Kawashima v. Holder

• Decision Date: 27 January 2010
• Docket Number: No. 05-74408.,No. 04-74313.,04-74313.,05-74408.
• Citation: 593 F.3d 979
• Parties: Akio KAWASHIMA; Fusako Kawashima, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent. Akio Kawashima; Fusako Kawashima, aka Fusako Nakajima, Petitioners, v. Eric H. Holder, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

593 F.3d 979

Akio KAWASHIMA; Fusako Kawashima, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

Akio Kawashima; Fusako Kawashima, aka Fusako Nakajima, Petitioners, v. Eric H. Holder, Jr., Attorney General, Respondent.

No. 04-74313.

No. 05-74408.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2007.

Filed January 27, 2010.

Edward O.C. Ord and Jenny Lin-Alva, Ord & Norman, San Francisco, CA; Thomas J. Whalen, Eckert Seamans Cherin and Mellott, LLC, Washington, DC, for Petitioners.

Nancy Freedman, Office of Immigration Litigation, Washington, DC, argued the cause for the Respondents; Peter D. Keisler, Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Assistant Director, and James A. Hunolt, Senior Litigation Counsel, Office of Immigration Litigation, Washington, DC, were on the brief.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A38-554-590, A38-554-591.

Before DIARMUID F. O'SCANNLAIN, EDWARD LEAVY, and CONSUELO M. CALLAHAN, Circuit Judges.

ORDER

The opinion filed on July 1, 2008, and appearing at 530 F.3d 1111 (9th Cir.2008) is withdrawn. The superseding opinion will be filed concurrently with this order.

The government's "Petition for Rehearing En Banc" is DENIED as moot.

The parties may file new petitions for rehearing or rehearing en banc as provided by Federal Rule of Appellate Procedure 40.

OPINION

O'SCANNLAIN, Circuit Judge:

We are called upon to decide whether petitioners' convictions for subscribing to a false statement on a tax return and for aiding and assisting in the preparation of a false tax return qualify as "aggravated felonies" that subject them to removal under the relevant immigration laws.

This is our third published opinion in this case. In our first opinion, Kawashima v. Gonzales, 503 F.3d 997 (9th Cir. 2007), withdrawn 530 F.3d 1111 (9th Cir. 2008) ("Kawashima I"), we conducted a limited examination of the record of petitioners' convictions to answer such question. One day after our panel opinion was filed, our en banc court decided Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), which caused us to reconsider. We published a second opinion, Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir.2008), withdrawn 593 F.3d 979, 2010 WL 293254 (9th Cir.2010) ("Kawashima II"), in which we answered the question by applying Navarro-Lopez to Kawashima's conviction in light of our circuit's existing caselaw construing the statute defining "aggravated felony."

After we published our second opinion, the government filed a petition for rehearing en banc. While the government's petition was pending before us, the Supreme Court granted certiorari in Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. 2008), cert. granted, ___ U.S. ___, 129 S.Ct. 988, 173 L.Ed.2d 171 (2009). Like the case before us, Nijhawan concerned whether a particular conviction for a financial offense constitutes an "aggravated felony" under relevant immigration laws. After the Court issued its opinion, Nijhawan v. Holder, ___ U.S. ___, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), we ordered the parties to file supplemental briefs on Nijhawan's impact on the case before us. In light of this recent guidance from the Court, we issue this hopefully final opinion in this litigation.

I

Akio Kawashima and Fusako Kawashima¹ are natives and citizens of Japan. The Kawashimas were admitted to the United States as lawful permanent residents on June 21, 1984.

In 1997, Mr. Kawashima pled guilty to subscribing to a false statement on a tax return, in violation of 26 U.S.C. § 7206(1). In his plea agreement, he stipulated that the "total actual tax loss" for the purpose of determining his offense level under the Sentencing Guidelines was $245,126. Mr. Kawashima further conceded that he could be ordered to pay the same amount in restitution. On the same date, Mrs. Kawashima pled guilty to aiding and assisting in the preparation of a false tax return, in violation of 26 U.S.C. § 7206(2). Her plea agreement was not included in the record before us.

On August 3, 2001, the Immigration and Naturalization Service² issued separate Notices to Appear to the Kawashimas alleging that the couple was removable because their prior convictions constituted aggravated felonies under 8 U.S.C. § 1101(a)(43)(M)(i) ("subsection M(i)") (defining as an aggravated felony any offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000"). See id. § 1227(a)(2)(A)(iii) (stating that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable").³

After holding a removal hearing, an Immigration Judge ("IJ") concluded that the Kawashimas' convictions were aggravated felonies under subsection M(i). Accordingly, the IJ found the Kawashimas removable, denied their motion to terminate the proceedings, and ordered that they be removed to Japan.

