Kawashima v. Holder

(Slip Opinion) OCTOBER TERM, 2011 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

KAWASHIMA ET UX. v. HOLDER, ATTORNEY

GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

No. 10–577. Argued November 7, 2011—Decided February 21, 2012
An Immigration Judge ordered the removal of resident aliens Akio and
Fusako Kawashima, determining that Mr. Kawashima’s conviction
for willfully making and subscribing a false tax return, 26 U. S. C.
§7206(1), and Mrs. Kawashima’s conviction for aiding and assisting
in the preparation of a false tax return, §7206(2), qualified as crimes
involving fraud or deceit under 8 U. S. C. §1101(a)(43)(M)(i) (Clause
(i)) and thus were aggravated felonies for which they could be deport-
ed under §1227(a)(2)(A)(iii). The Board of Immigration Appeals af-
firmed. Holding that convictions under 26 U. S. C. §§7206(1) and (2)
in which the Government’s revenue loss exceeds $10,000 constitute
aggravated felonies under Clause (i), the Ninth Circuit affirmed, but
remanded for the Board to determine whether Mrs. Kawashima’s
conviction had caused a Government loss in excess of $10,000.
Held: Convictions under 26 U. S. C. §§7206(1) and (2) in which the
Government’s revenue loss exceeds $10,000 qualify as aggravated
felonies pursuant to Clause (i). Pp. 3−11.
(a) The Kawashimas’ argument that they cannot be deported for
the commission of an “aggravated felony” because crimes under
§§7206(1) and (2) do not involve the fraud or deceit required by
Clause (i) is rejected. This Court looks to the statute defining the
crime of conviction, rather than the specific facts underlying the
crime, see Gonzales v. Duenas-Alvarez, 549 U. S. 183, 186, to deter-
mine whether the Kawashimas’ offenses involve fraud or deceit with-
in the meaning of Clause (i). Section 7206(1) provides that any per-
son who “willfully makes and subscribes any return . . . 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
2 KAWASHIMA v. HOLDER

Syllabus

correct as to every material matter,” shall be guilty of a felony. Alt-
hough the words “fraud” and “deceit” are absent from §7206(1) and
are not themselves formal elements of the crime, it does not follow
that Mr. Kawashima’s offense falls outside Clause (i). Clause (i) is not
limited to offenses that include fraud or deceit as formal elements.
Rather, it refers more broadly to offenses involving fraud or de-
ceit―meaning offenses with elements that necessarily entail fraudu-
lent or deceitful conduct. Mr. Kawashima’s conviction under §7206(1)
involved deceitful conduct in that he knowingly and willfully submit-
ted a tax return that was false as to a material matter. Mrs. Ka-
washima was convicted of violating §7206(2), which declares that any
person who “[w]illfully aids or assists in . . . the preparation or
presentation . . . of a return . . . which is fraudulent or is false as to
any material matter” has committed a felony. She committed a felo-
ny involving deceit by knowingly and willfully assisting her hus-
band’s filing of a materially false tax return. Pp. 3−6.
(b) The Kawashimas’ argument that Clause (i), when considered in
light of 8 U. S. C. §1101(a)(43)(M)(ii) (Clause (ii)), must be interpret-
ed as being inapplicable to tax crimes is also rejected. Clause (i) de-
fines “aggravated felony” to mean an offense that “involves fraud or
deceit in which the loss to the victim or victims exceeds $10,000.”
Clause (ii) defines “aggravated felony” as an offense that is “described
in section 7201 of title 26 (relating to tax evasion) in which the reve-
nue loss to the Government exceeds $10,000.” Contrary to the Ka-
washimas’ claim, the difference in the clauses’ language—“revenue
loss to the Government” in Clause (ii) compared to “loss to the victim”
in Clause (i)—does not establish Congress’ intent to remove tax
crimes from the scope of Clause (i). By its plain language, Clause (i)
covers a broad class of offenses that involve fraud or deceit, and Con-
gress’ decision to tailor Clause (ii)’s language to match the sole type
of offense it covers does not demonstrate that Congress intended to
implicitly circumscribe Clause (i)’s broad scope. Furthermore, inter-
preting Clause (i) to include tax crimes does not violate the presump-
tion against superfluities. The specific inclusion of tax evasion in
Clause (ii) does not make it redundant to Clause (i) because the in-
clusion was intended to ensure that tax evasion pursuant to 26
U. S. C. §7201 was a deportable offense. Pp. 6−10.
(c) The United States Sentencing Guidelines’ separate treatment of
tax crimes and crimes involving fraud and deceit does not support the
Kawashimas’ contention that Congress did not intend to include tax
crimes within Clause (i). No evidence suggests that Congress consid-
ered the Guidelines when drafting 8 U. S. C. §1101(a)(43)(M). More-
over, the differences between §1101(a)(43)(M) and the Guidelines un-
dercut any inference that Congress was incorporating the distinction
 Cite as: 565 U. S. ____ (2012) 3

