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

Before PAEZ, O’SCANNLAIN and false tax return was an aggravated felony Circuit Judges, KÍNG,* District as a fraud offense 101(a)(43)(M) Judge. the INA. Although the record before the * The Honorable King, Samuel waii, P. Senior United sitting by designation. Judge District for the District of Ha- n (“IIRIRA”), dis- we must Act sponsibility of Abreu- judgment contained jurisdic- lack of petition alien’s miss itself did conviction, judgment Reyes’s Reno, 217 F.3d Castro-Baez tion. loss to amount indicate n (citing 8 U.S.C. government. federal BIA if 1252(a)(2)(C)). the Accordingly, § to determine used report was sentence Abreu-Reyes was that correctly concluded aggrar an to constitute because fact critical lack felony, we of an convicted the felony, the vated decision. the removal to review jurisdiction an order issued The IJ $10,000. exceed (9th 1018, 1021 INS, F.3d 252 v. Park Abreu-Reyes. removing juris- Nevertheless, Cir.2001). retain we ar- Abreu-Reyes BIA, appeal On jurisdiction. our own to determine diction the in.relying the IJ erred that gued Id. pre-sentence in the information BIA The of loss. the amount establish REPORT THE PRE-SENTENCE B. many that however, found disagreed, must decide The first issue the may constitute documents different the upon erroneously relied the IJ per- may an that of conviction record that to determine pre-sentence that stated The BIA rely upon. missibly caused conviction fraud pre- that a held specifically has while Revenue victim, Internal the the of a record is included $10,000. If (“IRS.”), excess .in Service INA, 8 240(c)(8)(B) conviction, § “ag fall into not, would her conviction in- for its 1229a(c)(3)(B), allows § U.S.C. and render her category felony” gravate,d clusion. 1101(a)(43)(M)(i) §§ removable. 8: that argued Abreu-Reyes also (if). hearsay. report was issue the threshold novo de review We evi- hearsay that noted BIA sponse, constitutes offence particular of whether pro- immigration admissible dence an alien for which felony” “aggravated an probative if the evidence ceedings . Park, F.3d 252 deportable Thus, the fair. use is its legal purely determinations The BIA’s admitted properly the IJ that found BIA gen novo, are de but are reviewed issues record. into Chevron, under to deference erally entitled that argued .Lastly, Coun Resources U.S.A., v. Nat. Inc. Def. equal protection deprived Inc., cil, in- of her Amendment Fourteenth Hughes (1984); E.g., L.Ed.2d BIA The relief. Cir.2001). for removal eligibility (9th 752, 757 F.3d Ashcroft, 255 upon to rule jurisdiction it lacked held list an extensive provides INA its arid the INA constitutionality of a criminal proof may constitute what fol- review petition This regulations. Significantly, 240(c)(3)(B). § conviction.' lowed. “[a]ny doc- 240(e)(3)(B)(vi)provides by, or under prepared or record ument II. DISCUSSION convic- of, which the court direction exis- JURISDICTION A. indicates entered tion was proof constitute shall a conviction” Illegal rules permanent Under examining conviction.1 When aof criminal Re- Immigrant Reform Immigration may be conviction aof criminal existence "In provides: 3.41 8 C.F.R. (emphasis thereof.” as evidence (d) admissible Judge ... Immigration an ceeding before added). reasonably indicates Any removability, alien’s courts INS, refer dez-Robledo v. conviction, Cir.1985). which includes the information,- plea, indictment verdict or provided considerable detail judgment, sentence, to determine the with regard to Abreu-Reyes’s crimes, in- nature of the underlying crime for which cluding the loss to the victim as calculated an alien was convicted. See Goldeshtein v. by IRS, far exceeded INS, Cir.1993) (exam- For example, paragraph forty-nine of the ining alien’s indictment to determine pre-sentence report states that “[accord- whether the resulting conviction involved ing to the calculations of the IRS case moral turpitude); Wadman 329 agent, $37,546 DeSmith owes ($25,470 for Cir.1964). 1993) and in taxes not We find that pre-sentence report paid” and that “this amount does not in- falls into the category of documents that clude penalties and interest.” Paragraph proof constitute of the nature of the alien’s fifty under the heading Impact” “Victim criminal conviction. pre-sentence The re- again states that “[a]s a result of the de- port is a document prepared under the fendant’s commission offense, of the direction of the court in which the convic- $37,546 is due in taxes owed to the IRS entered, tion is and it indicates the exis- and that indicated, “[a]s this figure does tence of a conviction. In case, ” not include interest penalties.’ and prepared was under the direction of Furthermore, Abreu-Reyes provided no the federal district court'by probation evidence the removal hearing officer after Abreu-Reyes pled guilty to BIA that the amount of the loss to the IRS two counts of subscribing to a false tax $10,000. than less There is also no return. Although judgment proof is of indication that pursuant to Federal Rules the conviction, the IJ necessarily relied of Criminal 32(b)(6)(B) Procedure Abreu- upon the pre-sentence report for proof of Reyes communicated in writing any objec- the amount of loss to the victim because no tions to any material information document in the record provided pre-sentence report. that information. The fact that Abreu-Reyes was sen- Abreu-Reyes asserts that it was tenced only six months does not show

