Kawashima v. Holder, 565 U.S. ___, 132 S. Ct. 1166 (2012).
In a 6-3 decision [1] written by Justice Thomas, the Supreme Court affirmed a Ninth Circuit decision holding that convictions for committing and aiding tax evasion in which the Government’s loss exceeds $10,000 qualify as aggravated felonies under INA § 101(a)(43)(M)(i) and therefore, are deportable offenses. In so holding, the Court resolved a circuit split between the Third and Ninth Circuits in favor of the latter. Compare Ki Se Lee v. Ashcroft, 368 F.3d 218 (3d Cir. 2004) with Kawashima v. Holder, 615 F.3d 1043 (9th Cir. 2010).
The Court began its analysis by stating that it will employ the categorical approach by looking to the statutory definition of the crime rather than the specific facts of the case. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007). First, the Court found that the elements of the tax crimes at issue, 26 U.S.C. § 7206(1) and (2), clearly establish that commission of the crimes involves fraud or deceit. Second, the Court addressed the Petitioners’ argument that INA § 101(a)(43)(M)(i) must be read in conjunction with INA § 101(a)(43)(M)(ii), and because clause (ii) references a specific tax crime (not at issue here), Congress did not intend clause (i) to cover tax crimes as well. The Court rejected that argument, concluding that the two clauses are not mutually exclusive and thus tax crimes are not excluded from clause (i).
Justice Ginsburg, joined by Justices Breyer and Kagan, issued a dissent in which she challenged the Court’s “dubious” statutory interpretation.