Kawashima v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

AKIO KAWASHIMA; FUSAKO 
KAWASHIMA,
Petitioners, No. 04-74313
v.  Agency Nos.
A38-554-590
ERIC H. HOLDER JR.,* Attorney A38-554-591
General,
Respondent.


AKIO KAWASHIMA; FUSAKO  No. 05-74408
KAWASHIMA, aka Fusako Nakajima,
Petitioners, Agency Nos.
v.  A38-554-590
A38-554-591
ERIC H. HOLDER JR.,* Attorney
ORDER AND
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
February 8, 2007—Pasadena, California

Opinion Filed September 18, 2007
Opinion Withdrawn; New Opinion Filed July 1, 2008
Opinion Withdrawn; New Opinion Filed January 27, 2010
Opinion Withdrawn; New Opinion Filed August 4, 2010

*Eric H. Holder Jr. is substituted for his predecessor Michael B.
Mukasey as Attorney General of the United States. Fed. R. App. P.
43(c)(2).

11181
11182 KAWASHIMA v. HOLDER
Before: Diarmuid F. O’Scannlain, Edward Leavy, and
Consuelo M. Callahan, Circuit Judges.

Order;
Dissent to Order by Judge Graber;
Opinion by Judge O’Scannlain
11184 KAWASHIMA v. HOLDER

COUNSEL

Judith L. Wood, Law Offices of Judith L. Wood, Los Ange-
les, California, argued the cause for the petitioners and filed
the briefs. Todd Beacraft, Law Offices of Judith L. Wood,
was also on the briefs.

Nancy Freedman, Office of Immigration Litigation, Washing-
ton D.C., argued the cause for the respondent. Peter D. Keis-
ler, Assistant Attorney General, Civil Division, Washington,
 KAWASHIMA v. HOLDER 11185
D.C., M. Jocelyn Lopez Wright, Assistant Director, Office of
Immigration Litigation, and James A. Hunolt, Senior Litiga-
tion Counsel, Office of Immigration Litigation, were also on
the brief.

Jenny C. Lin-Alva, Ord & Norman, LLC, San Francisco, Cal-
ifornia, filed a supplemental brief on behalf of the petitioners.
Edward O.C. Ord, Ord & Norman, LLC, and Thomas J.
Whalen, Eckert Seamans Cherin & Mellott, Washington,
D.C., were also on the brief.

Jennifer J. Keeney, Senior Litigation Counsel, Office of
Immigration Litigation, Washington, D.C., filed a supplemen-
tal brief on behalf of the respondent. Tony West, Assistant
Attorney General, Civil Division, Washington, D.C., and
Donald E. Keener, Deputy Director, Office of Immigration
Litigation, were also on the brief.

Stephen W. Manning, American Immigration Lawyers Asso-
ciation, Portland, Oregon, filed a brief on behalf of amicus
curiae the American Immigration Lawyers Association and in
support of the petitioners’ supplemental brief. Jessica M.
Boell, American Immigration Lawyers Association, Jennifer
M. Rotman, American Immigration Lawyers Association, and
Andrew Knapp, American Immigration Lawyers Association,
were also on the brief.

Jenny C. Lin-Alva, Ord & Norman, LLC, San Francisco, Cal-
ifornia, filed a petition for rehearing with a suggestion for
rehearing and a reply on behalf of the petitioners. Edward
O.C. Ord, Ord & Norman, LLC, Thomas J. Whalen, Eckert
Seamans Cherin & Mellott, Washington, D.C., and Mark
Johnston, Eckert Seamans Cherin & Mellott, were also on the
petition and the reply.

Jennifer J. Keeney, Senior Litigation Counsel, Office of
Immigration Litigation, Washington, D.C., filed a brief
opposing rehearing on behalf of the respondent. Tony West,
11186 KAWASHIMA v. HOLDER
Assistant Attorney General, Civil Division, Washington,
D.C., Donald E. Keener, Deputy Director, Office of Immigra-
tion Litigation, Matthew B. George, Trial Attorney, Office of
Immigration Litigation, and Katherine A. Smith, Trial Attor-
ney, Office of Immigration Litigation, were also on the brief.

ORDER

The opinion filed in this case on January 27, 2010, and
published at 593 F.3d 979, is withdrawn. A new opinion is
filed contemporaneously with the filing of this order.

The panel has voted unanimously to deny the petition for
rehearing. Judges O’Scannlain and Callahan have voted to
deny the petition for rehearing en banc, and Judge Leavy has
so recommended.

The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the mat-
ter en banc, and the matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc con-
sideration. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en
banc are DENIED. No further petitions for rehearing or peti-
tions for rehearing en banc will be entertained.

GRABER, Circuit Judge, with whom WARDLAW and
PAEZ, Circuit Judges, join, dissenting from denial of rehear-
ing en banc:

I respectfully dissent from denial of rehearing en banc.

An aggravated felony is, among other things:
 KAWASHIMA v. HOLDER 11187
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 Gov-
ernment exceeds $10,000[.]

8 U.S.C. § 1101(a)(43)(M). The panel holds that it is plain
that the term “loss to the victim or victims” in subsection (i)
necessarily encompasses tax revenue loss to the Government
even though subsection (ii) specifically governs tax revenue
loss to the Government. The panel opinion reaches that con-
clusion only by contravening clear rules of statutory interpre-
tation.

