Ki Se Lee v. Ashcroft, 02-4602.

• Decision Date: 19 May 2004
• Docket Number: No. 02-4602.,02-4602.
• Citation: 368 F.3d 218
• Parties: KI SE LEE; Hyang Mahn Yang, Petitioners v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

368 F.3d 218

KI SE LEE; Hyang Mahn Yang, Petitioners v.John ASHCROFT, Attorney General of the United States, Respondent.

No. 02-4602.

United States Court of Appeals, Third Circuit.

Argued December 5, 2003.

May 19, 2004.

Steven A. Morley(Argued), Morley, Surin & Griffin, P.C., Philadelphia, for Petitioners.

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, Michael P. Lindemann, John M. McAdams Jr., John D. Williams, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, for Respondent.

Before SLOVITER and ALITO, Circuit Judges, and OBERDORFER,^*District Judge.

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 section 101(a)(43)(M)(i) of the Immigration and Naturalization Act,8 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.¹They 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).²The 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 home confinement, 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 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 the Immigration and Naturalization Act.See8 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) is described in § 7201⁴ 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 eithersubsection. 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.See8 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 26 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 pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).⁵As 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)we 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 recently 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.;seeValansi 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.SeeValansi,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(quotingMarshak 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 construction.SeeINS v. Cardoza-Fonseca,480 U.S. 421, 447-48, 107 S.Ct. 1207, 94 L.Ed.2d 434(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(quotingBell 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 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, 113 S.Ct. 2173, 124 L.Ed.2d 402(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 enacted 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 general provision 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 Internal Revenue Code.⁶Therefore, 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...