Syllabus

drawn by the Guidelines into §1101(a)(43)(M). Pp. 10−11.
(d) Construing §1101(a)(43)(M) in the Kawashimas’ favor under the
rule of lenity is not warranted in light of the statute’s clear applica-
tion. P. 11.
615 F. 3d 1043, affirmed.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, ALITO, and SOTOMAYOR, JJ., joined. GINS-
BURG, J., filed a dissenting opinion, in which BREYER and KAGAN, JJ.,
joined.
 Cite as: 565 U. S. ____ (2012) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 10–577
_________________

AKIO KAWASHIMA, ET UX., PETITIONERS v. ERIC H.
HOLDER, JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[February 21, 2012]

JUSTICE THOMAS 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 “involv[ing] 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 Govern-
ment exceeds $10,000.
I
Petitioners, Akio and Fusako Kawashima, are natives
and citizens of Japan who have been lawful permanent
residents of the United States since June 21, 1984. In
1997, Mr. Kawashima pleaded guilty to one count of will-
fully making and subscribing a false tax return in viola-
tion of 26 U. S. C. §7206(1). Mrs. Kawashima pleaded
guilty to one count of aiding and assisting in the prep-
aration of a false tax return in violation of 26 U. S. C.
§7206(2).
Following their convictions, the Immigration and Natu-
2 KAWASHIMA v. HOLDER

Opinion of the Court

ralization Service charged the Kawashimas with being
deportable from the United States as aliens who had
been convicted of an aggravated felony.1 See 8 U. S. C.
§1227(a)(2)(A)(iii) (“Any alien who is convicted of an ag-
gravated felony at any time after admission is deporta-
ble”).2 In the Immigration and Nationality Act, Congress
listed categories of offenses that qualify as “aggravated
felonies” for the purpose of deportation. See §1101(a)(43).
Here, the Government charged the Kawashimas with be-
ing deportable for committing offenses under subpara-
graph (M) of §1101(a)(43). That subparagraph classifies
as an aggravated felony an offense that either: “(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.” Hereinafter,
we refer to §1101(a)(43)(M)(i) as “Clause (i)” and to
§1101(a)(43)(M)(ii) as “Clause (ii).”
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
——————
1 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.
2 Before 1996, there were two procedures for removing aliens from the

country: “deportation” of aliens who were already present, and “exclu-
sion” 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.
 Cite as: 565 U. S. ____ (2012) 3

Opinion of the Court

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).” 615 F. 3d 1043, 1053 (2010). The
court concluded that Mr. Kawashima’s conviction un-
der §7206(1) qualified as an aggravated felony within
Clause (i)’s definition “because it involved ‘fraud or deceit’
and because his offense resulted in a loss to the govern-
ment in excess of $10,000.” Id., at 1055. The Ninth Cir-
cuit also determined that Mrs. Kawashima’s conviction
under §7206(2) “necessarily ‘involve[d] fraud or deceit.’ ”
Id., at 1055. But because Mrs. Kawashima’s plea agree-
ment was not in the administrative record, the Ninth
Circuit remanded to the Board to determine whether Mrs.
Kawashima’s conviction had caused a loss to the Govern-
ment in excess of $10,000. Id., at 1056–1057.
We granted the Kawashimas’ petition for a writ of certi-
orari to determine whether their convictions for violations
of 26 U. S. C. §§7206(1) and (2) respectively qualify as
aggravated felonies under 8 U. S. C. §1101(a)(43)(M)(i).
563 U. S. ___ (2011). We now affirm.
II
The Kawashimas argue that they cannot be deported for
commission of an “aggravated felony” because crimes
under §§7206(1) and (2) do not “involv[e] fraud or deceit”
as required by Clause (i). The Kawashimas also assert
that their convictions under §7206 are not “aggravated
felonies” because tax crimes are not included within
Clause (i) at all. We address each argument in turn.
A
The Kawashimas contend that their offenses of convic-
4 KAWASHIMA v. HOLDER

