Kawashima v. Mukasey

530 F.3d 1111, 2008 U.S. App. LEXIS 13835, 2008 WL 2579212

Opinions

ORDER

Petitioner’s “Amended Petition for Rehearing With a Suggestion for an En Banc Hearing” is GRANTED. The opinion filed on September 18, 2007, and appearing at 503 F.3d 997 (9th Cir.2007) is withdrawn. The superseding opinion will be filed concurrently with this order.

Petitioner’s “Motion For Leave to File a Response to the Reply of the United States to the Appellant’s Amended Petition for Rehearing” is DENIED as moot.

The parties may file new petitions for rehearing or rehearing en banc as provided by Federal Rule of Appellate Procedure 40.

OPINION

PER CURIAM:

We are called upon to decide whether petitioners’ convictions 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. In our previous opinion in this case, Kawashima v. Gonzales, 503 F.3d 997 (9th Cir.2007), withdrawn 530 F.3d 1111, 2008 WL 2579212 (9th Cir.2008), we conducted a limited examination of the record of petitioners’ convictions to answer this question.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 causes us to reconsider our analysis.

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 preparation 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 Service² issued separate Notices to Appear to the Kawashimas 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 transcript 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) and consider each in turn.

II

We must first decide whether the Kawashimas’ convictions qualify as aggravated felonies under Subsection M(i). To do so, we rely on the familiar two-step test set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 818, 166 L.Ed.2d 683 (2007) (acknowledging that the courts of appeals have “uniformly” relied on Taylor for this inquiry). First, we “look to the statute under which the[petitioner] was convicted and compare its elements to the relevant definition of an aggravated felony in 8 U.S.C. § 1101(a)(43)---- Under this categorical approach, an offense qualifies as an aggravated felony if and only if the full range of conduct covered by the [statute of conviction] falls within the meaning of that term.” Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir.2004) (internal quotation marks and citation omitted).

If the statute of conviction proscribes a broader range of conduct than the relevant definition of an aggravated felony, we move to the modified categorical analysis, and conduct a “limited examination of documents in the record of conviction,”⁴ asking whether such documents provide “sufficient evidence to conclude that the alien was convicted of the elements of the generically defined crime even though his or her statute of conviction was facially over-inclusive.” Id. (internal quotation marks and citation omitted).

In this case, Subsection M(i) defines as an aggravated felony any offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). We have held previously that “[t]his particular statutory definition of an aggravated felony ... has two elements: (1) the offense must involve fraud or deceit, and (2) the offense must also have resulted in a loss to the victim or victims of more than $10,000.” Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002). Accordingly, the Kawashimas are removable only if they were convicted of both elements. Id. at 1189-91; Li v. Ashcroft, 389 F.3d 892, 897 (9th Cir.2004).

A

We begin with the categorical approach. Mr. Kawashima pled guilty to subscribing to a false statement on a tax return, in violation of 26 U.S.C. § 7206(1).⁵ Mrs. Kawashima pled guilty to aiding and assisting in the preparation of a false tax return, in violation of 26 U.S.C. § 7206(2)⁶ Neither statute requires proof of monetary loss in excess of $10,000. See Li, 389 F.3d at 896. Thus, both are “too broad to be a categorical match” for Subsection M(i) and the Kawashimas’ prior convictions do not qualify as aggravated felonies under the categorical approach. See Chang, 307 F.3d at 1189.

B

We have reached this point in the Taylor analysis on four occasions in the past when comparing statutes of conviction lacking a monetary loss element to Subsection M(i) and each time we have turned to the record of conviction to determine whether the jury actually found, or the petitioner (as defendant) necessarily admitted a loss to the victim in excess of $10,000. See Kharana v. Gonzales, 487 F.3d 1280, 1284 (9th Cir.2007); Ferreira, 390 F.3d at 1098; Li, 389 F.3d at 897; Chang, 307 F.3d at 1189-90. Sitting en banc in Navarro-Lopez, however, we curtailed our reliance on the record of conviction in circumstances such as these.

In Navarro-Lopez, we held that a petitioner’s conviction for accessory after the fact under California state law was not categorically a “crime involving moral turpitude” as defined in the INA because the California statute under which petitioner was convicted proscribed a “broader” range of conduct than the generic definition that the INA provides. 503 F.3d at 1071 (interpreting California Penal Code section 32). Specifically, we explained that a “crucial element” of a crime involving moral turpitude is that the offense “involve some level of depravity or baseness,” and that the California statute did not include “grave acts of baseness or depravity.” Id. Then, turning to Taylor’s second step, we held that

The modified categorical approach ... only applies when the particular elements in the crime of conviction are broader than the generic crime. When the crime of conviction is missing an element of the generic crime altogether, we can never find that “a jury was actually required to find all the elements of’ the generic crime. See Li v. Ashcroft, 389 F.3d 892, 899-901 (9th Cir.2004) (Kozinski, J., concurring) (providing examples).

