On November 7, the Supreme Court heard oral arguments in the case of Kawishima v. Holder on the issue of whether tax fraud constitutes an aggravated felony under Section 101(a)(43) of the Immigration and Nationality Act (“INA” or “Act”). Mr. and Mrs. Kawishima pled guilty and were convicted of filing a false corporate tax return in 1997. They are now seeking cancellation of removal, but will be precluded from this form of relief if it is found that they committed an aggravated felony.
Under INA § 101(a)(43)(M)(i), an offense that involves fraud or deceit in which the loss to the victim(s) exceeds $10,000 can be an aggravated felony. The question in Kawishima is whether filing a tax return with false statements constitutes the fraud or deceit required by that subsection. Currently, there is a circuit split on this issue— the Ninth Circuit holding that the Kawishimas did commit an aggravated felony by including false statements on their tax returns, and the Third Circuit holding, in a similar case, that such actions do not constitute an aggravated felony.
The impact of the Kawishima ruling will prove significant, as what exactly constitutes an Aggravated Felony has been a long contested issue. Additionally, the Kawishima case relates to the recent Supreme Court ruling in Padilla v. Kentucky, in which the Court ruled that immigrants must be informed of the immigration consequences prior to pleading guilty to certain crimes. There has been a question as to whether the Padilla ruling should apply retroactively to people, like the Kawishimas, who may not have known their guilty pleas would bear immigration consequences. It is unknown when a decision on this case will be issued, but the decision will no doubt be a significant one for the immigration community.
A detailed recap of the arguments in Kawishima can be found here. For additional information, please contact Jennifer Roeper, Board Certified Immigration and Nationality Law attorney.
Supreme Court to Decide Whether Tax Fraud is an Aggravated Felony
