Kawashima v. Mukasey

• Decision Date: 01 July 2008
• Docket Number: No. 05-74408.,No. 04-74313.,04-74313.,05-74408.
• Citation: 530 F.3d 1111
• Parties: Akio KAWASHIMA; Fusako Kawashima, Petitioners, v. Michael B. MUKASEY, Attorney General, Respondent. Akio Kawashima; Fusako Kawashima, aka Fusako Nakajima, Petitioners, v. Michael B. Mukasey, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

530 F.3d 1111

Akio KAWASHIMA; Fusako Kawashima, Petitioners, v. Michael B. MUKASEY, Attorney General, Respondent.

Akio Kawashima; Fusako Kawashima, aka Fusako Nakajima, Petitioners, v. Michael B. Mukasey, Attorney General, Respondent.

No. 04-74313.

No. 05-74408.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2007.

Filed July 1, 2008.

Edward O.C. Ord and Jenny C. Lin-Alva, Ord & Norman, San Francisco, CA; Judith L. Wood, Law Offices of Judith L. Wood, Los Angeles, CA, argued the cause for the petitioner, and filed briefs; Todd Beacraft, Law Offices of Judith L. Wood, Los Angeles, CA, was on the briefs.

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

Petitioner's "Amended Petition for Rehearing With a Suggestion for an En Banc Hearing" is GRANTED. The opinion filed on September 18, 2007, and appearing at 503 F.3d 997 (9th Cir.2007) is withdrawn. The superseding opinion will be filed concurrently with this order.

Petitioner's "Motion For Leave to File a Response to the Reply of the United States to the Appellant's Amended Petition for Rehearing" 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

PER CURIAM:

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. In our previous opinion in this case, Kawashima v. Gonzales, 503 F.3d 997 (9th Cir.2007), withdrawn 530 F.3d 1111, 2008 WL 2579212 (9th Cir.2008), we conducted a limited examination of the record of petitioners' convictions to answer this 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 causes us to reconsider our analysis.

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) and consider each in turn.

II

We must first decide whether the Kawashimas' convictions qualify as aggravated felonies under Subsection M(i). To do so, we rely on the familiar two-step test set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 818, 166 L.Ed.2d 683 (2007) (acknowledging that the courts of appeals have "uniformly" relied on Taylor for this inquiry). First, we "look to the statute under which the [petitioner] was convicted and compare its elements to the relevant definition of an aggravated felony in 8 U.S.C. § 1101(a)(43).... Under this categorical approach, an offense qualifies as an aggravated felony if and only if the full range of conduct covered by the [statute of conviction] falls within the meaning of that term." Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir.2004) (internal quotation marks and citation omitted).

If the statute of conviction proscribes a broader range of conduct than the relevant definition of an aggravated felony, we move to the modified categorical analysis, and conduct a "limited examination of documents in the record of conviction,"⁴ asking whether such documents provide "sufficient evidence to conclude that the alien was convicted of the elements of the generically defined crime even though his or her statute of conviction was facially overinclusive." Id. (internal quotation marks and citation omitted).

In this case, Subsection M(i) defines as an aggravated felony any offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." 8 U.S.C. § 1101(a)(43)(M)(i). We have held previously that "[t]his particular statutory definition of an aggravated felony ... has two elements: (1) the offense must involve fraud or deceit, and (2) the offense must also have resulted in a loss to the victim or victims of more than $10,000." Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002). Accordingly, the Kawashimas are removable only if they were convicted of both elements. Id. at 1189-91; Li v. Ashcroft, 389 F.3d 892, 897 (9th Cir.2004).

A

We begin with the categorical approach. Mr. Kawashima pled guilty to subscribing to a false statement on a tax return, in violation of 26 U.S.C. § 7206(1).⁵ 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).⁶ Neither statute requires proof of monetary loss in excess of $10,000. See Li, 389 F.3d at 896. Thus, both are "too broad to be a categorical match" for Subsection M(i) and the Kawashimas' prior convictions do not qualify as aggravated felonies under the categorical approach. See Chang, 307 F.3d at 1189.

B

We have reached this point in the Taylor analysis on four occasions in the past when comparing statutes of conviction lacking a monetary loss element to Subsection M(i) and each time we have turned to the record of conviction to determine whether the jury actually found, or the petitioner (as defendant) necessarily admitted a loss to the victim in excess of $10,000. See Kharana v. Gonzales, 487 F.3d 1280, 1284 (9th Cir.2007); Ferreira, 390 F.3d at 1098; Li, 389 F.3d at 897; Chang, 307 F.3d at 1189-90. Sitting en banc in Navarro-Lopez, however, we curtailed our reliance on the record of conviction in circumstances such as these.

In Navarro-Lopez, we held that a petitioner's conviction for accessory after the fact under California state law was not categorically a "crime involving moral turpitude" as defined in the INA because the California statute under which petitioner was convicted proscribed a "broader" range of conduct than the generic definition that the INA provides. 503 F.3d at 1071 (interpreting California Penal Code section 32). Specifically, we explained that a "crucial element" of a crime involving moral turpitude is that the offense "involve some level of depravity or baseness," and that the California statute did not include "grave acts of baseness or depravity." Id. Then, turning to Taylor's second step, we held that

The modified categorical approach ... only applies when the particular elements in the crime of conviction are broader than the generic crime. When the crime of conviction is missing an element of the generic crime altogether, we can never find that "a jury was actually required to find all the elements of the generic crime. See Li v. Ashcroft, 389 F.3d 892, 899-901 (9th Cir.2004) (Kozinski, J., concurring) (providing examples).

Id. at 1073. Because we concluded that the California statute "lack[ed] an element of the generic crime—i.e., the moral turpitude, the requisite depravity," we held that Taylor prohibited us from examining the record of petitioner's conviction to determine whether he was, in fact, convicted of such an act. Id. As we explained,

The crime of conviction can never be narrowed to conform to the generic crime because the jury is not required—as Taylor mandates—to find...