Tax evasion – is it a deportable offense?

by Atty. Emmanuel Samonte Tipon

This is the height of the tax filing season and aliens should be especially careful that they do not file false tax returns in trying to save a few dollars lest they face deportation which will cost them more. A number of tax preparers try to impress their clients to obtain repeat business by making inappropriate deductions, not reporting or underreporting income, and doing other unlawful acts in order that the client will pay less taxes or get a bigger tax refund. There are also people who fail to file tax returns.

The courts have generally held that tax evasion is a crime involving moral turpitude. Crimes of moral turpitude are of basically two types, those involving fraud and those involving grave acts of baseness or depravity. For analytical purposes, tax evasion falls within the first category. Even 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.” Intent to defraud is implicit in willfully failing to file a tax return with the intent to evade taxes. By willfully failing to file his tax returns, the person attempts to deprive the government of revenue — or, in other words, to obtain a free pass on taxes. The terms "evasion" and "fraud" have been treated interchangeably. Carty v. Ashcroft, 395 F.3d 1081 (CA9, 2005)

The Immigration and Nationality Act provides in Section 237(a)(2)(A) that any alien who is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien granted permanent resident status under Section 245(j)) after the date of admission and is convicted of a crime for which a sentence of one year or longer may be imposed is deportable. Furthermore, 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 (now removable).

Persons who provide fraudulent information or grossly underreport their income in a tax return are considered persons who are not of good moral character and will be denied certain immigration benefits requiring good moral character like naturalization and voluntary departure if they are placed in removal proceedings.

TAX EVASION IS AGGRAVATED FELONY IF LOSS TO GOVERNMENT EXCEEDS $10,000

In a case decided by the U.S. Supreme Court on February 21, 2012, an alien who was convicted of willfully making and subscribing a false tax return under 26 U. S. C. §7206(1) which had caused a loss to the Government in excess of $10,000, and his wife who was convicted for aiding and assisting in the preparation of a false tax return under 26 U. S. C. §7206(2), were ordered deported because they had committed an aggravated felony under 8 U. S. C. §1101(a)(43)(M). 8 U. S. C. §1101(a)(43)(M)(i) defines “aggravated felony” to mean an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.”  8 U. S. C. §1101(a)(43)(M)(ii) defines “aggravated felony” as an offense that is “described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.”  Under 8 U. S. C. §1227(a)(2)(A)(iii) “Any alien who is convicted of an aggravated felony at any time after admission is deportable.”

The Supreme Court said that although in the past it had construed ambiguities in deportation statutes in the alien’s favor, as in  INS v. St. Cyr, 533 U. S. 289, 320 (2001), the application of the present statute was clear enough that resort to the rule of lenity was not warranted. Kawashima v. Holder, No. 10-577, United States Supreme Court, 02/21/2012.

COMMENT:  Section 240A of  the Immigration and Nationality Act [8 U. S. C. § 1229b] gives the Attorney General the authority to cancel removal for a narrow class of inadmissible or deportable aliens, but it does not include anyone previously convicted of any aggravated felony.”  I.N.S. v. St. Cyr, 533 U.S. 289, 295 (2001). Thus, in the case of conviction for an aggravated felony removal is a certainty.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)