Title Lee v. Ashcroft
Date 2004
By
Subject Other\Dissenting
Contents
Page 1
11 of 79 DOCUMENTS
KI SE LEE; HYANG MAHN YANG, Petitioners v. JOHN ASHCROFT, Attorney General of the United States, Respondent
No. 02-4602
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
368 F.3d 218; 2004 U.S. App. LEXIS 9827
December 5, 2003, Argued
May 19, 2004, Filed
PRIOR HISTORY: **1 ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS (Nos. A38 656 406, A36
775 995).
DISPOSITION: Petition for review was granted. Order of removal against the petitioners was vacated.
CASE SUMMARY:
PROCEDURAL POSTURE: Petitioner aliens sought review of an order of the Board of Immigration Appeals
(BIA) requiring their removal from the United States un- der 8 U.S.C.S. § 1101(a)(43)(M)(i) for being convicted of filing a false tax return in violation of 26 U.S.C.S. §
7206(1).
OVERVIEW: The aliens, a husband and wife from Korea, were convicted for filing a false tax return. An immigration judge subsequently ordered that they be re- moved from the United States for being convicted of an aggravated felony under 8 U.S.C.S. § 1101(a)(43)(M)(i). On review, the court vacated the removal order. The court held that 8 U.S.C.S. § 1252(a)(2)(C) did not de- prive it of jurisdiction over the aliens' petition because it necessarily had jurisdiction to determine whether the aliens were convicted of an enumerated offense. The court held that a conviction for filing a false tax re- turn under 26 U.S.C.S. § 7206(1) was not an aggravated felony under 8 U.S.C.S. § 1101(a)(43)(M)(i). The court believed that Congress' intent was clear: in enacting §
1101(a)(43)(M)(ii), it intended to specify tax evasion as the only deportable tax offense; it followed that it did not intend § 1101(a)(43)(M)(i) to cover tax offenses.
OUTCOME: The order of removal against the aliens was vacated.
LexisNexis(R) Headnotes
Tax Law > Federal Tax Administration & Procedure
> Audits & Investigations > Criminal Procedure & Penalties (IRC secs. 7201-7217, 7231-7232, 7261-7262,
7268-7273, 7375)
HN1 See 26 U.S.C.S. § 7206.
Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > General Overview
HN2 See 8 U.S.C.S. § 1101(a)(43)(M)(i), (ii).
Tax Law > Federal Tax Administration & Procedure
> Audits & Investigations > Criminal Procedure & Penalties (IRC secs. 7201-7217, 7231-7232, 7261-7262,
7268-7273, 7375)
HN3 See 26 U.S.C.S. § 7201.
Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > Aggravated Felonies
Immigration Law > Deportation & Removal > Grounds
> National Security Risk > General Overview
HN4 See 8 U.S.C.S. § 1227(a)(2)(A)(iii).
Immigration Law > Deportation & Removal > Grounds
> National Security Risk > General Overview Immigration Law > Judicial Review > Jurisdiction Immigration Law > Deportation & Removal > Administrative Proceedings > Jurisdiction
HN5 See 8 U.S.C.S. § 1252(a)(2)(C).
Immigration Law > Deportation & Removal > Administrative Proceedings > Jurisdiction
Immigration Law > Judicial Review > Scope of Review
HN6 The jurisdiction-stripping provision of 8 U.S.C.S.
§ 1252(a)(2)(C) comes into play only when two facts ex- ist: (1) the petitioner is an alien (2) who is deportable by reason of having been convicted of one of the enu- merated offenses. A court necessarily have jurisdiction to determine whether these jurisdictional facts are present. Governments > Legislation > Interpretation Immigration Law > Judicial Review > Scope of Review
HN7 A court applies de novo review to a purely legal
368 F.3d 218, *; 2004 U.S. App. LEXIS 9827, **1
Page 2
question of statutory interpretation that governs its own jurisdiction.
