New 9th Circuit and BIA Immigration Cases

 **Convictions for willfully making and subscribing to a false statement on a tax return and for aiding and assisting in the preparation of a false tax return constitute aggravated felonies**

This is the third Kawashima opinion.  Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008) (“Kawashima II”) is withdrawn.  The Court first must decide whether Mr. Kawashima’s conviction for willfully making and subscribing to a false statement on a tax return, in violation of 26 USC  § 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 101(a)(43)(M) of the Act 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.”  The Court reaffirms that tax offenses not covered by subsection (M)(ii)’s specific reference to § 7201 qualify as aggravated felonies under subsection (M)(i) where the loss exceeds $10,000. 

The next issue is whether the Kawshimas’ convictinos are aggravated felonies within subsection (M)(i)’s definitions. The Court considers the  Supreme Court’s recent opinion in Nijhawan v. Holder, 129 S. Ct. 2294 (2009), which added a new step to the familiar Taylor categorical/modified-categorical approaches.  The Court must first decide whether a requirement under a generic crime is an “element” of the generic crime instead of simply a description of the “particular circumstances” in which the offender committed the crime on a specific occasion.   If the requirement is an element, the Court applies the Taylor approach.  It it is a “circumstance specific,” the Court ensure that the BIA followed  fundamentally fair procedures” to determine whether the offender’s crime satisfies the description of the generic offense.  Mr. Kawashima’s conviction under section 7206(1) necessarily involved “fraud or deceit,” and the BIA followed fundamentally fair procedures in finding that the offense resulted in a loss to the government of more than $10,000. Specifically, Mr. Kawashima stipulated in the plea agreement that the “total actual tax loss” was $245,126.

Regarding Mrs. Kawashima’s case, a conviction under § 7206(2) necessarily “involves fraud or deceit” and therefore satisfies the first element of an aggravated felony as described in subsection (M)(i).  In Kawashima I, the Court concluded that the ROC did not contain sufficient evidence to establish that her offense resulted in a loss to the government in excess of $10,000.  However, under Nijhawan, it is now clear that the BIA is not limited to only those documents which a court applying the modified categorical approach may review.  The case must therefore be remanded to the BIA so that it may determine, in light of the Supreme Court’s holding in Nijhawan, what types of evidence it may consider to determine the total loss suffered by the government as a result of Mrs. Kawashima’s crime.

Mr. Kawashima argument that his motion to the BIA was a special motion pursuant to 8 C.F.R. § 1003.44 to seek
§ 212(c) relief fails, and the BIA did not erred in denying it as an untimely motion to reopen. 

http://www.ca9.uscourts.gov/datastore/opinions/2010/01/27/04-74313.pdf