Opinion of the Court

tion do not fall within the scope of Clause (i) because
neither “fraud” nor “deceit” is a formal element of a con-
viction under §7206(1) or §7206(2). The Government
responds that the Kawashimas’ convictions necessarily in-
volved deceit because they required a showing that the
Kawashimas willfully made materially false statements.
To determine whether the Kawashimas’ offenses “involv[e]
fraud or deceit” within the meaning of Clause (i), we em-
ploy a categorical approach by looking to the statute defin-
ing the crime of conviction, rather than to the specific facts
underlying the crime. See Gonzales v. Duenas-Alvarez,
549 U. S. 183, 186 (2007) (applying the approach set forth
in Taylor v. United States, 495 U. S. 575, 599–600 (1990)).
If the elements of the offenses establish that the Ka-
washimas committed crimes involving fraud or deceit,
then the first requirement of Clause (i) is satisfied.3
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 decla-
ration 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. Ka-
washima does not dispute that the elements of a violation
of §7206(1) include, inter alia, that the document in ques-
tion 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, 88 F. 3d 1369, 1382 (CA4 1996); United States v.
Kaiser, 893 F. 2d 1300, 1305 (CA11 1990); United States v.

——————
3 We
note that the issue whether the Kawashimas’ offenses satisfy
the second requirement of Clause (i)—that the loss to the victim ex-
ceeded $10,000—is not before us. We address only whether their
offenses of conviction qualify as crimes “involv[ing] fraud or deceit.”
 Cite as: 565 U. S. ____ (2012) 5

Opinion of the Court

Marabelles, 724 F. 2d 1374, 1380 (CA9 1984); United
States v. Whyte, 699 F. 2d 375, 381 (CA7 1983). Although
the words “fraud” and “deceit” are absent from the text of
§7206(1) and are not themselves formal elements of the
crime, it does not follow that his offense falls outside of
Clause (i). The scope of that clause is not limited to of-
fenses that include fraud or deceit as formal elements.
Rather, Clause (i) refers more broadly to offenses that
“involv[e]” fraud or deceit—meaning offenses with ele-
ments that necessarily entail fraudulent or deceitful
conduct.
When subparagraph (M) was enacted, the term “deceit”
meant a “the act or process of deceiving (as by falsification,
concealment, or cheating).” Webster’s Third New Interna-
tional 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
“[w]illfully aids or assists in . . . the preparation or presen-
tation 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,” has committed a felony. Mrs.
Kawashima does not dispute that the elements of a viola-
tion of §7206(2) include, inter alia, that the document in
question was false as to a material matter and that the
defendant acted willfully. See Aramony, supra, at 1382;
United States v. Sassak, 881 F. 2d 276, 278 (CA6 1989);
United States v. Hooks, 848 F. 2d 785, 788–789 (CA7
1988); United States v. Dahlstrom, 713 F. 2d 1423, 1426–
1427 (CA9 1983). We conclude that Mrs. Kawashima’s
conviction establishes that, by knowingly and willfully
6 KAWASHIMA v. HOLDER

Opinion of the Court

assisting her husband’s filing of a materially false tax
return, Mrs. Kawashima also committed a felony that
involved “deceit.”
The language of Clause (i) is clear. Anyone who is con-
victed 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 depor-
tation pursuant to 8 U. S. C. §1227(a)(2)(A)(iii). The ele-
ments of willfully making and subscribing a false corpo-
rate tax return, in violation of 26 U. S. C. §7206(1), and of
aiding and assisting in the preparation of a false tax re-
turn, in violation of 26 U. S. C. §7206(2), establish that
those crimes are deportable offenses because they neces-
sarily entail deceit.
B
The Kawashimas’ second argument is based on infer-
ences 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—
. . . . .
“(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 Govern-
ment exceeds $10,000.”
The Kawashimas argue that when Clause (i) is read to-
gether with Clause (ii), Clause (i) must be interpreted as
being inapplicable to tax crimes. In their view, subpara-
graph (M), when considered in its entirety, demonstrates
that Congress was addressing two mutually exclusive
categories of crimes in subparagraph (M)’s two clauses:
 Cite as: 565 U. S. ____ (2012) 7