Governments > Legislation > Interpretation
Immigration Law > Judicial Review > Scope of Review
HN8 The first step in interpreting a statute is to deter- mine whether the language at issue has a plain and un- ambiguous meaning with regard to the particular dispute in the case. If the statutory meaning is clear, the court's inquiry is at an end. If the statutory meaning is not clear, the court must try to discern Congress' intent using the ordinary tools of statutory construction. If, by employ- ing traditional tools of statutory construction, the court determines that Congress' intent is clear, that is the end of the matter. If the court is unable to discern Congress' intent using the normal tools of statutory construction, it will generally give deference to the Board of Immigration Appeals' interpretation, so long as it is reasonable. Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > General Overview
HN9 8 U.S.C.S. §§ 1101(a)(43)(M)(i),
1101(a)(43)(M)(ii) were enacted simultaneously in 1996. Section 1101(a)(43)(M)(i) has a general application - the gamut of state and federal crimes involving fraud and deceit causing losses over $10,000. Section
1101(a)(43)(M)(ii) zeroes in on the crime of federal tax evasion, as described in § 7201 of the Internal Revenue Code, 26 U.S.C.S. § 7201; it is silent about any other criminal tax offenses.
Governments > Legislation > Interpretation
HN10 If at all possible, a court should adopt a construc- tion which recognizes each element of the statute.
Tax Law > Federal Tax Administration & Procedure
> Audits & Investigations > Criminal Procedure & Penalties (IRC secs. 7201-7217, 7231-7232, 7261-7262,
7268-7273, 7375)
HN11 An affirmative willful attempt to evade may be in- ferred from any conduct, the likely effect of which would be to mislead or to conceal.
Governments > Legislation > Interpretation
HN12 A commonplace rule of statutory construction is that the specific governs the general. As explained by the United States Supreme Court, where Congress includes particular language in one section of the statute but omits it in another section of the same act, it is generally pre- sumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. Moreover, this prin- ciple has special force when Congress has targeted spe- cific problems with specific solutions in the context of a general statute. And it applies particularly when the two provisions are interrelated and closely positioned, both in fact being parts of the same statutory scheme.
Tax Law > Federal Tax Administration & Procedure
> Audits & Investigations > Criminal Procedure & Penalties (IRC secs. 7201-7217, 7231-7232, 7261-7262,
7268-7273, 7375)
HN13 As the United States Supreme Court explained many years ago, tax "evasion" is the "capstone" of tax law violations.
Governments > Legislation > Interpretation Immigration Law > Deportation & Removal > General Overview
Immigration Law > Judicial Review > Scope of Review
HN14 There is a longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.
COUNSEL: For Petitioners: Steven A. Morley (Argued), Morley, Surin & Griffin, P.C., Philadelphia, Pennsylvania.
For Respondent: Peter D. Keisler, Assistant Attorney General, Civil Division, Linda S. Wernery, Senior Litigation Counsel, Office of Immigration Litigation, Lyle D. Jentzer (Argued), Trial Attorney, Douglas E. Ginsburg, Esq., Michael P. Lindemann, Esq., John M. McAdams Jr., Esq., John D. Williams, Esq., Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC.
JUDGES: Before: SLOVITER and ALITO, Circuit Judges, and OBERDORFER, * District Judge. ALITO, Circuit Judge, dissenting.
* The Honorable Louis F. Oberdorfer, Senior District Judge for the District of Columbia, sitting by designation.
OPINIONBY: Louis F. Oberdorfer
OPINION:
*220 OPINION OF THE COURT
OBERDORFER, Senior District Judge:
In this appeal we consider the question of whether a conviction for filing a false tax return, in violation of 26
U.S.C. § 7206(1) of the Internal Revenue Code, is an "ag- gravated felony" as defined by section 101(a)(43)(M)(i)
**2 of the Immigration and Naturalization Act, 8 U.S.C.
§ 1101(a)(43)(M)(i). We conclude that it is not, and, there- fore, that the petitioners' convictions do not render them removable. Accordingly, we will grant the Petition for Review of the decision and vacate the order of removal against the petitioners.
I. BACKGROUND
368 F.3d 218, *220; 2004 U.S. App. LEXIS 9827, **2
Page 3
The relevant facts are not complicated. The petition- ers, Ki Se Lee and Hyang Mahn Yang, are husband and wife. They are both natives and citizens of Korea, but they have resided in the United States as lawful permanent res- idents since the 1980s. n1 They have grown children who are United States citizens.
n1 Petitioner Yang entered the United States in
1980; petitioner Lee entered in 1984.
For many years, the petitioners operated a dry clean- ing business in Philadelphia. In May 1997, they pled guilty to a three-count information, which charged them with filing false income tax returns for 1989, 1990 and
1991, all in violation of 26 U.S.C. § 7206 **3 (1). n2
The information further alleged that, in the three tax years at issue, petitioners understated their income by $112,453, causing a tax deficiency of $55,811. Departing downward substantially, each petitioner was sentenced to three years
**4
as to every material matter
. . .
shall 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 3 years, or both, together with the costs of prosecution.