Id. at 1073. Because we concluded that the California statute “lack[ed] an element of the generic crime — i.e., the moral turpitude, the requisite depravity,” we held that Taylor prohibited us from examining the record of petitioner’s conviction to determine whether he was, in fact, convicted of such an act. Id. As we explained,

The crime of conviction can never be narrowed to conform to the generic crime because the jury is not required— as Taylor mandates — to find all the elements of the generic crime. Even if [petitioner] had admitted to depraved acts, those admissions 'could not be used to modify the crime because they were not necessary for a conviction.

Id. (footnote and citation omitted).

The statutes under which the Kawashimas were convicted, 26 U.S.C. (1) and (2), did not require the government to prove the amount of loss their actions caused. Thus, if Navarro-Lopez applies to this case, we may not turn to the record of the Kawashimas’ convictions to determine whether they actually pled guilty to causing a loss of more than $10,000 as Subsection M(i) requires.

Nevertheless, two factors give us pause before concluding that Navarro-Lopez compels such a result here. First, we have previously applied the modified categorical approach in cases where the statute of conviction prohibits a broader range of conduct than the generic offense, regardless of whether the former lacks a particular element of the latter. See, e.g., United States v. Parker, 5 F.3d 1322 (9th Cir.1993) (applying the modified categorical approach to determine whether a jury found the defendant guilty of generic burglary even though the statute under which the defendant was convicted did not require unlawful entry, a necessary element of the generic definition); United States v. Alvarez, 972 F.2d 1000 (9th Cir.1992) (per curiam) (same). In Navarro-Lopez, we did not explicitly overrule these precedents, or the four decisions in which we have applied the modified categorical approach in examining the monetary loss requirement under Subsection M(i). See Kharana, 487 F.3d at 1284; Ferreira, 390 F.3d at 1098; Li, 389 F.3d at 897; Chang, 307 F.3d at 1189-90. Nevertheless, Navarro-Lopez’s statement that the modified categorical approach never applies when “the crime of conviction is missing an element of the generic crime altogether,” 503 F.3d at 1073, is plain and clear. And, because such statement is irreconcilable with our precedents that have held otherwise, we must conclude that they have been impliedly overruled.

In addition, however, we are given pause by the distinction between the handful of aggravated felonies listed in the INA that require a specific monetary loss and the other generic offenses we construe under Taylor. When we apply Taylor in the ordinary case, we consider whether a conviction qualifies as a generic offense with a unitary definition, such as a “crime involving moral turpitude” in removal cases or “burglary” in sentencing enhancement cases, to name just two. The Navarro-Lopez rule, which requires that the statute of conviction must contain every element of the generic offense before we resort to the modified categorical approach, plainly applies in this setting. See Plasencia-Ayala v. Mukasey, 516 F.3d 738, 749 (9th Cir.2008) (applying Navarro-Lopez in a crime involving moral turpitude ease); United States v. Jennings, 515 F.3d 980, 992-93 (9th Cir.2008) (applying Navarro-Lopez rule in an Armed Career Criminal Act case).

Subsection M(i), however, requires us to undertake a somewhat different inquiry. That statute defines as an aggravated felony any offense that “involves fraud or deceit in which loss to the victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i) (emphasis added). Two of our sister circuits have interpreted this “in which” language as a limiting provision or qualifier on the unitary generic offense — crime involving fraud or deceit— rather than an “element” of the offense itself. See Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir.2004); Arguelles-Olivares v. Mukasey, 526 F.3d 171, 177-79 (5th Cir.2008).

Under this construction, we suppose, the absence of a monetary loss element from the Kawashimas’ statutes of conviction would not preclude us from examining the record to determine the amount of loss their prior offenses caused. Such an approach would account for the fact that most fraud statutes do not contain a monetary loss element.⁷ In addition, it would avoid an anomalous consequence that results from applying Navarro-Lopez here. Consider, for example, two of Subsection M(i)’s companion statutes. First, 8 U.S.C. § 1101 (a) (43) (M) (ii) defines as an aggravated felony any offense “described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.” The only offense that can qualify as an aggravated felony under this particular provision of the INA is a violation of § 7201, yet that section contains no specific monetary loss element. Thus, if we decline to examine the record of conviction to determine the loss that occurred, the list of aggravated felonies enumerated in § 1101(a)(43)(M)(ii) is a null set. The very same is true of 8 U.S.C. § 1101(a)(43)(D), which defines as an aggravated felony, among other things, “an[y] offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) ... if the amount of the funds exceeded $10,000.” Section 1956 contains no monetary loss element either and, thus, under Navarro-Lopez a violation of that statute can never qualify as a removable offense under this particular provision of the INA, even though Congress has explicitly defined it as such.⁸

