Kawashima v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AKIO KAWASHIMA; FUSAKO 

KAWASHIMA,

Petitioners, No. 04-74313

v.  Agency Nos.

A38-554-590

ERIC H. HOLDER JR.,* Attorney A38-554-591

General,

Respondent.



AKIO KAWASHIMA; FUSAKO  No. 05-74408

KAWASHIMA, aka Fusako Nakajima,

Petitioners, Agency Nos.

v.  A38-554-590

A38-554-591

ERIC H. HOLDER JR.,* Attorney

ORDER AND

General,

OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 8, 2007—Pasadena, California

Opinion Filed September 18, 2007

Opinion Withdrawn; New Opinion Filed July 1, 2008

Opinion Withdrawn; New Opinion Filed January 27, 2010

Opinion Withdrawn; New Opinion Filed August 4, 2010

*Eric H. Holder Jr. is substituted for his predecessor Michael B.

Mukasey as Attorney General of the United States. Fed. R. App. P.

43(c)(2).

11181

11182 KAWASHIMA v. HOLDER

Before: Diarmuid F. O’Scannlain, Edward Leavy, and

Consuelo M. Callahan, Circuit Judges.

Order;

Dissent to Order by Judge Graber;

Opinion by Judge O’Scannlain

11184 KAWASHIMA v. HOLDER

COUNSEL

Judith L. Wood, Law Offices of Judith L. Wood, Los Ange-

les, California, argued the cause for the petitioners and filed

the briefs. Todd Beacraft, Law Offices of Judith L. Wood,

was also on the briefs.

Nancy Freedman, Office of Immigration Litigation, Washing-

ton D.C., argued the cause for the respondent. Peter D. Keis-

ler, Assistant Attorney General, Civil Division, Washington,

KAWASHIMA v. HOLDER 11185

D.C., M. Jocelyn Lopez Wright, Assistant Director, Office of

Immigration Litigation, and James A. Hunolt, Senior Litiga-

tion Counsel, Office of Immigration Litigation, were also on

the brief.

Jenny C. Lin-Alva, Ord & Norman, LLC, San Francisco, Cal-

ifornia, filed a supplemental brief on behalf of the petitioners.

Edward O.C. Ord, Ord & Norman, LLC, and Thomas J.

Whalen, Eckert Seamans Cherin & Mellott, Washington,

D.C., were also on the brief.

Jennifer J. Keeney, Senior Litigation Counsel, Office of

Immigration Litigation, Washington, D.C., filed a supplemen-

tal brief on behalf of the respondent. Tony West, Assistant

Attorney General, Civil Division, Washington, D.C., and

Donald E. Keener, Deputy Director, Office of Immigration

Litigation, were also on the brief.

Stephen W. Manning, American Immigration Lawyers Asso-

ciation, Portland, Oregon, filed a brief on behalf of amicus

curiae the American Immigration Lawyers Association and in

support of the petitioners’ supplemental brief. Jessica M.

Boell, American Immigration Lawyers Association, Jennifer

M. Rotman, American Immigration Lawyers Association, and

Andrew Knapp, American Immigration Lawyers Association,

were also on the brief.

Jenny C. Lin-Alva, Ord & Norman, LLC, San Francisco, Cal-

ifornia, filed a petition for rehearing with a suggestion for

rehearing and a reply on behalf of the petitioners. Edward

O.C. Ord, Ord & Norman, LLC, Thomas J. Whalen, Eckert

Seamans Cherin & Mellott, Washington, D.C., and Mark

Johnston, Eckert Seamans Cherin & Mellott, were also on the

petition and the reply.

Jennifer J. Keeney, Senior Litigation Counsel, Office of

Immigration Litigation, Washington, D.C., filed a brief

opposing rehearing on behalf of the respondent. Tony West,

11186 KAWASHIMA v. HOLDER

Assistant Attorney General, Civil Division, Washington,

D.C., Donald E. Keener, Deputy Director, Office of Immigra-

tion Litigation, Matthew B. George, Trial Attorney, Office of

Immigration Litigation, and Katherine A. Smith, Trial Attor-

ney, Office of Immigration Litigation, were also on the brief.

ORDER

The opinion filed in this case on January 27, 2010, and

published at 593 F.3d 979, is withdrawn. A new opinion is

filed contemporaneously with the filing of this order.

The panel has voted unanimously to deny the petition for

rehearing. Judges O’Scannlain and Callahan have voted to

deny the petition for rehearing en banc, and Judge Leavy has

so recommended.

The full court was advised of the petition for rehearing en

banc. A judge requested a vote on whether to rehear the mat-

ter en banc, and the matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc con-

sideration. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en

banc are DENIED. No further petitions for rehearing or peti-

tions for rehearing en banc will be entertained.

GRABER, Circuit Judge, with whom WARDLAW and

PAEZ, Circuit Judges, join, dissenting from denial of rehear-

ing en banc:

I respectfully dissent from denial of rehearing en banc.

An aggravated felony is, among other things:

KAWASHIMA v. HOLDER 11187

an offense that—

(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 Gov-

ernment exceeds $10,000[.]

8 U.S.C. § 1101(a)(43)(M). The panel holds that it is plain

that the term “loss to the victim or victims” in subsection (i)

necessarily encompasses tax revenue loss to the Government

even though subsection (ii) specifically governs tax revenue

loss to the Government. The panel opinion reaches that con-

clusion only by contravening clear rules of statutory interpre-

tation.

A. Statutory Text Must be Read in Context

Read in isolation, there is little dispute that the term “loss

to the victim or victims” is broad enough that it might encom-

pass a tax revenue loss to the government. But it is black-

letter law that we may not read statutory terms in isolation.

