Arguelles-Olivares v. Mukasey (526 F.3d 171, 2008)

OWEN, Circuit Judge:

The petitioner seeks review of a removal order, contending that his prior conviction for filing a false federal tax return did not constitute a removable offense. We deny the petition for review.

I

Joel Arguelles-Olivares pleaded guilty to violating 26 U.S.C. § 7206(1) by knowingly filing a false tax return. The Department of Homeland Security thereafter instituted removal proceedings, charging that Arguelles-Olivares was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(M). Subsection (M) defines an aggravated felony as “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.” The Immigration Judge ordered Arguelles-Olivares removed, and the Board of Immigration Appeals affirmed the removal order.

Arguelles-Olivares contends that his tax offense is not an “aggravated felony” as defined by subsection (M)(i). He first asserts that subsection (M)(i) does not apply to any federal tax offenses because subsection (M)(ii) specifically identifies tax evasion, and only tax evasion, thereby reflecting congressional intent that no other tax offense qualifies as an aggravated felony. He additionally argues that, even if (M)(i) includes knowingly filing a false federal tax return, there is no competent evidence that the amount of loss was $10,000 or more.

II

We are not the first court to consider whether a federal tax offense other than tax evasion may constitute an aggravated felony under 8 U.S.C. § 1101(a)(43)(M). A divided panel of the Third Circuit concluded in Lee v. Ashcroft that it may not. The Ninth Circuit reached the opposite conclusion in Kawashima v. Gonzales, expressly rejecting the majority’s reasoning in Lee. The arguments supporting each opposing view have been cogently considered by the Third Circuit in the majority and dissenting opinions in Lee and by the Ninth Circuit in Kawashima. We agree with then-Judge (now Justice) Alito’s and the Ninth Circuit’s construction of subsection (43)(M)(i).

The text of subsection (43)(M)(i) is straightforward and unambiguous. “The term ‘aggravated felony’ means ... an offense that —