post facto principle is that a new

statute may not deprive a criminal defendant of

a defense available at the time his alleged crime

was committed. See Collins v. Youngblood,

497 U.S. 37, 52, 111 L. Ed. 2d 30, 110 S. Ct.

2715 (1990). Hughes Aircraft [520 U.S. 939

(1997)] confirmed that this principle is fully

applicable in defining impermissible retroactive

effects in civil cases under part two of the

Landgraf analysis.

- -Alvarez-Portillo, 280 F.3d at 867. (emphasis added).

This Court’s retroactivity analysis in criminal Ex Post

Facto cases offers the most straight-forward and functional

approach to determining retroactive effect. It looks at the date

of the alleged criminal conduct to analyze whether new laws

have retroactive effect. The date of conduct is an appropriate

yardstick because it provides a clear and enforceable test that

avoids the need for a case by case review of the retroactivity

issue.

Contrary to Domond, it would not border on the absurd

not to apply AEDPA and IIRIRA retroactively under Ex Post

Facto analysis as employed by this Court. Thus, because the

Second Circuit is not properly applying this Court’s precedents,

the Second Circuit is not deciding its retroactivity cases

«17.

properly.

IV. THE SECOND CIRCUIT FAILED TO

FOLLOW THIS COURT’S HOLDING IN

HUGHES AIRCRAFT v. UNITED STATES ex

rel. SCHUMER THAT THE ELIMINATION

OF A DEFENSE IN CIVIL PROCEEDINGS

HAS AN IMPERMISSIBLE RETROACTIVE

EFFECT

The Court should grant the petition for certiorari

because the Second Circuit’s decision is inconsistent with this

Court’s decision in Hughes Aircraft Co. v. United States ex rel.

Schumer, 520 U.S. 939 (1997). In Hughes Aircraft Co., the

Court found retroactive effect when a 1986 amendment was .

applied to a case submitted prior to the amendment’s adoption,

causing a private party to lose a defense against private suits for

submitting a false claim to the government. Elimination of the

defense in question technically did not increase the defendant's

liability exposure because the defense had never been available

in suits brought by government litigators. The Court stated

that:

while we acknowledge that the monetary

liability faced by [this] defendant is the same

whether the action is brought by the

Government or a qui tam relator, the 1986

amendment eliminates a defense to a qui tam

suit -- prior disclosure to the Government -- and

therefore changes the substance of the existing

cause of action ... by “attaching a new disability,

in respect to transactions or considerations

already past.”

-18-

Id. at 948 (quoting Landgraf, 511 U.S. at 269)

(emphasis added).

The new disability is the deprivation of a prior defense.

The application of AEDPA § 440(d) or ITIRIRA § 304(b) to a

non-citizen who committed a prior criminal offense wouid have

a retroactive effect similar to that in Hughes Aircraft. The

elimination of the right to apply for section 212(c) relief, like

the elimination of the prior government disclosure defense in

Hughes Aircraft, does not change the magnitude of the alien's

potential liability. It does, however, increase the likelihood that

this liability, i.e., deportation, will be imposed, and it does so

by eliminating prior available relief.

-19-

CONCLUSION

For the foregoing reasons, the petition for certiorari

should be granted.

Respectfully submitted,

Matthew L. Guadagno

Counsel of Record $

Kerry W. Bretz

Jules E. Coven

BRETZ & COVEN, LLP

305 Broadway, Suite 100

New York, NY 10007

(212) 267-2555

Attorneys for Petitioner

-la-

UNITED STATE COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2003

(Argued: December 3, 2003 Decided: February 23, 2004)

Docket No. 03-2019

LOUIS EVANGELISTA,

Petitioner-Appellant,

- Vv -

JOHN ASHCROFT, Attorney General of the United States;

JAMES ZIGLAR, Commissioner of the Immigration &

Naturalization Service; UNITED STATES IMMIGRATION

AND NATURALIZATION SERVICE,

Respondents-Appellees.

Before: CARDAMONE, SACK, and GIBSON,* Circuit

Judges.

Appeal from a judgment of the United States District

Court for the Eastern District of New York (Leonard D.

Wexler, Judge) dismissing the petitioner-appellant’s petition

for a writ of habeas corpus preventing his deportation to Italy

because (1) he was convicted of an aggravated felony under 8

U.S.C. § 1101(a)(43)(M)(ii), for which he thereby became

deportable, and (2) discretionary relief from deportation was

not available to him.

Affirmed.

* The Honorable John R. Gibson, of the United States Court of

Appeals for the Eighth Circuit, sitting by designation.

o29-

MATTHEW L. GUADAGNO, Bretz & Coven, LLP

(Kerry William Bretz and Jules E. Coven,

Of counsel), New York, NY, for

Petitioner-Appellant.

DIONE M. ENEA, Special Assistant United

States Attorney for the Eastern District

of New York (Roslynn R. Mauskopf, United

States Attorney, and Varuni Nelson,

Assistant United States Attorney, of

counsel), Brooklyn, NY, for Respondents-Appellees.

‘SACK, Circuit Judge:

The petitioner-appellant, Louis Evangelista, appeals from

a judgment of the United States District Court for the Eastern

District of New York (Leonard D. Wexler, Judge) dismissing

his petition for a writ of habeas corpus to prevent his

deportation' to Italy. The district court held that Evangelista

had been convicted of an offense “described in section 7201 of

Title 26 (relating to tax evasion) in which the revenue loss to

the Government exceeds $10,000,” 8 U.S.C.

§1101(a)(43)(M)(ii), for which he was deportable under the

' The Illegal Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. No. 104—208, Div. C, 110 Stat. 3009-546, “realigned the

vocabulary of immigration law, creating a new category of ‘removal’

proceedings that largely replaces what were formerly exclusion proceedings

and deportation proceedings.” Gerald L. Neuman, Habeas Corpus,

Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961,

966 (1998); see also Mohammed v. Reno, 309 F.3d 95, 96 (2d Cir. 2002)

(referring to the change in nomenclature). We nonetheless use the terms

“deport” and “deportation” from time to time in this opinion as well-worn

colloquialisms for “remove” and “removal,” respectively.

-3a-

Immigration and Nationality Act (the “INA”). We agree with

the district court’s conclusion, although on grounds that differ

somewhat from those on which the district court relied.

The district court also held that Evangelista was not

eligible for a waiver of deportation because he was convicted

of the offense at issue after Congress had abolished such relief

for persons convicted of an aggravated felony. The

unavailability of a waiver is not impermissibly retroactive in

this case, the district court reasoned, because irrespective of the

timing of the underlying criminal conduct, Evangelista’s

conviction of the relevant crime occurred when the waiver was

no longer available.

BACKGROUND

The petitioner-appellant, Louis Evangelista, is a sixty-

three-year-old native and citizen of Italy. He has been a lawful

permanent resident of the United States since 1961. In 1995, a

superseding indictment was filed in the United States District

Court for the Eastern District of New York charging

Evangelista with various federal tax crimes involving events

that occurred as early as 1988. In count 26 of the superseding

indictment, Evangelista was charged with “willfully

attempt[ing] to evade and defeat [an] income tax by failing to

pay said income tax to the Internal Revenue Service and by

concealing and attempting to conceal from all proper officers

of the United States of America his true assets” in violation of

26 U.S.C.§ 7201. Superseding Indictment at 16, United States

v. Evangelista, No. 94-CR-1277(S-2) (LDW) (E.D.N.Y. 1996)

(emphasis added).

Evangelista pleaded not guilty to all of the counts against

him. However, a jury found him guilty on all counts. The

-4a-

district court's judgment of conviction, dated October 29, 1996,

states that Evangelista was adjudged guilty under count 26 of

“[a]ttempt[ing] to evade or defeat tax” in violation of 26 U.S.C.

§ 7201. Judgment of Conviction, United States v. Evangelista,

No. CR 94-1277(S-2) (E.D.N.Y. Oct. 29, 1996) (emphasis

added). Evangelista appealed his conviction to this Court. We

affirmed. See United States v. Evangelista, 122 F.3d 112, 114

(2d Cir. 1997), cert. denied, 522 U.S. 1114 (1998). Our

opinion focused primarily on counts under 26 U.S.C. § 7202,

not on the section 7201 counts. Id. at 116-22. But we did note

in passing that Evangelista “was convicted of evading personal

income taxes (in violation of 26 U.S.C. § 7201),” id. at 113

(emphasis added), and that “[t}he jury found [Evangelista and

another defendant] guilty on all of the counts with which they

were charged,” id. at 116.

As a result of Evangelista’s conviction, on April 14,

1998, the Immigration and Naturalization Service (“INS”)

issued to Evangelista a Notice To Appear, stating that he was

subject to removal from the United States for having been

convicted of an “aggravated felony” as defined in the INA, 8

U.S.C. §1101(a)(43)(M)(ii). Section 1101(a)(43) contains a

lengthy list of those crimes constituting an “aggravated felony”

for the purpose of determining who is deportable under the

INA. The list includes as an aggravated felony in section

1101(a)(43)(M)(ii)-- the section relevant to the Notice To

Appear -- “an offense that . . . is described in section 7201 of

Title 26 (relating to tax evasion) in which the revenue loss to

the Government exceeds $10,000.” Id.

In removal proceedings before an Immigration Judge

(“IJ”), Evangelista challenged his potential deportation. He

first contended that he had not been convicted of an aggravated

felony because there was no clear and convincing evidence that

-5a-

he had been convicted under count 26 of evading taxes, rather

than defeating taxes, and that only evading taxes constitutes an

aggravated felony under the INA. Evangelista also argued that

he was eligible for a waiver of deportation pursuant to former

section 212(c) of the INA, 8 U.S.C. § 1182(c) (1994) (repealed

by the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208,

Div. C, § 304(b), 110 Stat. 3009-546, 3009-597), because at

the time of his criminal conduct he was eligible for the waiver.

The IJ, rejecting Evangelista’s arguments, ordered his removal.