See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)

(“The plainness or ambiguity of statutory language is deter-

mined by reference to the language itself, the specific context

in which that language is used, and the broader context of the

statute as a whole.” (emphasis added)); Smith v. United

States, 508 U.S. 223, 233 (1993) (“Just as a single word can-

not be read in isolation, nor can a single provision of a stat-

ute.”); United States v. Morton, 467 U.S. 822, 828 (1984)

(“We do not . . . construe statutory phrases in isolation; we

read statutes as a whole. Thus, the [term in question] must be

read in light of the immediately following phrase . . . .” (foot-

note omitted)); see also Harbison v. Bell, 129 S. Ct. 1481,

1492 (2009) (Roberts, C.J., concurring in the judgment) (“We

do not construe statutory phrases in isolation; we read statutes

as a whole. This certainly applies to reading sentences as a

11188 KAWASHIMA v. HOLDER

whole.” (citation, alterations, and internal quotation marks

omitted)).

Often, although a phrase sweeps broadly when read in iso-

lation, surrounding statutory text clarifies that Congress actu-

ally intended a narrower meaning. Applications of that simple

rule of construction appear throughout the Supreme Court’s

jurisprudence. For example:

• “The [relevant] term . . . is not defined in the stat-

ute, and, out of context, its ordinary meaning

could include [the situation at hand]. However,

we must not analyze one term of [the statute] in

isolation. When [the statute] is read as a whole,

the better interpretation is that [the term does not

encompass the situation at hand].” Pollard v. E.I.

du Pont de Nemours & Co., 532 U.S. 843, 852

(2001) (citation omitted).

• “If considered in isolation, the [relevant] phrase

. . . could embrace a wide [definition]. After all,

in ordinary meaning and usage, [the term has a

broad definition]. . . . The definition of words in

isolation, however, is not necessarily controlling

in statutory construction. A word in a statute may

or may not extend to the outer limits of its defini-

tional possibilities. Interpretation of a word or

phrase depends upon reading the whole statutory

text [and upon other considerations].” Dolan v.

U.S. Postal Serv., 546 U.S. 481, 486 (2006) (cita-

tion omitted).

• “[T]he dissent’s point that subsection (a) seems

clear when read in isolation proves nothing, for

‘the meaning—or ambiguity—of certain words or

phrases may only become evident when placed in

context.’ When subsection (a) is read in context,

there is no avoiding the question, ‘What could

KAWASHIMA v. HOLDER 11189

Congress have been getting at with both (a) and

(c)?’ ” Corley v. United States, 129 S. Ct. 1558,

1566 n.5 (2009) (citation and alteration omitted).

• “Petitioner’s interpretation of [the statutory pro-

vision] might be plausible were we to interpret

that provision in isolation, but it simply is not

tenable in light of the [statute’s] surrounding pro-

visions. We must not be guided by a single sen-

tence or member of a sentence, but look to the

provisions of the whole law.” Gade v. Nat’l Solid

Wastes Mgmt. Ass’n, 505 U.S. 88, 99 (1992)

(plurality) (alteration and internal quotation

marks omitted).

The panel’s analysis defies that rule of construction by con-

cluding that the meaning of subsection (i) is plain without

regard to the very next clause in the same sentence. See

Amended Op. at 11198 (concluding, before considering sub-

section (ii), that: “Thus, according to the plain meaning of the

statutory language,” subsection (i) encompasses tax revenue

losses to the government). In subsection (i), Congress gave

general treatment to losses while, in subsection (ii), Congress

gave specific treatment to tax revenue losses. Without regard

to any other analysis, both logic and Supreme Court precedent

require us to conclude that the meaning of subsection (i) is not

plain and to look to other indicators of congressional intent.1

1

Logic and Supreme Court precedent are not the only support for that

conclusion. In its opinion published at 593 F.3d 979 (9th Cir. 2010), the

panel cited Balogun v. U.S. Attorney General, 425 F.3d 1356, 1361 (11th

Cir. 2005), to support its conclusion that the meaning of subsection (i) is

plain. Kawashima, 593 F.3d at 983. The problem is that the court in

Balogun reached a contrary conclusion. In that case, the Eleventh Circuit

addressed the interpretation of subsection (i) in circumstances where the

application of subsection (i) was much more straight-forward. Yet, even

in those circumstances, the Eleventh Circuit could not conclude that the

meaning of subsection (i) is plain. Balogun, 425 F.3d at 1361. The panel’s

response to that fact was to delete its citation to Balogun. We can infer

that the panel now finds the Eleventh Circuit’s reasoning unpersuasive,

but we do not know why.

11190 KAWASHIMA v. HOLDER

The panel forcefully defends its conclusion that the meaning

of subsection (i) is “plain” for the simple reason that each and

every other indicator of congressional intent points to the

opposite conclusion: Congress intended subsection (ii), and

not subsection (i), to cover tax crimes.

B. Superfluities Must be Avoided if Possible

The panel’s analysis next runs afoul of the rule that, if pos-

sible, we must read statutory text to avoid superfluities. “We

are not at liberty to construe any statute so as to deny effect

to any part of its language. It is a cardinal rule of statutory

construction that significance and effect shall, if possible, be

accorded to every word.” Market Co. v. Hoffman, 101 U.S.

112, 115 (1879); see also Knight v. Comm’r, 552 U.S. 181,

190 (2008) (“Thus, accepting [a particular] approach would

render part of the statute entirely superfluous, something we

are loath to do.” (internal quotation marks omitted)); Duncan

v. Walker, 533 U.S. 167, 174 (2001) (“It is our duty to give

effect, if possible, to every clause and word of a statute.”

(internal quotation marks omitted)).

The panel’s interpretation renders subsection (ii) superflu-

ous. Subsection (i) encompasses convictions that “involve

fraud or deceit” and that involve a loss exceeding $10,000.

Subsection (ii) encompasses tax evasion convictions where

the tax revenue loss exceeds $10,000. Importantly, because all

tax evasion convictions necessarily involve fraud or deceit,

Spies v. United States, 317 U.S. 492, 499 (1943), subsection

(i) necessarily encompasses all convictions encompassed by

subsection (ii). The panel’s interpretation thus renders subsec-

tion (ii) meaningless.

