Tuesday, February 21, 2012

Supreme Court Rules Tax Perjury and Aiding & Assisting Are Deportable Aggravated Felonies (2/21/12)

The Supreme Court today decided Kawashima v. Holder, ___ U.S. ___, _132 S. Ct. 1166 (2012), here.

The bottom line is that tax perjury (Section 7206(1)) and aiding and assisting (Section 7206(2)) involving tax loss exceeding $10,000 are aggravated felonies.  I will write more on the decision, probably tomorrow after I have worked through it and the dissents.  Just FYI, the majority opinion is by Justice Thomas.  The minority opinion is by Justice Ginsburg with Justices Breyer and Kagan concurring.

Justice Thomas' majority opinion is straight-forward in its critical holding.  The aggravated felony provision applies if the crime involves "fraud or deceit."  8 U. S. C. §1101(a)(43)(M)(i).  Tax perjury (Section 7206(1)) and aiding and assisting (Section 7206(2)) require deceit as a necessary element of the crimes.  Therefore, this is an aggravated felony.  This is straight-forward application of the statutory text, without any consideration of subtlety or nuance.

Justice Thomas then rejects the arguments the petitioners made to avoid a straight-forward application of the statutes.  He reasons that, although neither of the tax crimes' text uses the term fraud or deceit, they necessarily include deceitful conduct.  (This was the point he made initially, but he essentially elaborates on it.)

Justice Thomas then turns to the petitioners' argument that created the conflict in the circuits.  And this requires some subtlety to resolve either way.  The petitioners' argument is that Congress' inclusion in subjection (ii) of tax evasion as an aggravated felony is meaningless if tax evasion were already covered in (i) by the term "fraud or deceit."  And, if it is not meaningless, petitioners argued, then it can be inferred that, as among tax crimes, Congress intended deportable aggravated felonies to include only tax evasion and not the other lesser tax crimes.

Justice Thomas reasons that, in effect, fraud or deceit is not necessarily required for tax evasion. Therefore, he concludes, (ii) is not redundant (surplusage), and does not  permit an inference that, by including (ii), Congress meant to exclude other lesser crimes.  To reach this conclusion, Justice Thomas speculates that Congress may have been concerned by an old Supreme Court case, United States v. Scharton, 285 U. S. 518 (1932), which he reads as holding that tax evasion did not necessarily involve fraud.  I won't  go into the swamp necessarily to critique that holding (but will say that I think Justice Ginsburg in the dissent has the better reasoning that tax evasion necessarily involves fraud).   Justice Thomas is perhaps on better ground in concluding that there are some instances of evasion of payment in which tax evasion might exist without any element of deceit.

Justice Thomas also rejects the Kawashimas' argument based on the Sentencing Guidelines.  I think that was a thin reed for the Kawashimas and direct readers to the opinion for further consideration.

Justice Thomas finally summarily rejects the application of the rule of lenity, stating simply that "the application of the present statute clear enough that resort to the rule of lenity is not warranted."

Justice Ginsburg's minority opinion seems to me to have the better part of the subtle arguments that Justice Thomas deals with rather summarily.

Finally, just an editorial comment on the role of the Supreme Court.  The issue was necessarily a close one.  I don't think there is any "right" answer.  I personally prefer Justice Ginsburg's answer, but that does not mean it is the right one.  The arguments are good both ways -- Justice Thomas' based on a straight-forward interpretation of the text (except, I think for his foray into tax evasion) and Justice Ginsburg's more nuanced approach.  In many -- perhaps most -- of the cases resolved by the Court, there are two or more good answers, without any of them being necessarily the best.  The Supreme Court's function is to pick among those arguments and reach a definitive result with a reasoned approach.  Both the majority and dissenting opinions present reasoned approaches and the majority opinion reaches the definitive result for the lower courts to apply.

For my blog on acceptance of cert, see Supreme Court to Decide Whether Tax Crimes Other Than Tax Evasion Are Aggravated Felonies Under Immigration Law (5/24/11), here.

Addendum 2/28/12:

I focus readers' attention to the final two paragraphs of Justice Ginsburge's dissent where she discusses some anomalous results of the holding.

First, she expresses concern that the majority sees to be transforming all tax offenses into "aggravated felonies," where they are felonies or not.  Some federal, state and local tax crimes are misdemeanors.  As she notes in foot 2:

One might also ask what reason Congress would have for making a tax misdemeanor a deportable offense, while more serious crimes do not jeopardize an alien's residency in the United States. See, e.g., Leocal v. Ashcroft, 543 U. S. 1, 11-12, 125 S. Ct. 377, 160 L. Ed. 2d 271 (2004) (driving while drunk, causing serious bodily injury to others is not an aggravated felony). 

