FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THEOPHILE CARTY, 

No. 03-71392 Petitioner,

Agency No.

v.  A34-703-092

JOHN ASHCROFT, Attorney General, OPINION Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 4, 2004—San Francisco, California

Filed January 19, 2005

Before: William C. Canby, Jr., Pamela Ann Rymer, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hawkins;

Dissent by Judge Canby

783
COUNSEL

Matthew G. Ball (briefed and argued), Kirkpatrick & Lockhart, San Francisco, California, for the petitioner. 

Edward C. Durant (argued) and David E. Dauenheimer

(briefed), Office of Immigration Litigation, Department of

Justice, Washington, D.C., for the respondent. 

OPINION

HAWKINS, Circuit Judge: 

We must decide whether “intent to evade” is synonymous

with “intent to defraud” within the meaning of the removal

provisions of the Immigration and Nationality Act (“INA”).

Because we conclude the terms are synonymous, we dismiss

CARTY v. ASHCROFT 785
the petition for review of Dr. Theophile Carty (“Carty”).

Carty, a native of Anguilla, petitioned this court for relief

from a Board of Immigration Appeals’ (“BIA”) decision

affirming an Immigration Judge’s (“IJ”) determination that

willful failure to file state income taxes under California Revenue and Taxation Code § 19406 (1992) (“Section 19406”) is

a crime involving moral turpitude, thereby subjecting Carty to

removal pursuant to INA § 237(a)(2)(A)(ii) for conviction of

two or more crimes involving moral turpitude. 

While we generally do not have jurisdiction to consider

challenges to removal orders brought by aliens removable

pursuant to INA § 237(a)(2)(A)(ii), see 8 U.S.C.

§ 1252(a)(2)(C), we can determine whether we have jurisdiction. See Huerta-Guevara v. Ashcroft, 321 F.3d 883, 885 (9th

Cir. 2003). As part of this jurisdictional inquiry, we may

examine whether Section 19406 tax evasion constitutes a

crime of moral turpitude. Hernandez-Martinez v. Ashcroft,

329 F.3d 1117, 1118 (9th Cir. 2003). 

I. BACKGROUND

Carty immigrated to the United States in 1965 and became

a lawful permanent resident in 1975. Working as a licensed

physician in Los Angeles, Carty made a comfortable and, it

turns out, largely unreported income.1 The State of California

charged Carty with the willful failure to file a state income tax

return in 1991 and 1992, in violation of Section 19406. Carty

pled nolo contendere to both counts, and was sentenced to

ninety days house arrest, payment of all past taxes due, and

probation for three years. In 2001, Carty pled guilty to

attempted bribery of a government official, admitting that he

offered money to obtain a U.S. passport for a non-citizen. He

was sentenced to eighteen months imprisonment and three

years probation. 

1The record shows Carty made, on average, $3,000 per week from 1984

to 1996. 

786 CARTY v. ASHCROFT
The INS thereafter commenced removal proceedings

against Carty pursuant to INA § 237(a)(2)(A)(ii)2 for conviction of two or more crimes involving moral turpitude. In the

face of Carty’s argument that failure to file a tax return is not

a crime involving moral turpitude,3 the IJ ruled that Carty’s

willful failure to file a return with the intent to evade taxes

constitutes a crime involving moral turpitude. The BIA

affirmed, specifically concurring with the IJ’s moral turpitude

determination. 

II. DISCUSSION

[1] Whether a state statutory crime necessarily involves

moral turpitude is a question of law, subject to de novo

review. Rodriguez-Herrera v. INS, 52 F.3d 238, 240 n.4 (9th

Cir. 1995). Crimes of moral turpitude are of basically two

types, those involving fraud and those involving grave acts of

baseness or depravity. Rodriguez-Herrera, 52 F.3d at 240. For

analytical purposes, tax evasion falls within the first category.

Section 19406 provided in pertinent part: 

Any person who . . . willfully fails to file any return

or to supply any information with intent to evade any

tax imposed by this part, or who, willfully and with

like intent, makes, renders, signs, or verifies any

false or fraudulent return or statement or supplies

2

INA § 237(a)(2)(A)(ii) states, “Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not

arising out of a single scheme of criminal misconduct, regardless of

whether confined therefor and regardless of whether the convictions were

in a single trial, is deportable.” 

