Lee v. Atty Gen USA

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

Opinion

Opinions of the United 2004 Decisions 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Lee v. Atty Gen USA Precedential or Non-Precedential: Precedential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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UNITED STATES COURT OF Steven A. Morley (Argued) APPEALS FOR THE THIRD CIRCUIT Morley, Surin & Griffin, P.C. Constitution Place 325 Chestnut Street, Suite 1305-P No. 02-4602 Philadelphia, Pennsylvania 19106

Counsel for Respondent KI SE LEE; HYANG MAHN YANG, Peter D. Keisler Petitioners Assistant Attorney General Civil Division v. Linda S. Wernery Senior Litigation Counsel JOHN ASHCROFT, Attorney General Office of Immigration Litigation of the United States, Lyle D. Jentzer (Argued) Trial Attorney Respondent Douglas E. Ginsburg, Esq. Michael P. Lindemann, Esq. John M. McAdams Jr., Esq. ON PETITION FOR REVIEW OF AN John D. Williams, Esq. ORDER OF THE BOARD OF Office of Immigration Litigation IMMIGRATION APPEALS Civil Division (Nos. A38 656 406, A36 775 995) United States Department of Justice P.O. Box 878, Ben Franklin Station Washington, DC 20044-0878 Argued: December 5, 2003

Before: SLOVITER and ALITO, Circuit Judges, and OBERDORFER,* OPINION OF THE COURT District Judge

(Opinion Filed: May 19, 2004) 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. * The Honorable Louis F. § 7206(1) of the Internal Revenue Code, is Oberdorfer, Senior District Judge for the an “aggravated felony” as defined by District of Columbia, sitting by s e c t i o n 1 0 1 ( a ) (4 3 ) ( M ) ( i ) o f t h e designation. Immigration and Naturalization Act, 8 U.S.C. § 1101(a)(43)(M)(i). We conclude information further alleged that, in the that it is not, and, therefore, that the three tax years at issue, petitioners petitioners’ convictions do not render them understated their income by $112,453, removable. Accordingly, we will grant the causing a tax deficiency of $55,811. Petition for Review of the decision and Departing downward substantially, each vacate the order of removal against the petitioner was sentenced to three years petitioners. probation, a condition of which was three months h o me co n fi ne m en t, with I. BACKGROUND permission to leave for work, medical The relevant facts are not services, etc., one hundred hours of complicated. The petitioners, Ki Se Lee community service, and the payment of all and Hyang Mahn Yang, are husband and taxes, interest and penalties due to the wife. They are both natives and citizens of IRS.3 AR 110. Korea, but they have resided in the United Thereafter, in November 1997, the States as lawful permanent residents since the 1980s. 1 They have grown children who are United States citizens. under the penalties of For many years, the petitioners perjury, and which he does operated a dry cleaning business in not believe to be true and Philadelphia. In May 1997, they pled correct as to every material guilty to a three-count information, which matter 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 shall be guilty of a felony and, upon conviction 1 Petitioner Yang entered the thereof, shall be fined not United States in 1980; petitioner Lee more than $100,000 entered in 1984. ($500,000 in the case of a corporation), or imprisoned 2 In relevant part, section 7206 not more than 3 years, or provides that both, together with the costs of prosecution. any person who . . . (1) . . . Willfully makes and 26 U.S.C. § 7206. subscribes any return, 3 statement, or other The petitioners’ Sentencing document, which contains Guideline range was 4 to 10 months or is verified by a written confinement, one year supervised declaration that it is made release, and a $1,000 to $10,000 fine.

2 INS charged petitioners with being Revenue Code of 1986 removable for having been convicted of an (related to tax evasion) in “aggravated felony,” as defined by section which the revenue loss to 101 (a)(43 )(M )(i) and (ii) of th e the Government exceeds Immigration and Naturalization Act. See $10,000; . . . 8 U.S.C. § 1101(a)(43)(M). Section 8 U.S.C. § 1101(a)(43)(M)(i) & (ii). The 101(a)(43)(M) includes in the felonies petitioners moved to terminate removal classified as “aggravated” for purposes of proceedings on the ground that a deportation: conviction for violating section 7206(1) of An offense that - the Internal Revenue Code was not an aggravated felony under either subsection (i) involves fraud or (M)(i) or (M)(ii). The immigration judge deceit in which the loss to denied their motion, ruling in July 1998 the victim or victims that petitioners’ convictions rendered them exceeds $10,000; or removable under either subsection. App. (ii) is described in § 47. He ordered each petitioner “removed 4 7201[ ] of the Internal to the Republic of (South) Korea.” App. 48.