Second, she notes that the holding will have an unintended consequence on the criminal tax enforcement system by taking away an important plea bargaining incentive for immigrants.  She says (I omit most case citations for easier reading):

Finally, the Court's decision has adverse consequences for the efficient handling of tax prosecutions. It is often easier for the Government to obtain a conviction under §7206 (false statements) than under §7201 (tax evasion). For this reason, the Government has allowed taxpayers to plead guilty to a §7206 charge in lieu of going to trial under §7201 on an evasion charge. Deportation consequences are important to aliens facing criminal charges. See Padilla v. Kentucky, 559 U. S. __, __, 130 S. Ct. 1473, 176 L. Ed. 2d 284, 295 (2010) ) ("[P]reserving the client's right to remain in the United States may be more important to the client than any potential jail sentence."). If a §7206 charge carries the same prospect of deportation as a §7201 charge, then an alien's incentive to plead guilty to any tax offense is significantly reduced. 
It is true that the Government will often permit a plea to tax perjury (a 3 year felony) rather than tax evasion (a 5 year felony).  So, one would expect that immigrant defendants in tax cases will not plead but will put the Government to its proof of tax evasion in the hopes that it cannot make the proof.  So the prosecutors' ability to squeeze out plea agreements will be constrained and this may put a burden on systemic resources (prosecutors, Probation Office, and courts). This factor would not justify an interpretation of 8 U. S. C. §1101(a)(43)(M)(i) that the text would not permit, but at least in the eyes of the dissenter and the Third Circuit, there are two permissible interpretations and considering this factor could enter the mix in determining between those permissible interpretations.

Perhaps, though, the Government in its exercise of discretion will throttle back on these cases against immigrants because of this added deportation "punishment."  Maybe DOJ Tax will approve some clearly misdemeanor charges although that is not its want.  Maybe the quality of justice may not be strained if this were the unintended consequence.

OK, I have to add this from Shakespeare's The Merchant of Venice (I am including it full bore and just hope readers can consider the context and the 20th century imagination of the theme):
The quality of mercy is not strained.
It droppeth as the gentle rain from heaven
Upon the place beneath.  It is twice blest:
It blesseth him that gives, and him that takes.
'Tis mightiest in the mightiest.  It becomes
The throned monarch better than his crown.
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway.
It is enthroned in the hearts of kings;
It is an attribute to God himself,
And earthly power doth then show likest God's
When mercy seasons justice.  Therefore, Jew,
Though justice be thy plea, consider this:
That in the course of justice none of us
Should see salvation.  We do pray for mercy,
And that same prayer doth teach us all to render
The deeds of mercy.  I have spoke thus much
To mitigate the justice of thy plea,
Which if thou follow, this strict court of Venice
Must need give sentence 'gainst the merchant there. 


  1. I believe that the majority opinion authored by Justice Thomas is very well reasoned. It covers the waterfront.

    It is very simple: if you are convicted of a federal or state criminal offense that entails an element of fraud or deceit and the victim or victims suffer a loss greater than $10,000, you have committed an "Aggravated Felony", as defined in the applicable provision of the Immigration and Nationality Act.

    Even if perjury including so-called tax perjury (as well as aiding, assisting or counseling the commission of perjury)were not within the definition of aggravated felonies, it would appear that they would constitute "Crimes of Moral Turpitude" ("CMTs"), thus, rendering the convicted offender amenable to immigration consequences.

    Immigration benefits are largely discretionary benefits granted by and through the largese of competent immigration authorities such as the Department of Homeland Security's Bureau Citizenship and Immigration Services ("BCIS"). Such benefits are burdened with conditions including but not limited to being charged with a special obligation to conform one's conduct to the requirements of all applicable federal, state, tribal and local laws. An immigrant's (immigration beneficiary, if you will) failure to scrupulously obey our laws is grounds for the withdrawal of immigration benefits and removal (meaning: deportation or exclusion) from the United States.

    Furthermore, it appears that naturalization benefits may be revoked or withdrawn under appropriate circumstances.

    Unlike the withdrawal of immigration benefits which may be accomplished through show cause type proceedings in Immigration Court (a component of the US DOJ's Executive Office of Immigration Review) with administrative review to the Board of Immigration Appeals (another component of the foregoing US DOJ administrative agency) and judicial review to the US Court of Appeal for the appropriate circuit, "denaturalization" proceedings are adversarial judicial proceedings commenced in the United States District Court and the facts supporting the grounds for denaturalization must be established by clear and convincing evidence.