A. Statutory Text Must be Read in Context

Read in isolation, there is little dispute that the term “loss
to the victim or victims” is broad enough that it might encom-
pass a tax revenue loss to the government. But it is black-
letter law that we may not read statutory terms in isolation.
See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)
(“The plainness or ambiguity of statutory language is deter-
mined by reference to the language itself, the specific context
in which that language is used, and the broader context of the
statute as a whole.” (emphasis added)); Smith v. United
States, 508 U.S. 223, 233 (1993) (“Just as a single word can-
not be read in isolation, nor can a single provision of a stat-
ute.”); United States v. Morton, 467 U.S. 822, 828 (1984)
(“We do not . . . construe statutory phrases in isolation; we
read statutes as a whole. Thus, the [term in question] must be
read in light of the immediately following phrase . . . .” (foot-
note omitted)); see also Harbison v. Bell, 129 S. Ct. 1481,
1492 (2009) (Roberts, C.J., concurring in the judgment) (“We
do not construe statutory phrases in isolation; we read statutes
as a whole. This certainly applies to reading sentences as a
11188 KAWASHIMA v. HOLDER
whole.” (citation, alterations, and internal quotation marks
omitted)).

Often, although a phrase sweeps broadly when read in iso-
lation, surrounding statutory text clarifies that Congress actu-
ally intended a narrower meaning. Applications of that simple
rule of construction appear throughout the Supreme Court’s
jurisprudence. For example:

• “The [relevant] term . . . is not defined in the stat-
ute, and, out of context, its ordinary meaning
could include [the situation at hand]. However,
we must not analyze one term of [the statute] in
isolation. When [the statute] is read as a whole,
the better interpretation is that [the term does not
encompass the situation at hand].” Pollard v. E.I.
du Pont de Nemours & Co., 532 U.S. 843, 852
(2001) (citation omitted).

• “If considered in isolation, the [relevant] phrase
. . . could embrace a wide [definition]. After all,
in ordinary meaning and usage, [the term has a
broad definition]. . . . The definition of words in
isolation, however, is not necessarily controlling
in statutory construction. A word in a statute may
or may not extend to the outer limits of its defini-
tional possibilities. Interpretation of a word or
phrase depends upon reading the whole statutory
text [and upon other considerations].” Dolan v.
U.S. Postal Serv., 546 U.S. 481, 486 (2006) (cita-
tion omitted).

• “[T]he dissent’s point that subsection (a) seems
clear when read in isolation proves nothing, for
‘the meaning—or ambiguity—of certain words or
phrases may only become evident when placed in
context.’ When subsection (a) is read in context,
there is no avoiding the question, ‘What could
 KAWASHIMA v. HOLDER 11189
Congress have been getting at with both (a) and
(c)?’ ” Corley v. United States, 129 S. Ct. 1558,
1566 n.5 (2009) (citation and alteration omitted).

• “Petitioner’s interpretation of [the statutory pro-
vision] might be plausible were we to interpret
that provision in isolation, but it simply is not
tenable in light of the [statute’s] surrounding pro-
visions. We must not be guided by a single sen-
tence or member of a sentence, but look to the
provisions of the whole law.” Gade v. Nat’l Solid
Wastes Mgmt. Ass’n, 505 U.S. 88, 99 (1992)
(plurality) (alteration and internal quotation
marks omitted).

The panel’s analysis defies that rule of construction by con-
cluding that the meaning of subsection (i) is plain without
regard to the very next clause in the same sentence. See
Amended Op. at 11198 (concluding, before considering sub-
section (ii), that: “Thus, according to the plain meaning of the
statutory language,” subsection (i) encompasses tax revenue
losses to the government). In subsection (i), Congress gave
general treatment to losses while, in subsection (ii), Congress
gave specific treatment to tax revenue losses. Without regard
to any other analysis, both logic and Supreme Court precedent
require us to conclude that the meaning of subsection (i) is not
plain and to look to other indicators of congressional intent.1
1
Logic and Supreme Court precedent are not the only support for that
conclusion. In its opinion published at 593 F.3d 979 (9th Cir. 2010), the
panel cited Balogun v. U.S. Attorney General, 425 F.3d 1356, 1361 (11th
Cir. 2005), to support its conclusion that the meaning of subsection (i) is
plain. Kawashima, 593 F.3d at 983. The problem is that the court in
Balogun reached a contrary conclusion. In that case, the Eleventh Circuit
addressed the interpretation of subsection (i) in circumstances where the
application of subsection (i) was much more straight-forward. Yet, even
in those circumstances, the Eleventh Circuit could not conclude that the
meaning of subsection (i) is plain. Balogun, 425 F.3d at 1361. The panel’s
response to that fact was to delete its citation to Balogun. We can infer
that the panel now finds the Eleventh Circuit’s reasoning unpersuasive,
but we do not know why.
11190 KAWASHIMA v. HOLDER
The panel forcefully defends its conclusion that the meaning
of subsection (i) is “plain” for the simple reason that each and
every other indicator of congressional intent points to the
opposite conclusion: Congress intended subsection (ii), and
not subsection (i), to cover tax crimes.

B. Superfluities Must be Avoided if Possible

The panel’s analysis next runs afoul of the rule that, if pos-
sible, we must read statutory text to avoid superfluities. “We
are not at liberty to construe any statute so as to deny effect
to any part of its language. It is a cardinal rule of statutory
construction that significance and effect shall, if possible, be
accorded to every word.” Market Co. v. Hoffman, 101 U.S.
112, 115 (1879); see also Knight v. Comm’r, 552 U.S. 181,
190 (2008) (“Thus, accepting [a particular] approach would
render part of the statute entirely superfluous, something we
are loath to do.” (internal quotation marks omitted)); Duncan
v. Walker, 533 U.S. 167, 174 (2001) (“It is our duty to give
effect, if possible, to every clause and word of a statute.”
(internal quotation marks omitted)).