26 U.S.C. § 7206.
n3 The petitioners' Sentencing Guideline range was 4 to 10 months confinement, one year super- vised release, and a $1,000 to $10,000 fine.
probation, a condition of which was three months home confinement, with permission to leave for work, medical services, etc., one hundred hours of community service, and the payment of all taxes, interest and penalties due to the IRS. n3 AR 110.
n2 In relevant part, section 7206 provides that
HN1 any person who . . . (1) . .
. Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a writ- ten declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct
Thereafter, in November 1997, the INS charged pe- titioners with being removable for having been con- victed of an "aggravated felony," as defined by sec- tion 101(a)(43)(M)(i) and (ii) of the Immigration and Naturalization Act. See 8 U.S.C. § 1101(a)(43)(M). Section 101(a)(43)(M) includes in the felonies classified as "aggravated" for purposes of deportation:
HN2 An offense that -
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or
(ii) is described in § 7201 n4 of the Internal
Revenue Code of 1986 (related to tax
368 F.3d 218, *221; 2004 U.S. App. LEXIS 9827, **4
Page 4
*221 evasion) in which the revenue loss to the Government exceeds $10,000; . . .
8 U.S.C. § 1101(a)(43)(M)(i) & (ii). The petitioners moved to terminate removal proceedings on the ground that a conviction for violating section 7206(1) of the Internal Revenue Code was not an aggravated **5 felony under either subsection (M)(i) or (M)(ii). The im- migration judge denied their motion, ruling in July 1998 that petitioners' convictions rendered them removable un- der either subsection. App. 47. He ordered each petitioner
"removed to the Republic of (South) Korea." App. 48.
n4 In relevant part, section 7201 provides:
HN3 Attempt to evade or defeat tax. Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the pay- ment thereof shall, in addition to other 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 corpora- tion), or imprisoned not more than 5 years, or both, together with the costs of prosecution.
26 U.S.C. § 7201.
On December 2, 2002, the Board of Immigration Appeals affirmed the immigration judge's decision with- out opinion, making it the final agency decision. See 8
C.F.R. § 1003.1(e)(4) **6 . The petitioners seek re- view.
II. DISCUSSION
On appeal, the petitioners challenge the immigra- tion judge's order of removal on the ground that their convictions for violating 26 U.S.C. § 7206(1) do not qualify as aggravated felonies under either 8 U.S.C. §
1101(a)(43)(M)(i) or (ii), and, therefore, that they are not removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). n5
As the government now concedes that subsection (M)(ii)
does not apply, we need only consider whether the pe-
titioners' convictions meet the definition of aggravated felony in subsection (M)(i).
n5 In relevant part, section 1227(a)(2)(A)(iii) provides that HN4 " a ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii).
A. Jurisdiction
As an initial matter, we consider the government's contention that under 8 U.S.C. § 1252(a)(2)(C) we lack
**7 jurisdiction to review the petitioners' order of re- moval. That provision states that HN5 "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of hav- ing committed a criminal offense covered in section .
. . 1227(a)(2)(A)(iii)." As recently explained, however,
HN6 this jurisdiction-stripping provision comes into play only when two facts exist: "(1) the petitioner is an alien (2) who is deportable by reason of having been convicted of one of the enumerated offenses." Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001). We necessarily have jurisdiction "to determine whether these jurisdic- tional facts are present." Id.; see Valansi v. Ashcroft, 278
F.3d 203, 207 (3d Cir. 2002). We are thus not precluded from reviewing the petitioners' argument that they have not been convicted of an "enumerated offense." If the pe- titioners are right, judicial review of the removal orders is not precluded, and they will be vacated for failing to allege a removable offense. If the petitioners are wrong, we lack jurisdiction to inquire any further into the merits, and the removal order will stand.
B. **8 Have the Petitioners Been Convicted of an
Aggravated Felony?
The petitioners argue that no conviction under section
7206(1) for filing false tax returns can satisfy the defini- tion of aggravated felony in 8 U.S.C. § 1101(a)(43)(M)(i).
HN7 We apply de novo review to this purely legal ques- tion of statutory interpretation that governs our own ju- risdiction. See Valansi, 278 F.3d at 207.