At the same time, it is easy to interpret the statute to give

meaning to both subsection (i) and subsection (ii). Hoffman,

101 U.S. at 115. It is an entirely reasonable interpretation that

Congress intended subsection (ii), and not subsection (i), to

KAWASHIMA v. HOLDER 11191

govern tax crimes.2 Because it is “possible” to give “signifi-

cance and effect” to all parts of the statutory text, we must do

so. Hoffman, 101 U.S. at 115. “We are not at liberty to con-

strue any statute so as to deny effect to any part of its lan-

guage.” Id.

The panel declines to apply this mandatory analysis solely

because of its speculation that Congress might have intended

to enact a superfluous statutory provision. The panel’s reason-

ing misunderstands the rule against superfluities specifically

and the task of statutory interpretation more generally. It is

true that no method of statutory interpretation is absolute.

Indeed, even when the text is indisputably plain, we some-

times hold that Congress intended something very different

(for instance, when the drafters made a typographical mis-

take). See, e.g., Herrera v. U.S. Citizenship & Immigration

Servs., 571 F.3d 881, 886 n.5 (9th Cir. 2009). Here, Congress

indeed may have intended to enact a superfluous provision.

But there must be some reason to believe that this is the case.

We are not at liberty to wave away an indicator of congressio-

nal intent simply because it is conceivable that Congress

intended the opposite. It is always conceivable that Congress

did not mean what it said, or intended to enact a superfluous

provision, or intended to raise serious questions of constitu-

tionality, and so on. The panel’s observation that, here, that

possibility is not beyond the conceivable does not advance the

analysis.

On this point, it is extremely important that all indicators

of congressional intent point in the same direction: Congress

intended tax crimes to be governed only by subsection (ii),

not subsection (i). The panel points to absolutely nothing that

2

As the Third Circuit explained, Congress reasonably may have con-

cluded that no tax crimes other than the most severe tax crime—tax

evasion—should qualify as an aggravated felony, even if the less severe

tax crimes happen to involve fraud or deceit. Ki Se Lee v. Ashcroft, 368

F.3d 218, 224 (3d Cir. 2004).

11192 KAWASHIMA v. HOLDER

suggests that Congress did not so intend, other than the

alleged “plain meaning” of subsection (i) when read alone. Is

there any legislative history supporting the panel’s view? No.

Is there any statutory history supporting the panel’s view? No.

Is there a statutory purpose that supports the panel’s view,

such as a rule that the definition should be construed against

the alien? No; in fact, the opposite presumption applies, as the

panel acknowledges. Amended Op. at 11199 n.6; Kawashima,

593 F.3d at 984 n.7. Are there other canons of construction

that support the panel’s view? No; in fact, applicable canons

of construction support the opposite view, such as the rule

that the “specific governs the general.” See Ki Se Lee, 368

F.3d at 223-24 (explaining the application of this canon of

construction). In sum, the panel’s unassailable observation

that the rule against superfluities is not foolproof gets the

panel nowhere; there must be some indicator that, in these

particular circumstances, Congress actually intended to enact

a superfluous provision. Beyond its speculation, the panel

points to none.

In this regard, it is notable that the panel makes a point of

reminding the reader no less than four times that it is follow-

ing then-Judge, now-Justice, Alito’s dissenting view in Ki Se

Lee. The panel subscribes to, and applies, then-Judge Alito’s

view that the superfluities rule can be cast aside on the unsup-

ported speculation that Congress may have intended to enact

a superfluous provision. Just last year, now-Justice Alito

advanced that same general view in Corley, 129 S. Ct. 1558.

Unable to convince a majority of his colleagues, Justice Alito

expressed his views in dissent. Id. at 1572-73 (Alito, J., dis-

senting). The Supreme Court majority, however, roundly

rejected this proposed mode of interpretation: “[T]he dissent’s

point that subsection (a) seems clear when read in isolation

proves nothing, for ‘the meaning—or ambiguity—of certain

words or phrases may only become evident when placed in

context.’ When subsection (a) is read in context, there is no

avoiding the question, ‘What could Congress have been get-

KAWASHIMA v. HOLDER 11193

ting at with both (a) and (c)?’ ” Id. at 1566 n.5 (citation and

alteration omitted).

Whatever validity the panel’s method of interpretation may

have had in the past, the Supreme Court clearly rejected it just

last year. The panel does not explain how its opinion is con-

sistent with Corley.

C. The Panel’s Method of Statutory Interpretation Will

Lead to Absurd Results in Other Cases

Imagine that 8 U.S.C. § 1101(a)(43)(M) defined an “aggra-

vated felony” as “an offense that (i) involves fraud or deceit

in which the loss to the victim or victims exceeds $10,000; or

(ii) involves fraud or deceit in which the tax revenue loss to

the Government exceeds $50,000.” Would a conviction

resulting in a tax revenue loss to the government of $30,000

qualify as an aggravated felony? Yes, according to the panel’s

analysis. Or, imagine instead that 8 U.S.C. § 1101(a)(43)(M)

defined an “aggravated felony” as “an offense that (i)

involves fraud or deceit in which the loss to the victim or vic-

tims exceeds $10,000; or (ii) involves fraud or deceit in which

the tax revenue loss to the Government exceeds $10,000 and

the conviction became final after 1999.” Would a 1997 con-

viction resulting in a large tax revenue loss to the government

qualify as an aggravated felony? Yes, according to the panel’s

analysis. Under the panel’s analysis, the text of subsection (i)

is plain, and we need not be concerned that such an interpreta-

tion would render subsection (ii) superfluous, because Con-

gress might have meant to enact a superfluous provision. The

panel’s opinion provides no basis to distinguish between those

hypothetical statutes and the statute as written.