4 On December 2, 2002, the Board of In relevant part, section 7201 Imm igration Appeals affirmed the provides: immigration judge’s decision without opinion, making it the final agency Attempt to evade or defeat decision. See 8 C.F.R. § 1003.1(e)(4). tax. The petitioners seek review.

Any person who willfully II. DISCUSSION attempts in any manner to On appeal, the petitioners challenge evade or defeat any tax the immigration judge’s order of removal imposed by this title or the on the ground that their convictions for payment thereof shall, in violating 8 U.S.C. § 7206(1) do not qualify addition to other penalties as aggravated felonies under either 8 provided by law, be guilty U.S.C. § 1101(a)(43)(M)(i) or (ii), and, of a felony and, upon therefore, that they are not removable conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 prosecution. years, or both, together with the costs of 26 U.S.C. § 7201.

3 pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).5 are right, judicial review of the removal As the government now concedes that orders is not precluded, and they will be subsection (M)(ii) does not apply, we need vacated for failing to allege a removable only consider whether the petitioners’ offense. If the petitioners are wrong, we convictions meet the definition of lack jurisdiction to inquire any further into aggravated felony in subsection (M)(i). the merits, and the removal order will stand. A. Jurisdiction B. Have the Petitioners Been As an initial matter, we consider the Convicted of an Aggravated Felony? government’s contention that under 8 U.S.C. § 1252 (a)(2)(C) w e lack The petitioners argue that no jurisdiction to review the petitioners’ order conviction under section 7206(1) for filing of removal. That provision states that “no false tax returns can satisfy the definition court shall have jurisdiction to review any of aggravated felony in 8 U.S.C. § final order of removal against an alien who 1101(a)(43)(M)(i). We apply de novo is removable by reason of having review to this purely legal question of committed a criminal offense covered in statutory interpretation that governs our section . . . 1227(a)(2)(A)(iii).” As own jurisdiction. See Valansi, 278 F.3d at recen tly explained, however, this 207. jurisdiction-stripping provision comes into “The first step in interpreting a play only when two facts exist: “(1) the statute is to determine ‘whether the petitioner is an alien (2) who is deportable language at issue has a plain and by reason of having been convicted of one unambiguous meaning with regard to the of the enumerated offenses.” Drakes v. particular dispute in the case.’” Id. at 209 Zimski, 240 F.3d 246, 247 (3d Cir. 2001). (quoting Marshak v. Treadwell, 240 F.3d We necessarily have jurisdiction “to 184, 192 (3d Cir. 2001)). If the statutory determine whether these jurisdictional meaning is clear, our inquiry is at an end. facts are present.” Id.; see Valansi v. Id. If the statutory meaning is not clear, Ashcroft, 278 F.3d 203, 207 (3d Cir. we must try to discern Congress’ intent 2002). We are thus not precluded from using the ordinary tools of statutory reviewing the petitioners’ argument that construction. See INS v. they have not been convicted of an Cardoza-Fonseca, 480 U.S. 421, 447-48 “enumerated offense.” If the petitioners (1987). “If, by employing traditional tools of statutory construction, we determine 5 In relevant part, section that Congress’ intent is clear, that is the 1227(a)(2)(A)(iii) provides that “[a]ny end of the matter.” Valansi, 278 F.3d at alien who is convicted of an aggravated 208 (quoting Bell v. Reno, 218 F.3d 86, 90 felony at any time after admission is (2d Cir. 2000)). If we are unable to deportable.” 8 U.S.C. § discern Congress’ intent using the normal 1227(a)(2)(A)(iii). tools of statutory construction, we will