HN8
368 F.3d 218, *222; 2004 U.S. App. LEXIS 9827, **8
Page 5
*222 "The first step in interpreting a statute is to deter- mine 'whether the language at issue has a plain and un- ambiguous meaning with regard to the particular dispute in the case.'" Id. at 209 (quoting Marshak v. Treadwell,
240 F.3d 184, 192 (3d Cir. 2001)). If the statutory mean- ing is clear, our inquiry is at an end. Id. If the statutory meaning is not clear, we must try to discern Congress' intent using the ordinary tools of statutory construction. See INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48, 94
L. Ed. 2d 434, 107 S. Ct. 1207 (1987). "If, by employing traditional tools of statutory construction, we determine that Congress' intent is clear, that is the end of the matter." Valansi, 278 F.3d at 208 (quoting **9 Bell v. Reno, 218
F.3d 86, 90 (2d Cir. 2000)). If we are unable to discern Congress' intent using the normal tools of statutory con- struction, we will generally give deference to the Board's interpretation, so long as it is reasonable. Id.
We thus begin our analysis with the statutory language of subsection (M)(i). It may be argued that the petition- ers' convictions under section 7206(1) for filing false tax returns clearly involve "fraud and deceit," as required by subsection (M)(i), and that we need look no further. However, the precise question before us is whether the statutory language makes it plain and unambiguous that subsection (M)(i) covers convictions for violating section
7206(1). This question cannot be answered solely by look- ing at "the language itself"; we must also be cognizant of
"the specific context in which that language is used, and the broader context of the statute as a whole." Id. at 209; cf. United States Nat'l Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 454-55, 124
L. Ed. 2d 402, 113 S. Ct. 2173 (1993) ("A statute's plain meaning must be enforced, of course, and the meaning of a statute will typically **10 heed the commands of its punctuation. But a purported plain-meaning anal-
ysis based only on punctuation is necessarily incomplete and runs the risk of distorting a statute's true meaning. Along with punctuation, text consists of words living 'a communal existence,' in Judge Learned Hand's phrase, the meaning of each word informing the others and all in their aggregate tak ing their purport from the setting in which they are used. Over and over we have stressed that i n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.")
(internal citations and quotations omitted).
Here, these broader considerations, specifically the presence of subsection (M)(ii), preclude a conclusion that the statutory language of subsection (M)(i) clearly and un- ambiguously covers a section 7206(1) conviction. HN9 Subsections (M)(i) and (M)(ii) were enacted simultane- ously in 1996. Subsection (M)(i) has a general applica- tion - the gamut of state and federal crimes involving fraud and deceit causing losses over $10,000. Subsection
(M)(ii) zeroes in on the crime of federal tax evasion, as described in **11 section 7201 of the Internal Revenue Code, 26 U.S.C. § 7201; it is silent about any other crim- inal tax offenses. Gross examination of (M) leaves obvi- ous questions: Why does subsection (M) include both a general provision encompassing "fraud and deceit" and specific provision directed solely at the offense of federal tax evasion? If subsection M(i) applies to tax offenses, what is the purpose of subsection (M)(ii)? Does the juxta- position of subsections (M)(i) and (M)(ii) signal an intent to exclude other tax offenses from the definition of ag- gravated felonies in (M)(i)? That subsection (M)(i) raises these questions demonstrates that its language does not have a plain and unambiguous meaning, at least not as applied to a
368 F.3d 218, *223; 2004 U.S. App. LEXIS 9827, **11
Page 6
*223 conviction under section 7206(1) of the Internal Revenue Code. n6 Therefore, we must turn to the tradi- tional tools of statutory construction to see if they assist in discerning Congress' intent.
n6 But see Abreu-Reyes v. INS, 292 F.3d 1029,
1037 (9th Cir. 2002) (denying petition for review), withdrawn on other grounds, 350 F.3d 966 (9th Cir.
2003).