Evangelista appealed the IJ’s decision to the Board of

Immigration Appeals (“BIA”). The BIA held that Evangelista

had been convicted of an aggravated felony within the meaning

of the INA. First, the BIA concluded that Evangelista had been

convicted of tax evasion, an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(M)(ii). The BIA relied on (1) the judgment of

conviction, which stated that Evangelista was found guilty on

count 26 for attempting to evade or defeat taxes in violation of

26 U.S.C. § 7201, (2) the indictment, which set out count 26 as

a charge of both evading taxes and defeating taxes, and (3) our

decision on Evangelista’s appeal, which referred to Evangelista

as having been convicted of tax evasion. Second, the BIA

reasoned that even if Evangelista had been convicted under

section 7201 only of defeating taxes and not of evading them,

he would nonetheless have committed an aggravated felony

under the INA, because the parenthetical phrase in the relevant

section -- “(relating to tax evasion)”-- is merely descriptive of

the substance of section 7201. According to the BIA, the

parenthetical phrase does not limit the definition of an

aggravated felony under section 1101(a)(43)(M)(ii) to those

offenses that involve tax evasion, but also includes those that

involve defeating taxes. And third, the BIA concluded that

even if the “relating to tax evasion” parenthetical phrase

-6a-

restricted the scope of section 1 101(a)(43)(M)(11) to convictions

relating to tax evasion under 26 U.S.C. § 7201, defeating taxes

was “relatf[ed] to tax evasion” and therefore qualified as an

aggravated felony. The BIA then held that Evangelista was not

eligible for a waiver of deportation under former section

212(c) because he was convicted and formal deportation

proceedings against him were begun only after the section was

repealed. The BIA therefore dismissed Evangelista’s appeal.

See In re Evangelista, No. A12 352 319 (B.L.A. Oct. 25, 2000).

Evangelista then filed in the district court a petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking

relief from deportation. The court denied his petition. See

Evangelista v. Ashcroft, 232 F. Supp. 2d 30 (E.D.N.Y. 2002).

Relying on the conjunctive language in count 26 of the

indictment (“willfully attempt[ing] to evade and defeat [an]

income tax” (emphasis added)) and our opinion on

Evangelista’s appeal, the court concluded that “there can be no

doubt that Evangelista was convicted of an offense “described

in section 7201 of Title 26 (relating to tax evasion) in which the

revenue lost to the Government exceeds $10,000.’” Id. at 34

(quoting 8 U.S.C. § 1101 (a)(43)(M)(ii)). The court therefore

decided that Evangelista had been convicted of an aggravated

felony and was deportable. Id. The district court also

concluded that relief from deportation under former INA

section 212(c) was not available to Evangelista, “a criminal

defendant [who] elect[ed] to go to trial in connection with

conduct or a conviction that pre-dates the repeal of Section

212(c), but [who was] convicted and placed in removal

proceedings after the repeal of the statute.” Id. at 37.

According to the district court, it is the date of conviction, not

the date of the criminal conduct or of entry of a plea of not

guilty, that controls. The court reasoned that there are no

fairness concerns when the defendant elects to proceed to trial

my;

-- as opposed to entering into a plea agreement -- before the

repeal of section 212(c). Id. at 36. Evangelista appeals.

DISCUSSION

I. Conviction for an Aggravated Felony

“Any alien who is convicted of an aggravated felony at

any time after admission [to the United States] is deportable.”

8 U.S.C. § 1227(a)(2)(A)(iii). The INS “has the burden of

establishing [deportability] by clear and convincing evidence,”

which must be “reasonable, substantial, and probative.” Id. §

1229a(c)(3)(A).

We have no jurisdiction to review a final order of removal

against an alien who is removable for having committed an

ageravated felony. Id. § 1252(a)(2)(C). But “Twle do retain

jurisdiction . . . to review the question whether, as a matter of

law, [a petitioner] committed an ‘aggravated felony’ under [the

INA].” Dalton v. Ashcroft, 257 F.3d 200, 203 (2d Cir. 2001).

We therefore have jurisdiction to review whether Evangelista

was convicted of an aggravated felony under the INA.

The INA sets forth a list of offenses that qualify as types

of aggravated felonies. Among them is “an offense that... is

described in section 7201 of Title 26 (relating to tax evasion)

in which the revenue loss to the Government exceeds $10,000.”

8 U.S.C. § 1101(a)(43)(M)ii). 26 U.S.C. § 7201 in tum

criminalizes “willful{] attempts in any manner to evade or

defeat any tax imposed by [Title 26] or the payment thereof.”

We therefore must decide whether Evangelista’s conviction

under 26 U.S.C. § 7201 falls within the scope of section

1101(a)(43)(M)(ii), thus rendering him deportable.

-Sa-

A. Standard of Review

“On appeal from the denial of a habeas petition brought

pursuant to 28 U.S.C. § 2241, we review the merits of the

petition de novo.” Chrzanoski v. Ashcroft, 327 F.3d 188, 191

(2d Cir. 2003). We review the BIA’s interpretation of

ambiguous provisions of the INA, however, with substantial

deference to the BIA. Dickson v. Ashcroft, 346 F.3d 44, 48 (2d

Cir. 2003), rejecting its interpretation only if it is “arbitrary,

Capricious, or manifestly covitrary to the statute,” Chevron

U.S.A.., Inc. v. Natural Resources Def. Council, Inc., 467 U.S.

837, 844 (1984). “Ifthe intent of Congress is clear, that is the

end of the matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress.” Id.

at 842-43. We review de novo the BIA’s interpretation of

federal criminal statutes, such as 26 U.S.C. § 7201, because we

and not they are charged with the responsibility of such

interpretation. See Dickson, 346 F.3d at 48; see also Ming Lam

Sui v. INS, 250 F.3d 105, 116 (2d Cir. 2001) (reviewing de

novo whether a petitioner’s conviction fits within the BIA’s

reasonable interpretation of a subsection of the definition of

“ageravated felony”).

B. Scape of Section 1101 (a) (43) (M) (ii)

1. The Arguments. Evangelista argues that the

language of 8 U.S.C. § 1101(a)(43)(M)(i1) -- an offense

“described in section 7201 of Title 26 (relating to tax evasion)

in which the revenue loss to the Government exceeds $10,000”

-- together with the rule of lenity, require us to interpret that

section to render deportable only persons convicted for tax

evasion under 26 U.S.C. § 7201, and not those convicted of

“defeat[ing] a[] tax” under that section. He contends further

that the crime of “defeat[ing] a[] tax” is not a section 7201

-9a-

crime “relat{[ed] to tax evasion,” under the language of the

parenthetical phrase, because “‘[e]vasion’ appears to involve

concealment of assets, whereas ‘defeating’ appears to involve

improper tax avoidance, unlawfully minimizing one’s tax

liability, or other refusal to pay tax.” Petitioner’s Br. at 16.

Evangelista urges us to conclude that because only tax evasion

and section 7201 crimes related to tax evasion are aggravated

feionies under the INA and because the INS did not meet its

burden of proof to establish that Evangelista was convicted of

tax evasion or a section 7201 crime “relating to tax evasion,”

he is not deportable for commission of an aggravated felony

under the INA.

The government responds that the language of

section! 101(a)(43)(M)(ii) provides that any conviction under

26 U.S.C. § 7201 is an aggravated felony, provided that the

revenue loss to the government exceeds $10,000, because the

parenthetical phrase “relating to tax evasion” is merely

descriptive of the offenses set out in 26 U.S.C. § 7201. And,

the government continues, even if section 1101 (a)(43)(M)(i1)

is restricted to convictions under 26 U.S.C. § 7201 for offenses

described in the parenthetical phrase -- “relating to tax evasion”

-- a conviction for “defeat [of a] tax” is a conviction under 26

U.S.C. § 7201 that “relat[es] to tax evasion,” because there is

no legal distinction between tax evasion and “defeat [ofa] tax.”

The government asks us to conclude that Evangelista is

removable whether convicted us to conclude that Evangelista

is removable whether convicted under section 7201 of tax

evasion, defeating taxes, or both.

2. Analysis. There are, it seems to us, at most four

offenses described in 26 U.S.C. § 7201: (1) “evad[ing] . . . a[]

tax”; (2) “defeat[ing] a[] tax”; (3) “evad[ing] . . . the payment

thereof:” and (4) “defeat[ing] . . . the payment thereof.” Cf.

-10a-

Sansone v. United States, 380 U.S. 343, 354 (1965) (“As this

Court has recognized, § 7201 includes the offense of willfully

attempting to evade or defeat the assessment of a tax as well as

the offense of willfully attempting to evade or defeat the

payment ofa tax.” (emphasis omitted)). Although Evangelista

attempts to distinguish between “defeat[ing]” a tax and

“evad[ing]” a tax, courts and commentators use the two terms

interchangeably. See, e.g., id. at 351 (“As has been held by

this Court, the elements of § 7201 are willfulness; the existence

of a tax deficiency; and an affirmative act constituting an

evasion or attempted evasion of the tax.” (citations omitted));

United States v. Schwartz, 325 F.2d 355, 356 (3d Cir. 1963)

(noting first that the defendant was indicted for tax evasion and

then that the substance of the charge is that he willfully

attempted to defeat the payment of taxes); Ian M. Comisky,

Lawrence S. Feld & Steven M. Harris, Tax Fraud & Evasion J

7.01[2][a] (2004) (“[Section] 7201 defines two distinct crimes:

(1) the willful attempt to evade or defeat any tax and (2) the

willful attempt to evade or defeat the payment of any tax.”).

We conclude from this that whatever differences there may be

between them, “defeat [of a] tax” is at least “relat{ed] to tax

evasion,” rendering a conviction for it an “aggravated felony”

within section 1101(a)(43)(M)(ii). Whether Evangelista was

convicted under-26 U.S.C. § 7201 of evading taxes, defeating

- taxes, or both, according to the accepted usage of the terms, he

was convicted of an aggravated felony under

section! 101(a)(43)(M)(ii). We therefore agree with the BIA’s

reading of section 1101(a)(43)(M)(ii).

This reading of “relating to tax evasion” obtains whether

the parenthetical phrase in section 1101(a)(43)(M)(ii) has a

restrictive meaning, as Evangelista argues, or a descriptive

meaning as the government argues and as the BIA determined.