Opinion of the Court

general, non-tax 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 be-
tween 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 26
(relating to tax evasion),” which, by definition, can only
cause one type of loss (revenue loss) to one type of victim
(the Government). Congress’ decision to tailor Clause (ii)’s
language to match the sole type of offense covered by
Clause (ii) does not demonstrate that Congress also in-
tended to implicitly circumscribe the broad scope of
Clause (i)’s plain language.
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 Gov-
8 KAWASHIMA v. HOLDER

Opinion of the Court

ernment 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 but-
tress this argument, the Kawashimas 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, 708 F. 2d 243, 246 (CA6 1983) (“Numer-
ous federal courts have held that a conviction for federal
income tax evasion, either upon a plea of guilty, or upon
a jury verdict of guilt, conclusively establishes fraud in a
subsequent civil tax fraud proceeding through application
of the doctrine of collateral estoppel”). Therefore, accord-
ing to the Kawashimas, if Clause (i) covers tax offenses,
then Clause (ii) is mere surplusage.
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 de-
ceit.” 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, nei-
ther fraud nor deceit is among the elements of a conviction
under §7201, which include: (1) willfulness; (2) the exist-
ence of a tax deficiency; and (3) an affirmative act consti-
 Cite as: 565 U. S. ____ (2012) 9

Opinion of the Court

tuting an evasion or an attempted evasion of the tax.
Boulware v. United States, 552 U. S. 421, 424, n. 2 (2008).
A conviction under §7201, therefore, only qualifies as an
aggravated felony under Clause (i) if a willful, affirmative
attempt to evade a tax necessarily entails fraud or deceit.
This Court’s decision in United States v. Scharton, 285
U. S. 518 (1932), gave Congress good reason to doubt that
a conviction under §7201 satisfies that condition. In
Scharton, the defendant was indicted for attempting to
evade income taxes by falsely understating his taxable
income. The question before the Court was whether the
crime was subject to the 3-year statute of limitations
generally applicable to tax crimes, or whether it was
instead subject to the 6-year statute of limitations appli-
cable to “ ‘offenses involving the defrauding or attempting
to defraud the United States or any agency thereof,
whether by conspiracy or not, and in any manner.’ ” Id., at
520, n. 2 (quoting 18 U. S. C. §585 (1962 ed., Supp. V)).
The Government argued that the 6-year statute of limita-
tions applied because “fraud is implicit in the concept of
evading or defeating” and because any effort to evade a tax
is tantamount to an attempt to defraud the taxing body.
285 U. S., at 520–521. The Court rejected that argument,
noting that, in an indictment for evasion, “an averment [of
intent to defraud] would be surplusage, for it would be
sufficient to plead and prove a willful attempt to evade
or defeat.” Id., at 521.
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,
380 U. S. 343, 354 (1965) (emphasis in original). As the
Government notes, it is possible to willfully evade or de-
feat payment of a tax under §7201 without making any
misrepresentation. For example, §7201 can be violated by
a taxpayer who files a truthful tax return, but who also
10 KAWASHIMA v. HOLDER

Opinion of the Court

takes affirmative steps to evade payment by moving his
assets beyond the reach of the Internal Revenue Service.
Although the Government concedes that evasion-of-
payment cases will almost invariably involve some affirm-
ative acts of fraud or deceit, it is still true that the ele-
ments of tax evasion pursuant to §7201 do not necessarily
involve fraud or deceit. Thus, we conclude that the specif-
ic inclusion of tax evasion in Clause (ii) was intended to
ensure that tax evasion pursuant to §7201 was a deporta-
ble offense. Clause (ii) does not implicitly remove all other
tax offenses from the scope of Clause (i)’s plain language.
3
The Kawashimas also assert that the separate treat-
ment of tax crimes and crimes involving fraud and deceit
in the United State Sentencing Guidelines 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 effec-
tive Nov. 1, 2001). The Commission simultaneously in-
cluded “offenses involving taxation” as a separate category.
§§2T1.1 et seq. (Nov. 2011). Although the Kawashimas
acknowledge that they have found no evidence that Con-
gress 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)
 Cite as: 565 U. S. ____ (2012) 11