improper to admit pre-sentence that the loss to was not part as of the record of conviction because excess pre-sentence irrelevant and unreliable hearsay. port shows a Total The test for Offense Level of hearsay admissible in removal twelve, which corresponds proceedings (1) to a sentencing whether the hearsay range statement of ten to probative sixteen However, and months. whether its admission judge could fundamentally have fair. See Bali sentenced za v. Abreu-Reyes to six months, instead of Cir. ten 1983). addition, months, sixteen for a couple INS must present of reasons. “clear, unequivocal, For example, and convincing” judge evi could have dence to prove removability. possibly Woodby v. considered paragraph 135 of the INS, 385 276, 286, pre-sentence report, “Impact entitled (1966). L.Ed.2d 362 Plea Agreement,” examines which states “[p]ur- that “whether there is reasonable, substantial, suant to a written plea agreement, probative evidence the record as a defendant’s adjusted total offense level whole to support the BIA’s decision that would be less two levels for acceptance the INS” has met this burden. Heman- of responsibility for a total offense level of reli- relevant report are pre-sentence range sentencing guideline her giving probative therefore, satisfy the and, able months.” to 12 6of hearsay We test. admissible prong six-month reason valid Another whole, that, as a find further be evidence convincing clear provided a six- a combination term her served inwas excess that the confine- community month then arises question $10,000. The supervised awith detention ment admitting this the-pre-sen- 136 of Paragraph release. nature the confidential unfair because Re- “Supervised entitled reports.. pre-sentence fac- sentencing “[t]he lease,” explains stipulated have parties to which tors pre-sentence true it is While B of Sen- Zone the defendant place document, disclo confidential is a sentencing B Zone A tencing Table.” is warranted pre-sentence.reports sure Abreu-Reyes could means range ato seeking access Parties cases. some imprison- month one least “at served thresh make a ... the term the remainder ment serve would disclosure showing that old deten- community confinement by justice.” of “ends States the that states Paragraph tion 1674, 1581 Schlette, F.2d found “evaluated Abreu-Reyes was Justice, Dep’t Berry v. (citing of monitoring home electronic the suitable for Cir.1984)). then 1343, 1352 program.” detention against disclosure for need the balances Additionally, paragraphs a case- confidentiality on for the reasons the if that “Probation,” explain entitled here issue Id. The basis. by-case sentenc- applicable the finds judge district pre-sentence use IJ’s the whether B, “[m]ini- the then in Zone range is ing proper. was purpose this limited for report community by may be satisfied term mum pri prepared report pre-sentence “A confinement, or confinement, intermittent ancillary use, although an for court marily proba- of condition as a home detention decision-making.” agency to aid function in sen- term “minimum that the tion” judges immigration Congress created Id. Thus, the months.” 1-6 range is tencing the laws apply to agency and for the to act Abreu- have sentenced could judge district Singh See the INS. to the United of termawith months just six to Reyes (9th Cir. 346, 346-47 Waters, applicable her detention home access may have 1996). parties third If B. Zone fell sentencing range certain reports pre-sentence rely on how the exactly not know doWe agen an acting for an situations, surely sentence, but a six-month judge decided Furthermore, although may as cy well.. plausible provides report pre-sentence the the IJ how explain not does the ar- he to how alternatives deter pre-sentence the obtained the Nothing figure. rived removable an alien mining whether six- the suggests felony aggravated having committed from resulted somehow month sentence stan justice” the “ends certainly meets to the loss the finding that dard. Everything in excess not was use narrow high- the IJ’s indicates importantly, pre-sentence More in the ascertain to pre-sentence er loss. greater was victim contrary, no evidence being There confiden- not invade $10,000 did than calculations IRS find tiality document; rest RA)” no are now considered aggravated felo- other information Further, was disclosed. nies) added). (emphasis .disclosure need.for amount of loss to the outweighs victim D. reasons NATIONALITY CLAIM maintaining confidentiality of that It is unclear whether Abreu-Reyes con- Thus, information. we find that admitting tended that she awas national of the Unit- the evidence of the amount of.loss ed Nonetheless, States. jurisdic- we have pre-sentence contained in the tion review her claim that she is a was unfair, not fundamentally and the IJ and, thus, national is not alien” subject “an properly relied on to removal. § 1252(b)(5)(A); U.S.C. to determine Abreu-Reyes’s removability. Hughes at 755. mayWe dismiss claim if we find that no genuine issue material C.AGGRAVATED FELONY fact regarding her nationality present- Abreu-Reyes argues that the crime ed. Id. at 758. While Abreu-Reyes men- for which she charged, subscribing to tions the possibility that might be a violation of 26 n a false tax return “national” in the brief, introduction to her 7206(1), not fall does within the defini she did present it as an issue for our tion felony. Under 8 U.S.C. provide review support for con- her 1101(a)(43)(M)(i),the term “aggravated Thus, tention. we find an, felony” means offense that “involves failed genuine to establish a fraud or issue of deceit which the mate- rial victim or fact $10,000.” regarding her victims nationality. Ac- clearly statute encompasses cordingly, we offense for dismiss nationality which Abreu-Reyes was charged claim.

