Kawashima v. Mukasey (9th Cir. 7/2/08)

PER CURIAM Leavy, O'Scannlain, Callahan - O'Scannlain and Callahan concurring specially.

In a tax evasion case, the 9th cir held that:

(a) The $10,000 loss prong is an element of the offense, pursuant to prior 9th cir caselaw (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) - contra Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004); Arguelles-Olivares v. Mukasey, 526 F.3d 171, 177-79 (5th Cir. 2008)).

(b) Under Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), the CtApp cannot even consider the record of conviction in determining whether it's an aggravated felony, because the amount of loss is not an element of the offense.

CtApp found it troubling, noting that even federal offenses don't fall into this definition - but found it compelled by prior case law.

O'Scannlain and Callahan, specially concurring:

Urging that the CtApps reject a strict application of Taylor's categorical test to immigration law, and particularly regarding 101(a)(43)(M).

Read opinion here: 

O'Scannlain concurrence:

   Our precedents applying the modified categorical approach in immigration cases make two assumptions that I suggest are untenable. The first assumption is that any and all language Congress uses to define a particular generic offense in the INA must be parsed into “elements,” each of which the petitioner must, in fact, have been convicted. Four of our sister circuits reject such extreme literalism, and with good reason. The most common generic offenses found in the INA and in recidivist sentencing enhancement statutes are “relatively unitary categorical concepts— like ‘forgery’ . . . ‘burglary’ . . . or ‘crime of violence.’ ” Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004) (emphasis added). It makes sense to insist that a defendant was actually convicted of a burglary or forgery or committing violence before a subsequent tribunal enhances his sentence upon a future conviction or classifies him as a removable alien on the basis of this prior offense. Yet as the Third and Fifth Circuits explain, “a departure from the formal categorical approach seems warranted” in cases where the generic offense “invite[s] inquiry into the facts underlying the conviction at issue.” Id.; see Arguelles-Olivares v. Mukasey, 526 F.3d 171, 176-77 (5th Cir. 2008) (same). * * *

   As noted in the court’s opinion, the courts of appeals have uniformly begun with Taylor’s categorical approach when comparing predicate crimes to generic offenses in the INA. Maj. Op. at 7909-10 (citing Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 818 (2007)). Yet to accept that Taylor informs such task is not to suggest that Taylor controls it. In Navarro-Lopez, we continued to assume, as we always have, that the test the Supreme Court designed in Taylor for the purpose of categorizing prior convictions under recidivist sentencing enhancement statutes must apply, root-and-branch, to the task of categorizing prior convictions under the INA. Our colleagues on the First and Seventh Circuits, however, have recognized that although the legal question is similar, two critical distinctions between sentencing and removal make it imperative to adapt Taylor to fit the confines of this separate arena. See Ali v, Mukasey, 521 F.3d 737 (7th Cir. 2008); Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006).

   First, the Supreme Court’s decision in Taylor was informed by constitutional concerns that are entirely absent from the immigration context. When a sentencing judge increases a defendant’s sentence based on his or her prior convictions, the defendant’s Sixth Amendment rights are impacted directly. Yet when an immigration judge cites an alien’s prior conviction as the basis for removal, there is no constitutional right in play. * * *

   Second, the INA specifies that, in removal proceedings, the government “has the burden of establishing by clear and convincing evidence” that the alien is removable. 8 U.S.C. § 1229a(c)(3)(A).3 Navarro-Lopez, and indeed even our pre- Navarro-Lopez cases, require far more.

Atty: Judith Wood

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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.