    The bottom line: There is a range of potential immigration and other consequences (so-called "collateral consequences") associated with having a record of a federal or state criminal conviction. Therefore, any immigrant (or taking a very broad view, a naturalized citizen, for that matter) facing the prospect of prosecution for any serious offense (meaning: anything beyond a run-of-the-mill traffic ticket) should, out of an abundance of caution, retain a competent defense attorney who will not hesitate to associate with competent counsel conversant in the ever-changing area of immigration and nationality law.

    1. I as an immigrant now, would love to know the above information at the port of entry or even better at the time of receiving my immigrant or non immigrant visa, or at least at the time I would be filing my first US tax return. However the reality is that many US persons for tax purposes find themselves three or more years down the road to realize or fully/partially comprehend all the intricacies of the US tax code.

      Moreover many US citizens fail to realize that difference in mentality for immigrants coming from other countries other than Western Europe,Australia or Canada does make a difference in adapting and understanding the complexity of US laws, not only tax ones. Many immigrants still continue to act and action based on what they think it is right back home. In my opinion there is a huge difference between native American Citizen establishing offshore accounts and between an immigrant. In many cases immigrants simply disregard or treat the FBARs regulations as non relevant or not important.

      Bottom line is that the punishment that some immigrants faced or will face in regards to US tax code or offshore accounts is far to punitive given all circumstances.

  2. To the Anonymous poster on 02272012 at 8:15 PM Central Time: I offer the following for your consideration.

    At the risk of repeating myself and sounding redundant, please appreciate that any and all immigration benefits (including but not limited to immigrant visas, non-immigrant visas and naturalization) conferred by the US Department of Homeland Security's Bureau of Immigration and Citizenship Services in accordance with the applicable law are, in essence, the exercise of the American People's discretion and largesse toward aliens. Such immigration benefits are certainly burdened with general and particularized conditions. Among these conditions are that aliens are charged with the special obligation to scrupulously abide by all our laws: Federal, State, Tribal and Local laws and the regulations/rules promulgated thereunder.

    While I can certainly respect that customs and traditions vary throughout our planet, I wish to emphasize that this is the United States of America, and what matters is that the American People fully expect all persons including aliens to conform their respective conduct to the requirements of our laws. Therefore, it is irrelevant how things are done anywhere else.

    If an alien cannot, does not or chooses not to abide by our laws, he or she can deduce the legal and logical consequences. Such consequences include, but are certainly not limited to the penal consequences associated with being convicted of any criminal offense as well as the immigration consequences that attach to those with a record of an aggravated felony or crime of moral turpitude. At a minimum, an alien convicted of anything beyond a run-of-the-mill traffic ticket may expect to have any request for adjustment of status rejected. In many instances, such alien may count on being placed in removal proceedings, which could potentially result in being removed from and permanently barred from re-entering the United States for any purpose(s) whatsoever.

    By way of suggestion: Anyone wishing to enter or re-enter into (or to be paroled or take any kind of asylum or refuge) the United States and who has any concern, doubt or question about the requirements of any of our laws including but not limited to those laws imposing FBAR filing obligations, should not hesitate to consult competent legal counsel of their choice before they take any kind of imprudent action that could logically and potentially lead to a variety of penal, immigration and monetary consequences.

    Much like an American entering such places as Saudi Arabia, Singapore or Thailand would need to insure that he or she conform his or her conduct to the requirements of their laws or suffer severe consequences, including but not limited to corporal punishment, imprisonment in harsh conditions, and in the case of Thailand, having to wear a ball and chain 24 hours a day, 7 days a week, for at least the first 90 days of incarceration. Accordingly, any notion that our laws are incomprehensible to aliens should, with all due respect to all concerned, be summarily dismissed as generalized complaints, and thus, devoid of merit.

    1. Laws are made by the people for the people. Having laws that are against certain people is not helping anyone. Those are not laws but rather means for the government or the ruling class to rule and/or oppress the other masses.

      I think you grossly missed the point of my earlier post. Murder, theft. etc. are considered crimes and widely accepted as such all over the world. Tax avoidance and tax evasion is not. Therefore many immigrants are NOT aware that they are committing a crime of such magnitude at the time of committing it simply because they are not aware of all its complications. This is where American jurisprudence is lacking. I don;t think it is fair to judge a person by another country laws simply because he is not fully accustomed to them.

      And I would never thought that someone would compare USA with Thailand or Saudi Arabia. This is kinda shocking !!!