The Kawashimas appealed the decision, and the Board of Immigration Appeals ("BIA") remanded because the transcript containing the testimony of the hearing and the IJ's oral decision was defective. After further proceedings, the IJ again denied the Kawashimas' motion to terminate proceedings and ordered them removed to Japan. The BIA affirmed and adopted the IJ's decision.

The Kawashimas subsequently filed a motion to reopen seeking waiver of inadmissibility under the Immigration and Nationality Act ("INA") § 212(c), 8 U.S.C. § 1182(c) (repealed 1996). The BIA denied the motion as untimely.

The Kawashimas timely filed separate petitions for review of the BIA's affirmance of the IJ's removal order and the BIA's denial of their motion to reopen. We consolidated the petitions for review pursuant to 8 U.S.C. § 1252(b)(6). We consider each in turn.

II

A

We are faced with the task of determining whether Mr. Kawashima's conviction for willfully making and subscribing to a false statement on a tax return, in violation of § 7206(1), and Mrs. Kawashima's conviction for aiding and assisting in the preparation of a false tax return, in violation of § 7206(2), constitute aggravated felonies. Section 1101(a)(43)(M) defines an "aggravated felony" to include "an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000." 8 U.S.C. § 1101(a)(43)(M)(i)-(ii).

As a threshold statutory interpretation matter, we must decide whether tax offenses other than those described in § 7201 qualify as aggravated felonies under subsection (M)(i).⁴ In their supplemental brief to this court, the Kawashimas renew their argument, first raised in their opining brief, that subsection (M)(i) is inapplicable in this case. They reason that subsection (M)(ii)'s specific reference to § 7201 indicates Congress's intent to exclude all federal tax offenses from the definition of aggravated felonies under the more general subsection (M)(i). In our initial opinion in this case, we rejected this argument. Kawashima v. Gonzales ("Kawashima I"), 503 F.3d 997, 999-1001 (9th Cir.2007). Our ultimate view of this issue remains unchanged.

The plain text of subsection (M)(i) sets forth two requirements for an offense to qualify as an aggravated felony. First, the offense must "involve fraud or deceit." Second, the "loss to the victim or victims" must exceed $10,000. Ferreira v. Ashcroft, 390 F.3d 1091, 1096 (9th Cir.2004). In our view, §§ 7206(1) and (2) necessarily "involve fraud or deceit" because the provisions require the government to prove either that the defendant "willfully" subscribed to a statement in a tax return he did not believe to be true, or that the defendant "willfully" aided and assisted in the making of a false or fraudulent return. Moreover, because the government is a qualifying victim, see, e.g., Balogun v. U.S. Attorney Gen., 425 F.3d 1356, 1361 (11th Cir.2005), a tax loss in excess of $10,000 satisfies the second prong of subsection (M)(i). Thus, according to the plain meaning of the statutory language, convictions for violating §§ 7206(1) and (2) in which the tax loss to the government exceeds $10,000 constitute aggravated felonies under subsection (M)(i). Arguelles-Olivares v. Mukasey, 526 F.3d 171, 175 (5th Cir. 2008). And because such interpretation does not lead to an absurd or unreasonable result, our inquiry must end.⁵

We recognize that a divided panel of the Third Circuit reached a contrary conclusion in Ki Se Lee v. Ashcroft, 368 F.3d 218 (3d Cir.2004).⁶ There, the court found that the presence of subsection (M)(ii) reflected Congress's intent to specify tax evasion as the only removable tax offense, and thereby exclude tax offenses from the scope of subsection (M)(i). Writing in dissent, however, then-Judge (now Justice) Alito concluded that the plain text of subsection (M)(i) did not preclude the inclusion of tax offenses within its definition of aggravated felonies. Id. at 226 (Alito, J., dissenting). We are persuaded by Judge Alito's interpretation of the statute.

The court in Ki Se Lee applied two interpretive canons in support of its reading. First, the court applied the canon that prescribes that, whenever possible, a statute should be interpreted to avoid rendering other provisions superfluous. Id. at 223. In the court's view, reading subsection (M)(i) to include tax offenses would render subsection (M)(ii) superfluous because any of the tax evasion offenses described by § 7201 would fall within the scope of subsection (M)(i)'s "fraud or deceit" provision. Id. at 222-23. Second, the court applied the familiar canon that the "specific governs the general." Id. at 223. Noting that subsection (M)(i) is a general provision that covers "fraud and deceit" and subsection (M)(ii) is a narrower provision that only covers federal tax evasion, the court reasoned that this canon also...