The panel’s interpretation renders subsection (ii) superflu-
ous. Subsection (i) encompasses convictions that “involve
fraud or deceit” and that involve a loss exceeding $10,000.
Subsection (ii) encompasses tax evasion convictions where
the tax revenue loss exceeds $10,000. Importantly, because all
tax evasion convictions necessarily involve fraud or deceit,
Spies v. United States, 317 U.S. 492, 499 (1943), subsection
(i) necessarily encompasses all convictions encompassed by
subsection (ii). The panel’s interpretation thus renders subsec-
tion (ii) meaningless.

At the same time, it is easy to interpret the statute to give
meaning to both subsection (i) and subsection (ii). Hoffman,
101 U.S. at 115. It is an entirely reasonable interpretation that
Congress intended subsection (ii), and not subsection (i), to
 KAWASHIMA v. HOLDER 11191
govern tax crimes.2 Because it is “possible” to give “signifi-
cance and effect” to all parts of the statutory text, we must do
so. Hoffman, 101 U.S. at 115. “We are not at liberty to con-
strue any statute so as to deny effect to any part of its lan-
guage.” Id.

The panel declines to apply this mandatory analysis solely
because of its speculation that Congress might have intended
to enact a superfluous statutory provision. The panel’s reason-
ing misunderstands the rule against superfluities specifically
and the task of statutory interpretation more generally. It is
true that no method of statutory interpretation is absolute.
Indeed, even when the text is indisputably plain, we some-
times hold that Congress intended something very different
(for instance, when the drafters made a typographical mis-
take). See, e.g., Herrera v. U.S. Citizenship & Immigration
Servs., 571 F.3d 881, 886 n.5 (9th Cir. 2009). Here, Congress
indeed may have intended to enact a superfluous provision.
But there must be some reason to believe that this is the case.
We are not at liberty to wave away an indicator of congressio-
nal intent simply because it is conceivable that Congress
intended the opposite. It is always conceivable that Congress
did not mean what it said, or intended to enact a superfluous
provision, or intended to raise serious questions of constitu-
tionality, and so on. The panel’s observation that, here, that
possibility is not beyond the conceivable does not advance the
analysis.

On this point, it is extremely important that all indicators
of congressional intent point in the same direction: Congress
intended tax crimes to be governed only by subsection (ii),
not subsection (i). The panel points to absolutely nothing that
2
As the Third Circuit explained, Congress reasonably may have con-
cluded that no tax crimes other than the most severe tax crime—tax
evasion—should qualify as an aggravated felony, even if the less severe
tax crimes happen to involve fraud or deceit. Ki Se Lee v. Ashcroft, 368
F.3d 218, 224 (3d Cir. 2004).
11192 KAWASHIMA v. HOLDER
suggests that Congress did not so intend, other than the
alleged “plain meaning” of subsection (i) when read alone. Is
there any legislative history supporting the panel’s view? No.
Is there any statutory history supporting the panel’s view? No.
Is there a statutory purpose that supports the panel’s view,
such as a rule that the definition should be construed against
the alien? No; in fact, the opposite presumption applies, as the
panel acknowledges. Amended Op. at 11199 n.6; Kawashima,
593 F.3d at 984 n.7. Are there other canons of construction
that support the panel’s view? No; in fact, applicable canons
of construction support the opposite view, such as the rule
that the “specific governs the general.” See Ki Se Lee, 368
F.3d at 223-24 (explaining the application of this canon of
construction). In sum, the panel’s unassailable observation
that the rule against superfluities is not foolproof gets the
panel nowhere; there must be some indicator that, in these
particular circumstances, Congress actually intended to enact
a superfluous provision. Beyond its speculation, the panel
points to none.

In this regard, it is notable that the panel makes a point of
reminding the reader no less than four times that it is follow-
ing then-Judge, now-Justice, Alito’s dissenting view in Ki Se
Lee. The panel subscribes to, and applies, then-Judge Alito’s
view that the superfluities rule can be cast aside on the unsup-
ported speculation that Congress may have intended to enact
a superfluous provision. Just last year, now-Justice Alito
advanced that same general view in Corley, 129 S. Ct. 1558.
Unable to convince a majority of his colleagues, Justice Alito
expressed his views in dissent. Id. at 1572-73 (Alito, J., dis-
senting). The Supreme Court majority, however, roundly
rejected this proposed mode of interpretation: “[T]he dissent’s
point that subsection (a) seems clear when read in isolation
proves nothing, for ‘the meaning—or ambiguity—of certain
words or phrases may only become evident when placed in
context.’ When subsection (a) is read in context, there is no
avoiding the question, ‘What could Congress have been get-
 KAWASHIMA v. HOLDER 11193
ting at with both (a) and (c)?’ ” Id. at 1566 n.5 (citation and
alteration omitted).

Whatever validity the panel’s method of interpretation may
have had in the past, the Supreme Court clearly rejected it just
last year. The panel does not explain how its opinion is con-
sistent with Corley.