  3. Here is another thought: Functionally speaking, aliens are to the United States of America what posters are to Jack's Blog. In essence, each of theses "guests" are either in the nature of invitees or licensees. Such invitation or license, if you will, is effective at their respective "host" discretion and only during periods of good behavior.

    In the case of the United States of America, good behavior requires obedience to our federal, state, tribal and local laws.

    Likewise, posting comments on Jack's Blog requires both scrupulous compliance with the requirements of our laws as well as his terms and conditions of service ("TOS").

  4. I agree with Jack's 022812 Addendum, especially, the following relevant part: "...[T]he prosecutors' ability to squeeze out plea agreements will be constrained and this may put a burden on systemic resources (prosecutors, Probation Office, and courts)."

    The writing is on the wall. An immigrant facing potential prosecution for any federal or state tax offense who has access to significant resources should seriously consider using such resources to retain experienced white collar criminal defense counsel early on (meaning: during the early stages of an IRS administrative criminal or non-criminal investigation, or if there is no such stage, during the Grand Jury or other pre- indictment/formal adversarial judicial process) in order to preferably, avoid indictment, or if indicted, mount an energetic defense during the each critical stage(s) of the pre-trial, trial, and if convicted, post-trial, sentencing, appellate and collateral review (i.e., 28:2254-2255) processes.

    The bottom line is: This is a negotiation. The balance of power has shifted. In some instances, it has shifted in favor of well-heeled (meaning: certainly the 1 per centers, perhaps even the 5 per centers) targets/putative defendants.

  5. To the Anonymous Post on 022812 at 9:00 AM Central Time:

    I share your observation that we have a ruling class in the United States. To be certain, there is, has been and always will be a ruling class in each and every society or collective body politic. The rich and well-connected can and will have more choices. It does not matter whether the system of government is democratic, socialist, communist or fascist.

    I also agree with your observation that tax offenses are very much unlike such offenses as assault or murder. The former are what are considered bad acts and crimes because the federal, state or local legislature have, presumably acting as the public's duly-elected representatives and in the public interest, authoritatively allocated a given society's value system by declaring such acts to be crimes, and thus, punishable as the legislature deems appropriate, including but not limited to long prison sentences and immigration consequences. The latter are acts that are bad in and of themselves under natural law as further developed in such time-honored bodies of law as the English common law, Roman Law, the French Napoleonic code, and the body of law applicable in Islamic societies which is commonly known as Sharia.

    While I fully respect the choices of those in other places on our plant including but not limited to the People and the Royal Family of the Kingdom of Saudi Arabia to allocate their societal values as they deem appropriate, I respectfully take exception to your characterization that I have "compared" the American legal system to those of Saudi Arabia or Thailand.

    As a Christian American, I can assure you in no uncertain terms, that while I respect other governments' and peoples' choices and value judgments, I have an abiding, unwavering belief to a moral certainty that we have the finest and most upstanding legal system on Earth.

    With all due respect to all those from other nations and cultures, I will exercise my expressional rights to promote time-honored Christian principles and the American Peoples' clear expectation that everyone, including our aliens/guests, insure that they conform their respective conduct to the requirements of our federal, state, tribal and local laws. Should anyone choose to depart from the essential requirements of the law, then there could very well be exposure to the consequences prescribed by law.

    In the case of criminal or penal laws, upon conviction for just about any federal or state criminal offense short of a run-of-the-mill traffic ticket, such consequences could potentially entail incarceration and the loss of various benefits/privileges including but not limited to an alien's lawful status in our country.

    One more thing: I certainly do not wish to ignore your argument that our tax laws can be (and oftentimes are) incomprehensible. While I believe that such arguments may, in appropriate instances, be availing to avoid being indicted or convicted of a crime (such as a federal or state tax offense) that requires proof of specific intent to break the law beyond and to the exclusion of every reasonable doubt, I would note that such position may be less persuasive in such administrative law forum as the Immigration Court.

    Immigration Court proceedings are considered to be civil not criminal proceedings. The consequences of such proceedings are, in the eyes of Congress, the federal immigration authorities, the Immigration Courts and our federal courts, "remedial" and not "penal". Accordingly, arguments relating to the incomprehensibility of tax laws as well as "specific intent" arguments are, with relatively rare exceptions, likely to be non-starters before an Immigration Judge. Therefore, I would suggest anyone having such legal questions to consult with competent counsel conversant in the appropriate area(s) of the law.


Please make sure that your comment is relevant to the blog entry. For those regular commenters on the blog who otherwise do not want to identify by name, readers would find it helpful if you would choose a unique anonymous indentifier other than just Anonymous. This will help readers identify other comments from a trusted source, so to speak.