Opinion of the Court

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 infer-
ence that Congress was considering, much less incorporat-
ing, the distinction drawn by the Guidelines.
C
Finally, the Kawashimas argue that subparagraph (M)’s
treatment of tax crimes other than tax evasion is ambigu-
ous, and that we should therefore construe the statute in
their favor. It is true that we have, in the past, construed
ambiguities in deportation statutes in the alien’s favor.
See INS v. St. Cyr, 533 U. S. 289, 320 (2001). We think
the application of the present statute clear enough that
resort to the rule of lenity is not warranted.
* * *
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 aggra-
vated 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.
 Cite as: 565 U. S. ____ (2012) 1

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 10–577
_________________

AKIO KAWASHIMA, ET UX., PETITIONERS v. ERIC H.
HOLDER, JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[February 21, 2012]

JUSTICE GINSBURG, with whom JUSTICE BREYER and
JUSTICE KAGAN join, 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 felo-
ny” that renders the Kawashimas 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 deline-
ated 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 “involv[ing] fraud or deceit,” if the loss
to the fisc exceeds $10,000, ranks as an “aggravated fel-
ony.” See ante, at 11. Because the Kawashimas’ tax of-
fense involved deceit and meets the monetary threshold,
the Court concludes, they have committed an aggravated
2 KAWASHIMA v. HOLDER

GINSBURG, J., dissenting

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 mak-
ing 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 Gov-
ernment exceeds $10,000.”
Notably, Clause (i) speaks of “loss to the victim,” Clause
(ii) of “revenue loss to the Government.” The Kawashimas
contend that Clause (i) covers crimes of fraud or deceit
causing losses unrelated to tax revenue. Tax crimes,
they argue, are addressed exclusively in Clause (ii), and
that clause designates only tax evasion proscribed by 26
U. S. C. §7201 as an “aggravated felony.” Willfully sub-
mitting a false statement proscribed by §7206, the
Kawashimas maintain, is not an “aggravated felony”
that would render them deportable under 8 U. S. C.
 Cite as: 565 U. S. ____ (2012) 3

GINSBURG, J., dissenting

§1227(a)(2)(A)(iii).
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 depor-
tation. 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 aggra-
vated felony. See ante, at 5 (“the words ‘fraud’ and ‘deceit’
are absent from the text of §7206(1) and are not them-
selves 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
subparagraph (M) are plausible in roughly equal measure,
then our precedent directs us to construe the statute in
the Kawashimas’ favor. See Fong Haw Tan v. Phelan, 333
U. S. 6, 10 (1948) (“We resolve the doubts in favor of [the
alien] because deportation is a drastic measure . . . .”); INS
v. St. Cyr, 533 U. S. 289, 320 (2001) (same).
II

A

In interpreting 8 U. S. C. §1101(a)(43)(M), I would rely

upon the familiar canon that statutes should be interpret-
ed to avoid superfluity. See Corley v. United States, 556

U. S. 303, 314 (2009) (quoting Hibbs v. Winn, 542 U. S. 88,
101 (2004) (“[O]ne of the most basic interpretive canons” is
that a “statute should be construed so that effect is given
to all its provisions, so that no part will be inoperative or
superfluous, void or insignificant . . . .”)). If Clause (i) is
construed to apply to tax crimes, then Clause (ii)’s discrete
inclusion of tax evasion would add nothing, for tax evasion
is itself an offense that, in all actual instances of which
the Government is aware, “involves fraud or deceit.” See
4 KAWASHIMA v. HOLDER

