2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-19-2004

Lee v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 02-4602

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PRECEDENTIAL

UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

 

No. 02-4602

 

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)

 

Counsel for Petitioners

Steven A. Morley (Argued)

Morley, Surin & Griffin, P.C.

Constitution Place

325 Chestnut Street, Suite 1305-P

Philadelphia, Pennsylvania 19106

Counsel 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

P.O. Box 878, Ben Franklin Station

Washington, DC 20044-0878

 

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 “aggravated felony” as defined by

section 101(a)(43)(M)(i) of the

Immigration and Naturalization Act, 8

 

*

 The Honorable Louis F.

Oberdorfer, Senior District Judge for the

District of Columbia, sitting by

designation.
2

U.S.C. § 1101(a)(43)(M)(i). We conclude

that it is not, and, therefore, 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

The relevant facts are not

complicated. The petitioners, 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 residents since

the 1980s.1 They have grown children

who are United States citizens.

For many years, the petitioners

operated a dry cleaning 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(1).2 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

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.3 AR 110.

Thereafter, in November 1997, the

 

1

Petitioner Yang entered the

United States in 1980; petitioner Lee

entered in 1984.

 

2

In relevant part, section 7206

provides that 

any person who . . . (1) . . .

Willfully makes and

subscribes any return,

statement, or other

document, which contains

or is verified by a written

declaration that it is made

under the penalties of

perjury, and which he does

not believe to be true and

correct 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.

 

3 The petitioners’ Sentencing

Guideline range was 4 to 10 months

confinement, one year supervised

release, and a $1,000 to $10,000 fine.
3

INS charged petitioners with being

removable for having been convicted of an

“aggravated felony,” as defined by section

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:

An offense that -

(i) involves fraud or

deceit in which the loss to

the victim or victims

exceeds $10,000; or

(ii) is de s c ribed in §

7201[4] of the Internal

Revenue Code of 1986

(related to tax 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 felony under either subsection

(M)(i) or (M)(ii). The immigration judge

denied their motion, ruling in July 1998

that petitioners’ convictions rendered them

removable under either subsection. App.

47. He ordered each petitioner “removed

to the Republic of (South) Korea.” App.

48.

On December 2, 2002, the Board of

Immigration Appeals affirmed the

immigration judge’s decision without

opinion, making it the final agency

decision. See 8 C.F.R. § 1003.1(e)(4).

The petitioners seek review.

II. DISCUSSION

On appeal, the petitioners challenge

the immigration judge’s order of removal

on the ground that their convictions for

violating 8 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

 

4

In relevant part, section 7201

provides:

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

payment 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 corporation), or

imprisoned not more than 5

years, or both, together

with the costs of

prosecution.

26 U.S.C. § 7201.
4

pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).5

As the government now concedes that

subsection (M)(ii) does not apply, we need

only consider whether the petitioners’

convictions meet the definition of

aggravated felony in subsection (M)(i).

A. Jurisdiction

As an initial matter, we consider the

government’s contention that under 8

U.S.C. § 1252(a)(2)(C) we lack

jurisdiction to review the petitioners’ order

of removal. That provision states that “no

court shall have jurisdiction to review any

final order of removal against an alien who

is removable by reason of having

committed a criminal offense covered in

section . . . 1227(a)(2)(A)(iii).” As

recently explained, however, this

jurisdiction-stripping provision comesinto

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 jurisdictional

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 petitioners

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. 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 definition

of aggravated felony in 8 U.S.C. §

1101(a)(43)(M)(i). We apply de novo

review to this purely legal question of

statutory interpretation that governs our

own jurisdiction. See Valansi, 278 F.3d at

207.

“The first step in interpreting a

statute is to determine ‘whether the

language at issue has a plain and

unambiguous 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

meaning 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

con struc tion. See INS v .

Cardoza-Fonseca, 480 U.S. 421, 447-48

(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 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 construction, we will

 

5

In relevant part, section

1227(a)(2)(A)(iii) provides that “[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).
5

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 petitioners’

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 looking 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

(1993) (“A statute’s plain meaning must be

enforced, of course, and the meaning of a

statute will typically heed the commands

of its punctuation. But a purported

plain-meaning analysis 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 unambiguously covers a

section 7206(1) conviction. Subsections

(M)(i) and (M)(ii) were enacted

simultaneously in 1996. Subsection (M)(i)

has a general application – 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

section 7201 of the Internal Revenue

Code, 26 U.S.C. § 7201; it is silent about

any other criminal tax offenses. Gross

examination of (M) leaves obvious

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 juxtaposition of subsections

(M)(i) and (M)(ii) signal an intent to

exclude other tax offenses from the

definition of aggravated 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

conviction under section 7206(1) of the
6

Internal Revenue Code.6 Therefore, we

must turn to the traditional tools of

statutory construction to see if they assist

in discerning Congress’ intent.

We start with the principle that if at

all possible, 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 under

subsection (M)(i), subsection (M)(ii)

would be mere surplusage. We have

considered the government’s contention

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 government has not

identified, and we are unable to envision,

what that case might be. Indeed, in

addressing what conduct might constitute

tax evasion under section 7201, the

Supreme Court has stated that an

“affirmative 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 (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.

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 (1992)); see also Fourco Glass Co. v.