And inasmuch as we see no ambiguity in the scope of section

’

2

-)la-

1101(a)(43)(M)(ii) as applied to Evangelista, the rule of lenity

has no place in our analysis. See INS v. Cardoza-Fonseca, 480

U.S. 421, 449 (1987) (noting “the longstanding principle of

construing any lingering ambiguities in deportation statutes in

favor of the alien”); Fong Haw Tan v. Phelan, 333 U.S. 6, 10

(1948) (“We resolve . . . doubts in favor of [a] construction fof

a deportation statute in favor of a habeas corpus petitioner]

because deportation is a drastic measure and at times the

equivalent of banishment or exile. . . . [SJince the stakes are

considerable for the individual, we will not assume that

Congress meant to trench on his freedom beyond that which is

required by the narrowest of several possible meanings of the

words used.” (emphasis added)).

In United States v. Monjaras-Castaneda, 190 F.3d 326

(Sth Cir. 1999), cert. denied, 528 U.S. 1194 (2000), the Fifth

Circuit took a somewhat different approach in reaching a

similar conclusion ina similar case. 8 U.S.C. § 1101(a)(43)(N)

declares “an offense described in paragraph (1)(A) or (2) of

section 1324(a) of this title (relating to alien smuggling)” to be

an aggravated felony. In interpreting the parenthetical phrase

as descriptive rather than restrictive, the Fifth Circuit relied on

grammatical rules and the structure and context of section

1101(a)(43) as a whole to determine that the parenthetical

phrase modifies “paragraph (1)(A) or (2) of section 1324(a) of

this title” rather than “an offense.” Id. at 329-30 (upholding an

enhanced sentence that the defendant received for having

committed an “aggravated felony,” as defined by section

1101(a)(43)(N), for his conviction under 8 U.S.C. §

1324(a)(1)(A) of transporting aliens, which is arguably

different from smuggling aliens); accord Patel v. Ashcroft, 294

F.3d 465, 472-73 (3d Cir. 2002) (holding, in reliance on

Monjaras-Castaneda and other cases, that a habeas petitioner’s

conviction for harboring an alien under 8 U.S.C. § 1324 is an

RR ee esr cotati Shi ba SRNL he RR ise Ail. ies Sh sadk ssileeintd

-12a-

“aggravated felony” under 8 U.S.C. § 1101(a)(43)(N),

rendering the petitioner deportable); United States v. Galindo-

Gallegos, 244 F.3d 728, 733-34 (9th Cir. (2001) (holding that

a defendant’s conviction for transporting aliens is an

aggravated felony and that the defendant therefore deserved an

enhanced sentence); United States v. Salas-Mendoza, 237 F.3d

1246, 1247-48 (10th Cir. 2001) (same).

The Monjaras-Castaneda court reasoned that

traditional rules of grammar indicate that the parenthetical

phrase in section 1 101(a)(43)(N) modifies “paragraph (1)(A) or

(2) of section 1324(a) of this title” because of its placement

following those words instead of directly after the word “an

offense.” Monjaras-Castaneda, 190 F.3d at 329. It then noted

that section 1101(a)(43) contains a long list of aggravated

felonies that it references by statutory section. The court

concluded that parenthetical phrases found throughout the

statute were included to assist readers in identifying the crimes

_ referred to by the statute, without having to endure the “long

and arduous process” of “look[ing] up each section under in the

Code.” Id. at 330. The court then observed that other

parenthetical phrases in that section are expressly restrictive.

See id. (quoting 8 U.S.C. § 1101(a)(43)(F) (listing as an

aggravated felony “a crime of violence (as defined in § 16 of

Title 18, but not including a purely political offense) for which

a term of imprisonment is at least one year’’) and 8 U.S.C. “s

1101(a)(43)(J) (enumerating “an offense described .

section 1084 (if it is a second or subsequent offense)” as an

aggravated felony)). The Fifth Circuit was of the view that had

Congress intended the parenthetical phrase in section

1101(a)(43)(N) to be restrictive, it would have said so, as it had

in the other subsections. Id.

We are not entirely comfortable with applying the

-13a-

Fifth Circuit’s approach to the case before us. Section

1101(a)(43)(L) deems to be an aggravated felony an offense

described in:

~—

(ii) section 421 of Title 50 (relating to protecting the

identity of undercover intelligence agents); or

(iii) section 421 of Title 50 (relating to protecting the

identity of undercover agents). .

8 U.S.C. § 1101(a)(43)(L). The legislative history indicates

that the addition of section 1101(a)(43)(L)(iii) to what already

included section 1101(a)(43)(L)(ii) served the purpose of

“add[ing a] new offense[] to the definition relating to. . .

revealing the identity of undercover agents.” IIRIRA, H.R.

Conf. Rep. No. 104-828, at 223 (1996). Plainly, the

parenthetical phrases in subsection (L)(ii) and (L)(iii)

distinguish between different parts of section 421 of Title 50 --

one relating to “undercover intelligence agents” and one

relating to “undercover agents”; they therefore do not simply

describe 50 U.S.C. § 421. Evangelista argues in his reply brief

that the inclusion of both sections 1 101(a)(43)(L)(ii) and (iii) as

distinct type of an aggravated felony where the parenthetical

phrases cannot be read as descriptive indicates that the similar

parenthetical phrase in section 1101(a)(43)(M)(ii) is not

descriptive either. Evangelista’s objection is sufficiently

compelling for us to refrain from adopting the reasoning of

Monjaras-Castaneda for section 1101(a)(43)(N) as our analysis

of the language of section 1101(a)(43)(M)(i1).

We conclude that irrespective of whether Evangelista

was convicted of tax evasion under 26 U.S.C. § 7201, he was

convicted of an offense “relating-to tax evasion” under 26

ee PAS SATE

-14a-

U.S.C. § 7201. Evangelista is thus deportable.’

II. Section 212(c) Waiver of Deportation

Because we conclude that Evangelista is deportable,

we must consider his argument that he is eligible for a waiver

of deportation pursuant to former section 212(c) of the INA, 8

U.S.C. § 1182(c) (1994). He argues that the application of the

INA would be impermissibly retroactive if it disqualified him

from consideration for such a waiver under a repealed section

of the INA, because that section was in effect when he violated

26 U.S.C. § 7201. He asserts that he relied on the waiver’s

availability, even though it had been repealed at the time he was

convicted of the crime and when formal deportation charges

were brought against him. The government responds that we

are bound by our case law establishing that it is not

impermissibly retroactive to deny discretionary relief to

petitioners such as Evangelista, who, after the repeal, were

convicted of an aggravated felony after a jury trial and against

whom deportation proceedings were commenced. We agree

with the government.

A. Repeal of Section 212(c)

A recent opinion by this Court succinctly sets forth

the background of former INA section 212(c), which provided

for discretionary relief from deportation:

[T]he deportation of resident aliens who

commit aggravated felonies is controlled by

? Evangelista does not contest the BIA’s finding that his crime caused

revenue loss to the government exceeding $10,000, as required by 8 U.S.C.

1101(a)(43)(M)(ii).

er eee Se eee ol

Rankine v. Reno, 319 F.3d 93, 95 (2d Cir.), cert. denied sub

-15a-

the Immigration and Nationality Act

(“INA”). See 8 U.S.C. §

1227(a)(2)(A)(ili)(2001). Prior to 1997,

aliens deportable under the INA could apply

to the Attorney General for a discretionary

waiver of deportation pursuant to § 212(c) of

the INA. To qualify for such relief, an alien

was required to show that he (1) was a

lawful permanent resident of the United

States, (2) had an unrelinquished domicile of

seven consecutive years, and (3) had not

committed an aggravated felony for »yhich

he had served a term of at least five years.

See 8 U.S.C. § 1182(c) (1994). If the alien

met these requirements, the Attorney

General had the discretion to waive

deportation.

nom. Lawrence v. Ashcroft, 124 S. Ct. 287 (2003). But in

1996,

Congress enacted first the Anti-Terrorism

and Effective Death Penalty Act

(“AEDPA”), which limited eligibility for

relief under§ 212(c), see AEDPA, Pub. L.

No. 104-132, § 440(d), 110 Stat. 1214, 1277

(1996), and then the Illegal Immigration

Reform and Immigrant Responsibility Act .

.. which repealed INA § 212(c) completely,

effective April 1, 1997. See IIRIRA, Pub. L.

No. 104-208, § 304(b), 110 Stat. 3009-546,

597(1996). Section 212(c) relief was, in

effect, replaced by a new form of relief

ER WORN SNARE BES WO So IEE AIEEE PON CATR I AEs 8A) Py nw

-16a-

called “cancellation of removal,” 8 U.S.C. §

1229b, which allows the Attorney General to

cancel removal proceedings for a class of

resident aliens that does not include those

convicted of an aggravated felony. In

removal proceedings commenced after April

1, 1997, therefore, resident aliens convicted

of an aggravated felony are no longer

eligible for any form of discretionary relief

from deportation.

Id. at 95-96.

B. Standard of Review

Whether the repealed section 212(c) may be applied

to an alien convicted of an aggravated felony based on criminal

acts that took place before the repeal is a question of law that

we review de novo. Domond v. U.S. INS, 244 F.3d 81, 84 (2d

Cir. 2001).

C. Retroactivity

We held in Domond that the repeal of section 212(c)

“imposes no new legal consequences on aliens . . . whose

criminal conduct pre-dates AEDPA, but whose conviction came

after AEDPA’s enactment. It is the conviction, not the

underlying criminal act, that triggers the disqualification from

§ 212(c) relief.” Id. at 85-86 (internal quotation marks omitted).

We said that “it cannot reasonably be argued that aliens

committed crimes in reliance on a hearing that might possibly

waive their deportation.” Id. at 86.

-17a-

The Supreme Court subsequently addressed a related

question in INS v. St. Cyr, 533 U.S. 289 (2001). It held that

section 212(c) relief, though repealed, “remains available for

aliens . . . whose convictions were obtained through plea

agreements and who, notwithstanding those convictions, would

have been eligible for § 212(c) relief at the time of their plea

under the law then in effect.” Id. at 326. The Court reasoned

that “[g]iven the frequency with which § 212(c) relief was

granted in the years leading up to AEDPA and IIRIRA,

preserving the possibility of such relief would have been one of

the principal benefits sought by defendants deciding whether

to accept a plea offer or instead to proceed to trial.” Id. at 323

(footnote omitted). The Court observed that it could “consider

an alien’s reasonable reliance on the continued availability of

discretionary relief from deportation when deciding whether the

elimination of such relief has a retroactive effect.” Id. at 324.

