Ki Se Lee; Hyang Mahn Yang v. JOHN ASHCROFT, Attorney General of the United States

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
s e c t i o n 1 0 1 ( a ) (4 3 ) ( M ) ( i ) o f t h e
Immigration and Naturalization Act, 8
* The Honorable Louis F.
Oberdorfer, Senior District Judge for the
District of Columbia, sitting by
designation.

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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 h o me co n fi ne m en t, 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.

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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 th e
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) i s d e s c r i b e d i n §
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.

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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) w e 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
recen tly 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
c o n s t r u c t i o n . S e e I N S 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).

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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 ena cted
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 ge neral p rovisio n
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

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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 ado pt 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).

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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.

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8
outlining the then civil and criminal
“penalties imposed by Congress to enforce
the tax laws,”9 id. 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.

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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.

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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

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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. W h i le goo d sta t u t o ry
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:

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Congress did not define or
limit the methods by which
a willful attempt to defeat
a n d 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

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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.’”)

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