Aggravated Felony of Tax Evasion and Deportation Consequences
What happens when an resident alien commits tax evasion in the amount excess of $10,000.
By Joslyn Smith
Jun 12, 2015
QUESTION PRESENTED
Under Federal Law, does committing tax evasion in the amount of $10,000 (or more) against the United States Government constitute a deportable offense and, if so, how are these conditions met?
BRIEF ANSWER
Yes. Tax evasion in the amount of $10,000 (or more) constitutes an “aggravated felony”[1]. The Immigration & Nationality Act (further referred to as INA) provides that an alien who is convicted of an aggravated felony offense is deportable.
(iii) Aggravated felony
Any alien who is convicted of an aggravated felony at any time after admission is deportable.
Aggravated felony” is a term of art created by Congress to describe a discrete set of criminal offenses that subject an alien convicted of such an offense to more serious immigration consequences. The INA sets forth a multi-part definition of the term “aggravated felony,” which applies to violations of federal and state law. 8 U.S.C. § 1101(a)(43).
DISCUSSION
The “aggravated felony” ground of deportability is found at 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony” is defined at 8 U.S.C. § 1101(a)(43), and the various aggravated felony offenses are enumerated in subsections in relevant part- (M).
M. Fraud and Deceit Offenses.8 U.S.C. § 1101(a)(43)(M) provides “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 [26 U.S.C. § 7201] (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000” is an aggravated felony.As a general matter, an alien convicted of an aggravated felony is statutorily ineligible for most forms of discretionary relief from removal, including cancellation of removal and asylum, although the alien may, under certain narrow circumstances, be eligible for adjustment of status and a waiver of inadmissibility under 8 U.S.C. § 1182(h). Notwithstanding an aggravated felony conviction, any alien may apply for deferral of removal under the United Nations Convention Against Torture regulations if they fear torture upon returning to their home country. Aliens might also be able to apply for withholding of removal if they fear persecution upon removal and their aggravated felony conviction is not a “particularly serious crime.” However, a conviction for an aggravated felony offense may subject the alien to expedited removal procedures. 8 U.S.C. § 1228. Further, an aggravated felon deportee is permanently barred, regardless of the date of the aggravated felony conviction, from readmission to the United States, unless the Attorney General has consented to the alien reapplying for admission, (see United Nations Convention Against Torture regulations, supra). 8 U.S.C. § 1182(a)(9)(A).
SECOND QUESTION PRESENTED
Under federal law, if an alien is not present in the United States and attempts to return to the United States after conviction of aggravated felony, what actions by the government can the alien most likely expect?
BRIEF ANSWER
Detention, imprisonment, or removal are all available government responses, and not necessarily performed in that order. An aggravated felon is permanently barred, regardless of the date of the aggravated felony conviction, from readmission to the United States, unless the Attorney General has consented to the alien reapplying for admission, (see United Nations Convention Against Torture regulations). 8 U.S.C. § 1182(a)(9)(A).
DISCUSSION
If the alien is already outside of the United States and in their home country, the United States Attorney General is not likely to consider the application for admission under the “Fear of Torture” waiver. Upon arrival in the United States, it is likely that the alien will have to serve time in United States prisons for the conviction of tax evasion, a criminal offense punishable a fine of $250,000 and up to 5 years imprisonment. Title 26 USC § 7201. Immediate deportation will follow any imprisonment with a lifetime ban on re-entry to the United States.8 U.S.C. § 1182(a)(9)(A).
THIRD QUESTION PRESENTED
Are there or will there be any changes in the threshold of $10,000 as it applies to immigration law regarding tax evasion and, if so, what are the conditions?
BRIEF ANSWER & DISCUSSION
No.
A review of pending legislation, proposed bills, and reform measures do not show any proposed changes to the threshold of $10,000 in regards to tax evasion. Congress added the $10,000 threshold in subparagraph (M)(i) in 1996 so there would be a uniform standard of measure when it came to crimes of fraud and deceit as it applies to loss of a victim, or in regards to tax evasion. In the present circumstance, the victim is the United States Government. See (Illegal Immigration Reform and Immigrant Responsibility Act §321(a)(7),110Stat.3009–628). At this point in time, there are not any measures that are being taken by the public, special interest groups, or political parties to make a change in this statute’s threshold. It would literally take an act of Congress to change this threshold and is very unlikely to happen soon. In regards to any future changes to the threshold, it is important to note that offenses and their subsequent consequences are timeless in the sense that if a law changes, it cannot retroactively benefit or demise the offender.
[1]The $10,000 loss requirement need not be an element of the statute under which the alien was convicted. Nijhawan v. Holder, 129 S. Ct. 2294, 2298 (2009).
