On February 23, 2012, the U.S. Court of Appeals for the Second Circuit denied a petition for review in Crocock v. Holder. I found it to be a sad case. Before he applied for a green card, Mr. Crocock had a job where he filled out an I-9 form and indicated that he was a United States citizen. The I-9 is the form that employers are required to make their employees fill out to make sure that they are legally permitted to work in the United States. Holding oneself out as a United States citizen is a bar to getting a green card. It is also a ground for being placed in deportation proceedings before an immigration judge. The Second Circuit held that he was barred from getting a green card and upheld his deportation order. I wish that I could criticize the decision or say that the Second Circuit was wrong. However, the Second Circuit was 100% correct. The immigration laws are very clear that falsely claiming to be a United States citizen carries very harsh penalties. Many people who are illegal in this country have false papers, in order to work illegally. This case is a wake up call to undocumented aliens about the dangers of using false papers and lying, in order to work illegally. When you lie about being a United States citizen, you are putting yourself in a position where you will never be able to get a green card. While this case involved an undocumented alien that claimed to be a citizen, lawful permanent residents that falsely claim to be a U.S. citizen also face severe immigration penalties.
Supreme Court Holds that Filing False Tax Return is an Aggravated Felony
On February 21, 2012, the U.S. Supreme Court rendered a decision in Kawashima v. Holder that held that filing a false tax return in violation of 26 U.S.C. § 7206 where the loss to the government exceeds $10,000 is an aggravated felony. In my practice, I often meet with clients and discover that they have under reported their income on their taxes. Practically all immigration matters require submitting tax returns, whether you are filing for adjustment of status, naturalization or in immigration court. When it is obvious that my clients have under reported their income, I always direct my clients to go to an accountant and amend their taxes. Despite the fact that I encounter so many people who under report their income, I rarely ever see individuals who are prosecuted for doing so. Based upon the Kawashima decision, if someone gets caught and convicted of filing a false tax return involving $10,000 or more, they can be classified as an aggravated felony. In deportation proceedings, there is virtually no relief from being classified as an aggravated felony, so for many people being classified as an aggravated felon results in their deportation.
I find this decision interesting for several reasons:
1. The decision was rendered by Justice Clarence Thomas. There was a 6-3 majority. Among the Justices joining Justice Thomas in the majority was Justice Sonya Sotomayor. When Justice Sotomayor was being confirmed, conservative pundits attacked her as being a liberal activist. However, the fact that she has joined in a decision by Justice Thomas shows that they were wrong – she is an open minded judge and is not bound by any ideology.
2. The offense that the Kawashimas were convicted of did not contain the words “fraud” or “deceit.” However, since the offense was committed under penalty of perjury, Justice Thomas found that it was an offense involving “fraud” or “deceit.”
3. Justice Thomas used an even more novel construction of the INA to find the Kawashimas removable. INA § 101(a)(43)(M) provides:
The term ‘aggravated felony’ means—
. . . . .
(M) 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 Kawashimas were convicted under section 7206, not 7201, so they argued that they didn’t fall under clause (ii). The Kawashimas argued that they didn’t fall under clause (i) because that provision involves a loss to a “victim” and only clause (ii) involves a loss to the “government.” Justice Thomas took an overly broad reading of the statute to conclude that loss to a “victim” includes the government. I find this interesting because Justice Thomas is supposed to be a conservative judges and conservative judges are supposed to read statutes narrowly.
ICE Announces Creation of Public Advocate
The Department of Homeland Security’s (“DHS”) website has announced that the Immigration and Customs Enforcement (“ICE”) has created a new position: Public Advocate and Senior Advisor. The position will be held by Andrew Lorenzen-Strait. According to the announcement, the Public Advocate position primarily involves assisting individuals and community organizations with their complaints and concerns. I find it both fascinating and wonderful that a law enforcement agency would create a Public Advocate position. The most incredible part of the announcement is not just that the position has been created, but the statement that:
As we work to enact significant policy changes to focus the agency’s immigration enforcement resources on sensible priorities, implement policies and processes that prioritize the health and safety of detainees in our custody while increasing federal oversight, and improve the conditions of confinement within the detention system, I will strive to expand and enhance our dialogue with the stakeholder community.
I really hope that this portion of the announcement is true. It would be wonderful if ICE focused its enforcement resources on sensible priorities and improved the conditions of confinement. I’ve yet to see any signs of improvement for any of my detained clients.
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