U.S. Supreme Court to decide if false tax return triggers deportation

By Kimberly Atkins

Dolan Media Newswires

The U.S. Supreme Court has agreed to decide whether filing a false statement on a tax return is an aggravated felony, rendering a defendant deportable under federal immigration law.

The defendants in the case, a Japanese married couple who were permanent residents, pled guilty to understating their income on their corporate tax return in violation of 26 U.S.C. §7206(1). The husband's plea agreement stipulated that he would pay $245,126 as restitution for the underpayment of taxes, but neither plea agreement included any admission of fraud or deceit.

The Immigration and Naturalization Service (now the Bureau of Immigration and Customs Enforcement) issued the defendants notices to appear, alleging that the conviction rendered them removeable because the crime constituted an aggravated felony under 8 U.S.C. §1101(a)(43) (M)(i). That law defines ''aggravated felony'' as ''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 immigration judge ordered the defendants be deported, and the Board of Immigration Appeals (''BIA'') denied the defendants' motion to terminate the proceeding and ordered them removed.

The case made several trips to the 9th Circuit and back down to the trial court level on a series of substantive and procedural matters, finally landing back before the 9th Circuit on the issue of whether the defendants' tax crimes constituted ''aggravated felonies'' under 8 U.S.C. § 1101(a)(43)(M)(i).

The court held that they did, since the loss to the government was in excess of $10,000. In a short order, the court remanded the case to the BIA to determine whether the evidence in the record was sufficient to establish the total loss to the government as a result of the wife's crime.

A decision from the Supreme Court is expected next term.

Kawashima v. Holder, No. 10-577. Certiorari granted May 23, 2011. Ruling below: 615 F.3d 1043 (9th Cir. 2010).

Published: Mon, Jun 13, 2011

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