4 generally give deference to the Board’s but look to the provisions of the whole interpretation, so long as it is reasonable. law, and to its object and policy.”) Id. (internal citations and quotations omitted). We thus begin our analysis with the Here, these broader considerations, statutory language of subsection (M)(i). It specifically the presence of subsection may be argued that the petitioners’ (M)(ii), preclude a conclusion that the convictions under section 7206(1) for statutory language of subsection (M)(i) filing false tax returns clearly involve clearly and unambiguously covers a “fraud and deceit,” as required by section 7206(1) conviction. Subsections subsection (M)(i), and that we need look (M )(i) and (M )(ii) were ena cted no further. However, the precise question simultaneously in 1996. Subsection (M )(i) before us is whether the statutory language has a general application – the gamut of makes it plain and unambiguous that state and federal crimes involving fraud subsection (M)(i) covers convictions for and deceit causing losses over $10,000. violating section 7206(1). This question Subsection (M)(ii) zeroes in on the crime cannot be answered solely by looking at of federal tax evasion, as described in “the language itself”; we must also be section 7201 of the Internal Revenue cognizant of “the specific context in which Code, 26 U.S.C. § 7201; it is silent about that language is used, and the broader any other criminal tax offenses. Gross context of the statute as a whole.” Id. at examination of (M) leaves obvious 209; cf. United States Nat’l Bank of questions: Why does subsection (M) Oregon v. Independent Ins. Agents of include both a ge neral p rovisio n America, Inc., 508 U.S. 439, 454-55 encompassing “fraud and deceit” and (1993) (“A statute’s plain meaning must be specific provision directed solely at the enforced, of course, and the meaning of a offense of federal tax evasion? If statute will typically heed the commands subsection M(i) applies to tax offenses, of its punctuation. But a purported what is the purpose of subsection (M )(ii)? plain-meaning analysis based only on Does the juxtaposition of subsections punctuation is necessarily incomplete and (M)(i) and (M)(ii) signal an intent to runs the risk of distorting a statute's true exclude other tax offenses from the meaning. Along with punctuation, text definition of aggravated felonies in (M)(i)? consists of words living ‘a communal That subsection (M)(i) raises these existence,’ in Judge Learned Hand’s questions demonstrates that its language phrase, the meaning of each word does not have a plain and unambiguous informing the others and all in their meaning, at least not as applied to a aggregate tak[ing] their purport from the conviction under section 7206(1) of 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,

5 Internal Revenue Code. 6 Therefore, we tax evasion under section 7201, the must turn to the traditional tools of Supreme Court has stated that an statutory construction to see if they assist “affirmative willful attempt [to evade] may in discerning Congress’ intent. be inferred from . . . any conduct, the likely effect of which would be to mislead We start with the principle that if at or to conceal.” Spies v. United States, 317 all possible, we should ado pt a U.S. 492, 499 (1943) (emphasis added). construction which recognizes each Accordingly, the goal of avoiding element of the statute. See Acceptance surplusage in construing a statute is Ins. Co. v. Sloan, 263 F.3d 278, 283 (3d satisfied only if subsection (M)(i) does not Cir. 2001) (recognizing that it is an “axiom apply to tax offenses. of statutory construction that whenever possible each word in a statutory provision Another “commonplace [rule] of is to be given meaning and not to be statutory construction” is that the “specific treated as surplusage”) (internal quotations governs the general.” Doe v. National Bd. omitted). The only construction that of Medical Examiners, 199 F.3d 146, 154- satisfies this principle is the one suggested 55 (3d Cir. 1999) (quoting Morales v. by the petitioners: that subsection (M)(i) Trans World Airlines, Inc., 504 U.S. 374, does not apply to tax offenses. If the 384 (1992)); see also Fourco Glass Co. v. government’s proposed construction were Transmirra Products Corp., 353 U.S. 222, adopted, and we were to hold that any tax 228 (1957) (“The law is settled that offense involving fraud and deceit over however inclusive may be the general $10,000 was an aggravated felony under language of a statute, it will not be held to subsection (M)(i), subsection (M )(ii) apply to a matter specifically dealt with in would be mere surplusage. We have another part of the same enactment.”), considered the government’s contention quoted in Doe v. National Bd. of Medical that there could be a case where a Examiners, 199 F.3d at 155. As explained conviction for tax evasion would not by the Supreme Court, “where Congress involve fraud or deceit, in which case includes particular language in one section subsection (M)(ii) would exist simply to of the statute but omits it in another catch any cases not covered by subsection section of the same act, it is generally (M)(i), but the government has not presumed that Congress acts intentionally identified, and we are unable to envision, and purposely in the disparate inclusion or what that case might be. Indeed, in exclusion.” Cardoza-Fonseca, 480 U.S. at addressing what conduct might constitute 447-48; see also Albright v. Oliver, 510 U.S. 266, 273 (1994). Moreover, “[t]his principle has special force when Congress 6 But see Abreu-Reyes v. INS, 292 has targeted specific problems with F.3d 1029, 1037 (9th Cir. 2002) (denying specific solutions in the context of a petition for review), withdrawn on other general statute.” Doe v. National Bd. of grounds, 350 F.3d 966 (9th Cir. 2003). Medical Examiners, 199 F.3d at 155. And