D. Conclusion

The panel reads one phrase of the statute in isolation, ignor-

ing the very next phrase in the same sentence. The panel’s

interpretation of the statutory provision renders another statu-

11194 KAWASHIMA v. HOLDER

tory provision superfluous. The panel’s interpretation is

inconsistent with other canons of construction, including the

standard caveat that the specific governs over the general and

the rule that an ambiguous statute should be construed in the

alien’s favor. The panel fails to explain how its method of

interpretation is consistent with recent Supreme Court juris-

prudence. When made aware that one of its cited cases actu-

ally supports a view contrary to its own, the panel simply

deleted its citation of that case without explaining why it

found that case unpersuasive. Finally, the panel’s opinion will

lead to absurd results in other cases. I regret this court’s fail-

ure to rehear this case en banc.

OPINION

O’SCANNLAIN, Circuit Judge:

We are called upon to decide whether petitioners’ convic-

tions for subscribing to a false statement on a tax return and

for aiding and assisting in the preparation of a false tax return

qualify as “aggravated felonies” that subject them to removal

under the relevant immigration laws.

This is our third published opinion in this case. In our first

opinion, Kawashima v. Gonzales, 503 F.3d 997 (9th Cir.

2007), withdrawn 503 F.3d 1111 (9th Cir. 2008)

(“Kawashima I”), we conducted a limited examination of the

record of petitioners’ convictions to answer such question.

One day after our panel opinion was filed, our en banc court

decided Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir.

2007) (en banc), which caused us to reconsider. We published

a second opinion, Kawashima v. Mukasey, 530 F.3d 1111 (9th

Cir. 2008), withdrawn 593 F.3d 979 (9th Cir. 2010)

(“Kawashima II”), in which we answered the question by

applying Navarro-Lopez to Kawashima’s conviction in light

of our circuit’s existing caselaw construing the statute defin-

ing “aggravated felony.”

KAWASHIMA v. HOLDER 11195

After we published our second opinion, the government

filed a petition for rehearing en banc. While the government’s

petition was pending before us, the Supreme Court granted

certiorari in Nijhawan v. Attorney General, 523 F.3d 387 (3d

Cir. 2008), cert. granted, 129 S. Ct. 988 (2009). Like the case

before us, Nijhawan concerned whether a particular convic-

tion for a financial offense constitutes an “aggravated felony”

under relevant immigration laws. After the Court issued its

opinion, Nijhawan v. Holder, 129 S. Ct. 2294 (2009), we

ordered the parties to file supplemental briefs on Nijhawan’s

impact on the case before us. In light of this recent guidance

from the Court, we issue this hopefully final opinion in this

litigation.

I

Akio Kawashima and Fusako Kawashima1 are natives and

citizens of Japan. The Kawashimas were admitted to the

United States as lawful permanent residents on June 21, 1984.

In 1997, Mr. Kawashima pled guilty to subscribing to a

false statement on a tax return, in violation of 26 U.S.C.

§ 7206(1). In his plea agreement, he stipulated that the “total

actual tax loss” for the purpose of determining his offense

level under the Sentencing Guidelines was $245,126. Mr.

Kawashima further conceded that he could be ordered to pay

the same amount in restitution. On the same date, Mrs.

Kawashima pled guilty to aiding and assisting in the prepara-

tion of a false tax return, in violation of 26 U.S.C. § 7206(2).

Her plea agreement was not included in the record before us.

On August 3, 2001, the Immigration and Naturalization Ser-

vice2 issued separate Notices to Appear to the Kawashimas

1

We refer to Akio as “Mr. Kawashima” and Fusako as “Mrs. Kawashi-

ma.” We refer to Akio and Fusako collectively as the “Kawashimas.”

2

On March 1, 2003, the Immigration and Naturalization Service (“INS”)

ceased to exist as an agency under the U.S. Department of Justice and its

functions were transferred to the Bureau of Immigration and Customs

Enforcement within the newly-formed Department of Homeland Security.

We refer to the INS and its successor as the “Service.”

11196 KAWASHIMA v. HOLDER

alleging that the couple was removable because their prior

convictions constituted aggravated felonies under 8 U.S.C.

§ 1101(a)(43)(M)(i) (“subsection M(i)”) (defining as an

aggravated felony any offense that “involves fraud or deceit

in which the loss to the victim or victims exceeds $10,000”).

See id. § 1227(a)(2)(A)(iii) (stating that “[a]ny alien who is

convicted of an aggravated felony at any time after admission

is deportable”).3

After holding a removal hearing, an Immigration Judge

(“IJ”) concluded that the Kawashimas’ convictions were

aggravated felonies under subsection M(i). Accordingly, the

IJ found the Kawashimas removable, denied their motion to

terminate the proceedings, and ordered that they be removed

to Japan.

The Kawashimas appealed the decision, and the Board of

Immigration Appeals (“BIA”) remanded because the tran-

script containing the testimony of the hearing and the IJ’s oral

decision was defective. After further proceedings, the IJ again

denied the Kawashimas’ motion to terminate proceedings and

ordered them removed to Japan. The BIA affirmed and

adopted the IJ’s decision.

The Kawashimas subsequently filed a motion to reopen

seeking waiver of inadmissibility under the Immigration and

Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182(c)

(repealed 1996). The BIA denied the motion as untimely.

The Kawashimas timely filed separate petitions for review

of the BIA’s affirmance of the IJ’s removal order and the

BIA’s denial of their motion to reopen. We consolidated the

petitions for review pursuant to 8 U.S.C. § 1252(b)(6). We

consider each in turn.

3

The Notice to Appear also alleged that the Kawashimas were remov-

able for having been convicted of aggravated felonies under

§ 1101(a)(43)(M)(ii), but that allegation is not before us here.

KAWASHIMA v. HOLDER 11197

II

A

We are faced with the task of determining whether Mr.

