When Circuit Court Judges Disagree

Supreme Court Building

This week’s blog post is coming from San Diego, California and the 2011 American Immigration Lawyers Association Annual Conference.

On May 23, 2011 the U.S. Supreme Court granted a petition for a writ of certiorari in a Ninth Circuit case entitled Kawashima v. Holder. Click here to read the docket from the U.S. Supreme Court.  This case offers a glimpse into the interpretation of immigration and tax law and the functioning of the highest court in the land.

In 1997, Akio Kawashima, a citizen of Japan and lawful permanent resident, plead guilty to subscribing a false statement on a tax return in violation of 26 U.S.C. 7206(1).  This false statement caused a total tax loss to the government of $244,126.

 In 2001, the government commenced removal proceedings against Mr. Kawashima.  In the notice to appear before an Immigration Judge, the government charged Mr. Kawashima as an aggravated felon under the Immigration and Nationality Act (INA) because he is an alien that has been convicted of a crime that involves fraud or deceit where the loss to the victim is more than $10,000.

The government argued that subscribing a false statement on a tax return is a crime that involves fraud and deceit, and that the victim in this case is the US government. Citing a Third Circuit case entitled Ki Se Lee v. Ashcroft, Mr. Kawashima argued that the INA’s “fraud and deceit” aggravated felony definition did not apply to tax cases because the INA’s aggravated felony definition has a separate tax crime section.  Under the INA, an alien is an aggravated felon if they are convicted of tax evasion under 26 USC 7201.  Since Mr. Kawashima was not convicted of tax evasion, he is not an aggravated felon. 

The Immigration Judge and the Board of Immigration Appeals agreed with the government, and the Ninth Circuit in San Francisco, California dismissed Mr. Kawashima’s petition for review, agreeing that there is no reason to exclude tax crimes from the “fraud and deceit” definition of an aggravated felony.

This decision has created a split in the circuits.  Lower courts are bound to follow the decisions of higher courts.  Under the present state of the law, geography plays a factor in the outcome of a deportation case involving subscribing a false statement on a tax return.  An individual who is placed into removal proceedings in the Third Circuit (Delaware, New Jersey, Pennsylvania, and the Virgin Islands) is not an aggravated felon.  An individual in removal proceedings in the nine western states that compose the jurisdiction of the Ninth Circuit Court of Appeal is an aggravated felon.  The US Supreme Court has stepped in to resolve the split in the circuits and give a ruling on the issue that binds all courts across the entire country.

How will the Supreme Court rule on this case?  It’s difficult to say.  On the one hand, some say that the Ninth Circuit Court of Appeal is the most reversed court of appeal in the United States.  On the other hand, one Third Circuit justice on the Ki See Lee panel dissented from the majority opinion.  This justice thought subscribing a false tax return was a “fraud and deceit” aggravated felony that should result in deportation.  The dissenter was Samuel Alito.  Expect oral argument in the fall and a decision next spring.

Copyright 2011 Richard M. Green, All Rights Reserved