THE SINS OF THE FATHER

In 2001, Salar Khoshfahm immigrated to the United States from his native Iran with his parents and siblings. Khoshfahm was thirteen years old. A few months after immigrating to the United States the Khoshfahm family returned to Iran to sell the property they owned to raise money to live in the United States. A week after they returned to Iran, the September 11 attacks occurred, making travel to and from the United States Difficult. The Khoshfahm family always intended to return to the United States, but as they prepared to return, Khoshfahm's father was diagnosed with a heart condition which prevented him from traveling. Khoshfahm also was prevented from leaving Iran because of compulsory military service.

On February 28, 2007, a month after turning eighteen and after obtaining a waiver of the military service requirement, Khoshfahm arrived at the San Francisco International Airport. He presented his Iranian passport, green card, and told the immigration officer that he had been out of the United States for six years. Lawful Permanent Residency is not so permanent. A green card holder runs the risk of abandoning their residency if they fail to maintain a residence in the United States and return from a trip abroad that is "relatively short".

After hearing that Khoshfahm had been out of the US for six years, the immigration officer referred Khoshfahm to the Immigration Court for review of their finding of inadmissibility as an alien who had abandoned his permanent residence and was not in possession of a returning resident visa. The Immigration Judge found that Khoshfahm had indeed abandoned his residency and that he was inadmissible. The Board of Immigration Appeals summarily affirmed, and Khoshfahm sought review of the government's decision before the Ninth Circuit Court of Appeal in San Francisco.

When an alien that has a colorable claim to returning resident status, the government has the burden of proving that the alien is not eligible for admission to the United States as a returning resident. In Khoshfahm's case the court concluded that the government had not carried its burden. Since from the day of his departure to his eighteenth birthday, Khoshfahm was an unemancipated minor, the court looked to the intent of Khoshfahm's father to return. Since Khoshfahm submitted evidence of his father's desire to return to the United States and the difficulties encountered by of the 9/11 terrorist attacks and his health, and that subsequent to the commencement of removal proceedings that Khoshfahm's father return to the United States and was admitted as a returning resident, the court concluded that Khoshfahm had not abandoned his residency. Since Khoshfahm returned to the US shortly after turning eighteen and after obtaining a waiver from military service in Iran, his intent to return was clear.

The court held that Khoshfahm is a lawful permanent resident and not removable.

Copyright 2011 Richard M. Green

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