Gilda Altagracia Abreu-Reyes, A.K.A. Gilda A. Desmith v. Immigration and Naturalization Service

292 F.3d 1029 Gilda Altagracia ABREU-REYES, a.k.a. Gilda A. DeSmith, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 99-70542. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 3, 2001. Filed June 10, 2002. 1 Jesse A. Moorman (argued and on the briefs), Los Angeles, CA, for the petitioner. 2 Marion E. Guyton (argued), Nelda C Reyna (on the briefs), Washington, D.C., for the respondent. 3 Petition to Review a Decision of the Board of Immigration Appeals. I & NS Ady-qgg-dbv. 4 Before O'SCANNLAIN and PAEZ, Circuit Judges, and KING, * District Judge. OPINION 5 SAMUEL P. KING, District Judge. 6 Gilda Altagracia Abreu-Reyes a.k.a. Gilda Ada DeSmith ("Abreu-Reyes"), a native and citizen of the Dominican Republic, petitions for review of a decision of the Board of Immigration Appeals ("BIA") finding her removable. Abreu-Reyes was convicted of bribery concerning a program receiving federal funds and of subscribing to a false tax return. The Immigration and Naturalization Service ("INS") charged that Abreu-Reyes was subject to removal for having been convicted of an aggravated felony. We have jurisdiction pursuant to 8 U.S.C. § 1252…

Gilda Altagracia Abreu-Reyes a.k.a. Gilda Ada DeSmith .(“Abreu-Reyes”), a native and citizen of the Dominican Republic, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) finding her removable. Abreu-Reyes was convicted of bribery concerning a program receiving federal funds and of subscribing to a false tax return. The Immigration and Naturalization Service (“INS”) charged that Abreu-Reyes was subject to removal for having been convicted of an aggravated felony. We have jurisdiction pursuant to 8 U.S.C. § 1252 (b).

I. FACTS

Abreu-Reye has been a lawful permanent resident in the United States since 1971. In 1997, she plead guilty to three counts of a five-count indictment, was convicted, and a federal district court sentenced her to six months in prison for bribery concerning a program receiving federal funds in violation of 18 U.S.C. § 666 , and subscribing to a false tax return in violation of 26 U.S.C. § 7206 (1).

On May 27, 1998, the INS issued a Notice to Appear in removal proceedings. The Notice to Appear alleged that Abreu-Reyes had been admitted to the United States, but was removable for having been convicted of an aggravated felony…

dissenting.

I respectfully dissent. I cannot agree with the majority’s conclusion that the pre-sentence report was admissible in Abreu-Reyes’s removal hearing to determine the tax loss to the government. There is no evidence that the INS sought release of Abreu-Reyes’s presentence report from the district court for which it was prepared as it was required to do by United States v. Schlette, 842 F.2d 1574 (9th Cir.), amended, 854 F.2d 359 (9th Cir.1988). Additionally, it is unclear whether the dis *1035 trict court adopted the tax loss reflected in the presentence report in determining Abreu-Reyes’s sentence under the U.S. Sentencing Guidelines Manual (“Sentencing Guidelines”). Due to this uncertainty, it was fundamentally unfair to admit the report into evidence and to rely on it to order Abreu-Reyes’s removal.

Even assuming that the Immigration Judge (“IJ”) properly considered the pre-sentence report, Abreu-Reyes was not removable as an aggravated felon because she did not commit an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U.S.C. § 1101 (a)(43)(M)(i). A conviction for filing a false tax return cannot be subsumed under…