6 it applies “particularly when the two no help in discerning Congress’ intent in [provisions] are interrelated and closely enacting subsection (M)(i),8 the history positioned, both in fact being parts of the and structure of the criminal tax laws same statutory scheme.” Id. (internal persuade us that in enacting subsection quotations omitted). (M)(ii), Congress intended to single out tax evasion as the only tax crime that is a The statutory section at issue here is removable offense. See United States a perfect example of this phenomenon. Nat'l Bank of Or. v. Indep. Ins. Agents of Subsections (M)(i) and (M)(ii) were America, Inc., 508 U.S. 439, 455 (1993) adopted at the same time, appear adjacent (“Statutory construction is a holistic to each other, and are the only two parts of endeavor and, at a minimum, must account subsection (M), within a statute with for a statute’s full text, language[,] as well many, many subsections. Subsection as punctuation, structure, and subject (M)(i) is a general provision covering matter.”) (internal quotations and citations “fraud and deceit”; subsection (M)(ii) is a omitted), quoted in Tineo v. Ashcroft, 350 very specific provision that only applies to F.3d 382, 391 (3d Cir 2003). federal tax evasion. Accordingly, the principle that the specific governs the As the Supreme Court explained general also favors the interpretation that many years ago, tax “evasion” is the subsection (M)(ii) identifies the only “capstone” of tax law violations. See removable tax offense, tax evasion, while Spies, 317 U.S. at 497. A felony since at subsection (M)(i) does not apply to tax least 1903, it has long been recognized as offenses.7 “the gravest of offenses against the revenues.” Id. at 499. In his opinion for While the legislative history of the the Court in Spies, Justice Robert Jackson Immigration and Naturalization Act offers (a former General Counsel for the Bureau of Internal Revenue, Assistant Attorney 7 See also Abreu-Reyes, 292 F.3d at General for the Tax Division, Solicitor 1037 (Paez, J., dissenting) (“That General, and Attorney General), after Congress included a separate statutory provision for tax evasion demonstrates 8 that it did not intend to include tax In 1996, Congress vastly offenses within the “fraud or deceit” text. expanded the number and types of Rather, as the statute reflects, Congress offenses that qualified as aggravated drew a distinction between tax offenses felonies. See Illegal Immigration and other crimes involving fraud and Reform and Immigrant Responsibility deceit. Congress then targeted only the Act of 1996 (IIRIRA), Pub. L. 104-208, more egregious act of tax evasion, and 110 Stat. 3009 (1996). For the most part, only when the loss to the government these changes were adopted without any exceeds $10,000, as sufficiently serious discussion of their particular purpose. to warrant removal.”)

