Tuesday, February 21, 2012

Supreme Court Finds that Tax Crime an "Aggravated Felony" Subjecting Immigrant to Removal

The U.S. Supreme Court, in majority (6-3) decision written by Justice Thomas, today decided Kawashima v. Holder, affirming the Ninth Circuit's holding that a tax crime was an "aggravated felony" subjecting an immigrant to removal. Justice Ginsburg dissented. For discussion of the issues in the case, and links to the briefs, click here.

The issue before the Court was (1) whether the Ninth Circuit erred in holding that Petitioner's convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return were "aggravated felonies" involving fraud and deceit and Petitioners were therefore removable. The Court answered in the affirmative.

My sense is that the Court's decision in Kawashima v. Holder will not have many ripple effects on immigration cases generally. The Court engages, as often is the case, in a debate over statutory construction of the complex immigration laws. A majority reads the statute in favor of deportation of the immigrant.

At various times, the Supreme Court has applied the "rule of lenity" to interpret ambiguities in a deportation statute in favor of the noncitizen fighting deportation. Justice Thomas and the majpority did not seem to see any ambiguities in the removal statute and basically ignored the rule of lenity. This is not extraordinary. The Court frequently ognores the rule in removal cases – probably just as often as it is invoked. Justice Thomas found the statute clear enough so that he did not even feel it necessary to mention the rule.

In contrast, Justice Ginsburg in dissent relied on the rule of lenity as a basis for her interpretation of the statute in favor of the noncitizen.

I see this as a run-of-the-mill statutory interpretation case. Justice Thomas focuses on the plain meaning of the statute and Justice Ginsburg reads more into the statutory text (and structure of the two sub-sections).

Ultimately, I do not see this immigration case having much of an impact on immigration cases.

For a recap of the decision by Kevin Russell on SCOTUSBLOG, click here.



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