305 371-8101

Tax Conviction Supported Deportation

KAWASHIMA v. HOLDER, 32 S. Ct. 1166 (2012)

Defendant aliens were convicted of offenses relating to a false tax return. The aliens were ordered removed by the respondent U.S. Attorney General for being convicted of aggravated felonies involving fraud or deceit under 8 U.S.C.S. § 1101 (a)(43). Upon the grant of a writ of certiorari, the aliens appealed the judgment of the U.S. Court of Appeals for the Ninth Circuit, which upheld the removal order.

The aliens contended that their offenses of willfully making and subscribing a false tax return, and willfully aiding and abetting such conduct, were not aggravated felonies warranting removal because the offenses did not mention fraud or deceit, and the formal elements of the offenses did not include fraud or deceit.

The U.S. Supreme Court held that, although fraud or deceit were not formal elements of the aliens' tax offenses, the offenses were aggravated felonies since the offenses necessarily entailed deceitful conduct. Both knowingly and willfully submitting a tax return that was false as to a material matter, and knowingly and willfully abetting such conduct, involved deceit that met the definition of an aggravated felony warranting removal.

Further, the fact that an aggravated felony also expressly included the offense of tax evasion did not establish that removal based on fraud or deceit was inapplicable to tax crimes, since there was no congressional intent to remove all tax crimes from removable conduct based on fraud and deceit or to circumscribe the broad scope of offenses involving fraud or deceit.

The judgment upholding the removal order was affirmed.