Kawashima’s conviction for willfully making and subscribing

to a false statement on a tax return, in violation of § 7206(1),

and Mrs. Kawashima’s conviction for aiding and assisting in

the preparation of a false tax return, in violation of § 7206(2),

constitute aggravated felonies. Section 1101(a)(43)(M)

defines an “aggravated felony” to include “an offense that (i)

involves fraud or deceit in which the loss to the victim or vic-

tims 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.” 8 U.S.C. § 1101(a)

(43)(M)(i)-(ii).

As a threshold statutory interpretation matter, we must

decide whether tax offenses other than those described in

§ 7201 qualify as aggravated felonies under subsection (M)(i).4

In their supplemental brief to this court, the Kawashimas

renew their argument, first raised in their opening brief, that

subsection (M)(i)’s definition of “aggravated felony” does not

include their convictions under § 7206(1) and (2). They rea-

son that subsection (M)(ii)’s specific reference to § 7201 indi-

cates Congress’s intent to exclude all federal tax offenses

from the definition of aggravated felonies under the more

general subsection (M)(i). In our initial opinion in this case,

we rejected this argument. Kawashima v. Gonzales

(“Kawashima I”), 503 F.3d 997, 999-1001 (9th Cir. 2007).

Our ultimate view of this issue remains unchanged.

4

The Kawashimas’ convictions do not constitute aggravated felonies

under subsection (M)(ii) because that provision is limited to tax offenses

in violation of § 7201. Mr. Kawashima was convicted under § 7206(1) and

Mrs. Kawashima was convicted under § 7206(2). See United States v.

Roselli, 366 F.3d 58, 62 n.5 (1st Cir. 2004).

11198 KAWASHIMA v. HOLDER

[1] The plain text of subsection (M)(i) sets forth two

requirements for an offense to qualify as an aggravated fel-

ony. First, the offense must “involve fraud or deceit.” Second,

the “loss to the victim or victims” must exceed $10,000. Fer-

reira v. Ashcroft, 390 F.3d 1091, 1096 (9th Cir. 2004). In our

view, §§ 7206(1) and (2) necessarily “involve fraud or deceit”

because the provisions require the government to prove either

that the defendant “willfully” subscribed to a statement in a

tax return he did not believe to be true, or that the defendant

“willfully” aided and assisted in the making of a false or

fraudulent return. Furthermore, given that “the government is

a victim in all tax fraud cases,” United States v. Presbitero,

569 F.3d 691, 707 (7th Cir. 2009), a tax loss in excess of

$10,000 satisfies the second prong of subsection (M)(i). Thus,

according to the plain meaning of the statutory language, con-

victions for violating §§ 7206(1) and (2) in which the tax loss

to the government exceeds $10,000 constitute aggravated fel-

onies under subsection (M)(i). Aguelles-Olivares v. Mukasey,

526 F.3d 171, 175 (5th Cir. 2008).

We recognize that a divided panel of the Third Circuit

reached a contrary conclusion in Ki Se Lee v. Ashcroft, 368

F.3d 218 (3d Cir. 2004).5 There, the court found that the pres-

ence of subsection (M)(ii) reflected Congress’s intent to spec-

ify tax evasion as the only removable tax offense, and thereby

exclude tax offenses from the scope of subsection (M)(i).

Writing in dissent, however, then-Judge (now Justice) Alito

concluded that the plain text of subsection (M)(i) did not pre-

clude the inclusion of tax offenses within its definition of

aggravated felonies. Id. at 226 (Alito, J., dissenting). We are

persuaded by Judge Alito’s interpretation of the statute.

The court in Ki Se Lee applied two interpretive canons in

support of its reading. First, the court applied the canon that

5

We note that since our decision in Kawashima I, the Fifth Circuit has

explicitly joined us in rejecting the Third Circuit’s approach. Arguelles-

Olivares, 526 F.3d at 174.

KAWASHIMA v. HOLDER 11199

prescribes that, whenever possible, a statute should be inter-

preted to avoid rendering other provisions superfluous. Id. at

223. In the court’s view, reading subsection (M)(i) to include

tax offenses would render subsection (M)(ii) superfluous

because any of the tax evasion offenses described by § 7201

would fall within the scope of subsection (M)(i)’s “fraud or

deceit” provision. Id. at 222-23. Second, the court applied the

familiar canon that the “specific governs the general.” Id. at

223. Noting that subsection (M)(i) is a general provision that

covers “fraud and deceit” and subsection (M)(ii) is a narrower

provision that only covers federal tax evasion, the court rea-

soned that this canon also supported its conclusion that tax

evasion in violation of § 7201, as described in subsection

(M)(ii), is the only removable tax offense. Id. at 224.6

While such canons are often valuable tools in interpreting

a statute’s text, applying the canons the Third Circuit identi-

fied does not lead us to conclude that subsection (M)(i)’s defi-

nition of aggravated felonies excludes tax fraud convictions.

See Ki Se Lee, 368 F.3d at 226 (Alito, J., dissenting). First and

foremost, the Third Circuit’s interpretation of subsection

(M)(i) fails to account for the text of subsection (M)(i), which

categorizes an offense as an aggravated felony as long as it

includes two elements, “fraud and deceit” and loss to the vic-

tim in excess of $10,000. No further limitations are imposed.

Further, the interpretation adopted by the court in Ki Se Lee

imputes an intent to Congress that is not supported by the stat-

ute’s text. As the dissent in Ki Se Lee noted, “[i]f Congress

had not wanted subsection (M)(i) to apply to ‘tax offenses,’

Congress surely would have included some language in that

6

The Kawashimas also argue that the canon that construes ambiguities

in a deportation statute in favor of the alien supports their argument that

subsection (M)(ii) precludes the inclusion of tax offenses in subsection

(M)(ii). That canon, however, is inapplicable where, as in this case, the

statutory language is clear. See Cardoza-Fonseca v. INS, 480 U.S. 421,

449 (1987).

