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

368 F.3d 218, 2004 U.S. App. LEXIS 9827, 2004 WL 1118720

• Court: Court of Appeals for the Third Circuit
• Decided: May 19, 2004
• Docket: 02-4602
• Status: Published

Opinions

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 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 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 described in § 7201⁴ 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 them 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).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 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 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 construction. See INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48, 107 S.Ct. 1207, 94 L.Ed.2d 434 (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 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, 113 S.Ct. 2173, 124 L.Ed.2d 402 (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 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 surplus-age”) (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, 63 S.Ct. 364, 87 L.Ed. 418 (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, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992)); see also Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228, 77 S.Ct. 787, 1 L.Ed.2d 786 (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, 107 S.Ct. 1207; see also Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (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 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, 113 S.Ct. 2173, 124 L.Ed.2d 402 (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 “eap-stone” of tax law violations. See Spies, 317 U.S. at 497, 63 S.Ct. 364. A felony since at least 1903, it has long been recognized as “the gravest of offenses against the revenues.” Id. at 499, 63 S.Ct. 364. 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 outlining the then civil and criminal “penalties imposed by Congress to enforce the tax laws,”⁹ id. at 495, 63 S.Ct. 364, 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, 63 S.Ct. 364 (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, 107 S.Ct. 1207, 94 L.Ed.2d 434 (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, 121 S.Ct. 2271, 150 L.Ed.2d 347 (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 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.

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.

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.

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).

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 . 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.

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.

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.