3Carty did not raise the issue of whether attempted bribery of a government official is a crime of moral turpitude below, and does not raise it on

appeal. 

CARTY v. ASHCROFT 787
any false or fraudulent information, is punishable

. . . .

4

Section 19406 is a divisible statute, constituting (1) willful

failure to file a return or to supply information with the intent

to evade taxes, and (2) willful making of a false or fraudulent

return or statement or supplying any false or fraudulent information. 

When a statute is divisible into several crimes, some of

which may involve moral turpitude and some not, it is appropriate to examine the “record of conviction” to determine

which part applies to the defendant. See Wadman v. INS, 329

F.2d 812, 814 (9th Cir. 1964), Hernandez-Martinez, 329 F.3d

at 1118-19. Here, Carty was convicted of “willfully and

unlawfully fail[ing] to file any return or to supply any information with intent to evade any tax imposed by this part.” 

[2] To involve moral turpitude, intent to defraud must be an

“essential element” of Carty’s conviction. See Goldeshtein, 8

F.3d 645, 647 (9th Cir. 1993). Looking to the language of

Section 19406, the willful failure to file section does not specifically list intent to defraud as an element, nor is it alleged

in Carty’s indictment. However, Section 19406 does list intent

to evade taxes as an element, and the government must prove

“specific intent to evade a tax” under the substantially identical Section 19706. See California Jury Instructions, Criminal,

7th Ed. § 7.66 (2004).5

4The California legislature repealed Section 19406 in 1994 and replaced

it with a substantially identical Section 19706. See Cal. Rev. & Tax. Code

§ 19706 (2004). 

5Carty argues that intent to evade taxes is not necessarily the same as

intent to defraud the government, citing United States v. Scharton, 285

U.S. 518 (1932). Scharton only held that a statute must explicitly include

an intent to defraud for the government to avail itself of the six-year statute of limitations for fraud actions. 285 U.S. at 521-22. The narrow construction applied to statute of limitations issues led to a holding that an

income tax statute requiring willful attempt to evade or defeat taxes does

not fall within the fraud exception. Id. 

788 CARTY v. ASHCROFT
[3] We have held that “[e]ven if intent to defraud is not

explicit in the statutory definition, a crime nevertheless may

involve moral turpitude if such intent is ‘implicit in the nature

of the crime.’ ” Goldeshtein, 8 F.3d at 648 (quoting Winestock

v. INS, 576 F.2d 234, 235 (9th Cir. 1978)).6 Intent to defraud

is implicit in willfully failing to file a tax return with the

intent to evade taxes. Unlike Goldeshtein, where the court

found that willfully structuring transactions did not inherently

involve fraud because it only deprived the government of

information and did not obtain anything from the government,

id. at 649, here Carty deprived state government of more than

mere information. By willfully failing to file his tax returns,

he attempted to deprive the government of revenue — or, in

other words, to obtain a free pass on taxes. 

[4] The closest analog to Section 19406 is 18 U.S.C.

§ 145(b) (1939), which prohibits the willful attempt “in any

manner to evade or defeat any tax.” See Khan v. Barber, 147

F. Supp. 771, 775 n.2 (N.D. Cal. 1957), aff’d, Khan v. Barber,

253 F.2d 547 (9th Cir. 1958). Khan held that § 145(b) is a

crime of moral turpitude, 253 F.2d at 549, as did Tseung Chu

v. Cornell, 247 F.2d 929, 934 (9th Cir. 1957). Courts had consistently interpreted tax evasion under § 145(b) as requiring

“an intent to defraud the government.” Khan, 253 F.2d at 549.

As Tseung Chu explained,

[T]he Courts have, with apparent unanimity, held

that in order for a conviction under § 145(b) to stand,

the government is required to prove that the evading

taxpayer had a specific intent to evade taxation

amounting to an intent to defraud the United States.

6Goldeshtein, in distinguishing Matter of Flores, 17 I. & N. Dec. 225

(BIA 1980), and other cases on which the government relied, noted that

structuring financial transactions does not involve “some false or deceitful

conduct through which the alien obtained something from the government.” 8 F.3d at 649. While a useful guideline, Goldeshtein did not hold

that such false or deceitful conduct was a necessary element in determining whether a crime involved moral turpitude. 