Subsequently, two judges of the United States District

Court for the Eastern District of New York each urged us to

reconsider our holding in Domond in light of St. Cyr. See

Mohammed v. Reno, 205 F. Supp. 2d 39, 39 (E.D.N.Y.)

(Gleeson, J.) (following Domond, but stating that “Domond is

at odds with controlling case law of the Supreme Court”), stay

pending appeal vacated, 309 F.3d 95 (2d Cir. 2002); Beharry v.

Reno, 183 F. Supp. 2d 584, 591 (E.D.N.Y. 2002) (Weinstein,

J.) (“Domond . . . should be reconsidered as the courts interpret

and develop the Supreme Court’s more recent immigration

rulings and the requirements of international law.”), rev'd sub

nom. Beharry v. Ashcroft, 329 F.3d 51 (2d Cir. 2003).

We have reconsidered Domond’s viability in light of

St. Cyr in several cases, and in each concluded that Domond

remains good law despite St. Cyr. See, e.g., Khan v. Ashcroft,

352 F.3d 521, 525 (2d Cir. 2003); Beharry v. Ashcroft, 329

al

-18a-

F.3d 51, 63 (2d Cir. 2003); Mohammed v. Reno, 309 F.3d 95,

103 (2d Cir. 2002); accord Swaby v. Ashcroft, --- F.3d ---, ---,

2004 WL 193576, at *4, 2004 U.S. App. LEXIS 1569, at *15-

*17 (2d Cir. Feb. 3, 2004); Rankine, 319 °.3d at 102; Dias v.

INS, 311 F.3d 456, 458 (1st Cir. 2002) (per curiam), cert.

denied, 123 S. Ct. 2574 (2003); Chambers v. Reno, 307 F.3d

284, 286 (4th Cir. 2002); ndariz- Montoya v. Sonchik,

291 F.3d 1116, 1121-22 (9th Cir. 2002), cert. denied, 123 S. Ct.

2247 (2003).

Rankine is directly on point. We held there that “the

repeal of § 212(c) relief does not have an impermissibly

retroactive effect when applied to” an alien against whom the

INS commenced formal removal proceedings after the passage

of AEDPA and IIRIRA, but who was convicted of an

aggravated felony for criminal conduct that occurred before the

passage. Rankine, 319 F.3d at 102. We reasoned that St. Cyr

did not directly govern Rankine’s outcome because the former

case involved a petitioner who pleaded guilty before the repeal :

of section 212(c), while the latter involved petitioners who

pleaded not guilty, proceeded to trial, and were convicted

before the repeal of section 212(c). Id. at 99.2 This difference

was material in two ways:

First, none of these petitioners [who

proceeded to trial] detrimentally changed his

position in reliance on continued eligibility

> The only difference between Rankine and the instant case is that in

Rankine, the petitioners were convicted before the passage of AEDPA and

IIRIRA, see Rankine, 319 F.3d at 96, while Evangelista was convicted after

the passage of AEDPA and IIRIRA. If anything, that means that the

petitioners in Rankine had a stronger case than Evangelista has, so the

holding of Rankine must apply to him.

Se CC ee ee |

-19a-

for § 212(c) relief. Unlike aliens who

entered pleas, the petitioners made no

decision to abandon any rights and admit

guilt -- thereby immediately rendering

themselves deportable - in reliance on the

availability of the relief offered prior to

IIRIRA. The petitioners decided instead to

go to trial, a decision that, standing alone,

had no impact on their immigration status.

Unless and until they were convicted of their

underlying crimes, the petitioners could not

be deported. . . .

Second, the petitioners have pointed

to no conduct on their part that reflects an

intention to preserve their eligibility for

relief under § 212(c) by going to triai.

Id. at 99-100. Because Rankine and its reasoning squarely

govern Evangelista’s challenge, we conclude that denial of

section 212(c) relief to Evangelista is not impermissibly

retroactive.‘

‘ In his reply brief, Evangelista urges for the first time that he could

show detrimental reliance on repealed section 212(c) because he could have,

but did not, file an administrative motion for a discretionary waiver of

deportation before the repeal of the waiver for aggravated felons. At oral

argument, the government replied that this argument is not properly before

us because it was made for the first time in Evangelista’s reply brief. The

government continued that on the merits, Evangelista had no reliance

interest because he did not file such a motion and, moreover, because he

could not file such a motion until he became eligible for deportation upon

his conviction, which postdated the repeal of waiver for aggravated felons.

We do not consider the merits of Evangelista’s argument, because “[w]e will

not consider an argument raised for the first time in a reply brief.” See

-20a-

Evangelista therefore does not qualify to apply for a waiver of

deportation.

CONCLUSION

For the foregoing reasons, we conclude that the district

court properly dismissed Evangelista’s petition for a writ of

habeas corpus. The judgment of the district court is affirmed.

United States v. Yousef, 327 F.3d 56, 115 (2d Cir. 2003).

-2la-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

X

LOUIS EVANGELISTA,

Petitioner, CV 01-6126

-against- (Wexler, J.)

JOHN ASHCROFT, et al.,

Respondents.

Xx

MEMORANDUM AND ORDER

FILED

IN CLERK’S OFFICE

U S. DISTRICT COURT E.D.N.Y.

* NOV 222002 *

LONG ISLAND OFFICE

APPEARANCES:

MICHAEL P. DiRAIMONDO, ESQ.

Attorney for Petitioner

401 Broadhollow Road, Suite 302

Melville, New York 11747

ROSLYNN R. MAUSKOPF, ESQ.,UNITED

STATES ATTORNEY

BY: SCOTT DUNN, ESQ., ASSISTANT

UNITED STATES ATTORNEY

-22a-

EASTERN DISTRICT OF NEW YORK

Attorneys for Respondents

One Pierrepont Plaza, 14" Floor

Brooklyn, New York 11201

WEXLER, District Judge

Petitioner Louis Evangelista (“Petitioner” or

“Evangelista”) seeks a writ of habeas corpus requiring the

Immigration and Naturalization Service (“INS”) to hold a

hardship-based hearing on relief from deportation. A decision

on the merits of this claim was initially held in abeyance

pending a decision by the Second Circuit in the appeal of the

case of Jankowski-Burezyk v. INS, 138 F. Supp.2d 269 (D.

Conn. 2001).

On May 29, 2002, the Second Circuit reversed the

decision of the district court in Jankowski-Rurczyk. See

Jankowski-Burczyk v. INS, 2002 WL 1066630 (2d Cir. May 29,

2002). The effect of the Second Circuit’s ruling was to

foreclose one of Petitioner’s arguments. Specifically, Petitioner

was no longer in a position to argue that the statute denying him

the right to seek a discretionary waiver of deportation was

unconstitutional.

' Petitioner, like the petitioner in Jankowski-Burczyk, is a lawful

permanent resident (“LPR”) of the United States. The relevant statute, 8

U.S.C. § 1182, does not allow LPRs to seek a discretionary hardship relief

from deportation while such a right is afforded to non-LPRs. The District

Court held that this distinction violated the Equal Protection clause of the

United States Constitution. The Second Circuit held the distinction to be

rational, and reversed the District Court.

-23a-

After the decision by the Second Circuit in Jankowski-

Burczyk, this court ordered additional briefing in June 2002.

Thereafter, the government was granted until October 2002 to

respond to a letter submitted by Petitioner’s counsel. That letter

has now been submitted and the matter is now fully briefed,

submitted and ripe for adjudication.

BACKGROUND

I. Evangelista’s Background and Criminal Conviction

Evangelista is a native of Italy who has been a lawful

permanent resident of the United States since 1961. Although

Evangelista never became a citizen of this country, his wife is

a naturalized United States citizen. His five adult children were

all born in this country and remain residents of the United

States.

In October of 1996, Evangelista was convicted, after a

jury trial, of tax evasion. Specifically, Evangelista was

convicted of conspiracy to impede the IRS in collection of

income and payroll taxes in violation of 18 USC § 371, failure

to collect or pay income/FICA taxes in violation of 26 USC §

7202 and attempt to evade or defeat tax in violation of 26 USC

§ 7201. After his conviction, Evangelista was sentenced to a 51

month term of imprisonment.

II. Proceedings Before the INS

In 1999, Evangelista was placed in removal proceedings

aad

-24a-

by the INS.* The government’s decision to seek to remove

Evangelista from this country was based upon his conviction of

an aggravated felony. See 8 U.S.C. §1101(a)(43)(M)(ii).

Evangelista sought administrative relief from deportation before

the INS. In a decision dated April 11, 2000, an Immigration

Judge (“IJ”) denied the application. The decision of the IJ held,

specifically, that Evangelista was, indeed convicted of an

“aggravated felony,” within the meaning of the relevant statute.

Further, the IJ held that Evangelista was ineligible for a waiver

of deportation pursuant to 8 USC § 1182(c) (referred to by the

IJ and hereinafter as “Section 212(c)”). The rejection of the

request for a waiver hearing was based on the holding that

Section 212(c) was repealed and no longer available to

individuals who, like Evangelista, were facing deportation and

as a result of a conviction dated after the statute’s repeal.

Evangelista moved for reconsideration of the decision

of the lJ, which application was denied on June 2, 2000. On

October 25, 2000, the initial and reconsideration decisions of

7 the IJ were upheld by the Board of Immigration Appeals

(“BIA”). The BIA agreed that Evangelista was convicted of an

aggravated felony and therefore held that he was subject to

removal. The BIA held further that it did not matter that the

conduct for which Evangelista was punished took place prior to

the effective date of the repeal of Section 212(c); Evangelista

was nonetheless ineligible to apply for a waiver of deportation

pursuant to the repealed statute.

