Immigration Consequences of Tax Crimes Convictions (6/26/13)

Two recent Second Circuit summary nonprecedential decisions  involving criminal tax convictions have involved  the immigration consequences of the convictions.

In Evangelista v. United States, 2013 U.S. App. LEXIS 12436 (2d Cir. 2013), here, the Second Circuit, affirmed the denial of his writ for coram nobis to vacate the count of tax evasion which had subjected him to deportation.  Among his claims was  "counsel's ineffectiveness in failing to inform him of the immigration consequences of conviction after trial provide sound reasons for his delay in seeking the relief here at issue."  In this regard, the Supreme Court had previously held that failure to advise of immigration consequences in considering a plea can be ineffective assistance of counsel.

Similarly, even if Evangelista did not know the immigration consequences of his conviction at the time judgment was entered, but see INS v. St. Cyr, 533 U.S. 289, 322 (2001) (recognizing, as general matter, that "alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions"), he would certainly have had such knowledge by April 14, 1998, when the Immigration and Naturalization Service issued a Notice To Appear, stating that Evangelista was subject to removal based on his conviction for an "aggravated felony" as defined in the Immigration and Naturalization Act. Evangelista v. Ashcroft, 359 F.3d 145, 148 (2d Cir. 2004). Thus, even if Evangelista's counsel failed to raise this issue on direct appeal, Evangelista presents no reason why he could not have pursued the matter in a petition pursuant to 28 U.S.C. § 2255 asserting ineffective assistance of counsel. See Massaro v. United States, 538 U.S. 500, 504 (2003) (holding that ineffective-assistance-of-counsel claims need not be brought on direct appeal).

It is not clear to me what Evangelista's claim really was.  Perhaps it was that, based on bad advice, he had turned down a plea deal that would have avoided the immigration consequences and had, after trial, been convicted of counts that had immigration consequences, but that is not clear to me.

It is interesting to note that Evangelista's original criminal case is a key one I use in my Federal tax Crimes book to illustrate some key points regarding Section 7202 and prosecutor's improper comments.  See United States v. Evangelista, 122 F.3d 112 (2d Cir. 1997), cert denied 118 S. Ct. 1048 (1998), here.  A question I do have is why the Section 7202 and 18 USC 371 (Klein/defraud conspiracy) convictions would not have been sufficient for deportation.  I am not an immigration lawyer and do not have the time or interest to chase that question down right now.

Second, the other case on immigration is Chhabra v. United States, 720 F.3d 395 (2d Cir. 2013), here.  Chhabra also involved a petition for a writ of coram nobis based on ineffective assistance of counsel.  The defendant, "a lawful permanent resident of the United States who was convicted, following his plea of guilty, of one count of receiving Medicare kickbacks in violation of 42 U.S.C. § 1320a-7b(b)(1) and one count of income tax evasion in violation of 26 U.S.C. § 7201,"  Note the income tax evasion count covered multiple years (1994 through 1997).  Income tax evasion involving in excess of $10,000 is a deportable offense.  Hence, Chhabra was deportable.  Apparently, that was lost in the system until he took an overseas trip and attempted to return.  The following explains what happened (emphasis supplied):

In 2006, Chhabra traveled to South America, and upon his return to the United States he was detained by immigration officials who discovered his conviction in their database. In July 2007, Chhabra received a notice to appear for removal proceedings ("Notice"). It stated that he had been convicted of taking Medicare kickbacks and of income tax evasion, and that, having been convicted of a crime involving moral turpitude, he was removable pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I). 

In February 2008, Chhabra, through his current attorney, Thomas E. Moseley, applied for cancellation of removal. Chhabra admitted the Notice's factual allegations but argued that a specific amount of tax loss was not an element of tax evasion and that neither his Plea Agreement nor his plea allocution had specified the amount of tax loss. The government moved to pretermit Chhabra's application because Chhabra had pleaded guilty to an information charging him with evading more than $10,000 in federal income taxes; such a crime is defined as an aggravated felony, see 8 U.S.C. § 1101(a)(43)(M)(ii); and an alien convicted of an aggravated felony is ineligible for cancellation of removal, see 8 U.S.C. § 1229b(a)(3). In August 2008, an Immigration Judge ("IJ") found that the record in Chhabra's criminal case showed that his tax evasion offense was an aggravated felony and ruled that Chhabra was thus ineligible for cancellation of removal and was removable. The Board of Immigration Appeals affirmed that decision in March 2010, and Chhabra's petition for review was denied by this Court in 2011.

The taxpayer was not happy with the result, so he filed the coram nobbis proceeding to vacate the tax evasion  conviction on the basis of inadequate representation of counsel for not properly advising about the immigration consequences.  The defendant's problem was that the facts were not consistent with the claim that he had not been properly advised.  The Court offers a long statement of the facts relevant to the issue.  I will not repeat it here.  Suffice it to say that he lost on the facts.