11200 KAWASHIMA v. HOLDER

provision to signal that intention. As adopted, however, sub-

section (M)(i) contains no such hint.” Id.

Finally, there are many reasons why Congress might have

included subsection (M)(ii) even though many, if not all, of

the tax offenses it describes would fall within the scope of

subsection (M)(i). As the dissent in Ki Se Lee emphasized,

“[s]ubsection (M)(ii) may have been enacted simply to make

certain—even at the risk of redundancy—that tax evasion

qualifies as an aggravated felony.” Id. Although we recognize

that the avoidance of surplusage in statutory text is an impor-

tant goal, Congress harbors other important goals as well

when adopting legislation. Judge Alito’s dissent suggested

two examples. First, even if Congress could not think of a tax

evasion offense under § 7201 that would not involve “fraud

or deceit” and therefore be adequately covered by subsection

(M)(i), Congress has often realized its inability to anticipate

every possible type of case, and may have added subsection

(M)(ii) just to ensure that no tax evasion case fell outside sub-

section (M)’s definition of an aggravated felony. Id. at 226.

Alternatively, Congress might have wanted to ensure that no

court would hold that tax evasion falls outside the definition

of an aggravated felony simply because “fraud” and “deceit”

are not specific elements of that offense. Id. at 226-27.

[2] We therefore respectfully decline to adopt the Third

Circuit’s interpretation of subsection (M)(i). We, like Judge

Alito and the Fifth Circuit, conclude that tax offenses not cov-

ered by subsection (M)(ii)’s specific reference to § 7201 qual-

ify as aggravated felonies under subsection (M)(i) where the

loss exceeds $10,000.

B

Our next task is to determine whether the Kawashimas’

convictions under §§ 7206(1) and (2) are aggravated felonies

within subsection (M)(i)’s definition. In answering this ques-

tion, we have the benefit of the Supreme Court’s recent opin-

KAWASHIMA v. HOLDER 11201

ion in Nijhawan v. Holder, 129 S. Ct. 2294 (2009), which

explained the analysis we must follow in answering this ques-

tion. In Nijhawan, the Court considered the applicability of

subsection (M)(i) to Manoj Nijhawan, an alien who was con-

victed for a variety of federal fraud offenses. Id. at 2298.

None of the statutes under which Nijhawan was convicted

required the government to prove the amount of his victims’

loss to the jury. At sentencing, however, Nijhawan stipulated

that the total loss to his victims exceeded $100 million. Id.

[3] Based on these convictions, the government sought to

remove Nijhawan from the United States, arguing that his

conviction for fraud and his stipulation at sentencing com-

bined to demonstrate that his conviction constituted an aggra-

vated felony under subsection (M)(i). The Court agreed with

the government. In so doing, it added a new step to the

familiar categorical/modified-categorical approaches first

announced in Taylor v. United States, 495 U.S. 575 (1990).

Nijhawan, 129 S. Ct. at 2298. Under this approach, we must

first decide whether a requirement under a generic crime is an

“element” of the generic crime instead of simply a description

of the “particular circumstances” in which the offender com-

mitted the crime on a specific occasion. Id. at 2298. If the

requirement is an “element,” we apply the Taylor approach;

if the requirement is “circumstance specific,” we ensure that

the BIA used “fundamentally fair procedures” to determine

whether the offender’s crime satisfies the description of the

generic offense. Id. at 2302-03.

With these principles of analysis established, we consider

Akio and Fusako’s cases separately.

1

[4] The information, plea agreement, and admission in Mr.

Kawashima’s case establish that he was convicted of violating

§ 7206(1). That section has four elements: “(1) the defendant

made and subscribed a return, statement, or other document

11202 KAWASHIMA v. HOLDER

that was incorrect as to a material matter; (2) the return, state-

ment, or other document subscribed by the defendant con-

tained a written declaration that it was made under the

penalties of perjury; (3) the defendant did not believe the

return, statement, or other document to be true and correct as

to every material matter; and (4) the defendant falsely sub-

scribed to the return, statement, or other document willfully,

with the specific intent to violate the law.” United States v.

Boulware, 384 F.3d 794, 810 (9th Cir. 2004) (emphasis

added). Thus, Mr. Kawashima’s conviction under § 7206(1)

necessarily involved “fraud or deceit.” See Ki Se Lee, 368

F.3d at 226 (Alito, J., dissenting) (“’Fraud’ or ‘deceit’ is a

necessary element of 26 U.S.C. § 7206(1) . . . .”).

[5] Moreover, the BIA followed fundamentally fair proce-

dures in finding that the offense for which Mr. Kawashima

was convicted resulted in a loss to the government of more

than $10,000. Specifically, Mr. Kawashima stipulated in the

plea agreement that the “total actual tax loss” was $245,126.

Given that in Nijhawan, the Supreme Court relied on such a

stipulation to conclude that a petitioner’s prior crime was an

“aggravated felony” under subsection (M)(i), we cannot con-

clude that the BIA’s reliance on such a stipulation in this case

was improper.

Based on the evidence available to us in the administrative

record, we conclude that clear and convincing evidence sup-

ports the BIA’s determination that Mr. Kawashima’s convic-

tion under § 7206(1) constitutes an aggravated felony as

described in subsection (M)(i) because it involved “fraud or

deceit” and because his offense resulted in a loss to the gov-

ernment in excess of $10,000. Accordingly, we deny Mr.

Kawashima’s petition for review of the BIA’s affirmance of

the IJ’s order.