her offense-subscribing to a tax false re E.

turn-involved deceit,” “fraud CONSTITUTIONAL or CLAIM and the loss to United States exceeded Abreu-Reyes further claims that her in- “ ‘Where there is no ambiguity in the eligibility for discretionary relief from re- words, there is no room for construction. moval was unconstitutional. Because we The case must be a strong indeed, one conclude that Abreu-Reyes’ conviction is which would justify a court in departing an aggravated felony, jurisdiction we lack from plain meaning of ... words over this claim. search an intention which the words ” PETITION FOR REVIEW DENIED. themselves did not suggest.’ Gonzales, States v. 1, 8, 117 S.Ct. PAEZ, Circuit Judge, dissenting. 1032, (1997) 137 L.Ed.2d 132 (quoting I United States respectfully v. Wiltberger, 76, 5 Wheat. dissent. I cannot agree 95-6, (1820) 5 L.Ed. C.J.)). with (Marshall, 37 the majority’s conclusion that pre- report admissible Abreu- We note that the United Supreme States Reyes’s removal hearing to determine the Court recently explained that the term tax loss government. “aggravated There is no felony” has always been “de- evidence that fined INS expansively” sought release of that it was “broad- Abreu-Reyes’s presentence ened substantially” by IIRIRA. from INS v. Cyr, St. 289, 533 district court U.S. for 2271, 121 which it S.Ct. was prepared 2276 4, n. (2001) 150 as it required L.Ed.2d 347 to do (observing by United States that “all Schlette, convictions involving fraud or 842 de- F.2d 1574 Cir.), ceit in which the-loss to amended, the victim exceeds Cir.1988). F.2d 359 (as $10,000 opposed to pre-IIRI- Additionally, it is unclear whether the dis- pur- fundamental reports serve two in fence tax loss reflected adopted court trict to de- (1) use them courts poses: district determining presentence sentence, see Fed. a termine the U.S. defendant’s under Abreu-Reyes’s sentence (2) of Pris- the Bureau (“Sentenc- R.Crim.P. Manual Sentencing Guidelines to classify prisoners, them to relies on uncertainty, ons Guidelines”). to this Due ing n pro- for eligibility treatment determine admit the unfair to it was privi- for eligibility to assess grams, and on it to rely into custody. United while leges removal. order 3, 5, Julian, Justice Dep’t of Immigration assuming that Even L.Ed.2d 108 S.Ct. UJul- (“IJ”) considered properly Judge at I, 1415.1 806 F.2d II”); ian Julian not re- Abreu-Reyes was wants as the party such INS a third If felon because aggravated as an movable for another presentence a to use “in- offense commit an did release seek purpose, must deceit fraud or volves it was court for which from $10,000.” or victims exceeds the victim Schlette, at 1581. prepared. See 1101(a)(43)(M)(i). conviction A notes, held Schlette, majority cannot be return tax a false filing for a requests third party when a deceit” the “fraud subsumed presentence report, a release district only intended Congress vision because disclo- establish party must third only evasion—and offense—tax tax one Id. justice.” ends “serve the will sure when II, 486 U.S. 1581; Julian see at felony. $10,000, to constitute that courts (noting 1101(a)(43)(M)(ii). 8 U.S.C. special showing of require “some generally party they allow third Re- will the Presentence before need Admission report”). copy of obtain port weigh the then court must background contain reports Presentence the need against for disclosure need defendant, including information about Schlette, F.2d at 1581. 842 confidentiality. criminal the defendant’s properly that the IJ majority holds sentencing and The relevant information re- presentence on relied about treatment, as details well as of whether the determination port because the vic offense and of the circumstances felo- has committed an alien Fed.R.Crim.P. the offense. tims stan- justice” “ends Schlette’s ny meets Dep’t States 32(b)(4); v. United Julian Whether op. at 1033-34. Maj. dard. 1411, Justice, 806 F.2d met, been has justice” standard 1, “ends 108 S.Ct. I”), (“Julian aff'd, 486 should be however, determination is a (1988). Today presen- 1606, 100L.Ed.2d broadly en- decision-making,” therefore Comprehen- enactment Prior to the 1. civil enforcement the INS's compasses. 1984, 98- Pub.L. ofAct sive Crime Control majori- The op. Maj. at sponsibilities. Stat.1987, II, 2, presentence ch. Tit. Schlette, however, statement takes ty, routinely used aid also reports were I, at out Julian cites II, at Julian parole determinations. discussing I, were not Julian context. I, 1606; at 806 F.3d Julian n. any govern- by presentence of a the use Instead, fo- discussion our agency. mental by the reports Schlette, presentence use cused on the majority cites The Prisons, court, the Bureau ancillary func- “an proposition that at 1415. Commission. agency Parole to aid reports "is presentence tion” of initially made by the district court familiar (holding that the standard for admissibility with underlying criminal proceeding. of hearsay administrative Although requesting the district court to ceedings is it “probative release an presentence alien’s report may whether its admission [i]s be a burden for the important is dh fair”). step in preserving confidential information It was also fundamentally unfair to ad- and ensuring reliability report.2 thé mit into evidence because it is If the district court were to order that thé unclear from the administrative record presentence report released, be then it whether the district court relied on the tax redact information that it deter- loss reflected in presentence report.