**12
We start with the principle that HN10 if at all pos- sible, we should adopt a construction which recognizes each element of the statute. See Acceptance Ins. Co. v. Sloan, 263 F.3d 278, 283 (3d Cir. 2001) (recognizing that it is an "axiom of statutory construction that whenever possible each word in a statutory provision is to be given meaning and not to be treated as surplusage") (internal quotations omitted). The only construction that satisfies this principle is the one suggested by the petitioners: that subsection (M)(i) does not apply to tax offenses. If the government's proposed construction were adopted, and we were to hold that any tax offense involving fraud and deceit over $10,000 was an aggravated felony un- der subsection (M)(i), subsection (M)(ii) would be mere surplusage. We have considered the government's con- tention that there could be a case where a conviction for tax evasion would not involve fraud or deceit, in which case subsection (M)(ii) would exist simply to catch any cases not covered by subsection (M)(i), but the govern- ment has not identified, and we are unable to envision, what that case might be. Indeed, in addressing what con- duct might constitute **13 tax evasion under section
7201, the Supreme Court has stated that HN11 an "af- firmative willful attempt to evade may be inferred from
. . . any conduct, the likely effect of which would be to mislead or to conceal." Spies v. United States, 317 U.S.
492, 499, 87 L. Ed. 418, 63 S. Ct. 364 (1943) (emphasis added). Accordingly, the goal of avoiding surplusage in construing a statute is satisfied only if subsection (M)(i) does not apply to tax offenses.
HN12 Another "commonplace rule of statutory construction" is that the "specific governs the general." Doe v. National Bd. of Medical Examiners, 199 F.3d 146,
154-55 (3d Cir. 1999) (quoting Morales v. Trans World
Airlines, Inc., 504 U.S. 374, 384, 119 L. Ed. 2d 157,
112 S. Ct. 2031 (1992)); see also Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228, 1 L. Ed.
2d 786, 77 S. Ct. 787 (1957) ("The law is settled that how- ever inclusive may be the general language of a statute, it will not be held to apply to a matter specifically dealt with in another part of the same enactment."), quoted in Doe v. National Bd. of Medical Examiners, 199 F.3d at
155. As explained by the Supreme **14 Court, "where Congress includes particular language in one section of the statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Cardoza-Fonseca, 480 U.S. at 447-48; see also Albright v. Oliver, 510 U.S. 266, 273, 127 L. Ed. 2d 114, 114 S. Ct.
807 (1994). Moreover, " t his principle has special force when Congress has targeted specific problems with spe- cific solutions in the context of a general statute." Doe v. National Bd. of Medical Examiners, 199 F.3d at 155. And it applies "particularly when the two provisions are in- terrelated and closely positioned, both in fact being parts of the same statutory scheme." Id. (internal quotations omitted).
The statutory section at issue here is a perfect example of this phenomenon. Subsections (M)(i) and (M)(ii) were adopted at the same time, appear adjacent to each other, and are the only two parts of subsection (M), within a statute with many,
368 F.3d 218, *224; 2004 U.S. App. LEXIS 9827, **14
Page 7
*224 many subsections. Subsection (M)(i) is a general provision covering "fraud and deceit"; subsection (M)(ii) is a very specific provision that **15 only applies to federal tax evasion. Accordingly, the principle that the specific governs the general also favors the interpretation that subsection (M)(ii) identifies the only removable tax offense, tax evasion, while subsection (M)(i) does not apply to tax offenses. n7
n7 See also Abreu-Reyes, 292 F.3d at 1037
(Paez, J., dissenting) ("That Congress included a separate statutory provision for tax evasion demon- strates that it did not intend to include tax offenses within the "fraud or deceit" text. Rather, as the statute reflects, Congress drew a distinction be- tween tax offenses and other crimes involving fraud and deceit. Congress then targeted only the more egregious act of tax evasion, and only when the loss to the government exceeds $10,000, as sufficiently serious to warrant removal.")
While the legislative history of the Immigration and Naturalization Act offers no help in discerning Congress' intent in enacting subsection (M)(i), n8 the history and structure of the criminal tax laws **16 persuade us that in enacting subsection (M)(ii), Congress intended to single out tax evasion as the only tax crime that is a remov- able offense. See United States Nat'l Bank v. Independent Ins. Agents of Am., 508 U.S. 439, 455, 124 L. Ed. 2d
402, 113 S. Ct. 2173 (1993) ("Statutory construction is a holistic endeavor and, at a minimum, must account for a statute's full text, language , as well as punctuation, structure, and subject matter.") (internal quotations and citations omitted), quoted in Tineo v. Ashcroft, 350 F.3d
382, 391 (3d Cir 2003).
n8 In 1996, Congress vastly expanded the num- ber and types of offenses that qualified as aggra- vated felonies. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
Pub. L. 104-208, 110 Stat. 3009 (1996). For the most part, these changes were adopted without any discussion of their particular purpose.