C. The Panel’s Method of Statutory Interpretation Will
Lead to Absurd Results in Other Cases

Imagine that 8 U.S.C. § 1101(a)(43)(M) defined an “aggra-
vated felony” as “an offense that (i) involves fraud or deceit
in which the loss to the victim or victims exceeds $10,000; or
(ii) involves fraud or deceit in which the tax revenue loss to
the Government exceeds $50,000.” Would a conviction
resulting in a tax revenue loss to the government of $30,000
qualify as an aggravated felony? Yes, according to the panel’s
analysis. Or, imagine instead that 8 U.S.C. § 1101(a)(43)(M)
defined an “aggravated felony” as “an offense that (i)
involves fraud or deceit in which the loss to the victim or vic-
tims exceeds $10,000; or (ii) involves fraud or deceit in which
the tax revenue loss to the Government exceeds $10,000 and
the conviction became final after 1999.” Would a 1997 con-
viction resulting in a large tax revenue loss to the government
qualify as an aggravated felony? Yes, according to the panel’s
analysis. Under the panel’s analysis, the text of subsection (i)
is plain, and we need not be concerned that such an interpreta-
tion would render subsection (ii) superfluous, because Con-
gress might have meant to enact a superfluous provision. The
panel’s opinion provides no basis to distinguish between those
hypothetical statutes and the statute as written.

D. Conclusion

The panel reads one phrase of the statute in isolation, ignor-
ing the very next phrase in the same sentence. The panel’s
interpretation of the statutory provision renders another statu-
11194 KAWASHIMA v. HOLDER
tory provision superfluous. The panel’s interpretation is
inconsistent with other canons of construction, including the
standard caveat that the specific governs over the general and
the rule that an ambiguous statute should be construed in the
alien’s favor. The panel fails to explain how its method of
interpretation is consistent with recent Supreme Court juris-
prudence. When made aware that one of its cited cases actu-
ally supports a view contrary to its own, the panel simply
deleted its citation of that case without explaining why it
found that case unpersuasive. Finally, the panel’s opinion will
lead to absurd results in other cases. I regret this court’s fail-
ure to rehear this case en banc.

OPINION

O’SCANNLAIN, Circuit Judge:

We are called upon to decide whether petitioners’ convic-
tions 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.

This is our third published opinion in this case. In our first
opinion, Kawashima v. Gonzales, 503 F.3d 997 (9th Cir.
2007), withdrawn 503 F.3d 1111 (9th Cir. 2008)
(“Kawashima I”), we conducted a limited examination of the
record of petitioners’ convictions to answer such 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 caused us to reconsider. We published
a second opinion, Kawashima v. Mukasey, 530 F.3d 1111 (9th
Cir. 2008), withdrawn 593 F.3d 979 (9th Cir. 2010)
(“Kawashima II”), in which we answered the question by
applying Navarro-Lopez to Kawashima’s conviction in light
of our circuit’s existing caselaw construing the statute defin-
ing “aggravated felony.”
 KAWASHIMA v. HOLDER 11195
After we published our second opinion, the government
filed a petition for rehearing en banc. While the government’s
petition was pending before us, the Supreme Court granted
certiorari in Nijhawan v. Attorney General, 523 F.3d 387 (3d
Cir. 2008), cert. granted, 129 S. Ct. 988 (2009). Like the case
before us, Nijhawan concerned whether a particular convic-
tion for a financial offense constitutes an “aggravated felony”
under relevant immigration laws. After the Court issued its
opinion, Nijhawan v. Holder, 129 S. Ct. 2294 (2009), we
ordered the parties to file supplemental briefs on Nijhawan’s
impact on the case before us. In light of this recent guidance
from the Court, we issue this hopefully final opinion in this
litigation.

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 prepara-
tion 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 Ser-
vice2 issued separate Notices to Appear to the Kawashimas
1
We refer to Akio as “Mr. Kawashima” and Fusako as “Mrs. Kawashi-
ma.” 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.”
11196 KAWASHIMA v. HOLDER
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 tran-
script 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). We
consider each in turn.
3
The Notice to Appear also alleged that the Kawashimas were remov-
able for having been convicted of aggravated felonies under
§ 1101(a)(43)(M)(ii), but that allegation is not before us here.
 KAWASHIMA v. HOLDER 11197
II

A

We are faced with the task of determining whether Mr.
Kawashima’s conviction for willfully making and subscribing
to a false statement on a tax return, in violation of § 7206(1),
and Mrs. Kawashima’s conviction for aiding and assisting in
the preparation of a false tax return, in violation of § 7206(2),
constitute aggravated felonies. Section 1101(a)(43)(M)
defines an “aggravated felony” to include “an offense that (i)
involves fraud or deceit in which the loss to the victim or vic-
tims 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.” 8 U.S.C. § 1101(a)
(43)(M)(i)-(ii).

