Evangelista v. Ashcroft

• Decision Date: 23 February 2004
• Docket Number: No. 03-2019.,03-2019.
• Parties: Louis EVANGELISTA, Petitioner-Appellant, v. John ASHCROFT, Attorney General of the United States; James Ziglar, Commissioner of the Immigration & Naturalization Service; United States Immigration and Naturalization Service, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

359 F.3d 145

Louis EVANGELISTA, Petitioner-Appellant, v. John ASHCROFT, Attorney General of the United States; James Ziglar, Commissioner of the Immigration & Naturalization Service; United States Immigration and Naturalization Service, Respondents-Appellees.

No. 03-2019.

United States Court of Appeals, Second Circuit.

Argued: December 3, 2003.

Decided: February 23, 2004.

COPYRIGHT MATERIAL OMITTED

Matthew L. Guadagno, Bretz & Coven, LLP (Kerry William Bretz and Jules E. Coven, of counsel), New York, NY, for Petitioner-Appellant.

Dione M. Enea, Special Assistant United States Attorney for the Eastern District of New York (Roslynn R. Mauskopf, United States Attorney, and Varuni Nelson, Assistant United States Attorney, of counsel), Brooklyn, NY, for Respondents-Appellees.

Before: CARDAMONE, SACK, and GIBSON,^* Circuit Judges.

SACK, Circuit Judge.

The petitioner-appellant, Louis Evangelista, appeals from a judgment of the United States District Court for the Eastern District of New York (Leonard D. Wexler, Judge) dismissing his petition for a writ of habeas corpus to prevent his deportation¹ to Italy. The district court held that Evangelista had been convicted of an offense "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(a)(43)(M)(ii), for which he was deportable under the Immigration and Nationality Act (the "INA"). We agree with the district court's conclusion, although on grounds that differ somewhat from those on which the district court relied.

The district court also held that Evangelista was not eligible for a waiver of deportation because he was convicted of the offense at issue after Congress had abolished such relief for persons convicted of an aggravated felony. The unavailability of a waiver is not impermissibly retroactive in this case, the district court reasoned, because irrespective of the timing of the underlying criminal conduct, Evangelista's conviction of the relevant crime occurred when the waiver was no longer available.

BACKGROUND

The petitioner-appellant, Louis Evangelista, is a sixty-three-year-old native and citizen of Italy. He has been a lawful permanent resident of the United States since 1961. In 1995, a superseding indictment was filed in the United States District Court for the Eastern District of New York charging Evangelista with various federal tax crimes involving events that occurred as early as 1988. In count 26 of the superseding indictment, Evangelista was charged with "willfully attempt[ing] to evade and defeat [an] income tax by failing to pay said income tax to the Internal Revenue Service and by concealing and attempting to conceal from all proper officers of the United States of America his true assets" in violation of 26 U.S.C. § 7201. Superseding Indictment at 16, United States v. Evangelista, No. 94-CR-1277(S-2) (LDW) (E.D.N.Y.1996) (emphasis added).

Evangelista pleaded not guilty to all of the counts against him. However, a jury found him guilty on all counts. The district court's judgment of conviction, dated October 29, 1996, states that Evangelista was adjudged guilty under count 26 of "[a]ttempt[ing] to evade or defeat tax" in violation of 26 U.S.C. § 7201. Judgment of Conviction, United States v. Evangelista, No. CR 94-1277(S-2) (E.D.N.Y. Oct. 29, 1996) (emphasis added). Evangelista appealed his conviction to this Court. We affirmed. See United States v. Evangelista, 122 F.3d 112, 114 (2d Cir.1997), cert. denied, 522 U.S. 1114, 118 S.Ct. 1048, 140 L.Ed.2d 112 (1998). Our opinion focused primarily on counts under 26 U.S.C. § 7202, not on the section 7201 counts. Id. at 116-22. But we did note in passing that Evangelista "was convicted of evading personal income taxes (in violation of 26 U.S.C. § 7201)," id. at 113 (emphasis added), and that "[t]he jury found [Evanglista and another defendant] guilty on all of the counts with which they were charged," id. at 116.

As a result of Evangelista's conviction, on April 14, 1998, the Immigration and Naturalization Service ("INS") issued to Evangelista a Notice To Appear, stating that he was subject to removal from the United States for having been convicted of an "aggravated felony" as defined in the INA, 8 U.S.C. § 1101(a)(43)(M)(ii). Section 1101(a)(43) contains a lengthy list of those crimes constituting an "aggravated felony" for the purpose of determining who is deportable under the INA. The list includes as an aggravated felony in section 1101(a)(43)(M)(ii) — the section relevant to the Notice To Appear — "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." Id.