In September of 2001, Evangelista was released from

Under current law, certain proceedings, formerly known as “deportation”

proceedings are now referred to as “removal” proceedings. For purposes

of this matter, the court refers to INS attempts to remove Evangelista as

either removal or deportation proceedings.

-25a-

the custody of the Federal Bureau of Prisons, and, because of

the foregoing proceedings, was placed in INS custody. Shortly

thereafter, this action was commenced.

Ill. Proceedings After Transfer to INS Custody and Before

This Court

On September 13, 2001, after being placed in the

custody of the INS, Petitioner commenced this proceeding

seeking release. Meanwhile, upon being transferred to the

custody of the INS, Petitioner was advised, by notice dated

December 3, 2001, that the decision to detain him would be

reviewed, after ninety days, by the INS District Director (the

“District Director”). Petitioner was advised that any release that

might be granted would be dependent upon his ability to

demonstrate to the satisfaction of the INS that he neither posed

arisk of flight nor was a danger to the community. Evangelista

applied for release while this action was pending.

At argument held before this court in October of 2001,

counsel informed the court that on December 12, 2001, the

District Director would be reviewing Petitioner’s claim for

release pursuant to an order of supervision under 8 U.S.C. §

1231(a)(6). In view of the impending INS action, this court

denied the request for release without prejudice to renewal after

the INS determination.

In a decision issued in January 2002, the District

Director denied Petitioner’s request for release. In support of

its decision, the INS cited Evangelista’s history of involvement

in criminal activities, which involvement spanned several years,

as well as Evangelista’s behavior during his incarceration.

These factors led the INS to conclude that Evangelista would

present a threat to the community. Accordingly, the request for

-26a-

bail was denied.

In view of the INS decision to deny Petitioner’s request

for release, he renewed the application denied without prejudice

at the October argument. In May of 2002, this court issued.

an opinion denying Petitioner’s request for a writ of habeas

corpus releasing him from custody pending a decision on the

merits of his claim. It is to the merits of the initial petition that

this court now turns.

DISCUSSION

I. Evangelista’s Remaining Arguments

As noted above, one of Evangelista’s arguments regarding

his entitlement to a relief from deportation hearing has been

foreclosed by the decision of the Second Circuit in Jankowski-

Burczyk. Remaining are-two arguments. First, Evangelista

argues that he was not convicted of an aggravated felony within

the meaning of the relevant statute. Second, Evangelista argues

that, because the conduct for which he was convicted and his

entry of a plea of not guilty took place prior to the repeal of

Section 212(c), he remains entitled to a discretionary relief from

deportation hearing. Neither claim has merit.

A. Evangelista Was Convicted of an “Aggravated Felony”

Evangelista was convicted, afer a jury trial, of: (1)

conspiracy to impede the IRS in collection of income and

payroll taxes in violation of 18 USC § 371; (2) failure to collect

or pay income/FICA taxes in violation of 26 USC §7201, and

(3) attempt to evade or defeat tax in violation of 26 USC §

7202.

After serving his term of incarceration, the INS issued

-27a-

Evangelista a Notice to Appear, charging him with being

removable from the United States pursuant to 8 USC §

1227(a)(2)(A)(iii). This section defines the class of deportable

aliens to include those who have been “convicted of an

aggravated felony at any time after admission.” 18 USC §

1227(a)(2)(A)(iii). An “aggravated felony” is defined in the

Immigration and Nationality Act (“INA”) to include offenses

that are “described in section 7201 of Title 26 (relating to tax

evasion) in which the revenue lost to the Government exceeds

$10,000.” 8 USC § 1101(a)(43)(M)(i1).

Evangelista was convicted of, among other charges, 26

USC § 7201. This statute makes it unlawful to willfully

attempt, in any manner to “evade or defeat” any tax. 26 USC

§7201. The count of the indictment referring to this charge was

count 26, which charged Evangelista with the willful attempt to

evade and defeat income tax in an amount in excess of

$300,000, by failing to pay income tax. Affirming

Evangelista’s conviction, the Second Circuit noted that he had

been convicted of “evading personal income taxes (in violation

of 26 USC § 7601). United States v. Evangelista, 122 F.3d 112,

113 (2d Cir. 1997).

Under these circumstances, there can be no doubt that

Evangelista was convicted of an offense “described in section

7201 of Title 26 (relating to tax evasion) in which the revenue

lost to the Government exceeds $10,000.” 8 USC §

1101(a)(43)(M)(ii). This clearly constitutes an aggravated

felony for which an alien such as Evangelista becomes

deportable.

-28a-

B. Evangelista Is Not Eligible For

Relief From Deportation

Pursuant to Former Section 212(c)

l. Relevant Statutory Framework

Prior to 1996, the Attorney General of the United States

possessed broad power, pursuant to Section 212(c), to order a

relief from deportation to individuals such as Evangelista who,

inter alia resided in this country for seven years or more. INS

v. St. Cvr, 533 U.S. 289, 294-95 (2001); Domond v. INS, 244

F.3d 81, 82 (2d Cir. 2001). In 1996, however, Congress passed

two pieces of legislation that repealed the relief available under

Section 212(c). See Antiterrorism and Effective Death Penalty

Act of 1996 (““AEDPA”); Illegal Immigration Reform and

Immigrant Responsibility Act (““ITRIRA”). See St. Cyr, 533

US. at 297.

Specifically, AEDPA made certain classes of criminals,

including those convicted of an aggravated felony, ineligible for

relief from deportation under Section 212(c). St. Cyr, 533 U.S.

at 297. The IIRIRA, passed shortly thereafter, with an effective

date of April 1, 1997, amended completely the INA and

repealed Section 212(c) on a prospective basis. The new law

replaces the Section 212(c) hearing with a “cancellation of

removal” proceeding, codified at 8 USC §1229b(a). The

cancellation of removal proceeding is unavailable to aliens

convicted of an aggravated felony. Id.

Evangelista claims that because he engaged in unlawful

conduct, was indicted and entered a plea of not guilty before the

effective repeal of Section 212(c), the repeal of the statute

should not apply and he is therefore entitled to a hearing for

discretionary relief from deportation. It is to the effect of the

-29a-

repeal of Section 212(c) on Evangelista’s case that the court

now turns.

2. Evangelista Has No Right To A Section 212(c) Hearing

Evangelista engaged in the acts alleged in the indictment

and pled not guilty to the criminal charges in this matter prior

to the effective dates of AEDPA and the ITRIRA. A jury trial

was held and Evangelista was convicted of the offenses

described above, however, on October 29, 1996, after the

effective dates of both statutes. Removal proceedings were

commenced years after those effective dates.

Evangelista argues that because both his conduct and the

decision to go to trial took place prior to repeal of Section

212(c), denial of a hearing in his case amounts to an unlawful

retroactive application of the law. In support of his argument,

Petitioner relies heavily on cases holding that an individual who

pled guilty or entered a plea of nolo contendre prior to the

repeal of Section 212(c) is nonetheless entitled to the hearing.

St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir. 2000), aff'd., 121 S.

Ct. 2271 (2001); see also Gonzalez-Polanco v. INS, 2002 WL

1796834 *6 (S.D.N.Y. August 5, 2002).

The cases relied upon by Evangelista, however, focus on

the expectations of individuals who choose to plead guilty

instead of going to trial. Because such individuals expected, at

the time of the plea, to be able to entitled to a Section 212(c)

hearing, taking away that right would, according to the Second

Circuit, “upset reasonable, settled expectations and change the

legal effect of prior conduct.” St. Cyr, 229 F.3d at 420-21.

When affirming the Second Circuit in St. Cyr, the

Supreme Court similarly focused on the expected benefits of a

-30a-

plea bargain and the unfair result of taking away a right that was

undoubtedly considered at the time of the plea. Thus, the Court

held that the “potential for unfairness” in denying a Section

212(c) hearing in cases involving pre-repeal pleas of guilty is

“significant and manifest.” St Cyr, 121 S. Ct. at 2291-93. As

further noted by the Court:

[p]lea agreements involve a quid pro quo

between a criminal defendant and _ the

government... in exchange for some perceived

benefit, defendants waive several of their

constitutional rights (including the right to a

trial) and grant the government numerous

tangible benefits, such as promptly imposed

punishment without the expenditure of

prosecutorial resources.

St. Cyr, 533 U.S. at 321-22. Preservation of the Section 212(c)

hearing would be “one of the principal benefits sought by

defendants deciding whether to accept a plea offer or instead

proceed to trial.” Id. at 322

The absence of outcome expectations in cases where a

defendant chooses trial, rather than a plea, caused the Second

Circuit to comment in St. Cyr that its holding was limited to the

“narrow class of cases where an alien pled guilty to a criminal

offense that qualifies as a removable crime.” St. Cyr, 229 F.3d

at 420-21. The court was quick to note that the newly amended

INA would apply to all aliens whose convictions predate the

IIRIRA and those who pled guilty after the repeal of Section

212(c). St. Cyr, 229 F.3d at 420-21.

In Domond v. INS, 244 F.3d 81 (2d Cir. 2002), the

Second Circuit made it even clearer that the holding in St. Cyr,

-3la-

was limited to those who pled guilty prior to the repeal of

Section 212(c). There, the court rejected the claim that an

individual whose criminal conduct took place prior to repeal of

Section 212(c), but who pled guilty after the repeal, was entitled

to a relief from deportation hearing. Rejecting the notion that

expectations of a hearing must be protected, the Second Circuit

stated that it could not “reasonably be argued that aliens

committed crimes in reliance on a hearing that might possibly

waive their deportation [and] ‘it would border on the absurd to

argue’ that [the defendant] would have decided not to commit

a crime if he had known that he not only could be imprisoned,

but also face deportation without the availability of a

discretionary waiver of deportation.” Domond, 244, F.3d at 86,

quoting St. Cyr, 229 F.3d at 418. °

In sum, Supreme Court and Second Circuit precedent

make clear that individuals pleading guilty prior to the repeal of

Section 212(c) are nonetheless entitled to a discretionary relief

from deportation hearing. Second Circuit precedent makes it

equally clear that the date on which the criminal conduct is

engaged is irrelevant to application of the statute. Thus, where

criminal conduct took place prior to repeal of the statute but the

plea of guilty is entered after its repeal, there is no right to a

hearing. Domond, 244 F.3d at 84-86; Soto v. Ashcroft, 2001 -

WL 1029130 *4-5 (S.D.N.Y. September 7, 2001).