As a threshold statutory interpretation matter, we must
decide whether tax offenses other than those described in
§ 7201 qualify as aggravated felonies under subsection (M)(i).4
In their supplemental brief to this court, the Kawashimas
renew their argument, first raised in their opening brief, that
subsection (M)(i)’s definition of “aggravated felony” does not
include their convictions under § 7206(1) and (2). They rea-
son that subsection (M)(ii)’s specific reference to § 7201 indi-
cates Congress’s intent to exclude all federal tax offenses
from the definition of aggravated felonies under the more
general subsection (M)(i). In our initial opinion in this case,
we rejected this argument. Kawashima v. Gonzales
(“Kawashima I”), 503 F.3d 997, 999-1001 (9th Cir. 2007).
Our ultimate view of this issue remains unchanged.
4
The Kawashimas’ convictions do not constitute aggravated felonies
under subsection (M)(ii) because that provision is limited to tax offenses
in violation of § 7201. Mr. Kawashima was convicted under § 7206(1) and
Mrs. Kawashima was convicted under § 7206(2). See United States v.
Roselli, 366 F.3d 58, 62 n.5 (1st Cir. 2004).
11198 KAWASHIMA v. HOLDER
[1] The plain text of subsection (M)(i) sets forth two
requirements for an offense to qualify as an aggravated fel-
ony. First, the offense must “involve fraud or deceit.” Second,
the “loss to the victim or victims” must exceed $10,000. Fer-
reira v. Ashcroft, 390 F.3d 1091, 1096 (9th Cir. 2004). In our
view, §§ 7206(1) and (2) necessarily “involve fraud or deceit”
because the provisions require the government to prove either
that the defendant “willfully” subscribed to a statement in a
tax return he did not believe to be true, or that the defendant
“willfully” aided and assisted in the making of a false or
fraudulent return. Furthermore, given that “the government is
a victim in all tax fraud cases,” United States v. Presbitero,
569 F.3d 691, 707 (7th Cir. 2009), a tax loss in excess of
$10,000 satisfies the second prong of subsection (M)(i). Thus,
according to the plain meaning of the statutory language, con-
victions for violating §§ 7206(1) and (2) in which the tax loss
to the government exceeds $10,000 constitute aggravated fel-
onies under subsection (M)(i). Aguelles-Olivares v. Mukasey,
526 F.3d 171, 175 (5th Cir. 2008).

We recognize that a divided panel of the Third Circuit
reached a contrary conclusion in Ki Se Lee v. Ashcroft, 368
F.3d 218 (3d Cir. 2004).5 There, the court found that the pres-
ence of subsection (M)(ii) reflected Congress’s intent to spec-
ify tax evasion as the only removable tax offense, and thereby
exclude tax offenses from the scope of subsection (M)(i).
Writing in dissent, however, then-Judge (now Justice) Alito
concluded that the plain text of subsection (M)(i) did not pre-
clude the inclusion of tax offenses within its definition of
aggravated felonies. Id. at 226 (Alito, J., dissenting). We are
persuaded by Judge Alito’s interpretation of the statute.

The court in Ki Se Lee applied two interpretive canons in
support of its reading. First, the court applied the canon that
5
We note that since our decision in Kawashima I, the Fifth Circuit has
explicitly joined us in rejecting the Third Circuit’s approach. Arguelles-
Olivares, 526 F.3d at 174.
 KAWASHIMA v. HOLDER 11199
prescribes that, whenever possible, a statute should be inter-
preted to avoid rendering other provisions superfluous. Id. at
223. In the court’s view, reading subsection (M)(i) to include
tax offenses would render subsection (M)(ii) superfluous
because any of the tax evasion offenses described by § 7201
would fall within the scope of subsection (M)(i)’s “fraud or
deceit” provision. Id. at 222-23. Second, the court applied the
familiar canon that the “specific governs the general.” Id. at
223. Noting that subsection (M)(i) is a general provision that
covers “fraud and deceit” and subsection (M)(ii) is a narrower
provision that only covers federal tax evasion, the court rea-
soned that this canon also supported its conclusion that tax
evasion in violation of § 7201, as described in subsection
(M)(ii), is the only removable tax offense. Id. at 224.6

While such canons are often valuable tools in interpreting
a statute’s text, applying the canons the Third Circuit identi-
fied does not lead us to conclude that subsection (M)(i)’s defi-
nition of aggravated felonies excludes tax fraud convictions.
See Ki Se Lee, 368 F.3d at 226 (Alito, J., dissenting). First and
foremost, the Third Circuit’s interpretation of subsection
(M)(i) fails to account for the text of subsection (M)(i), which
categorizes an offense as an aggravated felony as long as it
includes two elements, “fraud and deceit” and loss to the vic-
tim in excess of $10,000. No further limitations are imposed.

Further, the interpretation adopted by the court in Ki Se Lee
imputes an intent to Congress that is not supported by the stat-
ute’s text. As the dissent in Ki Se Lee noted, “[i]f Congress
had not wanted subsection (M)(i) to apply to ‘tax offenses,’
Congress surely would have included some language in that
6
The Kawashimas also argue that the canon that construes ambiguities
in a deportation statute in favor of the alien supports their argument that
subsection (M)(ii) precludes the inclusion of tax offenses in subsection
(M)(ii). That canon, however, is inapplicable where, as in this case, the
statutory language is clear. See Cardoza-Fonseca v. INS, 480 U.S. 421,
449 (1987).
11200 KAWASHIMA v. HOLDER
provision to signal that intention. As adopted, however, sub-
section (M)(i) contains no such hint.” Id.

Finally, there are many reasons why Congress might have
included subsection (M)(ii) even though many, if not all, of
the tax offenses it describes would fall within the scope of
subsection (M)(i). As the dissent in Ki Se Lee emphasized,
“[s]ubsection (M)(ii) may have been enacted simply to make
certain—even at the risk of redundancy—that tax evasion
qualifies as an aggravated felony.” Id. Although we recognize
that the avoidance of surplusage in statutory text is an impor-
tant goal, Congress harbors other important goals as well
when adopting legislation. Judge Alito’s dissent suggested
two examples. First, even if Congress could not think of a tax
evasion offense under § 7201 that would not involve “fraud
or deceit” and therefore be adequately covered by subsection
(M)(i), Congress has often realized its inability to anticipate
every possible type of case, and may have added subsection
(M)(ii) just to ensure that no tax evasion case fell outside sub-
section (M)’s definition of an aggravated felony. Id. at 226.
Alternatively, Congress might have wanted to ensure that no
court would hold that tax evasion falls outside the definition
of an aggravated felony simply because “fraud” and “deceit”
are not specific elements of that offense. Id. at 226-27.

