Wednesday, February 22, 2012
High Court Upholds Local Resident’s Deportation for Tax Fraud
By KENNETH OFGANG, Staff Writer
Tax fraud is an aggravated felony for immigration purposes if it costs the government more than $10,000, the U.S. Supreme Court ruled yesterday.
In a 6-3 decision, the justices affirmed a ruling by the Ninth U.S. Circuit Court of Appeals, upholding a deportation order against Akio Kawashima. Kawashima and his wife, Fusako Kawashima, have lived in this country since 1984 and owned Cho Cho San restaurants in Tarzana and Thousand Oaks, according to a news account of their plea.
The couple entered into plea agreements in 1997. Akio Kawashima pled guilty to willfully making and subscribing a false return, and his wife to aiding and assisting in the preparation of a false return.
After they were sentenced on the pleas, the Immigration and Naturalization Service served them with deportation notices. An immigration judge ruled that their crimes constituted aggravated felonies, making them removable from the country.
The IJ relied on a section of the Immigration and Nationality Act that makes a crime involving “fraud or deceit” or the crime of tax evasion an aggravated felony if it results in financial loss exceeding $10,000.
The Ninth Circuit ruled that the crimes for which the Kawashimas were convicted necessarily involved fraud and deceit. In Akio Kawashima’s case, the court said, his plea agreement established that the government lost more than $10,000 so the removal order was appropriate.
News accounts of the case have put the government’s losses at between $245,000 and $1 million.
As for Fusako Kawashima, the Ninth Circuit panel found that the losses resulting from her crime were not established by her plea agreement, and ordered that the Board of Immigration Appeals reconsider the removal order.
The couple asked for review, saying they faced “the irreversible sanction of exile” on a disputed definition of aggravated felony as to which the Third Circuit had reached a completely different conclusion. The justices took the case, but Justice Clarence Thomas wrote yesterday that the Ninth Circuit was correct.
The crimes, Thomas said, clearly meet the widely understood definitions of the words “fraud” and “deceit.” He also rejected contentions that by treating tax evasion distinctly under the statute, Congress was expressing an intent not to treat less serious tax crimes as aggravated felonies.
Chief Justice John Roberts and Justices Antonin Scalia, Sonia Sotomayor, Anthony Kennedy, and Samuel Alito joined in the opinion.
Justice Ruth Ginsburg, joined by Justices Stephen Breyer and Elena Kagan, dissented.
“The court’s reading sweeps a wide variety of federal, state, and local tax offenses -including misdemeanors - into the ‘aggravated felony’ category,” Ginsburg wrote. “In addition, today’s decision may discourage aliens from pleading guilty to tax offenses less grave than tax evasion, thereby complicating and delaying enforcement of the internal revenue laws.”
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