3 Prior to St. Cyr, the Second Circuit held that Section 212(c) hearings

remain available to those aliens who were placed in removal proceedings

prior to the effective dates of AEDPA and IIRIRA. See Henderson v. INS,

157 F.3d 106 (2d Cir. 1999) Since Evangelista was not placed in removal

proceedings until years after the enactment of the statutes repealing Section

212(c), Henderson has no relevance here.

-32a-

District court cases in this circuit, decided in the wake

of St. Cyr, have limited that case to its specific holding and

have refused to find any entitlement to a Section 212(c) hearing

unless the defendant entered a plea of guilty prior to repeal of

the statute. For example, in Lawrence v. INS, 2001 WL 818141

* 5-6 (S.D.N.Y. July 20, 2001), the court held that the relevant

date for application of law is the date upon which the Petitioner

is placed in removal proceedings by the INS. Thus, the court

rejected the claim that a Section 212(c) should be held even in

a case where the petitioner’s conviction pre-dated the repeal of

Section 212(c), but whose removal proceedings were

commenced after the repeal. Id. Accord Alfarache v. Cravener,

203 F.3d 381, 384 (5™ Cir. 2000) (repeal of Section 212(c)

applies to aliens convicted of crimes prior to enactment of

AEDPA but who were placed in removal proceedings after its

effective date); United States v. Herrera-Blanco, 232 F.3d 715,

719 (9" Cir. 1999) (same).

This court need not go so far in this matter. It is

sufficient, for purposes of this opinion, to hold that Evangelista

is not entitled to a Section 2 12(c) hearing for discretionary relief

from deportation because his conduct took place prior to repeal

of the statute and he was convicted after its repeal.

Evangelista seeks to place himself in the same position

as the petitioner in St. Cyr, on the ground that he made the

decision to plead not guilty and go to trial prior to repeal of the

statute, but was thereafter convicted. The court declines to

adopt Evangelista’s position. Where, as here, a defendant elects

to go to trial, rather than accept a plea bargain, the fairness

considerations expressed by the Second Circuit and the

Supreme Court in St. Cyr, simply not present. In such cases,

there can be no expectation of a particular outcome. The

defendant has decided to go to trial and assume the

-33a-

consequences of whatever verdict a jury returns. He puts his

fate, including his immigration status, in the hands of the jury

and not those of the prosecution. Because Evangelista chose to

go to trial, the reasonable expectations with which the courts in

St. Cyr, were concerned are not present. Accordingly, he can

claim no right to a Section 212(c) hearing.

A recent decision by the Second Circuit gives this court

confidence in so holding. In Mohammed v. Reno, 2002 WL

31388971 (2d Cir. October 24, 2002), the court decided

whether the petitioner was entitled to a stay of removal

proceedings pending his appeal of a district court decision

denying a motion for habeas corpus. The petitioner in

Mohammed, like Evangelista, sought a discretionary relief from

deportation hearing. Like Evangelista, |, ‘ohammed committed

his crime prior to repeal of Section 212(c), but was convicted

after the repeal. The district court denied Mohammed’s

petition, but ordered a stay of deportation pending appeal to the

Second Circuit.

When deciding whether the stay was appropriate, the

Second Circuit held that petitioner would be entitled to a stay

only if he had a substantial possibility of success on the merits

of his appeal. Holding that the stay should not have been

imposed, the Second Circuit commented that the Supreme

Court’s affirmance of St. Cyr gave Mohammed “no basis for

thinking that [he] had a substantial possibility of a successful

appeal.” Mohammed, 2001 WL 31388971 *5. The fact that

Mohammed was convicted after repeal of Section 212(c) was

held to divest him of any reliance on the possibility ofa hearing.

-34a-

Id. Likewise, Evangelista can claim no such reliance. ‘

In view of the foregoing, the court holds that where, as

here, a criminal defendant elects to go to trial in connection

with conduct or a conviction that pre-dates the repeal of Section

212(c), but is convicted and placed in removal proceedings after

the repeal of the statute, there is no right to take advantage of

the pre-repeal hearing.

Il. A Remand to the BIA is Not Necessary

As a final matter, the court addresses Evangelista’s

request that this matter be remanded to the BIA. Evangelista

argues that remand is necessary and prudent because neither the

IJ nor the BIA ever discussed the retroactivity issue and

pursuant to “well-established principals of administrative law,”

the issue should be decided at the administrative level in the

first instance.

In support of this argument, Evangelista relies on

Gelman v. INS, 298 F.3d 150 (2d Cir. 2002). While it is true

that Gelman required a remand to the BIA for consideration of

a matter of first impression, that case is readily distinguishable.

In Gelman, the Second Circuit ordered a remand to the BIA to

consider the impact of the Supreme Court’s decision in St. Cyr

on the particular legal issue raised in that case. The Gelman

issue was one of retroactivity that was not decided by St. Cyr.

The Second Circuit held it appropriate to refrain from deciding

the issue “so as to avoid any premature interference with the

4 The court notes that Evangelista has not yet been removed from the

country. This “stay” of removal has been agreed upon between the parties

here and is not pursuant to an order of the court.

-35a-

agency’ s processes,” to give the parties and courts the benefit of

the agency’s expertise, and to create an adequate record for

judicial review. Gelman, 298 F.3d at 152, quoting, Arango-

Arondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994).

Unlike the issue raised in Gelman, the policies

underlying the retroactivity raised issue here have been

discussed by both the Second Circuit and the Supreme Court in

St. Cyr. No novel issue of law is presented and there is

therefore no benefit to remanding the case to have, as argued by

Evangelista, the administrative agency decide the issue in the

first instance. Moreover, there are no factual issues that need to

be developed at the administrative level so as to “create an

adequate record for judicial review. Gelman, 298 F.3d at 152.

On the contrary, the legal issue and policy matters here have

been discussed extensively by courts whose precedent bind this

court in the same way that those precedents would bind the

BIA. Because no purpose would be served by remanding a

matter that requires no factual development and has been

extensively explored, remand is required by neither common

sense, administrative law, or by Gelman. Accordingly, the

court rejects the notion that Gelman requires a remand.

-36a-

CONCLUSION

For the foregoing reasons, the request for issuance of a

writ of habeas corpus is denied. The Clerk of the Court is

directed to close the file in this case.

SO GRDERED.

/s/_ Leonard D. Wexler

LEONARD D. WEXLER

UNITED STATES DISTRICT JUDGE

Central Islip, New York

November 22, 2002

-37a-

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File: A 12 352 319 - Whitedeer

Date: OCT 25 2000

In re: LOUIS EVANGELISTA, SR.

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

Stanley H. Wallenstein, Esquire

CHARGE:

Notice: Sec. 237(a)(2)(A)(ili), I&N Act [8 U.S.C. §

1227(a)(2)(A)(iii)]}Convicted of aggravated

felony

APPLICATION: Termination

On April 11,2000, the Immigration Judge found that the

respondent was deportable as charged and ordered him removed

to Italy. On June 2, 2000, the Immigration Judge denied the

respondent’s motion to reconsider that decision. The

-38a-

respondent appealed. The request for oral argument is denied.

See 8 C.F.R. § 3.1(e). The appeal will be dismissed.

The question presented in this case is whether the

respondent has been convicted of an “aggravated felony” within

the meaning of section 101(a)(43) of the Immigration and

Nationality Act (“Act”). 8 U.S.C. § 1101(a)(43). An

aggravated felony is defined, in pertinent part, as “an offense

that . . . 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...” Section 101

(a)(43)(M)(ii) of the Act. In addition to other offenses not

pertinent here, the United States District Court for the Eastern

District of New York entered the following judgment against

the respondent:

The defendant was found guilt on count... 26 ofa 26

count superseding indictment after a plea of not guilty on

February 28, 1996.

ssnliaieminain

Accordingly, the defendant is adjudged guilty of such

count(s), which involve the following offenses:

Title & Section 26 USC 7201

Nature & Offense Attempt to evade or defeat tax

Count Number(s) . . . 26 (6/14/91)

Exh. 2 at 1. The criminal statute for which the

respondent was convicted, 26 U.S.C. § 7201, provides as

follows:

Any person who willfully attempts in any manner

to evade or defeat any tax imposed by this title or

the payment thereof shall, in addition to other

= |

-39a-

penalties provided by law, be guilty of a felony

and, upon conviction thereof, shall be fined not

more than $100,000 ($500,000 in the case of a

corporation), or imprisoned not more than 5

years, or both, together with the costs of

prosecution.

Id. The respondent argues that because the judgment of

conviction indicates that he was found guilty of an “attempt to

evade or defeat tax,” as opposed to an attempt to evade tax, that

he does not fall within the reach of section 101(a)(43)(M)(ii) of

the Act, which contains the parenthetical phrase “relating to tax

evasion.” See Respondent’s Brief at 6, 15-76.

Count 26 of the indictment, of which the respondent was

adjudged guilty, alleged that he “did willfully attempt to evade

and defeat said income tax ($335,830) by failing to pay said

income tax to the Internal Revenue Service and by concealing

and attempting to conceal from all proper officers of the United

States of America his true assets” (Exh. 2) (emphasis added).

The respondent argues that although the indictment alleges that

he evaded income tax, because he was convicted by a jury

instead of upon a plea of guilty, we cannot look to the

indictment in determining the conduct for which he was

convicted. See Respondent’s Brief at 8. We disagree. Here,

where the judgment specifically finds that the respondent was

“adjudged guilty” of count 26, we find that it is appropriate to

look to indictment to determine if the respondent has committed

an offense “relating to tax evasion.” Compare Exh. 2, with

section 101(a)(43)(M)(ii) of the Act. On the basis of the same

conviction record that is before us, the United States Court of

Appeals for the Second Circuit found that the respondent “‘was

convicted of evading personal income taxes (in violation of 26

U.S.C. § 7201)...” United States v. Evangelista, 122 F.3d

-40a-

112, 113 (2d Cir. 1997) (emphasis added).' Although the

respondent argues that the Board must look to the minimum

evidence required to satisfy a conviction in determining whether

an offense constitutes an aggravated felony, we cannot

disregard the findings of the Court of Appeals in order to do so.

