Is Section 7202 an Aggravated Felony for Immigration Purposes? (5/25/14)

Section 7202, here, criminalizes the following conduct:

Any person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully account for and pay over such tax shall, in addition to other penalties provided by law, be guilty of a felony [balance omitted]

Like evasion, section 7202 is a 5-year felony offense.  It is the most serious offense chargeable specifically for payroll tax fraud so common in the business world.  Much of that fraud could possibly be charged as a conspiracy or tax evasion or, possibly, tax obstruction under Section 7212(a).  But Section 7202 is the targeted serious tax crime for this particular conduct.

I would have thought that it is a "no brainer" that this serious conduct involves fraud or deceit and thus would be an aggravated felony, just as tax evasion is.  But, apparently, I am wrong.

In Corral-Trevizo v. Holder, 2014 U.S. App. LEXIS 9007 (5th Cir. 2014), here, the opinion in its entirety is (absent captions) (JAT has supplied the bold-facing):

Jesus Roberto Corral-Trevizo (Corral), a native and citizen of Mexico, petitions for review of a decision of Board of Immigration Appeals (BIA) dismissing his appeal of a decision by an immigration judge (IJ) ordering him removed under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony. The BIA affirmed the IJ's decision only to the extent that it found that Corral's prior offense under 26 U.S.C. § 7202 categorically met the definition of an aggravated felony under Clause (i) of 8 U.S.C. § 1101(a)(43)(M). It did not address the IJ's determination that the offense met the definition under Clause (ii). 

The parties concur, and a plain reading of the statute reveals, that there is at least one way to commit a § 7202 offense that does not involve fraud or deceit. Thus, Corral's conviction is not categorically an aggravated felony. See Larin-Ulloa v. Gonzales, 462 F.3d 456, 464-67 (5th Cir. 2006). The Government urges that under the modified categorical approach, however, it is clear that Corral pleaded guilty to an offense necessarily involving fraud or deceit because the information charged Corral with "willfully fail[ing] to truthfully account for and pay" the taxes that were due. Corral's plea agreement included a factual basis, however, indicating that Corral agreed only that he failed to pay the taxes, a failure which did not necessarily require fraud or deceit. Corral's admission to failing to pay the tax was sufficient for a conviction under § 7202. See United States v. Gilbert, 266 F.3d 1180, 1184-85 (9th Cir. 2001); United States v. Evangelista, 122 F.3d 112, 120-22 (2d Cir. 1997). Thus, although the information was charged in the conjunctive, it is not clear that Corral was necessarily admitting that his offense involved fraud or deceit. See United States v. Morales-Martinez, 496 F.3d 356, 358-59 (5th Cir. 2007); cf. Descamps v. United States, 133 S. Ct. 2276, 2288 (2013) ("[W]hatever [defendant] says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment."). Because the documents approved for review under the modified categorical approach "are insufficient to establish that [Corral] was necessarily convicted of an aggravated felony," i.e. one involving fraud or deceit, the petitioner must prevail. Larin-Ulloa, 462 F.3d at 464 (emphasis added). 

Corral's § 7202 offense was not categorically an aggravated felony under Clause (i) of 8 U.S.C. § 1101(a)(43)(M). We do not reach the question whether the offense meets the definition of an aggravated felony under Clause (ii) because the BIA did not address it. 

We GRANT Corral's petition for review, VACATE the BIA's decision, and REMAND the case for further proceedings.

Any thoughts from readers?  Did Corral just win this skirmish and will eventually lose the war?

Also, I did try to pull the briefs from Pacer, but could not do it.  I presume that they are filed under seal for some reason.