CARTY v. ASHCROFT 789
Fraud is so inextricably woven into the term willfully, as it is employed in § 145(b), that it is clearly

an ingredient of the offense proscribed by that section. Only by creating unwarranted semantic distinctions could a contrary conclusion be reached. 

247 F.2d at 933 (quoting Khan, 147 F. Supp. at 775). The reasoning of Khan and Tseung Chu — that fraud is clearly an

ingredient of § 145(b) — applies with equal force to Section

19406’s intent to evade requirement.7 This leads us to determine that intent to evade under Section 19406 is tantamount

and equivalent to an intent to defraud for deportation purposes. 

Moreover, the terms “evasion” and “fraud” have been

treated interchangeably by California and the federal government. In California, the penalty for tax “fraud or intent to

evade” is the same. Cal. Rev. & Tax. Code § 6485. Similarly,

the federal tax fraud penalty statute, while not specifically

denoting “intent to evade,” requires proof that “the taxpayer

has engaged in conduct with the intent to evade taxes that he

knew or believed to be owing.” United States v. Walton, 909

F.2d 915, 926 (9th Cir. 1990); 26 U.S.C. § 6653(b). 

[5] Just as fraud has been defined to mean intent to evade,

intent to evade has generally been held to require proof of fraud.8

7Neither the holding in Tseung Chu, that “an intent to defraud the government is a prerequisite to conviction under section 145(b) and hence, a

conviction thereof where such fraud is charged in the indictment, is conviction of a crime involving moral turpitude,” 247 F.2d at 936, nor the

identically worded holding in Khan, 253 F.2d at 549, suggest that charging

fraud in the indictment is the only situation in which moral turpitude may

be found. As we said in Goldeshtein, another situation in which moral turpitude may be found is when fraud is implicit in the nature of the crime.

8 F.3d at 648. 

8The willful failure to file section of Section 19406 does not require

proof of fraud. See California Jury Instructions, Criminal, 7th Ed. § 7.66

(2004) (enumerating elements of substantially identical Cal. Rev. & Tax.

Code § 19706). 

790 CARTY v. ASHCROFT
Federal tax statutes with an “intent to evade” element, and no

specific fraud requirement, have still been interpreted as

requiring an intent to defraud. See Tseung Chu, 247 F.2d at

933 (interpreting 18 U.S.C. § 145(b)); Windham v. Bd. of

Med. Quality Assurance, 104 Cal. App. 3d 461, 469 (1980)

(interpreting 26 U.S.C. § 7201). Thus, it cannot be said that

willful evasion of taxes under Section 19406 does not implicitly involve fraud. 

III. CONCLUSION

[6] Having determined that willful failure to file a tax

return, with the intent to evade taxes, involves fraud, and thus

constitutes a crime of moral turpitude, we dismiss the petition

for lack of jurisdiction. 

DISMISSED. 

CANBY, Circuit Judge, dissenting: 

As a matter of first impression, I would be willing to accept

the majority’s position that willful failure to file a tax return

with intent to evade a tax is necessarily a crime of moral turpitude. It is not a matter of first impression, however, and in

my view our precedent requires a contrary result. 

In Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957), we

addressed the question whether a violation of 26 U.S.C.

§ 145(b) was a crime of moral turpitude. Section 145(b), as it

then existed, proscribed willful attempts to evade a tax. We

held that a violation of section 145(b) was a crime of moral

turpitude, but we did not arrive at that conclusion from the

face of the statute itself or from the mere fact of conviction.

We relied on earlier case law holding that proof of fraud was

required to sustain a conviction under section 145(b). We then

said of Tseung Chu: 

CARTY v. ASHCROFT 791
He was here charged with making in each of four

years “a false and fraudulent income tax return.”

Fraud may not be an essential element of the crime

of wilful attempt to defeat or evade the income tax,

but it can be an essential part of that crime. Here

fraud was charged as part and parcel of the crime,

and to that crime so involving appellant’s alleged

fraudulent acts, appellant plead nolo. 

Id. at 935 (internal citation omitted). Thus in Tseung Chu we

relied on a specific allegation of fraud in order to arrive at the

conclusion that the crime involved moral turpitude. There was

no such allegation in Carty’s conviction; he pleaded nolo contendere to two counts alleging only that he “did willfully and

unlawfully fail to file any return or to supply any information

with intent to evade any tax imposed by this part.”

