The Supreme Court today granted cert on a case in which the Ninth Circuit held that filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were fraud or deceit aggravated felonies, INA § 101(a)(43)(M)(i). The question presented in Kawashima v. Holder, No. 10-577, the case the Court will hear next term, is:
“Whether, in direct conflict with the Third Circuit, the Ninth Circuit erred in holding that Petitioners’ convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were aggravated felonies involving fraud and deceit under 8 U.S.C. § 1101(a)(43)(M)(i), and Petitioners were therefore removable.”
The Court did not grant cert on a separate civil procedure related issue.
The Ninth Circuit’s decision in this case was reported at 615 F.3d 1043 (9th Cir. 2007). In its decision, the Ninth Circuit “conclude[d] that tax offenses not covered by subsection (M)(ii)’s specific reference to § 7201 qualify as aggravated felonies under subsection (M)(i) where the loss exceeds $10,000.” Kawashima, 615 F.3d at 1054.
The fraud or deceit aggravated felony provision requires a loss to the victim in excess of $10,000. INA § 101(a)(43)(M)(i). This is the same provision that the Court addressed in Nijhawan v. Holder, 129 S. Ct. 2294 (2009), in which the Court held that the loss to the victim does not have to be an element of the offense.