HN13 As the Supreme Court explained many years ago, tax "evasion" is the "capstone" of tax law violations.
**17 See Spies, 317 U.S. at 497. A felony since at least 1903, it has long been recognized as "the gravest of offenses against the revenues." Id. at 499. In his opinion for the Court in Spies, Justice Robert Jackson (a for- mer General Counsel for the Bureau of Internal Revenue, Assistant Attorney General for the Tax Division, Solicitor General, and Attorney General), after outlining the then civil and criminal "penalties imposed by Congress to en- force the tax laws," n9 id. at 495, concluded that " t he climax of this variety of sanctions is the serious and in- clusive felony, defined to consist of a willful attempt in any manner to evade or defeat the tax," id. at 497 (em- phasis added). Thus, for Congress to select tax evasion as the "aggravated" tax felony, justifying removal of an alien who committed it, while sparing lesser tax felons, is thoroughly consistent with the history and structure of criminal tax offenses.
n9 These sanctions ranged from civil delin- quency penalties ranging from 5 to 25 percent to criminal penalties calibrated from misdemeanors
(e.g. former § 145(a)) to tax evasion, punishable as a felony and carrying a maximum penalty of
5 years confinement and a $5,000 fine (former §
145(b), now § 7201).
**18
In the end, after considering various tools of statutory construction, we believe that Congress' intent is clear: in enacting subsection (M)(ii), it intended to specify tax evasion as the only deportable tax offense; it follows that it did not intend subsection (M)(i) to cover tax offenses. n10
368 F.3d 218, *225; 2004 U.S. App. LEXIS 9827, **18
Page 8
*225 To the extent that any ambiguity lingers, we note that HN14 there is a "longstanding principle of con- struing any lingering ambiguities in deportation statutes in favor of the alien." INS v. Cardoza-Fonseca, 480 U.S.
421, 449, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987) (prin- ciple is a corollary to the rule of lenity that applies in construing criminal statutes); see also INS v. St. Cyr, 533
U.S. 289, 150 L. Ed. 2d 347, 121 S. Ct. 2271 (2001); see also Valansi ("This rule of construction . . . may be applied as a canon of last resort to determine the intent of Congress on an ambiguous issue."). The facts of the present case highlight the reason this principle exists: it is a plain fact that in reality neither the prosecution, nor the sentencing judge involved in the prosecution, plea and sentencing of petitioners, treated their offense as "aggra- vated." The prosecution acquiesced in, if **19 it did not negotiate, a plea agreement, and the judge imposed a sentence characteristic of a misdemeanor, not a felony - much less an "aggravated one" (however it be defined). See Francis v. Reno, 269 F.3d 162, 170-71 (3d Cir. 2001)
(noting that the importance of this principle is highlighted
"given the changes in immigration law effectuated by the
1996 amendments to the Immigration and Nationality
Act )." n11
n10 We note that if we had not reached this con- clusion, we would confront the question of whether we should defer to the Board's interpretation in a situation where the Board itself has not ruled on the issue before us, see 8 C.F.R. 1003.1(e)(4) (af- firmance without opinion indicates only approval of the outcome, not the immigration judge's rea- soning), and where the meaning of the statutory provision depends, in part, on an understanding of the Internal Revenue Code, a subject on which the Board has no expertise.
n11 Our dissenting colleague speculates that "If Congress had not wanted subsection M(i) to apply to 'tax offenses,' Congress surely would have in- cluded some language in that provision to signal that intention." But Congress is chargeable with knowledge of the same well-established principles of statutory construction which we feel compelled to apply. If Congress had not intended us to apply
them, it surely would have signaled to that effect. Further, our colleague also speculates that Congress may have enacted M(ii) "simply to make certain even at the risk of redundancy that tax eva- sion qualifies as an 'aggravated felony.'" It may be that Congress will wish to broaden the categories of aggravated felony to include other or all tax felonies. But we must interpret what it has written by well-recognized rules of statutory construction,
unaided by speculation.
**20
Accordingly, we conclude that the petitioners' con- viction for violating section 7206(1) of the Internal Revenue Code is not a removable offense under 8 U.S.C.
§ 1101(a)(43)(M)(i). That decision makes it unnecessary to consider the petitioners' argument that the record does not establish a loss of $10,000.
