On February 21, 2012, the Supreme Court decided Kawashima v. Holder, No. 10-577, holding that the offenses that make an alien removable under 8 U.S.C. §1101(a)(43)(M)(i) include offenses that involve fraud or deceit, regardless of whether the elements of the offense require a finding of fraudulent or deceitful conduct. Kawashima v. Holder, No. 10-577.
Two married resident aliens were convicted of willfully making, subscribing, and assisting in the preparation of a false tax return under 26 U. S. C. §7206. An immigration judge ordered the couple's deportation under 8 U. S. C. §1101(a)(43)(M)(i), which provides for the removal of aliens convicted of an aggravated felony, defined to include an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." The Board of Immigration Appeals affirmed. The Ninth Circuit also affirmed the Board's reading of the statute, but remanded for the Board to determine whether the wife's conviction had caused the government a loss in excess of $10,000.
The Supreme Court affirmed. The Court held that the removal statute requires courts to look at the statute defining the crime of conviction, not the specific facts leading to conviction in a particular case. Although the tax statutes at issue did not include the words "deceit" or "fraud," they include elements that necessarily entail fraudulent or deceitful conduct. The Court also rejected the argument that the government could not be a "victim" under the statute, holding that tax crimes like those involved in this case are within the scope of the removal statute.
Justice Thomas delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Sotomayor joined. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer and Kagan joined.