Lead Opinion
delivered the opinion of the Court.
This case concerns whether aliens who commit certain federal tax crimes are subject to deportation as aliens who have been convicted of an aggravated felony. We hold that violations of 26 U. S. C. §§7206(1) and (2) are crimes “involving] fraud or deceit” under 8 U. S. C. § 1101(a)(43)(M)(i) and are therefore aggravated felonies as that term is defined in the Immigration and Nationality Act, 8 U. S. C. §1101 et seq., when the loss to the Government exceeds $10,000.
H-l
Petitioners, Akio and Fusako Kawashima, are natives and citizens of Japan who have been lawful permanent residents of the United States since June 21,
Following their convictions, the Immigration and Naturalization Service charged the Kawashimas with being deport-able
At their deportation hearing, the Kawashimas argued that their convictions under 26 U. S. C. § 7206 did not qualify as aggravated felonies under subparagraph (M). The Immigration Judge disagreed and ordered removal, concluding that the Kawashimas’ convictions qualified as aggravated felonies under Clause (i). The Kawashimas appealed the removal order to the Board of Immigration Appeals (Board), which affirmed the Immigration Judge’s decision. After unsuccessfully petitioning the Board to reopen its decision, the Kawashimas filed petitions for review of the Board’s decision in the United States Court of Appeals for the Ninth Circuit.
The Ninth Circuit held that “convictions for violating §§7206(1) and (2) in which the tax loss to the government exceeds $10,000 constitute aggravated felonies under subsection (M)(i).”
We granted the Kawashimas’ petition for a writ of certio-rari to determine whether their convictions for violations of 26 U. S. C. §§ 7206(1) and (2) respectively qualify as aggravated felonies under Clause (i).
II
The Kawashimas argue that they cannot be deported for commission of an “aggravated felony” because crimes under §§7206(1) and (2) do not “involvfe] fraud or deceit” as required by Clause (i). The
A
The Kawashimas contend that their offenses of conviction do not fall within the scope of Clause (i) because neither “fraud” nor “deceit” is a formal element of a conviction under §7206(1) or §7206(2). The Government responds that the Kawashimas’ convictions necessarily involved deceit because they required a showing that the Kawashimas willfully made materially false statements. To determine whether the Ka-washimas’ offenses “involv[e] fraud or deceit” within the meaning of Clause (i), we employ a categorical approach by looking to the statute defining the crime of conviction, rather than to the specific facts underlying the crime. See Gonzales v. Duenas-Alvarez,
Mr. Kawashima was convicted of violating 26 U. S. C. §7206(1), which provides that 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 perjury, and which he does not believe to be true and correct as to every material matter,” shall be guilty of a felony. Mr. Kawashima does not dispute that the elements of a violation of §7206(1) include, inter alia, that the document in question was false as to a material matter, that the defendant did not believe the document to be true and correct as to every material matter, and that he acted willfully with the specific intent to violate the law. See, e. g., United States v. Aramony,
When subparagraph (M) was enacted, the term “deceit” meant “the act or practice of deceiving (as by falsification, concealment, or cheating).” Webster’s Third New International Dictionary 584 (1993). Mr. Kawashima’s conviction under § 7206(1) establishes that he knowingly and willfully submitted a tax return that was false as to a material matter. He therefore committed a felony that involved “deceit.”
Turning to Mrs. Kawashima, our analysis follows a similar path. Mrs. Kawashima was convicted of violating 26 U. S. C. § 7206(2), which declares that any person who “[willfully aids or assists in
The language of Clause (i) is clear. Anyone who is convicted of an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” has committed an aggravated felony and is subject to deportation pursuant to 8 U. S. C. § 1227(a)(2)(A)(iii). The elements of willfully making and subscribing a false corporate tax return, in violation of 26 U. S. C. § 7206(1), and of aiding and assisting in the preparation of a false tax return, in violation of 26 U. S. C. § 7206(2), establish that those crimes are de-portable offenses because they necessarily entail deceit.
B
The Kawashimas’ second argument is based on inferences drawn from the interaction of Clause (i) and Clause (ii). The full text of subparagraph (M) reads as follows:
“(43) The term ‘aggravated felony’ means—
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“(M) 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 Government exceeds $10,000.”
The Kawashimas argue that when Clause (i) is read together with Clause (ii), Clause (i) must be interpreted as being inapplicable to tax crimes. In their view, subparagraph (M), when considered in its entirety, demonstrates that Congress was addressing two mutually exclusive categories of crimes in subparagraph (M)’s two clauses: general, nontax crimes involving fraud or deceit that cause actual losses to real victims in Clause (i), and tax crimes involving revenue losses to the Government in Clause (ii). For the reasons discussed below, this argument cannot overcome the plain language of Clause (i), which encompasses the Kawashimas’ offenses of conviction.
