Theophile Carty v. John Ashcroft, Attorney General

395 F.3d 1081 Theophile CARTY, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 03-71392. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 4, 2004. Filed January 19, 2005. Matthew G. Ball (briefed and argued), Kirkpatrick & Lockhart, San Francisco, CA, for the petitioner. Edward C. Durant (argued) and David E. Dauenheimer (briefed), Office of Immigration Litigation, Department of Justice, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Before: CANBY, JR., RYMER, and HAWKINS, Circuit Judges. MICHAEL DALY HAWKINS, Circuit Judge. 1 We must decide whether "intent to evade" is synonymous with "intent to defraud" within the meaning of the removal provisions of the Immigration and Nationality Act ("INA"). Because we conclude the terms are synonymous, we dismiss the petition for review of Dr. Theophile Carty ("Carty"). Carty, a native of Anguilla, petitioned this court for relief from a Board of Immigration Appeals' ("BIA") decision affirming an Immigration Judge's ("IJ") determination that willful failure to file state income taxes under California Revenue and Taxation Code §…

We must decide whether “intent to evade” is synonymous with “intent to defraud” within the meaning of the removal provisions of the Immigration and Nationality Act (“INA”). Because we conclude the terms are synonymous, we dismiss the petition for review of Dr. Theophile Carty (“Carty”). Carty, a native of Anguilla, petitioned this court for relief from a Board of Immigration Appeals’ (“BIA”) decision affirming an Immigration Judge’s (“IJ”) determination that willful failure to file state income taxes under California Revenue and Taxation Code § 19406 (1992) (“Section 19406”) is a crime involving moral turpitude, thereby subjecting Carty to removal pursuant to INA § 237(a)(2)(A)(ii) for conviction of two or more crimes involving moral turpitude.

While we generally do not have jurisdiction to consider challenges to removal orders brought by aliens removable *1083 pursuant to INA § 237(a)(2)(A)(ii), see 8 U.S.C. § 1252 (a)(2)(C), we can determine whether we have jurisdiction. See Huerta-Guevara v. Ashcroft, 321 F.3d 883, 885 (9th Cir.2003). As part of this jurisdictional inquiry, we may examine whether Section 19406 tax evasion constitutes a crime of moral turpitude.…

dissenting:

As a matter of first impression, I would be willing to accept the majority’s position that willful failure to file a tax return with intent to evade a tax is necessarily a crime of moral turpitude. It is not a matter of first impression, however, and in my view our precedent requires a contrary result.

In Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir.1957), we addressed the question whether a violation of 26 U.S.C. § 145 (b) was a crime of moral turpitude. Section 145(b), as it then existed, proscribed willful attempts to evade a tax. We held that a violation of section 145(b) was a crime of moral turpitude, but we did not arrive at that conclusion from the face of the statute itself or from the mere fact of conviction. We relied on earlier case law holding that proof of fraud was required to sustain a *1086 conviction under section 145(b). We then said of Tseung Chu:

Id. at 935 (internal citation omitted). Thus in Tseung Chu we relied on a specific allegation of fraud in order to arrive at the conclusion that the crime involved moral turpitude. There was no such allegation in Carty’s conviction; he pleaded nolo con-tendere to two counts alleging only that he “did…