Transmirra Products Corp., 353 U.S. 222,

228 (1957) (“The law is settled that

however 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 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 (1994). Moreover, “[t]his

principle has special force when Congress

has targeted specific problems with

specific solutions in the context of a

general statute.” Doe v. National Bd. of

Medical Examiners, 199 F.3d at 155. And

 

6 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).
7

it applies “particularly when the two

[provisions] are interrelated 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, many subsections. Subsection

(M)(i) is a general provision covering

“fraud and deceit”; subsection (M)(ii) is a

very specific provision that 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.7

While the legislative history of the

Immigration and Naturalization Act offers

no help in discerning Congress’ intent in

enacting subsection (M)(i),8 the history

and structure of the criminal tax laws

persuade us that in enacting subsection

(M)(ii), Congress intended to single out

tax evasion as the only tax crime that is a

removable offense. See United States

Nat'l Bank of Or. v. Indep. Ins. Agents of

America, Inc., 508 U.S. 439, 455 (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).

As the Supreme Court explained

many years ago, tax “evasion” is the

“capstone” of tax law violations. 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 former General Counsel for the Bureau

of Internal Revenue, Assistant Attorney

General for the Tax Division, Solicitor

General, and Attorney General), after

 

7

See also Abreu-Reyes, 292 F.3d at

1037 (Paez, J., dissenting) (“That

Congress included a separate statutory

provision for tax evasion demonstrates

that it did not intend to include tax

offenses within the “fraud or deceit” text.

Rather, as the statute reflects, Congress

drew a distinction between 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.”)

 

8

In 1996, Congress vastly

expanded the number and types of

offenses that qualified as aggravated

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.
8

outlining the then civil and criminal

“penalties imposed by Congress to enforce

the tax laws,”9id. at 495, concluded that

“[t]he climax of this variety of sanctions is

the serious and inclusive felony, defined to

consist of a willful attempt in any manner

to evade or defeat the tax,” id. at 497

(emphasis 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.

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.10

To the extent that any ambiguity lingers,

we note that there is a “longstanding

principle of construing any lingering

ambiguities in deportation statutes in favor

of the alien.” INS v. Cardoza-Fonseca,

480 U.S. 421, 449 (1987) (principle is a

corollary to the rule of lenity that applies

in construing criminal statutes); see also

INS v. St. Cyr, 533 U.S. 289 (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

“aggravated.” The prosecution acquiesced

in, if 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

 

9 These sanctions ranged from civil

delinquency 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).

 

10 We note that if we had not

reached this conclusion, 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) (affirmance without

opinion indicates only approval of the

outcome, not the immigration judge’s

reasoning), 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.
9

Nationality Act]).”11

Accordingly, we conclude that the

petitioners’ conviction for violating

section 7206(1) of the Internal Revenue

Code is not a removable offense under 8

U.S.C. § 1101(a)(43)(M)(i). That decision

makes it unnecessary to consider the

petitioners’ argument that the record does

not establish a loss of $10,000.

III. CONCLUSION

The Petition for Review of the

decision of the BIA approving the removal

order of the IJ is granted with directions to

vacate the removal orders with respect to

the petitioners.

 

11 Our dissenting colleague

speculates that “If Congress had not

wanted subsection M(i) to apply to ‘tax

offenses,’ Congress surely would have

included some language in that provision

to signal that intention.” But Congress is

chargeable with knowledge of the same

well-established principles of statutory

construction which we feel compelled to

apply. If Congress had not intended us

to apply them, it surely would have

signaled to that effect.

Further, our colleague also

speculates that Congress may have

enacted M(ii) “simply to make certain

even at the risk of redundancy that tax

evasion qualifies as an ‘aggravated

felony.’” It may be that Congress will

wish to broaden the categories of

aggravated felony to include other or all

tax felonies. But we must interpret what

it has written by well-recognized rules of

statutory construction, unaided by

speculation.
10

Lee v. Ashcroft 

No. 02-4602

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
11

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 goo d sta tutory

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:
12

Congress did not define or

limit the methods by which

a willful attempt to defeat

and evade m ight b e

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 499.12

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

 

12Although the Court went on to

provide a list of deceitful activities from

which an “affirmative 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. 

 

13Even if the statutory language were

ambiguous, 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

(1999)(“Because the Court of Appeals

confronted questions 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 deference to

the agency’s interpretation of the

aggravated felony definition if
13

hold that the offense of filing of a false tax

return and causing a tax loss of more than

$10,000 is an aggravated felony. 

Congress’s intent is unclear”); Lukwago

v. Ashcroft, 329 F.3d 157, 166 (3d Cir.

2003)(“We must review the BIA’s

statutory interpretation of the INA under

the deferential standard of Chevron.”). 

Appellants argue that when the INA is

ambiguous we should invoke the rule of

lenity and find in the alien’s favor. See,

e.g., I.N.S. v. Cardoza- Fonseca, 480

U.S., 421, 449 (1987); I.N.S. v. St. Cyr,

533 U.S. 289, 320 (2001). The rule of

lenity, however, is reserved for situations

in which the normal rules of statutory

interpretation are unhelpful. See St. Cyr,

533 U.S. at 320, n. 45 (“[T]he cases and

rules cited by Petitioner are

distinguishable because ‘[w]e only defer,

however, to agency interpretations of

statutes that, applying the normal “tools

of statutory construction,” are

ambiguous.’”)