Kawashima v. Holder: What Is an "Aggravated Felony" for Immigration Purposes?

Kawashima v. Holder: What Is an "Aggravated Felony" for Immigration Purposes?

By Jennifer M. Chacon

This is a case involving tax, criminal, and immigration law. In Kawashima v. Holder, the U.S. Supreme Court can clear up some of the confusion about just what crimes are aggravated felonies. The crimes in the case were filing, and aiding and abetting the filing of, a false statement on a corporate tax return under 26 U.S.C. § 7206. Professor Jennifer Chacon analyzes both sides' arguments and their merits.

 In 1988, Congress amended the immigration law to provide that a noncitizen who has committed an aggravated felony is deportable. 1 At the time, the term "aggravated felony" was limited in scope to certain drug crimes and to serious crimes like murder and rape. 2 Although the consequences for the commission of an aggravated felony could be the severe sanction of deportation, immigration judges generally were authorized to weigh the equities of each individual case to determine whether deportation was the appropriate sanction.

Since that time, Congress has amended the Immigration and Nationality Act (INA) several times. With successive revisions, the aggravated-felony definition has become broader and the likelihood of deportation more certain. In 1994, for example, Congress added a provision covering crimes involving fraud and deceit causing loss to victims and tax evasion crimes causing revenue losses to the government.  In 1996, Congress amended these "loss" provisions to reduce the loss threshold from $200,000 to the current $10,000. It simultaneously eliminated almost all forms of discretionary relief for those convicted of aggravated felonies.

Since 1996, the Supreme Court repeatedly has engaged in efforts to determine the proper scope of the revised and expanded aggravated-felony definition. The case of Kawashima v. Holder is just one more instance in which litigants have asked the Court to determine whether or not a particular conviction falls within the ambit of that notoriously expansive term.  In that sense, the case follows in the tradition of recent cases such as Leocal v. AshcroftCarachuri-Rosendo v. Holder,  and Nijhawan v. Holder
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