Ki Se Lee; Hyang Mahn Yang v. John Ashcroft, Attorney General of the United States

KI SE LEE; HYANG MAHN YANG,
Petitioners

v.

JOHN ASHCROFT, Attorney General of the United States,
Respondent

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
(Nos. A38 656 406, A36 775 995)

Argued: December 5, 2003

Before: SLOVITER and ALITO, Circuit Judges, and OBERDORFER, District Judge

(Opinion Filed: May 19, 2004)

OPINION OF THE COURT

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 Accord Abreu-Reyes v. INS, 292 F.3d 1029 (9th Cir. 2002), withdrawn on other ground, 350 F.3d 966 (9th Cir. 2003).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; or (ii) 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(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 defendant "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 offenses.

Invoking two venerable canons of statutory 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 subsection (M)(i), i.e., 8 U.S.C. §1101(43)(M)(ii), specifically 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 offenses, 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, however, 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 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 arguments 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 subsection 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 redundancy -that tax evasion qualifies as an aggravated fe lo ny. While good statutory draftsmanship seeks to avoid surplusage, 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 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 defeat payment of the tax, and 3) willfulness." United State v. McGill, 964 F.2d 222, 229 (3d Cir.), cert. denied, 506 U.S. 1023 (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 (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 the offense. In Spies v. United States, 317 U.S. 492 (1943), the Supreme Court emphasized the breadth of the statutory language:

Congress did not define or limit the methods 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 accomplished "in any manner." Id. at 499.

In light of the statutory language and the case law, cautious 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 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 offense 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 to reach "tax offenses." I would heed the clear language of subsection M(i)13 and hold that the offense of filing of a false tax return and causing a tax loss of more than $10,000 is an aggravated felony.

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