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.