7 outlining the then civil and criminal To the extent that any ambiguity lingers, “penalties imposed by Congress to enforce we note that there is a “longstanding the tax laws,” 9 id. at 495, concluded that principle of construing any lingering “[t]he climax of this variety of sanctions is ambiguities in deportation statutes in favor the serious and inclusive felony, defined to of the alien.” INS v. Cardoza-Fonseca, consist of a willful attempt in any manner 480 U.S. 421, 449 (1987) (principle is a to evade or defeat the tax,” id. at 497 corollary to the rule of lenity that applies (emphasis added). Thus, for Congress to in construing criminal statutes); see also select tax evasion as the “aggravated” tax INS v. St. Cyr, 533 U.S. 289 (2001); see felony, justifying removal of an alien who also Valansi (“This rule of construction . . committed it, while sparing lesser tax . may be applied as a canon of last resort to felons, is thoroughly consistent with the determine the intent of Congress on an history and structure of criminal tax ambiguous issue.”). The facts of the offenses. present case highlight the reason this principle exists: it is a plain fact that in In the end, after considering various reality neither the prosecution, nor the tools of statutory construction, we believe sentencing judge involved in the that Congress’ intent is clear: in enacting prosecution, plea and sentencing of subsection (M)(ii), it intended to specify petitioners, treated their offense as tax evasion as the only deportable tax “aggravated.” The prosecution acquiesced offense; it follows that it did not intend in, if it did not negotiate, a plea agreement, subsection (M)(i) to cover tax offenses.10 and the judge imposed a sentence characteristic of a misdemeanor, not a felony – much less an “aggravated one” 9 These sanctions ranged from civil (however it be defined). See Francis v. delinquency penalties ranging from 5 to Reno, 269 F.3d 162, 170-71 (3d Cir. 2001) 25 percent to criminal penalties (noting that the importance of this calibrated from misdemeanors (e.g. principle is highlighted “given the changes former § 145(a)) to tax evasion, in immigration law effectuated by the punishable as a felony and carrying a [1996 amendments to the Immigration and maximum penalty of 5 years confinement and a $5,000 fine (former § 145(b), now § 7201). 10 We note that if we had not opinion indicates only approval of the reached this conclusion, we would outcome, not the immigration judge’s confront the question of whether we reasoning), and where the meaning of the should defer to the Board’s interpretation statutory provision depends, in part, on in a situation where the Board itself has an understanding of the Internal Revenue not ruled on the issue before us, see 8 Code, a subject on which the Board has C.F.R. 1003.1(e)(4) (affirmance without no expertise.

8 Nationality Act]).” 11 order of the IJ is granted with directions to vacate the removal orders with respect to Accordingly, we conclude that the the petitioners. 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

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.

9 Lee v. Ashcroft return and causing a tax loss of more than $10,000 satisfies these elements. “Fraud” No. 02-4602 or “deceit” is a necessary element of 26 ALITO, Circuit Judge, dissenting U.S.C. § 7206(1), which makes it a crime to make or subscribe “any return, I must respectfully dissent because statement, or other document” that the I believe that the offense of filing a false defendant “does not believe to be true and tax return and thereby causing a tax loss of correct as to every material matter.” In more than $10,000 falls squarely within addition, causing a tax loss of more than the definition of an “aggravated felony” in $10,000 results in a qualifying “loss to the 8 U.S.C. § 1101(a)(43)(M)(i). Accord victim,” i.e., the United States Treasury. Abreu-Reyes v. INS, 292 F.3d 1029 (9 th Cir. 2002), withdrawn on other ground, 350 F.3d 966 (9 th Cir. 2003). Despite the clarity of subsection M(i), the majority concludes that this The term “aggravated felony” is provision does not apply to tax offenses. defined to include: Invoking two venerable canons of (M) an offense that - statutory interpretation (viz., that statutes should be read if possible to avoid (i) involves fraud or surplusage and that the specific should deceit in which the loss to take precedence over the general), the the victim or victims majority reasons as follows. The provision exceeds $10,000; or that directly follows subsection (M)(i), i.e., (ii) is described in 8 U.S.C. §1101(43)(M )(ii), specifically section 7201 of Title 26 provides that the offense of tax evasion (relating to tax evasion) in (26 U.S.C. § 7201) is an aggravated which the revenue loss to felony. This specific provision would not the Government exceeds have been needed if (M)(i) applied to tax $10,000 . . . . offenses, because tax evasion is an offense that involves fraud or deceit. Therefore, 8 U.S.C. § 1101(43)(M)(emphasis added). Congress must have intended that (M)(i) Thus, subsection (M )(i) sets out two not apply to “tax offenses.” requirements. First, the offense must I must disagree with this analysis “involve fraud or deceit.” This means that for two reasons. First and most important, the offense must include “fraud or deceit this analysis fails to account for the as a necessary component or element.” language of subsection M(i). If Congress Valansi v. Ashcroft, 278 F.3d 203, 210 (3d had not wanted subsection M(i) to apply to Cir. 2002). Second, “the loss to the victim “tax offenses,” Congress surely would or victims” must exceed $10,000. have included some language in that The offense of filing a false tax provision to signal that intention. As

