Safe Havens

(B)  Safe Havens Specific to this Category.  If the conviction is not under the specified statute, it cannot trigger deportation under this category.[863]  If the record of an analogous state conviction does not establish the defendant was convicted of elements that unquestionably fit within the substantive elements of the listed federal statute, the conviction does not trigger deportation under this category.

An alternate plea to a violation of Internal Revenue Code § 7201 in a tax-evasion case is a plea to § 7206(1), which is not listed as an aggravated felony.[864]  While this offense should not constitute an aggravated felony as an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,”[865] because the section does not mention deceit or intent to defraud, the Ninth Circuit in a vacated case has held that a federal tax evasion conviction constituted a conviction of an offense involving fraud, for purposes of this ground of deportation.[866]  The government cannot be a victim for restitution purposes.[867]  If there is no victim, there can be no loss “to the victim.”[868] 

[863] Lee v. United States, 368 F.3d 218 (3d Cir. May 19, 2004) (federal conviction of filing false income tax returns, in violation of 26 U.S.C. § 7206(1), is not an aggravated felony, as defined by 8 U.S.C. § 1101(a)(43)(M), for immigration purposes, as INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii) specifically covers tax evasion, and INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) does not, since to hold otherwise would render INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii) mere surplusage); Abreu-Reyes v. INS, 292 F.3d 1029 (9th Cir. 2002), earlier mandate withdrawn, petition for rehearing granted, prior opinion withdrawn, petition for review granted, 350 F.3d 966 (9th Cir. November 21, 2003) (the entire opinion was vacated, including the finding that 26 U.S.C. § 7206(1) is an aggravated felony under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i)).

[864] INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii).

[865] See INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[866] Abreu-Reyes v. INS, 292 F.3d 1029 (9th Cir. June 10, 2002) (federal conviction of subscribing to a false tax return, in violation of 26 U.S.C. § 7206(1), fell within the definition of aggravated felony as a fraud offense under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) even though the statute of conviction was not listed in the “tax fraud” section of the aggravated felony statute, INA § 101(a)(43)(M)(ii)), 8 U.S.C. § 1101(a)(43)(M)(ii)).

[867] 18 U.S.C. § 3663(a)(2) (“the term ‘victim’ means a person directly and proximately harmed as a result of the commission of an offense” (emphasis supplied)).

[868] INA § § 101(a)(43)(M)(i) and (ii), 8 U.S.C. § § 1101(a)(43)(M)(i) and (ii).