mines is confidential pursuant to Rule that, The IJ stated in sentencing Abreu- 32(b)(5) of the Federal Rules of Criminal Reyes, the district court apparently relied Procedure.3 See id. at 1585 (remanding to on presentence report’s conclusion that the district court to redact confidential the tax loss to information). The court would also have $37,546. A review of the presentence re- the opportunity to redact erroneous un- port and Abreu-Reyes’s sentence, howev- reliable information so that use of the re- er, that there is insufficient demonstrates port other than for sentencing or prison information in the administrative record to classification would serve the jus- “ends of ascertain whether the sentencing court tice.” adopted an amount in $10,000 excess of There is no evidence in the administra- the tax loss in determining Abreu-Reyes’s tive record here that the INS filed a mo- sentence. tion in the district court to obtain a copy of Abreu-Reyes’s presentenee report. report recommended a Cf. Villa, 701 F.Supp. 760, base offense level of based a tax (D.Nev.1988) 761-62 (releasing presen- $23,500 between under the to the INS for use in depor- Sentencing Guidelines in effect at the time tation proceeding). Without the benefit of Abreu-Reyes’s sentence. U.S. Sentenc- ruling court’s ordering disclo- ing Guidelines (2000). Manual 2T4.1 sure of we cannot be certain a Specific recommended that the report does not contain confiden- Offense upward Characteristic adjustment tial, erroneous, or unreliable information. of 2 levels and a adjustment downward Because the INS did not adhere to Acceptance of Responsibility of 2 levels. mandate,, Schlette’s it was fundamentally Thus, the suggested total offense level was unfair for immigration the judge to admit 12. According to the Sentencing Table, the into evidence. See Baliza v. this offense level corresponded to a 10-16 INS, month sentence. Id. ch. pt. A. 2. As alternative to seeking an release of a might seriously disrupt program a of reha- presentence report, the INS could obtain a bilitation; (B) sources of information ob- copy of the transcript aof sen- defendant’s upon promise tained a of confidentiality; or tencing hearing. The transcript would con- (C) any that, disclosed, other information if tain the district court’s factual sentencing harm, might otherwise, result in physical or guideline determinations. See Fed.R.Crim.P. to defendant or persons. other 32(c)(1); 3553(c). 18 U.S.C. same provisions These confidential were con- 32(b)(5) (c)(3)(A) 3. in Rule tained provides: subsection previous version Rule (A) which is must in cited Schlette. exclude: that, diagnostic opinions disclosed, if . another in it can use fore only a however, received