1
The Kawashimas contend that textual differences between Clauses (i) and (ii) indicate that Congress' intended to exclude tax crimes from Clause (i). Specifically, they note that Clause (i) addresses “loss to the victim,” whereas Clause (ii) addresses “revenue loss to the Government.”
This difference in language does not establish Congress’ intent to remove tax crimes from the scope of Clause (i). Clause (i) covers a broad class of offenses that involve fraud or deceit. Clause (i) thus uses correspondingly broad language to refer to the wide range of potential losses and victims. Clause (ii), on the other hand, is limited to the single type of offense “described in section 7201 of title
2
Next, the Kawashimas argue that interpreting Clause (i) to include tax crimes violates the presumption against superfluities by rendering Clause (ii) completely redundant to Clause (i). Clause (ii) explicitly states that convictions for tax evasion pursuant to 26 U. S. C. § 7201 that cause a revenue loss of at least $10,000 to the Government are aggravated felonies. The Kawashimas assert that, if Clause (i) applies to tax crimes, then qualifying convictions for tax evasion under Clause (ii) would also qualify as aggravated felonies under Clause (i), because tax evasion is a crime involving fraud or deceit. To buttress this argument, the Kawashi-mas point to a body of law providing that a conviction for tax evasion under §7201 collaterally estops the convicted taxpayer from contesting a civil penalty under 26 U. S. C. § 6663(b) for “underpayment... attributable to fraud.” See, e. g., Gray v. Commissioner,
We disagree with the Kawashimas’ contention that the specific mention of one type of tax crime in Clause (ii) impliedly limits the scope of Clause (i)’s plain language, which extends to any offense that “involves fraud or deceit.” We think it more likely that Congress specifically included tax evasion offenses under 26 U. S. C. § 7201 in Clause (ii) to remove any doubt that tax evasion qualifies as an aggravated felony.
Several considerations support this conclusion. Like §§ 7206(1) and (2), § 7201 does not, on its face, mention fraud or deceit. Instead, § 7201 simply provides that “[a]ny person who willfully attempts in any manner to evade or defeat any tax imposed by [the Internal Revenue Code] or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony.” Accordingly, neither fraud nor deceit is among the elements of a conviction under §7201, which include: (1) willfulness; (2) the existence of a tax deficiency; and (3) an affirmative act constituting an evasion or an attempted evasion of the tax. Boulware v. United States,
This Court’s decision in United States v. Scharton,
Moreover, §7201 includes two offenses: “the offense of willfully attempting to evade or defeat the assessment of a tax as well as the offense of willfully attempting to evade or defeat the payment of a tax.” Sansone v. United States,
3
The Kawashimas also assert that the separate treatment of tax crimes and crimes involving fraud and deceit in the United States Sentencing Guidelines (USSG) supports their contention that Congress did not intend to include tax crimes within Clause (i). They point to the fact that, in 1987, the United States Sentencing Commission included within the Guidelines a category of “offenses involving fraud or deceit.” USSG §§ 2F1.1 to 2F1.2 (deleted effective Nov. 1,2001). The Commission simultaneously included “offenses involving taxation” as a separate category. §2T1.1 et seq. (Nov. 2011). Although the Kawashimas acknowledge that they have found no evidence that Congress actually considered the Guidelines, they contend that “it is likely that the language of [Clause (i)] and [Clause (ii)] was taken from the Sentencing Guidelines” by the sponsors of the bill that expanded the definition of aggravated felony to include subparagraph (M). Brief for Petitioners 29. Therefore, the theory goes, we can infer from the similar language in the Guidelines that Congress did not intend Clause (i) to include tax crimes.
We reject the Kawashimas’ reliance on the Guidelines. The Kawashimas’ argument is at odds with the fact that, unlike the Guideline that the Kawashimas cite, Clause (ii) does not refer to all offenses “involving taxation.” Rather, Clause (ii) is expressly limited to tax evasion offenses under § 7201. That textual difference undercuts any inference that Congress was considering, much less incorporating, the distinction drawn by the Guidelines.