III. CONCLUSION
The Petition for Review of the decision of the BIA approving the removal order of the IJ is granted with di- rections to vacate the removal orders with respect to the petitioners.
DISSENTBY: ALITO
DISSENT: ALITO, Circuit Judge, dissenting
I must respectfully dissent because I believe that the offense of filing a false tax return and thereby causing a tax loss of more than $10,000 falls squarely within the definition of an "aggravated felony" in 8 U.S.C. §
1101(a)(43)(M)(i). Accord Abreu-Reyes v. INS, 292 F.3d
1029 (9th Cir. 2002), withdrawn on other ground, 350
F.3d 966 (9th Cir. 2003).
The term "aggravated felony" is defined to include:
(M) an offense that -
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000
**21 ; or
(ii) is described in section 7201 of Title
26 (relating to tax evasion) in which
368 F.3d 218, *226; 2004 U.S. App. LEXIS 9827, **21
Page 9
*226 the revenue loss to the Government exceeds $10,000 . . . .
8 U.S.C. § 1101(a)(43)(M) (emphasis added).
Thus, subsection (M)(i) sets out two requirements. First, the offense must "involve fraud or deceit." This means that the offense must include "fraud or deceit as a necessary component or element." Valansi v. Ashcroft,
278 F.3d 203, 210 (3d Cir. 2002). Second, "the loss to the victim or victims" must exceed $10,000.
The offense of filing a false tax return and causing a tax loss of more than $10,000 satisfies these elements.
"Fraud" or "deceit" is a necessary element of 26 U.S.C.
§ 7206(1), which makes it a crime to make or subscribe
"any return, statement, or other document" that the defen- dant "does not believe to be true and correct as to every material matter." In addition, causing a tax loss of more than $10,000 results in a qualifying "loss to the victim," i.e., the United States Treasury.
Despite the clarity of subsection M(i), the majority concludes that this provision does not apply to tax of- fenses. **22 Invoking two venerable canons of statu- tory interpretation (viz., that statutes should be read if possible to avoid surplusage and that the specific should take precedence over the general), the majority reasons as follows. The provision that directly follows subsec- tion (M)(i), i.e., 8 U.S.C. § 1101(a)(43)(M)(ii), specifi- cally provides that the offense of tax evasion (26 U.S.C.
§ 7201) is an aggravated felony. This specific provision would not have been needed if (M)(i) applied to tax of- fenses, because tax evasion is an offense that involves fraud or deceit. Therefore, Congress must have intended that (M)(i) not apply to "tax offenses."
I must disagree with this analysis for two reasons. First and most important, this analysis fails to account for the language of subsection M(i). If Congress had not wanted subsection M(i) to apply to "tax offenses," Congress surely would have included some language in
that provision to signal that intention. As adopted, how- ever, subsection M(i) contains no such hint. In order to argue that the filing of a false tax return does not come within the language of subsection M(i), one would have to argue either **23 that the term "victim" was not meant to apply to the Treasury or that the term "loss" does not include a tax loss. However, both of these ar- guments fail to comport with ordinary usage. See United States v. Fleming, 128 F.3d 285, 288 (6th Cir. 1997) ("In tax fraud cases, we consider the United States Treasury the victim."); U.S.S.G. § 2T4.1 ("Tax Loss" table).
Second, the majority errs in inferring from subsec- tion M(ii) that Congress believed that subsection M(i) did not reach tax offenses. Subsection M(ii) may have been enacted simply to make certain - even at the risk of redun- dancy - that tax evasion qualifies as an aggravated felony. While good statutory draftsmanship seeks to avoid sur- plusage, other goals, such as certainty and the avoidance of litigation, are sometimes more important. Here, those responsible for drafting the provisions in question may have had a measure of doubt that subsection M(i) would be interpreted as covering all (or any) evasion cases, and subsection M(ii) may have been added to dispel any such uncertainty.
The tax evasion statute provides in relevant part as follows:
Any person who willfully attempts in any manner to evade **24 or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony . . . .
26 U.S.C. § 7201.
This offense has three elements: "1) the existence of a tax deficiency, 2) an affirmative act constituting an attempt to evade or
368 F.3d 218, *227; 2004 U.S. App. LEXIS 9827, **24
Page 10
*227 defeat payment of the tax, and 3) willfulness." United States v. McGill, 964 F.2d 222, 229 (3d Cir.), cert. denied, 506 U.S. 1023, 121 L. Ed. 2d 588, 113 S. Ct.
