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Argument preview: Kawashima v. Holder

On Monday, the Court will hear oral argument on the question whether filing a false tax return can subject an immigrant to deportation.

Akio and Fusako Kawashima, the petitioners in Kawashima v. Holder, have been lawful permanent residents of the United States since 1984.  In 1997, Mr. Kawashima was convicted of filing, and his wife was convicted of helping him to file, a false corporate tax return that understated their income and therefore deprived the government of owed tax revenue – violations of Section 7206 of the tax code.

A provision of immigration law allows the government to deport anyone who is convicted of an “aggravated felony.”  Originally, the term was defined narrowly to include crimes like murder and drug trafficking.  But over time, Congress has expanded the definition, so that it now includes any 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.”

Because the Kawashimas were convicted of filing a false return (a violation of Section 7206 of the tax code), rather tax evasion (a violation of Section 7201), they were not subject to deportation under the second part of the definition quoted above.  Nonetheless, the government initiated deportation proceedings against them on the theory that filing a false tax return is a form of “fraud or deceit” within the meaning of the first part of the definition.  (There is no dispute that the crime resulted in a loss of more than $10,000 to the government.)

The question before the Supreme Court, then, is whether Congress meant for the broader fraud subsection to encompass tax violations that were left out of the second subsection, which directly speaks to tax evasion.

The Kawashimas argue that by specifically addressing tax violations in subsection (ii), but limiting that subsection to tax evasion, Congress demonstrated its intent to leave other kinds of tax violations outside the definition of an “aggravated felony.”  The government argues that tax evasion is uncontestably a form of “fraud or deceit” and therefore falls within the plain text of subsection (i).  The fact that Congress also specifically mentioned tax evasion in a separation subsection, the government contends, simply shows that Congress wanted to be especially sure that courts understood that tax evasion was among the kinds of fraud it intended to result in deportation.

Recommended Citation: Kevin Russell, Argument preview: Kawashima v. Holder, SCOTUSblog (Nov. 6, 2011, 7:01 PM),