C
Finally, the Kawashimas argue that subparagraph (M)’s treatment of tax crimes other than tax evasion is ambiguous,
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For the foregoing reasons, we conclude that convictions under 26 U. S. C. §§ 7206(1) and (2) in which the revenue loss to the Government exceeds $10,000 qualify as aggravated felonies pursuant to 8 U. S. C. § 1101(a)(43)(M)(i). Because the Kawashimas are subject to deportation as aliens who have been convicted of aggravated felonies pursuant to 8 U. S. C. § 1227(a)(2)(A)(iii), the judgment of the Court of Appeals is affirmed.
It is so ordered.
Notes
On March 1, 2003, most of the functions of the Immigration and Naturalization Service were transferred to the Bureau of Immigration and Customs Enforcement, and the Immigration and Naturalization Service ceased to exist.
Before 1996, there were two procedures for removing aliens from the country: “deportation” of aliens who were already present, and “exclusion” of aliens seeking entry or reentry into the country. Since 1996, the Government has used a unified procedure, known as “removal,” for both exclusion and deportation. See 8 U. S. C. §§ 1229, 1229a. We use the terms “deportation” and “removal” interchangeably in this opinion.
We note that the issue whether the Kawashimas’ offenses satisfy the second requirement of Clause (i) — that the loss to the victim exceeded $10,000 — is not before us. We address only whether their offenses of conviction qualify as crimes “involv[ing] fraud or deceit.”
Dissenting Opinion
dissenting.
Petitioner Akio Kawashima was convicted of preparing a false corporate tax return in violation of 26 U. S. C. § 7206(1). His wife, petitioner Fusako Kawashima, was convicted under § 7206(2) of assisting her husband in preparing the false return. The question presented is whether a conviction under §7206 is an “aggravated felony” that renders the Kawa-shimas deportable from the United States. See 8 U. S. C. § 1227(a)(2)(A)(iii).
Congress has defined “aggravated felony” to include, inter alia, offenses that “(i) involv[e] fraud or deceit in which the loss to the victim or victims exceeds $10,000” or “(ii) [are] described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.” § 1101(a)(43)(M). The Kawashimas argue that tax offenses triggering deportation are delineated exclusively in § 1101(a)(43)(M)(ii) (or Clause (ii)), and that § 1101(a)(43)(M)(i) (or Clause (i)) does not encompass tax crimes. The Court rejects this argument, and holds that any tax offense “involving] fraud or deceit,” if the loss to the fisc exceeds $10,000, ranks as an “aggravated felony.” See ante, at 489 and this page. Because the Kawashimas’ tax offense involved deceit and meets the monetary threshold, the Court concludes, they have committed an aggravated felony and are therefore deportable.
The Court’s construction of the statute is dubious, as I see it. For one thing, it effectively renders Clause (ii) superfluous. Further, the Court’s reading sweeps a wide variety of federal, state, and local tax offenses — including misdemeanors — into the “aggravated felony” category. In addition, today’s decision may discourage aliens from pleading guilty to tax offenses less grave than tax evasion, thereby complicating and delaying enforcement of the internal revenue laws. I conclude that Clause (i) does not address tax offenses, and would therefore hold that making a false statement on a tax return in violation of § 7206 is not an “aggravated felony.”
I
Any alien convicted of an “aggravated felony” after admission to the United States is deportable. 8 U. S. C. § 1227(a)(2)(A)(iii). Subparagraph (M) of §1101(a)(43) includes as an “aggravated felony”:
“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 Government exceeds $10,000.”
Notably, Clause (i) speaks of “loss to the victim,” Clause (ii) of “revenue loss to the
The Government contends that Clause (i) covers all tax offenses involving fraud or deceit, and that Congress included Clause (ii) out of caution, to make certain that persons convicted of tax evasion would be subject to deportation. Under the Government’s construction, because the crime of making a false statement on a tax return involves “fraud” or “deceit,” the Kawashimas committed an aggravated felony. See ante, at 483, 484 (“the words ‘fraud’ and ‘deceit’ are absent from the text of § 7206(1) and are not themselves formal elements of the crime,” nonetheless, “[the] elements [of a § 7206 crime] necessarily entail fraudulent or deceitful conduct”).
