SCOTUS: Aliens who file false tax returns may be deported

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Last week, the US Supreme Court held, in Kawashima v. Holder, that lawful permanent residents of the United States who file, or aid in doing so, false tax returns that result in revenue loss to the government in excess of $10,000, can be deported for committing “aggravated felonies” under the Immigration and Nationality Act.

Lawful permanent residents of the US Akio and Fusako Kawashima pled guilty to willfully making and subscribing a false tax return in violation of 26 USC § 7206(1), and to aiding and assisting the preparation of a false tax return in violation of 26 USC § 7206(2). The US Citizenship and Immigration Services (USCIS) tried to deport the Kawashimas from the US under the INA clause that allows deportation of aliens convicted of an “aggravated felony.”

The Green Card is not green

Under Clause (i) of Section 1101(a)(43)(M) (“Clause (i)”), aggravated felonies include crimes involving fraud or deceit which result in a loss to the victim exceeding $10,000. Under Clause (ii) of Section 1101(a)(43)(M) (“Clause (ii)”), aggravated felonies include tax evasion crimes that result in a loss of government revenue exceeding $10,000.

The Kawashimas tried to argue at their deportation hearing that convictions for filing false tax returns are not aggravated felonies under Section 1101(a)(43)(M). The Board of Immigration Appeals disagreed with the Kawashimas, and the couple appealed to the US Court of Appeals for the Ninth Circuit, which held that they violated Clause (i).

The US Supreme Court, in a six to three decision, affirmed the decision of the Ninth Circuit. SCOTUS ruled that tax crimes that result in revenue loss to the government in excess of $10,000 are “aggravated felonies” under Clause (i) because such crimes entail deceitful conduct and the Congress did not intend to remove these crimes from the broad umbrella of Clause (i) crimes. Justices Ginsburg, Breyer and Kagan dissented.

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