10 adopted, however, subsection M (i) evade or defeat any tax contains no such hint. In order to argue imposed by this title or the that the filing of a false tax return does not payment thereof shall, in come within the language of subsection addition to other penalties M(i), one would have to argue either that provided by law, be guilty the term “victim” was not meant to apply of a felony . . . . to the Treasury or that the term “loss” does not include a tax loss. However, both of these arguments fail to comport with 26 U.S.C. § 7201. ordinary usage. See United States v. Fleming, 128 F.3d 285, 288 (6 th Cir. 1997)(“In tax fraud cases, we consider the This offense has three elements: “1) United States Treasury the victim.”); the existence of a tax deficiency, 2) an U.S.S.G. § 2T4.1 (“Tax Loss” table). affirmative act constituting an attempt to evade or defeat payment of the tax, and 3) Second, the majority errs in willfulness.” United State v. McGill, 964 inferring from subsection M(ii) that F.2d 222, 229 (3d Cir.), cert. denied, 506 Congress believed that subsection M(i) did U.S. 1023 (1992). See also United States not reach tax offenses. Subsection M(ii) v. Voigt, 89 F.3d 1050, 1089 (3d Cir. may have been enacted simply to make 1996). In this context, willfulness requires certain – even at the risk of redundancy – proof that the defendant knew that his or that tax evasion qualifies as an aggravated her conduct was unlawful. Cheek v. fe lo ny. W h i le goo d sta t u t o ry United States, 498 U.S. 192, 201 (1991). draftsmanship seeks to avoid surplusage, other goals, such as certainty and the avoidance of litigation, are sometimes Neither “fraud” nor “deceit” is more important. Here, those responsible mentioned in the statute as a necessary for drafting the provisions in question may element of tax evasion. The statute applies have had a measure of doubt that to the willful attempt “in any manner to subsection M(i) would be interpreted as evade or defeat any tax imposed by this covering all (or any) evasion cases, and title or the payment thereof.” 26 U.S.C. § subsection M(ii) may have been added to 7201 (emphasis added). Likewise, leading dispel any such uncertainty. cases interpreting this language do not hold that fraud or deceit is an element of the offense. In Spies v. United States, 317 The tax evasion statute provides in U.S. 492 (1943), the Supreme Court relevant part as follows: emphasized the breadth of the statutory language: Any person who willfully attempts in any manner to

11 Congress did not define or that no defendant would ever be convicted limit the methods by which of tax evasion without proof of fraudulent a willful attempt to defeat or deceitful conduct, the drafters might a n d evade m ight b e have been concerned that some courts accomplished and perhaps would hold that tax evasion falls outside did not define lest its effort the scope of subsection M(i) because to do so result in some neither “fraud” nor “deceit” is a formal unexpected limitation. Nor element of the offense. See Valansi, 278 would we by definition F.3d at 210 (in determining whether an constrict the scope of the offense involves “fraud or deceit,” we look Congressional provision that to the necessary elements of the offense of it may be accomplished “in conviction). Thus, given the choice any manner.” between (a) the risk that some or all tax evasion cases would not be covered and (b) the inclusion of a potentially redundant Id. at 499.12 statutory provision, the drafters might have selected the latter option.

In light of the statutory language and the case law, cautious drafters might For these reasons, I think that it is have concluded that it was prudent to add unwarranted to infer from subsection M (ii) subsection M(ii) for at least two reasons. that subsection M(i) was not intended to First, even if the drafters, like the majority reach “tax offenses.” I would heed the in this case (see Maj. Op. at 9-10), could clear language of subsection M(i)13 and not think of an evasion case that did not involve fraudulent or deceitful conduct, 13 Even if the statutory language were the drafters might not have trusted their ambiguous, I would defer to the BIA’s ability to anticipate every possible variety reasonable interpretation that § 7206(1) of evasion case and might have added is an aggravated felony. See I.N.S. v. subsection M(ii) just to be sure that no Aguirre-Aguirre, 526 U.S. 415, 424 evasion case fell outside the definition. (1999)(“Because the Court of Appeals Second, even if the drafters were certain confronted questions implicating ‘[the BIA’s] construction of the statute which 12 Although the Court went on to it administers,’ the court should have provide a list of deceitful activities from applied the principles of deference which an “affirmative willful attempt” described in Chevron”); Valansi, 278 could be inferred, the Court took pains to F.3d at 208 (“Despite our exercise of de note that this list was furnished “[b]y novo review, we will give deference to way of illustration, and not by way of the agency’s interpretation of the limitation.” 317 U.S. at 499. aggravated felony definition if

12 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)(“W e 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.’”)