Kawashima v. Holder
November 7, 2011
Case #: 10-577
593 F.3d 979 (9th Cir. 2010)
Full Text Opinion: http://sblog.s3.amazonaws.com/wp-content/uploads/2011/05/Kawashima-CA9-Opinion.pdf
Immigration: Whether petitioners' convictions for tax crimes constituted aggravated felonies under 8 U.S.C. § 1101(a)(43)(M)(i), and thus subjected them to deportation under 8 U.S.C. § 1227(a)(2)(A)(iii).Mr. and Mrs. Kawashima, lawful permanent residents, were convicted for "subscribing to a false statement on a tax return" and for "aiding and assisting in the preparation of a false tax return" respectively. Under 8 U.S.C. § 1101(a)(43)(M)(i), an offense that involves fraud or deceit in which the loss to the victim is greater than $10,000 is defined as an aggravated felony. Mr. Kawashima stipulated in his plea agreement that the government's total actual loss was $245,126. An immigration judge concluded that, because the Kawashimas' convictions constituted aggravated felonies under subsection (M)(i), the Kawashimas were removable to Japan under 8 U.S.C. § 1227(a)(2)(A)(iii), which provides that any alien convicted of an aggravated felony is deportable. The Ninth Circuit ultimately affirmed the Board of Immigration Appeals' (BIA) determination that the Kawashimas' convictions constituted aggravated felonies. The Court's conclusion with respect to Mrs. Kawashima's conviction, however, was subject to the BIA's determination on remand that the government's total loss exceeded $10,000.
The Kawashimas argue that their convictions were not aggravated felonies under subsection (M)(i). Because subsection (M)(ii) of the same statute expressly provides that certain tax crimes are aggravated felonies, none of which include the Kawashimas' crimes, the Kawashimas argue that the statute is unclear and ambiguous as to which tax crimes constitute aggravated felonies. The Kawashimas further argue that the lower court failed to apply established canons of statutory construction to determine the intent of Congress. Finally, the Kawashimas argue that, even if the lower court properly construed the statute, the crimes to which they plead guilty were not aggravated felonies because they did not involve the requisite fraud or deceit.