Kawashima v. Holder

Convictions for making or assisting in the making of a false tax return constitute aggravated felonies under 8 U.S.C. § 1101(a)(43)(M)(i) when the loss to the government exceeds $10,000 and therefore subject petitioners to deportation under the Immigration and Nationality Act.

The Kawashimas, lawful permanent residents, were convicted of making a false statement on a tax return and for assisting in the preparation of a false tax return. Under 8 U.S.C. § 1101(a)(43)(M)(i), an offense that involves fraud or deceit in which the total loss to the victim exceeds $10,000 is defined as an aggravated felony. Mr. Kawashima stipulated that the government’s total loss as a result of his false tax return was $245,126. Under 8 U.S.C. § 1227(a)(2)(A)(iii), any alien convicted of an aggravated felony is deportable. As a result of the Kawashimas’ convictions, an immigration judge ordered the Kawashimas’ removal to Japan. The Board of Immigration Appeals made the determination that the Kawashimas’ convictions constituted aggravated felonies and affirmed the deportation order. The Ninth Circuit Court of Appeals affirmed the Board’s determination.

The Supreme Court affirmed the Ninth Circuit, holding that the offenses of making a false tax return and assisting in the making of a false tax return constitute aggravated felonies when the total loss to the government exceeds $10,000. The Court held that, although fraud and deceit are not formal elements of making or assisting in the making of a false tax return, 8 U.S.C. § 1101(a)(43)(M)(i) refers more broadly to offenses involving fraudulent or deceitful conduct. The crimes of which the Kawashimas were convicted entailed fraudulent or deceitful conduct because both offenses involved knowingly or willfully participating in the filing of a materially false tax return. The Court rejected the Kawashimas’ argument that, because Congress specifically defined certain tax crimes as aggravated felonies in Clause (ii) of the statute, Congress did not intend to include the Kawashimas’ offenses within the broad scope of § 1101(a)(43)(M)(i).