[2] We therefore respectfully decline to adopt the Third
Circuit’s interpretation of subsection (M)(i). We, like Judge
Alito and the Fifth Circuit, conclude that tax offenses not cov-
ered by subsection (M)(ii)’s specific reference to § 7201 qual-
ify as aggravated felonies under subsection (M)(i) where the
loss exceeds $10,000.

B

Our next task is to determine whether the Kawashimas’
convictions under §§ 7206(1) and (2) are aggravated felonies
within subsection (M)(i)’s definition. In answering this ques-
tion, we have the benefit of the Supreme Court’s recent opin-
 KAWASHIMA v. HOLDER 11201
ion in Nijhawan v. Holder, 129 S. Ct. 2294 (2009), which
explained the analysis we must follow in answering this ques-
tion. In Nijhawan, the Court considered the applicability of
subsection (M)(i) to Manoj Nijhawan, an alien who was con-
victed for a variety of federal fraud offenses. Id. at 2298.
None of the statutes under which Nijhawan was convicted
required the government to prove the amount of his victims’
loss to the jury. At sentencing, however, Nijhawan stipulated
that the total loss to his victims exceeded $100 million. Id.

[3] Based on these convictions, the government sought to
remove Nijhawan from the United States, arguing that his
conviction for fraud and his stipulation at sentencing com-
bined to demonstrate that his conviction constituted an aggra-
vated felony under subsection (M)(i). The Court agreed with
the government. In so doing, it added a new step to the
familiar categorical/modified-categorical approaches first
announced in Taylor v. United States, 495 U.S. 575 (1990).
Nijhawan, 129 S. Ct. at 2298. Under this approach, we must
first decide whether a requirement under a generic crime is an
“element” of the generic crime instead of simply a description
of the “particular circumstances” in which the offender com-
mitted the crime on a specific occasion. Id. at 2298. If the
requirement is an “element,” we apply the Taylor approach;
if the requirement is “circumstance specific,” we ensure that
the BIA used “fundamentally fair procedures” to determine
whether the offender’s crime satisfies the description of the
generic offense. Id. at 2302-03.

With these principles of analysis established, we consider
Akio and Fusako’s cases separately.

1

[4] The information, plea agreement, and admission in Mr.
Kawashima’s case establish that he was convicted of violating
§ 7206(1). That section has four elements: “(1) the defendant
made and subscribed a return, statement, or other document
11202 KAWASHIMA v. HOLDER
that was incorrect as to a material matter; (2) the return, state-
ment, or other document subscribed by the defendant con-
tained a written declaration that it was made under the
penalties of perjury; (3) the defendant did not believe the
return, statement, or other document to be true and correct as
to every material matter; and (4) the defendant falsely sub-
scribed to the return, statement, or other document willfully,
with the specific intent to violate the law.” United States v.
Boulware, 384 F.3d 794, 810 (9th Cir. 2004) (emphasis
added). Thus, Mr. Kawashima’s conviction under § 7206(1)
necessarily involved “fraud or deceit.” See Ki Se Lee, 368
F.3d at 226 (Alito, J., dissenting) (“’Fraud’ or ‘deceit’ is a
necessary element of 26 U.S.C. § 7206(1) . . . .”).

[5] Moreover, the BIA followed fundamentally fair proce-
dures in finding that the offense for which Mr. Kawashima
was convicted resulted in a loss to the government of more
than $10,000. Specifically, Mr. Kawashima stipulated in the
plea agreement that the “total actual tax loss” was $245,126.
Given that in Nijhawan, the Supreme Court relied on such a
stipulation to conclude that a petitioner’s prior crime was an
“aggravated felony” under subsection (M)(i), we cannot con-
clude that the BIA’s reliance on such a stipulation in this case
was improper.

Based on the evidence available to us in the administrative
record, we conclude that clear and convincing evidence sup-
ports the BIA’s determination that Mr. Kawashima’s convic-
tion under § 7206(1) constitutes an aggravated felony as
described in subsection (M)(i) because it involved “fraud or
deceit” and because his offense resulted in a loss to the gov-
ernment in excess of $10,000. Accordingly, we deny Mr.
Kawashima’s petition for review of the BIA’s affirmance of
the IJ’s order.
 KAWASHIMA v. HOLDER 11203
2

[6] The record of conviction in Mrs. Kawashima’s case
establishes that she was convicted of aiding and assisting in
the preparation of a false tax return, in violation of § 7206(2).7
That section requires the government to prove the following:
“(1) the defendant aided, assisted, or otherwise caused the
preparation and presentation of a return; (2) that the return
was fraudulent or false as to a material matter; and (3) the act
of the defendant was willful.” United States v. Salerno, 902
F.2d 1429, 1432 (9th Cir. 1990) (emphasis added). Moreover,
as we observed in Salerno, “[t]he Supreme Court has repeat-
edly held that in order to make out a ‘willful violation’ of sec-
tion 7206(2) the government must prove defendants acted
with specific intent to defraud the government in the enforce-
ment of its tax laws.” Id. Thus, a conviction under § 7206(2)
necessarily “involves fraud or deceit” and therefore satisfies
the first element of an aggravated felony as described in sub-
section (M)(i).