KAWASHIMA v. HOLDER 11203

2

[6] The record of conviction in Mrs. Kawashima’s case

establishes that she was convicted of aiding and assisting in

the preparation of a false tax return, in violation of § 7206(2).7

That section requires the government to prove the following:

“(1) the defendant aided, assisted, or otherwise caused the

preparation and presentation of a return; (2) that the return

was fraudulent or false as to a material matter; and (3) the act

of the defendant was willful.” United States v. Salerno, 902

F.2d 1429, 1432 (9th Cir. 1990) (emphasis added). Moreover,

as we observed in Salerno, “[t]he Supreme Court has repeat-

edly held that in order to make out a ‘willful violation’ of sec-

tion 7206(2) the government must prove defendants acted

with specific intent to defraud the government in the enforce-

ment of its tax laws.” Id. Thus, a conviction under § 7206(2)

necessarily “involves fraud or deceit” and therefore satisfies

the first element of an aggravated felony as described in sub-

section (M)(i).

As to the second element, in Kawashima I we concluded

that the record of conviction did not contain sufficient evi-

dence to establish that Mrs. Kawashima’s offense resulted in

a loss to the government in excess of $10,000. 503 F.3d at

1003-04. That conclusion was predicated on our assumption

that our analysis should proceed under Taylor’s modified cat-

egorical approach, and therefore the scope of our review was

7

In their supplemental brief to this court, petitioners assert that Mrs.

Kawashima’s case is no longer before us because after our first opinion

in this case granted Mrs. Kawashima’s petition for review, the government

did not file a petition for rehearing. We are unpersuaded by this argument.

Although it is true that the government did not ask us to reconsider our

resolution of Mrs. Kawashima’s case, we are entitled to do so as we have

not yet issued our mandate in this case. As such, our decision remains sub-

ject to modification, either at the request of a party or sua sponte. See Fin-

berg v. Sullivan, 658 F.2d 93, 96 n.5 (3d Cir. 1980) (en banc). Thus, Mrs.

Kawashima’s case remains before us, and we are obligated to decide the

merits of her petitions for review in light of Nijhawan.

11204 KAWASHIMA v. HOLDER

limited to the types of documents described in Shepard v.

United States, 544 U.S. 13, 20 (2005), and its progeny.

[7] That assumption, it turns out, was wrong. In Nijhawan,

the petitioner argued that an immigration court deciding

whether an aggravated felony meets subsection (M)(i)’s

$10,000 threshold should look only to the “charging docu-

ments, jury instructions, and any special jury finding (if one

has been requested). If there was a guilty plea (and no trial)

the subsequent court should examine the written plea docu-

ments or the plea colloquy.” 129 S. Ct. at 2302. The Court

rejected this argument, stating that

nothing in prior law that so limits the immigration

court. . . . [T]he cases that developed the evidentiary

list to which [Nijhawan] points[ ] developed that list

for a very different purpose, namely that of deter-

mining which statutory phrase (contained within a

statutory provision that covers several different

generic crimes) covered a prior conviction. For

another, [Nijhawan’s] proposal itself can prove

impractical insofar as it requires obtaining from a

jury a special verdict on a fact that . . . is not an ele-

ment of the offense.

Further, a deportation proceeding is a civil pro-

ceeding in which the Government does not have to

prove its claim “beyond a reasonable doubt.”

Id. at 2303. Thus, the BIA is not limited to only those docu-

ments which a court applying the modified categorical

approach may review.

Given this, the government argues that we should remand

this case to the BIA so that the agency may determine, in the

first instance, what additional types of evidence it may con-

sider under this newly announced standard and so that the

government may have the opportunity to introduce evidence

KAWASHIMA v. HOLDER 11205

to meet this standard. We agree. In I.N.S. v. Ventura, the

Supreme Court summarily reversed a Ninth Circuit decision

refusing to remand a case to the BIA so that it could deter-

mine whether changed country conditions rendered an alien

ineligible for asylum. 537 U.S. 13, 15 (2002) (per curiam).

The Court held that the Ninth Circuit had erred in deciding

the “changed circumstances” matter on its own, observing

that “[g]enerally speaking, a court of appeals should remand

a case to an agency for decision of a matter that statutes place

primarily in agency hands.” Id. at 15-17. Remand is required

so that “[t]he agency can bring its expertise to bear on the

matter; it can evaluate the evidence; it can make an initial

determination; and, in doing so, it can, through informed dis-

cussion and analysis, help a court later determine whether its

decision exceeds the leeway that the law provides.” Id. at 17;

see also Gonzales v. Thomas, 547 U.S. 184 (2006) (per

curiam).

Since Ventura, we have distinguished between circum-

stances in which remand is necessary to permit the BIA to

apply its expertise in reconsidering evidence and circum-

stances in which remand is unnecessary because the BIA

exercised its expertise before the case came before us. Thus,

in Fernandez-Ruiz v. Gonzales, we refused to remand a case

to the BIA so that it could determine whether the evidence

present on an alien’s record of conviction established that the

conviction was a “crime of domestic violence” rendering him

removable. 466 F.3d 1121, 1134-35 (9th Cir. 2006) (en banc).

We distinguished Ventura, noting that it “undeniably involved

an issue the BIA had not considered.” Id. at 1133. By con-

trast, in Fernandez-Ruiz, the BIA had considered whether the

petitioner’s state conviction constituted a crime of domestic

violence—it had simply conducted this inquiry under the cate-

gorical, rather than modified categorical, approach. Id. at

1134-35. We did not consider remanding the case for the gov-

ernment to supplement the record of the petitioner’s convic-

tion because the government did not ask that we do so. Id. at

1135.

11206 KAWASHIMA v. HOLDER

[8] This case, however, is ripe for remand. Our remand

does not ask the BIA to consider whether evidence currently

on the record is sufficient to demonstrate that Mrs. Kawashi-

ma’s conviction is an “aggravated felony.” Cf. Ruiz-Vidal v.

Gonzales, 473 F.3d 1072, 1080 (9th Cir. 2007) (holding that

we need not remand to the BIA so that it may apply the cate-

gorical approach). Instead, we remand to the BIA so that it

may determine, in light of the Supreme Court’s holding in

Nijhawan, what types of evidence it may consider to deter-

mine the total loss suffered by the government as a result of

Mrs. Kawashima’s crime.