The Court’s task is to determine which reading of the statute is correct. If the two proffered constructions of subpar-agraph (M) are plausible in roughly equal measure, then our precedent directs us to construe the statute in the Kawashi-mas’ favor. See Fong Haw Tan v. Phelan,
II
A
In interpreting 8 U. S. C. § 1101(a)(43)(M), I would rely upon the familiar canon that statutes should be interpreted to avoid superfluity. See Corley v. United States,
The elements of tax evasion are the existence of a tax deficiency, willfulness, and “an affirmative act constituting an evasion or attempted evasion of the tax.” Sansone v. United States,
Even more to the point, courts have held that a conviction for tax evasion under 26 U. S. C. § 7201 “conclusively establishes fraud in a subsequent civil tax fraud proceeding.” Gray v. Commissioner,
Tax offenses span a wide range, from failure to file a tax return, 26 U. S. C. § 7203, to the unauthorized use of tax stamps, §7209. But “the gravest of offenses against the revenues/’ this Court has said, the “capstone” of tax law violations, is tax evasion. Spies,
The Court ascribes a different purpose to Clause (ii). Tax evasion, made criminal by § 7201, the Court states, “almost invariably,” but “not necessarily^ involve[s] fraud or deceit.” Ante, at 488. But see supra, at 492-493. Congress likely included Clause (ii), the Court suggests, simply “to remove any doubt that tax evasion qualifies as an aggravated felony.” Ante, at 487. In other words, in holding that Clause (i) includes tax offenses, the Court finds Clause (ii) largely, but not totally, redundant.
In support of the notion that tax evasion can occur without fraud or deceit, the Court cites United States v. Scharton,
Courts had limited Scharton to its statute of limitations context several decades before Congress enacted § 1101(a) (43)(M) in 1994. See Tseung Chu v. Cornell,
The Court presents another reason, drawn from the Government’s brief, why Congress may have treated tax evasion discretely, while embracing tax crimes generally within the Clause (i) category. Section 7201 covers both evasion of assessment and evasion of payment. Imagine a taxpayer who files a truthful return, then moves her assets to a place “beyond the reach of the Internal Revenue Service.” Ante, at 488; see Brief for Respondent 34. The Court acknowledges that evasion-of-payment cases almost always “involve some affirmative acts of fraud or deceit.” Ante, at 488. Still, there may be a rare case in which that is not so. Rare, indeed; imaginary would be an apt characterization. The Government conceded that, to its knowledge, there have been no actual instances of indictments for tax evasion unaccompanied by any act of fraud or deceit. Tr. of Oral Arg. 30-31.
The canon that statutes should be interpreted to avoid superfluity cannot be skirted as easily as the Government here urges. We have declined to interpret legislation in a way that “would in practical effect render [a provision] entirely superfluous in all but the most unusual circumstances.” TRW Inc. v. Andrews,
Congress’ aim in drafting § 1101(a)(43) was to determine which crimes are sufficiently serious to warrant the “drastic measure” of deportation, and which are not. See Fong Haw Tan,
B
The Court’s construction of the statute is even less plausible given the numerous offenses it would rank as “aggravated felon[ies].” Many federal tax offenses, like 26 U. S. C. § 7206, involve false statements or misleading conduct. See, e.g., §7202 (failing to truthfully account for and pay taxes owed). Conviction of any of these offenses, if the Court’s construction were correct, would render an alien deportable. So would conviction of state and local tax
Rendering all tax offenses involving false statements “aggravated felon[ies]” that subject an alien to deportation is all the more problematic, for many of these offenses are misdemeanors. Among federal misdemeanors, see, e. g., 26 U. S. C. § 7204 (“furnish[ing] a false” W-2 form to an employee); § 7205 (“supplying] false or fraudulent information” to an employer); § 7207 (filing a return “known ... to be false as to any material matter”). On the state and local level, see, e. g., Cal. Rev. & Tax. Code Ann. § 1610.4 (West 1998) (“Every person who wilfully states anything which he knows to be false in any oral or written statement, not under oath, required or authorized to be made as the basis of an application to reduce any tax or assessment, is guilty of a misdemeanor.”); N. D. Cent. Code Ann. §57-37.1-16 (Lexis 2011) (“Every person who willfully and knowingly subscribes or makes any false statement of facts [on an estate tax return] ... is guilty of a class A misdemeanor.”); Columbus, Ohio City Code §§ 361.31(a)(4), (b), (d) (2009) (any person who “[k]nowingly make[s] and file[s] an incomplete, false or fraudulent [municipal] return” is guilty of a fourth-degree misdemeanor). Nor would the $10,000 threshold set in 8 U. S. C. § 1101(a)(43)(M) prevent deportation for tax crimes far less serious than willful tax evasion, for as many as six years may be included in the amount-of-loss calculation. See 26 U. S. C. § 6531 (setting a six-year statute of limitations for, inter alia, tax crimes involving fraud or falsity); Brief for Johnnie M. Walters as Amicus Curiae 15-16 (hereinafter Walters Brief).
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). See United States v. Olgin,
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See also, e. g., Blohm v. Commissioner,
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,