As to the second element, in Kawashima I we concluded
that the record of conviction did not contain sufficient evi-
dence to establish that Mrs. Kawashima’s offense resulted in
a loss to the government in excess of $10,000. 503 F.3d at
1003-04. That conclusion was predicated on our assumption
that our analysis should proceed under Taylor’s modified cat-
egorical approach, and therefore the scope of our review was
7
In their supplemental brief to this court, petitioners assert that Mrs.
Kawashima’s case is no longer before us because after our first opinion
in this case granted Mrs. Kawashima’s petition for review, the government
did not file a petition for rehearing. We are unpersuaded by this argument.
Although it is true that the government did not ask us to reconsider our
resolution of Mrs. Kawashima’s case, we are entitled to do so as we have
not yet issued our mandate in this case. As such, our decision remains sub-
ject to modification, either at the request of a party or sua sponte. See Fin-
berg v. Sullivan, 658 F.2d 93, 96 n.5 (3d Cir. 1980) (en banc). Thus, Mrs.
Kawashima’s case remains before us, and we are obligated to decide the
merits of her petitions for review in light of Nijhawan.
11204 KAWASHIMA v. HOLDER
limited to the types of documents described in Shepard v.
United States, 544 U.S. 13, 20 (2005), and its progeny.

[7] That assumption, it turns out, was wrong. In Nijhawan,
the petitioner argued that an immigration court deciding
whether an aggravated felony meets subsection (M)(i)’s
$10,000 threshold should look only to the “charging docu-
ments, jury instructions, and any special jury finding (if one
has been requested). If there was a guilty plea (and no trial)
the subsequent court should examine the written plea docu-
ments or the plea colloquy.” 129 S. Ct. at 2302. The Court
rejected this argument, stating that

nothing in prior law that so limits the immigration
court. . . . [T]he cases that developed the evidentiary
list to which [Nijhawan] points[ ] developed that list
for a very different purpose, namely that of deter-
mining which statutory phrase (contained within a
statutory provision that covers several different
generic crimes) covered a prior conviction. For
another, [Nijhawan’s] proposal itself can prove
impractical insofar as it requires obtaining from a
jury a special verdict on a fact that . . . is not an ele-
ment of the offense.

Further, a deportation proceeding is a civil pro-
ceeding in which the Government does not have to
prove its claim “beyond a reasonable doubt.”

Id. at 2303. Thus, the BIA is not limited to only those docu-
ments which a court applying the modified categorical
approach may review.

Given this, the government argues that we should remand
this case to the BIA so that the agency may determine, in the
first instance, what additional types of evidence it may con-
sider under this newly announced standard and so that the
government may have the opportunity to introduce evidence
 KAWASHIMA v. HOLDER 11205
to meet this standard. We agree. In I.N.S. v. Ventura, the
Supreme Court summarily reversed a Ninth Circuit decision
refusing to remand a case to the BIA so that it could deter-
mine whether changed country conditions rendered an alien
ineligible for asylum. 537 U.S. 13, 15 (2002) (per curiam).
The Court held that the Ninth Circuit had erred in deciding
the “changed circumstances” matter on its own, observing
that “[g]enerally speaking, a court of appeals should remand
a case to an agency for decision of a matter that statutes place
primarily in agency hands.” Id. at 15-17. Remand is required
so that “[t]he agency can bring its expertise to bear on the
matter; it can evaluate the evidence; it can make an initial
determination; and, in doing so, it can, through informed dis-
cussion and analysis, help a court later determine whether its
decision exceeds the leeway that the law provides.” Id. at 17;
see also Gonzales v. Thomas, 547 U.S. 184 (2006) (per
curiam).

Since Ventura, we have distinguished between circum-
stances in which remand is necessary to permit the BIA to
apply its expertise in reconsidering evidence and circum-
stances in which remand is unnecessary because the BIA
exercised its expertise before the case came before us. Thus,
in Fernandez-Ruiz v. Gonzales, we refused to remand a case
to the BIA so that it could determine whether the evidence
present on an alien’s record of conviction established that the
conviction was a “crime of domestic violence” rendering him
removable. 466 F.3d 1121, 1134-35 (9th Cir. 2006) (en banc).
We distinguished Ventura, noting that it “undeniably involved
an issue the BIA had not considered.” Id. at 1133. By con-
trast, in Fernandez-Ruiz, the BIA had considered whether the
petitioner’s state conviction constituted a crime of domestic
violence—it had simply conducted this inquiry under the cate-
gorical, rather than modified categorical, approach. Id. at
1134-35. We did not consider remanding the case for the gov-
ernment to supplement the record of the petitioner’s convic-
tion because the government did not ask that we do so. Id. at
1135.
11206 KAWASHIMA v. HOLDER
[8] This case, however, is ripe for remand. Our remand
does not ask the BIA to consider whether evidence currently
on the record is sufficient to demonstrate that Mrs. Kawashi-
ma’s conviction is an “aggravated felony.” Cf. Ruiz-Vidal v.
Gonzales, 473 F.3d 1072, 1080 (9th Cir. 2007) (holding that
we need not remand to the BIA so that it may apply the cate-
gorical approach). Instead, we remand to the BIA so that it
may determine, in light of the Supreme Court’s holding in
Nijhawan, what types of evidence it may consider to deter-
mine the total loss suffered by the government as a result of
Mrs. Kawashima’s crime.