Abreu-Reyes, should have sustained ceeding, The offense greatest sentence. six-month presen- objection to sen- to a six-month corresponded level hearsay.5 cannot 10. Id. We level tence was offense just the administrative from tell this sen- court arrived district

how the Felony Aggravated deter- have court could The district tence. presentence re- that the assuming Even lower in fact loss was tax that the mined evidence, into properly admitted port in the estimated than that be- not removable still even perhaps not,commit an she did cause between tax loss Fixing the aggravat- Congress defined felony. has would have offense level $13,500, the base as: part felony pertinent level ed offense a base not 12. With been would have level final offense (M) that— an offense 6- range of sentencing ato corresponded (i) which or deceit involves fraud months. or victims exceeds loss court could Alternatively, the district $10,000; or to 2 levels reach departed downward have of Title (ii) section consid- is described or could lower sentence evasion) in by tax (relating referenced agreement, plea ered exceeds did to the Government apparently revenue majority, which $10,000[.] Charac- Specific Offense contemplate the adjustment of levels. upward teristic 1101(a)(43). 8 U.S.C. sentencing transcript of Without stat- separate included discerning Congress . That basis for no hearing, we have tax at Abreu- evasion demon- utory provision, court arrived how the district tax and, more im- include not intend did sentence strates Reyes’s six-month con- text. or deceit” the “fraud within offenses portantly, reflects, government Congress Rather, tax loss to the statute as the cluded $10,000.4 tax offenses than between greater distinction drew de- involving fraud and crimes conse- drastic uncertainty, and its This targeted only then Congress ceit. case, Abreu-Reyes quences evasion, only of tax act egregious more the rule established why we precisely when the party, such that a third dictating Schlette sufficiently warrant serious $10,000, as aof obtain release as the omis- logic that invests “The removal. court be- report from sentence aas condition detention or home finement not have been Abreu-Reyes's release. supervised plus a six-month combination de- community confinement either release, "no in- majori- there majority as the contends that supervised with 5. The tention ob- Abreu-Reyes written filed Sentencing Guidelines suggests. dication” ty See report pursuant (2000) jections 1(c)(2) (explaining that § 5Cl. Manual Crim- 32(b)(6)(B) Rules of the Federal imprisonment term of Rule B minimum a Zone With- op. Maj. 1032-33. super- plus Procedure. by imprisonment inal may be satisfied record, we reviewing the district community out a condition release with vised n Abreu-Reyes's detention). determine be- cannot This is confinement n 32(b)(6)(B) lawyer Rule filed defense criminal Judgment and Probation/Commit- cause objections. community con- impose did not Order ment sion significance with is familiar: the men-

tion of implies HERNANDEZ, Joel some the exclusion of others Plaintiff- Appellant, Expressio mentioned.... unius est ex- clusio alterius.” United Dominion In- dus., States, Inc. 822, v. United HUGHES MISSILE SYSTEMS COM 150 L.Ed.2d 45 PANY, corporation; an Arizona (internal quotation marks and citation Hughes Company, Aircraft a Dela omitted). corporation; Raytheon ware Compa ny, a corporation, Delaware Defen

If Congress intended for tax crimes oth- dants-Appellees. er than tax evasion to aggravat- constitute ed felonies when the loss to govern- No. 01-15512. $10,000, ment exceeds it could easily United States Court Appeals, defined an felony in 8 U.S.C. Ninth Circuit. 1101(a)(43)(M)(ii) “tax offense in which the revenue loss to the Government Argued and Submitted Feb. 2002. $10,000” or identified each rele- Filed June vant section of Title 26. United States Cf. Corona-Sanchez, Cir.2000) (reasoning that because Con-

gress used the term “theft offense” rather

than “theft” to define an aggravated felony

and “expressly included the ‘receipt of sto-

len property’ under the definition of ‘theft

offense,’ ... Congress paint intended to

‘theft brush”). offense’with a broad

Thus, assuming even presen- admissible,

did not an aggravated commit felony. Ac-

cordingly, I grant would petition.6 grant Because I would petition, I find ing arguments. unnecessary to Abreu-Reyes's reach remain-

Case Details

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

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 10, 2002

Citation: 292 F.3d 1029

Docket Number: 99-70542

Court Abbreviation: 9th Cir.