GINSBURG, J., dissenting

§1101(a)(43)(M)(i); Tr. of Oral Arg. 30–31.
The elements of tax evasion are the existence of a tax
deficiency, willfulness, and “an affirmative act constitut-
ing an evasion or attempted evasion of the tax.” Sansone
v. United States, 380 U. S. 343, 351 (1965). As this Court’s
decisions indicate, the evasion of taxes involves deceit or
fraud upon the Government, achieved by concealing a tax
liability or misleading the Government as to the extent of
the liability. See, e.g., Spies v. United States, 317 U. S.
492, 499 (1943) (an act of tax evasion may be “any con-
duct, the likely effect of which would be to mislead or to
conceal”). Accordingly, courts have determined that tax
evasion is a crime of moral turpitude, because it necessari-
ly involves fraud. See, e.g., Carty v. Ashcroft, 395 F. 3d
1081, 1085, n. 7 (CA9 2005) (fraud is “implicit in the na-
ture of the crime” of tax evasion); Considine v. United
States, 683 F. 2d 1285, 1287 (CA9 1982) (“The express
language of section 7201 requires an intent to avoid tax (a
legitimate synonym for fraud).”); Costello v. INS, 311 F. 2d
343, 348 (CA2 1962) (“There can be no ‘wilful’ [tax] eva-
sion without a specific intent to defraud.”), rev’d on other
grounds, 376 U. S. 120 (1964).
Even more to the point, courts have held that a convic-
tion for tax evasion under 26 U. S. C. §7201 “conclusively
establishes fraud in a subsequent civil tax fraud proceed-
ing.” Gray v. Commissioner, 708 F. 2d 243, 246 (CA6
1983); see Klein v. Commissioner, 880 F. 2d 260, 262
(CA10 1989) (conviction under 7201 “collaterally estops a
taxpayer from denying fraud [in a] civil tax case involving
the same years”).1 This preclusive effect obtains, courts
have explained, because “ ‘willful’ [tax evasion] includes all
of the elements of fraud.” Tomlinson v. Lefkowitz, 334
——————
1 See also, e.g., Blohm v. Commissioner, 994 F. 2d 1542, 1554 (CA11

1993); Fontneau v. United States, 654 F. 2d 8, 10 (CA1 1981)
(per curiam); Plunkett v. Commissioner, 465 F. 2d 299, 307 (CA7 1972).
 Cite as: 565 U. S. ____ (2012) 5

GINSBURG, J., dissenting

F. 2d 262, 265 (CA5 1964); see Gray, 708 F. 2d, at 246
(“The elements of criminal tax evasion and civil tax fraud
are identical.”); Moore v. United States, 360 F. 2d 353, 356
(CA4 1966) (“[W]hile the criminal evasion statute does not
explicitly require a finding of fraud, the case-by-case pro-
cess of construction of the civil [fraud] and criminal tax
provisions has demonstrated that their constituent ele-
ments are identical.”).
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, 317 U. S., at 497, 499;
see Boulware v. United States, 552 U. S. 421, 424 (2008).
Tellingly, the Kawashimas pleaded guilty to a crime carry-
ing a maximum prison term of three years, §7206; for tax
evasion, the maximum term is five years, §7201. It is thus
understandable that Congress would single out tax eva-
sion, as it did in Clause (ii), specifically designating it, and
no other tax crime, an “aggravated felony” for deportation
purposes.
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 10. But see supra, at 4 and this page.
Congress likely included Clause (ii), the Court suggests,
simply “to remove any doubt that tax evasion qualifies
as an aggravated felony.” Ante, at 8. 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, 285 U. S. 518 (1932); see ante, at 9. In that
long-obsolete case, the Court rejected the Government’s
plea for the application of an extended limitation period to
a prosecution for tax evasion. The generally applicable
6 KAWASHIMA v. HOLDER

GINSBURG, J., dissenting

statute of limitations was three years; for tax offenses that
involve defrauding the United States, however, the limita-
tion period was six years. An averment of intent to de-
fraud, the Court said in Scharton, would be “surplusage,”
for it would suffice “to plead and prove a wilful attempt to
evade or defeat.” 285 U. S., at 521.
Courts had limited Scharton to its statute of limita-
tions context several decades before Congress enacted
§1101(a)(43)(M) in 1994. See Tseung Chu v. Cornell, 247
F. 2d 929, 936, n. 6 (CA9 1957) (distinguishing Scharton
and holding that tax evasion is a crime of moral turpitude
because it entails fraud); Lefkowitz, 334 F. 2d, at 265
(distinguishing Scharton and holding that tax evasion
necessarily involves fraud). Moreover, Congress, since
1954, has expressly prescribed a six-year limitation period
for tax evasion. See 26 U. S. C. §6531(2). In short, Schar-
ton is a cryptic, thinly reasoned opinion, one that did not
influence subsequent federal-court description of the crime
of tax evasion. The suggestion that Congress may have
worried about Scharton when framing legislation over 60
years later is hardly credible.
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 as-
sets to a place “beyond the reach of the Internal Revenue
Service.” Ante, at 10; 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 10. Still, there may be a rare case in which that is
not so. Rare, indeed; imaginary would be an apt char-
acterization. The Government conceded that, to its
knowledge, there have been no actual instances of indict-
ments for tax evasion unaccompanied by any act of fraud
 Cite as: 565 U. S. ____ (2012) 7