III

Our final task is to determine whether the BIA erred in
denying the Kawashimas’ motion to reopen.8

A

[9] Mr. Kawashima argues that his motion to the BIA was
a special motion pursuant to 8 C.F.R. § 1003.44 to seek
§ 212(c) relief. Section 1003.44 “applies to certain aliens who
formerly were lawful permanent residents, who are subject to
8
The government contends that we lack jurisdiction over the Kawashi-
mas’ petition for review of the BIA’s decision, citing 8 U.S.C.
§ 1252(a)(2)(c). That provision strips a court of jurisdiction to review “any
final order of removal against an alien who is removable by reason of hav-
ing committed” certain offenses, including an “aggravated offense.” See
8 U.S.C. § 1252(a)(2)(c); see also id. § 1227(a)(2)(A)(iii). However, the
government’s argument ignores § 1252(a)(2)(D), which provides that,
despite subsection (c), a court remains vested with the jurisdiction to
review “constitutional claims or questions of law raised upon a petition for
review.”
As a threshold matter, the Kawashimas argue that the BIA applied the
incorrect regulation when it determined that their motion was untimely.
Whether the BIA applied the appropriate regulation is decidedly a “ques-
tion of law” over which we retain jurisdiction. See Florez-de Solis v. INS,
796 F.2d 330, 333 (9th Cir. 1986) (“[Petitioner’s] contention that the BIA
applied an incorrect standard is a question of law reviewed de novo.”).
 KAWASHIMA v. HOLDER 11207
an administratively final order of deportation or removal, and
who are eligible to apply for relief under former section
212(c) of the Act and 8 CFR § 1212.3 with respect to convic-
tions obtained by plea agreements reached prior to a verdict
at trial prior to April 1, 1997.” 8 C.F.R. § 1003.44(a). To
obtain relief under this provision, an alien “must file a special
motion to seek section 212(c) relief on or before April 26,
2005.” Id. § 1003.44(h). Furthermore, the provision imposes
strict procedural requirements. In particular, the alien’s
motion “must contain the notation ‘special motion to seek sec-
tion 212(c) relief.’ ” Id. § 1003.44(f) (emphasis added).

Mr. Kawashima claims that the required notation appears
on page nine of the Kawashimas’ motion. However, this page
fails to contain any of the necessary text. Instead, it simply
quotes 8 C.F.R. § 1003.44(b), which states, among other
things: “Generally, a special motion under this section to seek
section 212(c) relief must establish that the alien . . . .” This
language fails in all respects to comply with the strict require-
ments imposed by 8 C.F.R. § 1003.44(h) and was inadequate
to place the BIA and the district counsel on notice that Mr.
Kawashima intended to make a special motion to seek
§ 212(c) relief.

[10] Standing alone, Mr. Kawashima’s failure to include
the precise language required by § 1003.44(h) is a sufficient
basis on which to reject his attempt to construe the Kawashi-
mas’ motion as one seeking § 212(c) relief. Even if it were
not, however, the cover page and first page of the motion state
no less than four times: “Motion to Reopen Proceedings and
Stay Deportation Under Magana-Pizano v. INS.”9 A motion
9
The motion contained no citation to Magana-Pizano, but Mr.
Kawashima might have been referring to our opinion in Magana-Pizano
v. INS, 200 F.3d 603 (9th Cir. 1999). Although that opinion did discuss
§ 212(c) and the Antiterrorism and Effective Death Penalty Act in that
opinion, it did not concern a motion to reopen. In any event, the motion’s
reference to Magana-Pizano does not comply with the requirements
imposed by 8 C.F.R. § 1003.44(f).
11208 KAWASHIMA v. HOLDER
styled in this manner cannot reasonably be spared by text hid-
den in a lengthy quote found on page nine of the brief.

[11] Section 1003.44 does not require mere notice, it
imposes strict procedural requirements to qualify for relief,
including the notation “special motion to seek section 212(c)
relief.” Accordingly, we conclude that the BIA did not err in
applying the 90-day filing deadlines for general motions to
reopen pursuant to 8 C.F.R. § 1003.2(c)(2) and in denying
Mr. Kawashima’s motion to reopen as untimely because it
was filed almost eight months late.10 Therefore, we deny Mr.
Kawashima’s petition for review of the BIA’s denial of the
motion to reopen.

B

Since we have granted Mrs. Kawashima’s petition for
review, we dismiss her petition for review of the BIA’s denial
of her 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 peti-
tioner is not removable because he was not convicted of a
predicate offense involving moral turpitude).

IV

For the foregoing reasons, the petition for review of the
BIA’s affirmance of the IJ’s removal order is DENIED with
respect to Akio Kawashima (04-74313) and GRANTED and
REMANDED with respect to Fusako Kawashima (05-
10
Pursuant to 8 C.F.R. § 1003.2(c)(2), a general motion to reopen “must
be filed no later than 90 days after the date on which the final administra-
tive decision was rendered in the proceeding sought to be reopened, or on
or before September 30, 1996, whichever is later.” The BIA’s final admin-
sitrative decision upholding the IJ’s order of removal was rendered on
August 16, 2004. The Kawashimas filed their motion to reopen on April
26, 2005 (or April 27, 2005), more than eight months after the BIA’s final
decision.
 KAWASHIMA v. HOLDER 11209
74408). The petition to review the BIA’s denial of the motion
to reopen is DENIED with respect to Akio Kawashima (04-
74313) and DISMISSED as MOOT with respect to Fusako
Kawashima (05-74408).