III

Our final task is to determine whether the BIA erred in

denying the Kawashimas’ motion to reopen.8

A

[9] Mr. Kawashima argues that his motion to the BIA was

a special motion pursuant to 8 C.F.R. § 1003.44 to seek

§ 212(c) relief. Section 1003.44 “applies to certain aliens who

formerly were lawful permanent residents, who are subject to

8

The government contends that we lack jurisdiction over the Kawashi-

mas’ petition for review of the BIA’s decision, citing 8 U.S.C.

§ 1252(a)(2)(c). That provision strips a court of jurisdiction to review “any

final order of removal against an alien who is removable by reason of hav-

ing committed” certain offenses, including an “aggravated offense.” See

8 U.S.C. § 1252(a)(2)(c); see also id. § 1227(a)(2)(A)(iii). However, the

government’s argument ignores § 1252(a)(2)(D), which provides that,

despite subsection (c), a court remains vested with the jurisdiction to

review “constitutional claims or questions of law raised upon a petition for

review.”

As a threshold matter, the Kawashimas argue that the BIA applied the

incorrect regulation when it determined that their motion was untimely.

Whether the BIA applied the appropriate regulation is decidedly a “ques-

tion of law” over which we retain jurisdiction. See Florez-de Solis v. INS,

796 F.2d 330, 333 (9th Cir. 1986) (“[Petitioner’s] contention that the BIA

applied an incorrect standard is a question of law reviewed de novo.”).

KAWASHIMA v. HOLDER 11207

an administratively final order of deportation or removal, and

who are eligible to apply for relief under former section

212(c) of the Act and 8 CFR § 1212.3 with respect to convic-

tions obtained by plea agreements reached prior to a verdict

at trial prior to April 1, 1997.” 8 C.F.R. § 1003.44(a). To

obtain relief under this provision, an alien “must file a special

motion to seek section 212(c) relief on or before April 26,

2005.” Id. § 1003.44(h). Furthermore, the provision imposes

strict procedural requirements. In particular, the alien’s

motion “must contain the notation ‘special motion to seek sec-

tion 212(c) relief.’ ” Id. § 1003.44(f) (emphasis added).

Mr. Kawashima claims that the required notation appears

on page nine of the Kawashimas’ motion. However, this page

fails to contain any of the necessary text. Instead, it simply

quotes 8 C.F.R. § 1003.44(b), which states, among other

things: “Generally, a special motion under this section to seek

section 212(c) relief must establish that the alien . . . .” This

language fails in all respects to comply with the strict require-

ments imposed by 8 C.F.R. § 1003.44(h) and was inadequate

to place the BIA and the district counsel on notice that Mr.

Kawashima intended to make a special motion to seek

§ 212(c) relief.

[10] Standing alone, Mr. Kawashima’s failure to include

the precise language required by § 1003.44(h) is a sufficient

basis on which to reject his attempt to construe the Kawashi-

mas’ motion as one seeking § 212(c) relief. Even if it were

not, however, the cover page and first page of the motion state

no less than four times: “Motion to Reopen Proceedings and

Stay Deportation Under Magana-Pizano v. INS.”9 A motion

9

The motion contained no citation to Magana-Pizano, but Mr.

Kawashima might have been referring to our opinion in Magana-Pizano

v. INS, 200 F.3d 603 (9th Cir. 1999). Although that opinion did discuss

§ 212(c) and the Antiterrorism and Effective Death Penalty Act in that

opinion, it did not concern a motion to reopen. In any event, the motion’s

reference to Magana-Pizano does not comply with the requirements

imposed by 8 C.F.R. § 1003.44(f).

11208 KAWASHIMA v. HOLDER

styled in this manner cannot reasonably be spared by text hid-

den in a lengthy quote found on page nine of the brief.

[11] Section 1003.44 does not require mere notice, it

imposes strict procedural requirements to qualify for relief,

including the notation “special motion to seek section 212(c)

relief.” Accordingly, we conclude that the BIA did not err in

applying the 90-day filing deadlines for general motions to

reopen pursuant to 8 C.F.R. § 1003.2(c)(2) and in denying

Mr. Kawashima’s motion to reopen as untimely because it

was filed almost eight months late.10 Therefore, we deny Mr.

Kawashima’s petition for review of the BIA’s denial of the

motion to reopen.

B

Since we have granted Mrs. Kawashima’s petition for

review, we dismiss her petition for review of the BIA’s denial

of her motion to reopen as moot. See Goldeshtein v. INS, 8

F.3d 645, 646 n.1, 650 (9th Cir. 1993) (dismissing as moot

petitioner’s motion to reopen after concluding that the peti-

tioner is not removable because he was not convicted of a

predicate offense involving moral turpitude).

IV

For the foregoing reasons, the petition for review of the

BIA’s affirmance of the IJ’s removal order is DENIED with

respect to Akio Kawashima (04-74313) and GRANTED and

REMANDED with respect to Fusako Kawashima (05-

10

Pursuant to 8 C.F.R. § 1003.2(c)(2), a general motion to reopen “must

be filed no later than 90 days after the date on which the final administra-

tive decision was rendered in the proceeding sought to be reopened, or on

or before September 30, 1996, whichever is later.” The BIA’s final admin-

sitrative decision upholding the IJ’s order of removal was rendered on

August 16, 2004. The Kawashimas filed their motion to reopen on April

26, 2005 (or April 27, 2005), more than eight months after the BIA’s final

decision.

KAWASHIMA v. HOLDER 11209

74408). The petition to review the BIA’s denial of the motion

to reopen is DENIED with respect to Akio Kawashima (04-

74313) and DISMISSED as MOOT with respect to Fusako

Kawashima (05-74408).