Compare Respondent’s Brief at 16-17 (citing Matter of

Sweetster, Interim Decision 3390 (BIA 1999)); with United

States v. Evangelista, supra, at 113, 118.

Specifically, the respondent contends that the indictment

only contains conduct that is descriptive of an attempt to

“defeat” as opposed to “evade” tax. See Respondent’s Brief at

8. The indictment alleged that the respondent had concealed

and attempted to conceal his true assets from the Internal

Revenue Service, which can constitute the willful commission

of an act supporting a conviction for willfully attempting to

evade or defeat a tax. See United States v. Edwards, 777 F.2d

' The Court of Appeals rejected the respondent’s contention that the district

court erred in refusing to give the following instruction to the jury:

If, in good faith a defendant truly believed that he could

pay other debts and conduct transactions, while deferring

payment to the IRS, then such defendant cannot be

guilty of tax evasion. The defendant’s good faith

belief need not be objectively reasonable for you

to find the defendant not guilty of tax evasion...

United States v. Evangelista, supra, at 118 (emphasis added). We note that

the respondent’s own argument on appeal confirms the circuit court’s

finding that he was convicted of “evading” taxes.

See id. at 113.

-4la-

644 (11th Cir.), cert. denied, 475 U.S. 1123 (1985); cf. United

States v. Evangelista, supra, at 113. The respondent further

argues, without reference to pertinent authority, that tax evasion

requires a showing of fraud while defeating a tax does not. See

Respondent’s Brief at 10-11. We note, however, that fraud is

not an essential element of the offense of attempt to evade or

defeat income tax. See 26 U.S.C. § 7201; United States v.

Albanese, 117 F.Supp. 736 (S.D.N.Y.), aff'd 224 F.2d 879 (2d

Cir.), cert. denied 350 U.S. 845 (1954); United States v.

Gordon, 242 F.2d 122 (3d Cir.), cert. denied 354 U.S. 921

(1957); Baker v. Miller, 236 Ind. 20,138 N.E.2d 145 (1956).

Without regard to the indictment, we would still

disagree with the respondent’s contention that section

101(a)(43)(M)(ii) of the Act “applies only where the conviction

is for evasion of tax, but not for defeating a tax.” Respondent’s

Brief at 6. The parenthetical phrase “relating to tax evasion”

modifies the prepositional phrase “in section 7201 of the

Internal Revenue Code” in section 101(a)(43)(M)(ii) of the Act.

Even if the respondent is correct that he has been convicted of

defeating instead evading tax, he has still been convicted of an

offense described in section 7201 of the Internal Revenue Code

in which the loss to the Government exceeds $10,000 (Exh. 2).

Furthermore, even if the respondent is correct that his specific

offense must relate to tax evasion, and he had only been found

guilty of conduct that constituted “an attempt to defeat” tax (but

not an attempt to evade), we would still find that he had been

convicted of an offense “relating to tax evasion.” It is well

established that the elements constituting a violation of the

section proscribing an attempt to evade or defeat tax are

wilfulness, a tax deficiency, and an affirmative act constituting

an evasion or an attempted evasion of tax. See Sansone v.

United States, 380 U.S. 343 (1965); United States v. Coppola,

425 F.2d 660 (2d Cir. 1969); United States v. House, 524 F.2d

-42a-

1035 (3d Cir. 1975); United States v. Hoover, 233 F.2d 870 (3d

Cir.), cert. denied 352 U.S. 840 (1956) (holding that so long as

there exists affirmative and positive conduct coupled with a tax-

evasion motive, a violation of this section making it a felony to

wilfully attempt to evade or defeat tax exists).* We also note

that 26 U.S.C. § 7201 makes no distinction between “evade or

defeat” with respect to an offender’s punishment. See id. For

the foregoing reasons we find that the respondent has been

convicted an offense described in 26 U.S.C. § 7201 (relating to

tax evasions), in which the revenue loss to the (Government

exceeds $10,000; and has thus been convicted of an “aggravated

felony.” See section 101(a)(43)(M)(ii) of the Act.

Finally, the respondent argues that because the criminal

conduct underlying his offense occurred prior to the

Antiterrorism and Effective Death Penalty Act of 1996, he is

eligible for relief under section 212(c) of the Act. See

Respondent’s Brief at 17-18. We find that a waiver under

former section 212(c) of the Act is not available to the

respondent, against whom removal proceedings were

2 United States v. Wilkins, 385 F.2d 465 (4th Cir.), cert. denied 390 U.S.

951 (1967); United States v. Doyle, 956 F.2d 73 (Sth Cir. 1992) (holding

that willfulness involved in failing to file a tax return is not enough to

support taxpayer’s conviction for felony tax evasion, but requires proof of

specific intent of taxpayer to defeat or evade payment of tax); United States

v. Kim, 884 F.2d 189 (Sth Cir. 1989); United States v. Hook, 781 F.2d 1166

(6th Cir.), cert. denied 479 U.S. 882 (1986); United States v. DeNiro, 392

F.2d 753 (6th Cir.), cert. denied 393 U.S. 826 (1968); Davis v. United

States, 226 F.2d 331 (6th Cir.), cert. denied 350 U.S. 965, reh'g denied 351

U.S. 915 (1955); United States v. Glascott, 216 F.2d 487 (7th Cir.), cert.

denied 348 U.S. 937 (1954); United States v. Swanson, 509 F.2d 1205 (8th

Cir. 1975); Imholte v. United States, 226 F.2d 585 (8th Cir. 1955); United

States v. Boone, 951 F.2d 1526 (9th Cir. 1991); United State v. Voorhies,

658 F.2d 710 (9th Cir. 1981);

-43a-

commenced by the filing of a Notice to Appear with the

Immigration Court on May 7, 1999 (Exh. 1). See 8 C.F.R. §

239.1(a); section 304(b) of IIRIRA. To the extent that the

respondent is seeking relief from removal under section 212(c)

of the Act, we note that this section is no longer part of the Act,

as it was repealed and is not available in removal proceedings.

See section 304(b) of IIRIRA. This change applies

retroactively, in that ITRIRA specifically states that the changes

therein apply to all convictions regardless of whether they

“were entered before, on, or after the date of enactment of this

paragraph.” Section 321(b) of IIRIRA. As respondent is

properly in removal proceedings, we find that he is not eligible

to apply for waiver under former section 212(c), since it has

been repealed and is unavailable in these proceeding. See Form

1-862; section 239 of the Act (initiation of removal

proceedings); section 304(b) of IIRIRA (repealing former

section 212(c) of the Act).°

. (...continued)

United States v. Buckner, 610 F.2d 570 (9th Cir.), cert. denied 445 U.S. 961

(1979); United States v. Miller, 545 F.2d 1204 (9th Cir.), cert. denied 430

U.S. 930 (1976); United States v. Swallow, 511 F.2d 514 (10th Cir.), cert.

denied 423 U.S. 845 (1975) (holding that to prove the element of willfulness

in a prosecution for a willful attempt to evade or defeat payment of federal

income taxes, the Government must prove beyond a reasonable doubt that

there was an attempt to evade the tax, made voluntarily and intentionally and

with the specific intent of evasion); United States v. Afflerbach, 547 F.2d

§22 (10th Cir.), cert. denied 429 U.S. 1098, reh'g denied 430 U.S. 976

(1976); United States v. Jannuzzio, 184 F.Supp. 460 (D. Del. 1960) (holding

that in order to constitute a willful attempt to defeat or evade tax, there must

be a deliberate act capable of deceiving, misleading or defeating a tax

obligation known to exist, and the accused must have intentionally employed

such device for tax evasion reasons); see also United States v. Johnson, 319

U.S. 503, reh'g denied 320U.S. 808 (1943); United States v. Washington,

947 F.Supp. 87 (S.D.N.Y.1996).

-44a-

The respondent does not specifically identify any other

form of relief that he wishes to apply for other than a waiver

under section 212(c) of the Act. See Form EOIR-26;

Respondent’s Brief. We find that the respondent, as a lawful

permanent resident convicted of an aggravated felony, is

ineligible for cancellation of removal and a waiver under

section 212(h). Sections 240A(a)(3) and 212(h) of the Act, 8

U.S.C. §§ 1229b(a), 1182(h); see Matter of Yeung, 21 I&N Dec.

610 (BIA 1997); Matter of Pineda, 21 I&N Dec. 1017 (BIA

1997). We also find that the respondent is statutorily ineligible

for asylum and voluntary departure. Sections 208(b)(2)(A)(11),

(B)(i), and 240B(b)(1)(C) of the Act; 8 U.S.C. §§

1158(b)(2)(A)(i1), (B)(i), and 1229c(b)(1)(C). We further note

that the respondent has not alleged that he holds a fear of

persecution or torture in Italy. We therefore find that the

respondent has not demonstrated eligibility for withholding of

removal or protection under the Convention Against

Torture.* See section 241(b)(3) of the Act, 8 U.S.C. §

?- With respect to the respondent’s suggestion that we remand this cuse to

the Immigration Judge to conduct an independent inquiry as to whether the

denial of section 212(c) relief is impermissibly retroactive, we note that this

Board and the immigration courts do not address the constitutionality of the

laws we administer. See Matter of C-, 20 I&N Dec. 529 (BIA 1992); cf.

Notice of Appeal (Form EOIR-26) at 2.

*- The United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, adopted and opened for

signature Dec. 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No.

51) at 197, U.N. Doc. A/39/51 (1984) (entered into force June 26, 1987; for

the United States April. 18, 1988) (“Convention Against Torture”). On

October 21, 1998, legislation was signed into law directing the promulgation

of regulations to implement the obligations of the United States under

Article 3 of the Convention Against Torture, subject to aiy reservations,

understandings, declarations, and provisions contained in the United States

-45a-

1231(b)(3). For the foregoing reasons, the respondent is

removable as charged, and has not demonstrated eligibility for

relief from removal. Accordingly, the following order will be

ordered.

ORDER: The appeal is dismissed.

