Akio and Fusako Kawashima plead guilty to tax offenses. Akio plead to willfully making and subscribing a false tax return in violation of 26 U. S. C. §7206(1). Fusako plead to aiding and assisting in the preparation of a false tax return in violation of 26 U. S. C. §7206(2). They are lawful permanent residents, citizens of Japan. The Immigration and Naturalization Service started the deportation process following their convictions.

Under the Aliens and Nationality Code (8 U.S.C) anyone who has committed an aggravated felony is deportable. An aggravated felony is defined as one that either : “(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.” There is no doubt that the Kawashimas’ crimes involve fraud and deceit in which the government lost over $10,000. But they claim that they are only deportable for committing a tax offense if they were convicted on under clause two with violating 26 U.S.C. 7201. Since they did not plead to a violation of section 7201 they would not be deportable. This makes some sense since if section (i) refers to all crimes involving fraud and deceit section (ii) is duplicative and unnecessary. However the Supreme Court held that the plain language of clause (i) which reads:

The term ‘aggravated felony’ means—
. . . . .
“(M) an offense that—
“(i) involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000;

While the normal rule that is accepted by Justice Ginsberg in her dissent is that legislation should not be interpreted in such a way that two sections duplicate each other the majority held that clause one clearly refers to all statutes involving fraud or deceit with a loss of over $10,000 including tax offenses overcomes the normal rule of statutory interpretation avoiding duplicative sections.

The Supreme Court again considered the issue of what is an aggravated felony for immigration purposes this week in Nijhawan v. Holder. In immigration law the question is an important one because convictions for aggravated felonies lead to deportation.

Aggravated felonies are defined in 8 U. S. C. 1101(a)(43). At question in Nijhawan is subdivision (M)(i) which involves offenses that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000. The question is what convictions involve a loss of over $10,000. There are two ways to look at it. The first is called the categorical or generic method. It says that anyone who is found guilty of fraud or deceit where the crime necessarily involves a loss of $10,000 is guilty of a crime involving an aggravated felony. For example if there was a crime called Fraud Involving a Loss of Over $10,000 and Mr. Nijhawan was found guilty of it, using the generic or categorical method he would be guilty of an aggravated felony. The problem is there are very few such crimes. In fact, Mr. Nijhawan was found guilty of conspiring to commit mail fraud, wire fraud, bank fraud, and money laundering. The crimes do not list a specific amount of loss. Thus using the generic or categorical method he is not deportable. This leads to the second possible way to define a aggravated felony. It is to look at the specific conduct of the individual. At sentencing on the fraud case Mr. Nijhawan stipulated that the loss was over a 100 million dollars. If you consider the actual conduct Mr. Nijhawan is deportable.

In cases under the Armed Career Criminal Act (ACCA) the courts have used the generic or categorical method. The court noted that in interpreting the ACCA courts have found that it is difficult to go back later, often only on a paper record and use the actual conduct method. Furthermore. The ACCA and Section 1101 list many actual crimes susceptible to to the generic or categoric method.

But the Supreme Court decided to use the actual conduct method. It pointed out that Congress could not have intended to use the generic or categorical methods since so few crimes would be applicable. Furthermore, the language of Section 1101 seems to imply that the conduct method should be used. For example, some offenses are only aggravated felonies if it is not the first conviction for the offense or other offenses are only aggravated felonies if the defendant had a commercial intent. In these cases only the actual conduct method appears to be applicable.

Holding that Section 1101 involves the actual conduct method the Supreme Court upheld the deportation of Mr. Nijhawan who fraudulently obtained over 100 million dollars.