GINSBURG, J., dissenting

or deceit. Tr. of Oral Arg. 30–31.
The canon that statutes should be interpreted to avoid su-
perfluity 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 circum-
stances.” TRW Inc. v. Andrews, 534 U. S. 19, 29 (2001). It
is hardly sufficient for the Government to hypothesize a
case in which the provision might have some independent
role. See id., at 30. Where, as here, “the Government
concede[s] that the independent function one could attrib-
ute to the [provision] would [rarely] arise,” a construction
moored to a case “most unlikely” to exist should be reject-
ed. Id., at 31. It is highly improbable that “a pro-
viso accounting for more than half of [the] text” of
§1101(a)(43)(M), i.e., Clause (ii), “would lie dormant in all
but the most unlikely situations.” See 534 U. S., at 31.
Congress’ aim in drafting §1101(a)(43) was to determine
which crimes are sufficiently serious to warrant the “dras-
tic measure” of deportation, and which are not. See Fong
Haw Tan, 333 U. S., at 10. It is implausible that Con-
gress, when drafting §1101(a)(43)(M), intended to address,
or was even aware of, the Government’s scenario: a tax-
payer who files a truthful return, then, to thwart collec-
tion of the tax due, moves all her assets offshore. Far
more likely, Congress did not intend to include tax offens-
es in §1101(a)(43)(M)(i), but instead drafted that provision
to address fraudulent schemes against private victims,
then added §1101(a)(43)(M)(ii) so that the “capstone” tax
offense against the Government also qualified as an ag-
gravated felony. See supra, at 5.
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
8 KAWASHIMA v. HOLDER

GINSBURG, J., dissenting

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 offenses involving false statements. Ferreira v. Ash-
croft, 390 F. 3d 1091, 1096–1097 (CA9 2004) (state-law
offenses qualify as offenses involving fraud or deceit under
8 U. S. C. §1101(a)(43)(M)); see, e.g., Del. Code Ann., Tit.
30, §574 (2009) (submitting a tax return false as to any
material matter is a criminal offense); D. C. Code §47–
4106 (2001–2005) (same); Ala. Code §40–29–114 (2003)
(same); Va. Code Ann. §58.1–1815 (2009) (willfully failing
to account truthfully for and pay certain taxes is a crimi-
nal offense).
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 em-
ployee); §7205 (“suppl[ying] false or fraudulent infor-
mation” 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 state-
ment, not under oath, required or authorized to be made
as the basis of an application to reduce any tax or assess-
ment, is guilty of a misdemeanor.”); N. D. Cent. Code Ann.
§57–37.116 (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 “knowingly make[s]
and file[s] an incomplete, false or fraudulent [municipal]
return” is guilty of a fourth-degree misdemeanor).
 Cite as: 565 U. S. ____ (2012) 9

GINSBURG, J., dissenting

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).2
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, 745 F. 2d 263, 272 (CA3 1984)
(unlike a conviction under §7201, a conviction under §7206
does not require proof of a tax deficiency); Considine, 683
F. 2d, at 1287 (unlike a conviction under §7201, a convic-
tion under §7206 does not require proof of an attempt to
escape a tax). For this reason, the Government has al-
lowed taxpayers to plead guilty to a §7206 charge in lieu of
going to trial under §7201 on an evasion charge. See
Walters Brief 19–20. Deportation consequences are im-
portant to aliens facing criminal charges. See Padilla v.
Kentucky, 559 U. S. __, __ (2010) (slip op., at 10)
(“[P]reserving the client’s right to remain in the United
States may be more important to the client than any
potential jail sentence.” (quoting St. Cyr, 533 U. S., at
322)). If a §7206 charge carries the same prospect of
deportation as a §7201 charge, then an alien’s incentive to
plead guilty to any tax offense is significantly reduced.

——————
2 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, 543 U. S. 1, 11–12 (2004) (driving while drunk, causing
serious bodily injury to others is not an aggravated felony).
10 KAWASHIMA v. HOLDER

GINSBURG, J., dissenting

* * *
For the reasons stated, I would hold that making a
material, false statement on a tax return does not qualify
as an aggravated felony within the compass of 8 U. S. C.
§1101(a)(43)(M)(i). I would therefore reverse the judg-
ment of the Court of Appeals for the Ninth Circuit.