[Illegible Signature]

FOR THE BOARD

Senate resolution of ratification of the Convention. See section 2242 of the

Foreign Affairs Reform and Restructuring Act of 1998, enacted as Division

G of the Omnibus Consolidated and Emergency Supplemental

Appropriations Act for Fiscal Year 1999, Pub. L. No, 105-277, 112 Stat

2681-761, 822 (Oct. 21, 1998).

-46a-

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

PHILADELPHIA, PENNSYLVANIA

File No.: Al2 352 319

In the Matter Of:

EVANGELISTA, LOUIS SR.

Respondent

Charge: 237(a)(2)(A)(iii)

Application: Motion to Reconsider

IN REMOVAL PROCEEDINGS

ON BEHALF OF THE RESPONDENT:

Stanley Wallenstein, Esquire

ON BEHALF OF THE SERVICE:

Jeanine Linehan, Ass. District Counsel

MEMORANDUM OF DECISION AND ORDER

Respondent’s Motion to Reopen is denied for the following

reasons:

~ounsel argues that it is somehow significant that the Court in

its decision dated April 11, 2000 misstated that the respondent

had entered a plea of guilty, when in fact he was found guilty by

Le ———ESU ee

-47a-

a trial court. This distinction is of absolutely no significance to

the substance of the Court’s decision. - The rest of Counsel’s

argument is equally fallacious.

ORDERED that Respondent’s Motion to Reconsider is

DENIED.

SO ORDERED THIS 2™ DAY OF June, 2000.

/s/ Paul Grussendorf

Paul Grussendorf

U.S. Immigration Judge

Philadelphia, Pennsylvania

-48a-

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

Philadelphia, Pennsylvania

File No: A 12 352 319 ~ April 11, 2000

In the Matter of

LOUIS EVANGELISTE SR.

Respondent

CHARGES:

APPLICATION:

IN DEPORTATION PROCEEDINGS

ON BEHALF OF RESPONDENT:

Stanley Wallenstein, Esquire

ON BEHALF OF SERVICE:

Jeanine Linehan, Esquire

Assistant District Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

On April 14, 1999, the Immigration and Naturalization

Service issued form I-862, a Notice to Appear, in the name of

the respondent, Louis Evangeliste Sr. In the Notice to Appear

it is alleged that the respondent is not a native or citizen of the

United States, that he is a native and citizen of Italy. That he

Se ea ees

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was admitted to the United States at New York on or about

October 25, 1961, as an immigration. That he was on October

29, 1996, convicted in the United States District Court at the

Eastern District of New York for the offense of conspiracy to

impede the IRS in collection of income and payroll taxes in

violation of Title 18, United States Code Section 371, failure

to collect or pay income and FICA taxes in violation of Title 26,

United States Code Section 7202, and attempt to evade or

defeat tax in violation of Title 26, United States Code Section

7201.

It is charged that the respondent is removable from the

United States pursuant to Section 237(a)(2)(A)(iii) of the

Immigration and Nationality Act as amended in that at anytime

after admission he has been convicted of an aggravated felony

as defined at Section 101(a)(43) of the Act.

At a master calendar appearance Government moves to

orally amend the charger of removability to indicate that

Section 101(a)(43)(M)(iii) is meant and that motion was

granted to orally amend. Also, at the master calendar, through

counsel, the respondent admitted the four factual allegations but

denied the charge of removability.

The issue before the Court is whether the respondent’s

conviction and the Government’s proof of evidence in this case

falls within the definition of an aggravated felony at

101(a)(43)(M)(ii).

Respondent’s counsel has submitted a brief and argues

that the respondent is not deportable under that provision of law

and argues that the statute in question must be read in the

disjunctive, that is that the statute indicates that the respondent

can be convicted of either evading or defeating and that the

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respondent was guilty of “defeating”, that is that he failed to file

income taxes as he has been charged and convicted but that he

was not found guilty or convicted of evading and that therefore

the statute is division and that the Government has not met its

burden to show that the respondent is removable as charged

under 101(a)(43)(M)(ii).

In the record is Exhibit 1, the Notice to Appear; Exhibit

2 is Government’s submission of evidence which includes form

]-213, record of deportable alien and a record of the judgement

of conviction in this case which relates that the respondent was

found guilty of counts one, counts two through 17, counts 21

through 25, and counts 26 of a 26 count superseding indictment;

Tab 3 of Exhibit 2 is a copy of the superseding indictment and

Tab 4 is a copy of the presentence investigation report.

The Court finds that for the purposes of this

adjudication, both the judgement or record of conviction in this

case and the superseding indictment is proper evidence. The

Court would not admit the presentence investigation report at

this juncture of the proceeding when the Court must make a

determination as to whether or not the Government has met its

burden of proving removability.

Board decisions have found that an indictment is a

proper exhibit in removal proceedings when the Government

must establish removability that it is part of the Court record

and should be admitted. The Court finds it proper that when it

is shown that the respondent pled guilty to count 1, and to count

2 through 17, for example, that the Court should peruse the

superseding indictment, namely, counts 1, counts 2 through 17,

etc, to ascertain what the nature of respondent’s involvement

and what the Government has charged the respondent with

having been complicit of. The Court finds that counsel’s

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arguments, although interesting amounts to a house of cards the

respondent clearly has been charged with and found guilty of

evading as well as defeating income and payroll taxes. It is

crystal clear through the manner in which the respondent was

charged and found guilty that he was evading as well as

defeating income taxes.

For this reason the Court finds that the Government has

met its burden of establishing by evidence that is clear and

convincing that the respondent is removable as charged as an

aggravated felon at Section 101(a)(43)(M)(ii).

Respondent has argued that he should be eligible for

consideration of 212(c), waiver of deportability, and he has

filed a form I-191 which is with the record unmarked. The

Court finds that the respondent is in removable proceedings,

that the proceedings were initiated on April 14, 1999, and that

the respondent, therefore, cannot apply for a form of relief

which is not in the statute. Section 212(c) was eliminated by

reforms of so called IRAIRA in 1996. The Court would also

note that the respondent’s conviction post-dated the date of

when the reforms in IRAIRA became effective which was in

September 1996.

For these reasons the Court must find that the

respondent is removable and that he is not eligible for any relief

from removal. He is not eligible for cancellation of removal or

for 212(h) waiver of removability for voluntary departure and

he has not evidenced any fear of return to Italy which would

trigger either 241(b)(3) consideration or consideration under the

convention against torture.

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ORDER OF THE COURT

Wherefore, respondent shall be removed and

deported to Italy.

/s/ Paul Grussendorf

PAUL GRUSSENDORF

Immigration Judge

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

THURGOOD MARSHALL U.S. COURT HOUSE

DOCKET NO.: 03-2919-PR

FILED JUNE 9, 2004

At a stated term of the United States Court of Appeals for the

Second Circuit, held at the United States Courthouse, Foley

Square, in the City of New York, on the 9" day of June two

thousand four.

LOUIS EVANGELISTA,

Petitioner-Appellant,

v.

JOHN ASHCROFT, Attorney General; JAMES ZIGLAR,

Commissioner of the Immigration & Naturalization Service;

UNITED STATES IMMIGRATION AND

NATURALIZATION SERVICE,

Respondents-Appellees.

A petition for panel rehearing and a petition for

rehearing en banc having been filed herein by the appellant

Louis Evangelista.

Upon consideration by the panel that decided the

appeal, it is Ordered that said petition for rehearing is

DENIED.

It is further noted that the petition for rehearing en

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banc has been transmitted to the judges for the court in regular

active service and to any other judge that heard the appeal and

that no such judge has requested that a vote be taken thereon.

For the Court,

Roseann B. MacKechnie, Clerk

[Illegible Signature]

Motion Staff Attorney

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STATUTORY PROVISIONS INVOLVED

1. Immigration and Nationality Act § 212(c), 8

U.S.C. § 1182(c) (1995).

Aliens lawfully admitted for permanent residence

who temporarily proceeded abroad voluntarily and not under

an order of deportation, and who are returning to a lawful

unrelinquished domicile of seven consecutive years, may be

admitted in the discretion of the Attorney General without

regard to the provisions of subsection (a) (other than

paragraphs (3) and (9)(C)). Nothing contained in this

subsection shall limit the authority of the Attorney General to

exercise the discretion vested in him under section 211(b).

The first sentence of this subsection shall not apply to an

alien who has been convicted of one o1 more aggravated

felonies and has served for such felony or felonies a term of

imprisonment of at least 5 years.

2. Section 440(d) of Antiterrorism and Effective

Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214

(April 24, 1996).

CLASSES OF EXCLUDABLE ALIENS. -Section

212(c) of [the Immigration and Nationality Act]... is

amended —

(1) by striking “The first sentence of this” and inserting

“this”; and

(2) by striking “has been convicted of one or more

aggravated felonies” and all that follows through the end and

inserting “is deportable by reason of having committed any

criminal offense covered in section 241(a)(2)(A)(iii), (B),

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(C), or (D), or any offense covered by section

241(a)(2)(A)(ii) for which both predicate offenses are

covered by section 241(a)(2)(A)(i).”

3. Immigration and Nationality Act § 212(c), 8

U.S.C. § 1182(c), as amended by AEDPA § 440(d) (1997).

Aliens lawfully admitted for permanent residence

who temporarily proceeded abroad voluntarily and not under

an order of deportation, and who are returning to a lawful

unrelinquished domicile of seven consecutive years, may be

admitted in the discretion of the Attorney General without

regard to the provisions of subsection (a) (other than

paragraphs (3) and (9)(C)). Nothing contained in this

subsection shall limit the authority of the Attorney General to

exercise the discretion vested in him under section 211(b).

This subsection shall not apply to an alien who is deportable

by reason of having committed any criminal offense covered

in sections 241(a)(2)(A)(iii), (B), (C), or (D), or any offense

covered by section 241(a)(2)(A)(ii) for which both predicate

offenses are covered by section 241(a)(2)(A)(I).

4. Section 304(b) of Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Pub. L.

104-208, 110 Stat. 3009-546 (September 30, 1996)

REPEAL OF SECTION 212(c)—Section 212(c) (8

U.S.C. 1182(c)) is repealed.