664 (1992). See also United States v. Voigt, 89 F.3d 1050,
1089 (3d Cir. 1996). In this context, willfulness requires proof that the defendant knew that his or her conduct was unlawful. Cheek v. United States, 498 U.S. 192, 201, 112
L. Ed. 2d 617, 111 S. Ct. 604 (1991).
Neither "fraud" nor "deceit" is mentioned in the statute as a necessary element of tax evasion. The statute applies to the willful attempt "in any manner to evade or defeat any tax imposed by this title or the payment thereof."
26 U.S.C. § 7201 (emphasis added). Likewise, leading cases interpreting this language do not hold that fraud or deceit is an element of **25 the offense. In Spies v. United States, 317 U.S. 492, 87 L. Ed. 418, 63 S. Ct. 364
(1943), the Supreme Court emphasized the breadth of the statutory language:
Congress did not define or limit the meth- ods by which a willful attempt to defeat and evade might be accomplished and perhaps did not define lest its effort to do so result in some unexpected limitation. Nor would we by definition constrict the scope of the Congressional provision that it may be ac- complished "in any manner."
Id. at 499. n12
n12 Although the Court went on to provide a list of deceitful activities from which an "affirma-
tive willful attempt" could be inferred, the Court took pains to note that this list was furnished " b y way of illustration, and not by way of limitation."
317 U.S. at 499.
In light of the statutory language and the case law, cau- tious drafters might have concluded that it was prudent to add subsection M(ii) for at least two reasons. First, even if the drafters, like the majority **26 in this case (see Maj. Op. at 9-10), could not think of an evasion case that did not involve fraudulent or deceitful conduct, the drafters might not have trusted their ability to anticipate every possible variety of evasion case and might have added subsection M(ii) just to be sure that no evasion case fell outside the definition. Second, even if the drafters were certain that no defendant would ever be convicted of tax evasion without proof of fraudulent or deceitful conduct, the drafters might have been concerned that some courts would hold that tax evasion falls outside the scope of subsection M(i) because neither "fraud" nor "deceit" is a formal element of the offense. See Valansi, 278 F.3d at
210 (in determining whether an offense involves "fraud or deceit," we look to the necessary elements of the of- fense of conviction). Thus, given the choice between (a) the risk that some or all tax evasion cases would not be covered and (b) the inclusion of a potentially redundant statutory provision, the drafters might have selected the latter option.
For these reasons, I think that it is unwarranted to infer from subsection M(ii) that subsection M(i) was not intended **27 to reach "tax offenses." I would heed the clear language of subsection M(i) n13 and
368 F.3d 218, *228; 2004 U.S. App. LEXIS 9827, **27
Page 11
*228 hold that the offense of filing of a false tax re- turn and causing a tax loss of more than $10,000 is an aggravated felony.
n13 Even if the statutory language were am- biguous, I would defer to the BIA's reasonable interpretation that § 7206(1) is an aggravated felony. See I.N.S. v. Aguirre-Aguirre, 526 U.S. 415,
424, 143 L. Ed. 2d 590, 119 S. Ct. 1439 (1999)
("Because the Court of Appeals confronted ques- tions implicating ' the BIA's construction of the statute which it administers,' the court should have applied the principles of deference described in Chevron"); Valansi, 278 F.3d at 208 ("Despite our exercise of de novo review, we will give defer- ence to the agency's interpretation of the aggra- vated felony definition if Congress's intent is un- clear"); Lukwago v. Ashcroft, 329 F.3d 157, 166
(3d Cir. 2003) ("We must review the BIA's statu- tory interpretation of the INA under the deferential standard of Chevron."). Appellants argue that when the INA is ambiguous we should invoke the rule of lenity and find in the alien's favor. See, e.g., I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 449, 94 L. Ed.
2d 434, 107 S. Ct. 1207 (1987); I.N.S. v. St. Cyr,
533 U.S. 289, 320, 150 L. Ed. 2d 347, 121 S. Ct.
2271 (2001). The rule of lenity, however, is re- served for situations in which the normal rules of statutory interpretation are unhelpful. See St. Cyr,
533 U.S. at 320, n. 45 (" T he cases and rules cited by Petitioner are distinguishable because ' w e only defer, however, to agency interpretations of statutes that, applying the normal "tools of statutory con- struction," are ambiguous.'")
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