Yet while these considerations might warrant examining the record of conviction to determine whether the Kawashimas’ offenses resulted in the monetary loss required by Subsection M(i), we must conclude that Navarro-Lopez forecloses that option. We have consistently interpreted Subsection M(i)’s monetary loss requirement as an “element” of the generic offense, which the record of petitioner’s conviction must demonstrate that the jury actually found or the petitioner (as defendant) necessarily admitted. See Kharana, 487 F.3d at 1283-84; Li, 389 F.3d at 897; Chang, 307 F.3d at 1189-91. And Navarro-Lopez’s prohibition on examining the record of conviction plainly applies to all prior offenses that lack an “element” of the generic offense. 503 F.3d at 1073.

Moreover, we find confirmation for our view in then-judge Kozinski’s concurrence in L% the lone authority cited to in Navarro-Lopez as support for this rule. Navarro-Lopez, 503 F.3d at 1073 (citing Li, 389 F.3d at 899-901 (Kozinski, J., concurring)). The question presented in Li was identical to the one presented here — whether a petitioner’s convictions under fraud-related statutes that lacked monetary loss elements could qualify as, aggravated felonies under Subsection M(i). 389 F.3d at 893-94. The majority concluded that such a result was possible if the record of petitioner’s conviction demonstrated that the jury “actually found” him to have caused a loss greater than $10,000. Id. at 897. Judge Kozinski, on the other hand, wrote separately to state that he would not have examined the record at all because Subsection M(i)’s amount of loss requirement “wasn’t an element” of the statutes under which the petitioner had been convicted. Id. at 900. Because the en banc court in Navarro-Lopez quoted Judge Kozinski’s concurrence directly, we cannot reasonably conclude that it did not intend for its rule to control our modified categorical analysis of aggravated felonies defined in Subsection M(i).

Thus, because the statutes to which the Kawashimas pled guilty to violating do not require proof of any particular monetary loss, we do not examine the record of their convictions to determine whether they necessarily pled guilty to causing a loss in excess of $10,000. Our conclusion that the government failed to show that the Kawashimas’ convictions are aggravated felonies under the categorical approach means that the Kawashimas are not removable and, accordingly, their petitions for review of the BIA’s affirmance of the removal order must be granted.

Ill

Our final task is to determine whether the BIA erred in denying the Kawashimas’ motion to reopen. As we have granted the Kawashimas’ petition for review of the removal order, we must dismiss their petition for review of the BIA’s denial of their 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 petitioner is not removable because he was not convicted of a predicate offense involving moral turpitude).

rv

For the foregoing reasons, Mr. and Mrs. Kawashima’s petition for review of the BIA’s affirmance of the IJ’s removal order in 04-74313 is GRANTED and Mr. and Mrs. Kawashima’s petition for review of the BIA’s denial of the motion to reopen in 05-74408 is DISMISSED as MOOT.

1 . We refer to Akio as "Mr. Kawashima” and Fusako as "Mrs. Kawashima.” 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.”

3 . The Notice to Appear also alleged that the Kawashimas were removable for having been convicted of aggravated felonies under § 1101(a)(43)(M)(ii), but that allegation is not before us here.

4 . Our examination is limited to a "narrow, specified set of documents” that includes " 'the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings.' " Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.2004) (quoting United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir.2001)). We may not "look beyond the record of conviction itself to the particular facts underlying the conviction.” Id.

5 . Specifically, the statute provides fines and imprisonment for any person who

[w]illfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of peijury, and which he does not believe to be true and correct as to every material matter.

26 U.S.C. § 7206(1).

6 . That statute provides for the fining and imprisonment of any person who

[w]illfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document.

26 U.S.C. § 7206(2).

7 . See, e.g., 18 U.S.C. § 1344 (bank fraud); id. § 152 (concealment of assets, false oaths and claims in bankruptcy); id. § 286 (conspiracy to defraud the government with respect to claims); id. § 472 (uttering counterfeit obligations or securities); id. § 1010 (fraud and false statements in HUD and FHA transactions); id. .§ 1341 (mail fraud).

8 . The provisions stripped of any practical effect by Navarro-Lopez are not limited to those with qualifying language relating to loss suffered by the victim. For example, 8 U.S.C. § 1101(a)(43)(K)(ii) defines as an aggravated felony any offense "described in section 2421, 2422, or of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage.” Id. (emphasis added). Yet only one of the three enumerated statutes lists the phrase "commercial advantage” as an element See 18 U.S.C. § 2423(d).