In removal proceedings before an Immigration Judge ("IJ"), Evangelista challenged his potential deportation. He first contended that he had not been convicted of an aggravated felony because there was no clear and convincing evidence that he had been convicted under count 26 of evading taxes, rather than defeating taxes, and that only evading taxes constitutes an aggravated felony under the INA. Evangelista also argued that he was eligible for a waiver of deportation pursuant to former section 212(c) of the INA, 8 U.S.C. § 1182(c) (1994) (repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, Div. C, § 304(b), 110 Stat. 3009-546, 3009-597), because at the time of his criminal conduct he was eligible for the waiver. The IJ, rejecting Evangelista's arguments, ordered his removal.

Evangelista appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). The BIA held that Evangelista had been convicted of an aggravated felony within the meaning of the INA. First, the BIA concluded that Evangelista had been convicted of tax evasion, an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(ii). The BIA relied on (1) the judgment of conviction, which stated that Evangelista was found guilty on count 26 for attempting to evade or defeat taxes in violation of 26 U.S.C. § 7201, (2) the indictment, which set out count 26 as a charge of both evading taxes and defeating taxes, and (3) our decision on Evangelista's appeal, which referred to Evangelista as having been convicted of tax evasion. Second, the BIA reasoned that even if Evangelista had been convicted under section 7201 only of defeating taxes and not of evading them, he would nonetheless have committed an aggravated felony under the INA, because the parenthetical phrase in the relevant section — "(relating to tax evasion)" — is merely descriptive of the substance of section 7201. According to the BIA, the parenthetical phrase does not limit the definition of an aggravated felony under section 1101(a)(43)(M)(ii) to those offenses that involve tax evasion, but also includes those that involve defeating taxes. And third, the BIA concluded that even if the "relating to tax evasion" parenthetical phrase restricted the scope of section 1101(a)(43)(M)(ii) to convictions relating to tax evasion under 26 U.S.C. § 7201, defeating taxes was "relat[ed] to tax evasion" and therefore qualified as an aggravated felony. The BIA then held that Evangelista was not eligible for a waiver of deportation under former section 212(c) because he was convicted and formal deportation proceedings against him were begun only after the section was repealed. The BIA therefore dismissed Evangelista's appeal. See In re Evangelista, No. A12 352 319 (B.I.A. Oct. 25, 2000).

Evangelista then filed in the district court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking relief from deportation. The court denied his petition. See Evangelista v. Ashcroft, 232 F.Supp.2d 30 (E.D.N.Y.2002). Relying on the conjunctive language in count 26 of the indictment ("willfully attempt[ing] to evade and defeat [an] income tax" (emphasis added)) and our opinion on Evangelista's appeal, the court concluded that "there can be no doubt that Evangelista was convicted of an offense `described in section 7201 of Title 26 (relating to tax evasion) in which the revenue lost to the Government exceeds $10,000.'" Id. at 34 (quoting 8 U.S.C. § 1101(a)(43)(M)(ii)). The court therefore decided that Evangelista had been convicted of an aggravated felony and was deportable. Id. The district court also concluded that relief from deportation under former INA section 212(c) was not available to Evangelista, "a criminal defendant [who] elect[ed] to go to trial in connection with conduct or a conviction that pre-dates the repeal of Section 212(c), but [who was] convicted and placed in removal proceedings after the repeal of the statute." Id. at 37. According to the district court, it is the date of conviction, not the date of the criminal conduct or of entry of a plea of not guilty, that controls. The court reasoned that there are no fairness concerns when the defendant elects to proceed to trial — as opposed to enters into a plea agreement — before the repeal of section 212(c). Id. at 36.

Evangelista appeals.

DISCUSSION

I. Conviction of an Aggravated Felony

"Any alien who is convicted of an aggravated felony at any time after admission [to the United States] is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). The INS "has the burden of establishing [deportability] by clear and convincing evidence," which must be "reasonable, substantial, and probative." Id. § 1229a(c)(3)(A).

We have no jurisdiction to review a final order of removal against an alien who is removable for having committed an aggravated felony. Id. § 1252(a)(2)(C). But "[w]e do retain jurisdiction ... to review the question whether, as a matter of law, [a petitioner] committed an `aggravated felony' under [the INA]." Dalton v. Ashcroft, 257 F.3d 200, 203 (2d Cir.2001). We therefore have jurisdiction to review whether Evangelista was convicted of an aggravated felony under the INA.

The INA sets forth a list of offenses...