1 Tseung

Chu’s reasoning makes it clear that such an allegation is not

enough to establish moral turpitude. 

Indeed, Tseung Chu elsewhere makes the point even more

specifically than it did in the passage I have quoted above.

Anticipating this court’s adverse approach, Tseung Chu had

managed to have his earlier conviction modified, so that the

judgment’s description of the charge no longer referred to

“false and fraudulent income tax returns,” but only to “wilful

attempts to evade or defeat an income tax.” We responded to

that maneuver as follows: 

The “order correcting clerical error in Judgement”

eliminating the description of the offense charged as

“making false and fraudulent income tax returns”

may technically take the judgment out of Class One

[“crimes necessarily involving moral turpitude”]

described by Judge Chambers in the Twentieth

1As the majority opinion here notes, California does not require proof

of fraud for conviction on this charge. Majority opinion, supra, note 8. 

792 CARTY v. ASHCROFT
Century-Fox Film classifications, but it does not take

the crime as charged out of Class One. 

Id. (emphasis in original). Finally, we summed up our decision as follows: 

We follow the rule laid down in the De George case

supra, and Bloch v. United States, 1955, supra, that

an intent to defraud the government is a prerequisite

to conviction under section 145(b) and hence, a conviction thereof where such fraud is charged in the

indictment, is conviction of a crime involving moral

turpitude. 

Id. at 936 (emphasis added). 

We reiterated the rationale of Tseung Chu in Khan v. Barber, 253 F.2d 547 (9th Cir. 1958). In that appeal, the first

question presented was whether a conviction for violating section 145(b) involved moral turpitude. We stated: 

This court has already answered the first question

affirmatively where, as here, intent to defraud the

government is charged in the indictment and found

by the jury. 

Id. at 549 (emphasis added). A quotation from Tseung Chu

immediately followed. 

In my view, the rationale of Tseung Chu, reaffirmed in

Khan, is fatally inconsistent with any notion that the bare

crime of failing to file a tax return with intent to evade taxes

is ipso facto a crime of moral turpitude. If intent to evade

were sufficient to establish moral turpitude, there would have

been no need for us to examine the indictments in Tseung Chu

and Khan to make certain that they charged fraud. The

charges to which Carty pleaded nolo contendere included no

such allegation. 

CARTY v. ASHCROFT 793
We did not diverge from the rationale of Tseung Chu in our

later decision of Goldeshtein v. INS, 8 F.3d 645 (9th Cir.

1993), discussed in the majority opinion here. In Goldeshtein

we held that the crime of structuring financial transactions in

order to avoid currency reports was not a crime of moral turpitude. It is true that we based our decision in Goldeshtein

partly on the ground that nothing had been taken from the

government, but we also based our decision on the absence of

fraud or deception. We pointed out that all of the cases upon

which the government relied involved “some false or deceitful conduct through which the alien obtained something from

the government.” Id. at 649 (emphasis added). We then held

that Goldeshtein’s crime did not share this necessary characteristic for a crime of moral turpitude: 

The offense of structuring financial transactions to

avoid currency reports, in contrast, does not involve

the use of false statements or counterfeit documents,

nor does the defendant obtain anything from the government. 

Id. at 649 (emphasis added). 

Finally, I note the implications of the Supreme Court’s

decision in United States v. Scharton, 285 U.S. 518 (1932),

which held that the longer, six-year statute of limitations for

“offenses involving the defrauding or attempting to defraud

the United States” did not apply to a conviction for willfully

attempting to evade payment of taxes. It is true, as the majority opinion here recites, that Scharton’s result depended in

part on a strict standard of construction applicable to the

extended limitations provision. Nevertheless, Scharton

expressly rejected the arguments presented by the government

that “fraud is implicit in the concept of evading or defeating”

and that “[a]ny attempt to defeat or evade a tax is said to be

tantamount to and to possess every element of an attempt to

defraud the taxing body.” Id. at 520-21. Although I agree with

the majority that Scharton is sufficiently distinguishable that

794 CARTY v. ASHCROFT
it does not directly control the outcome of Carty’s case,

Scharton certainly leans in the same direction as Tseung Chu.

For these reasons, I respectfully dissent from the majority’s

opinion. I would grant the petition for review and reverse the

decision of the BIA.

CARTY v. ASHCROFT 795