Seventh Circuit Upholds Warrantless Search of Cell Phones-USA v. Abel Flores-Lopez

Posted on March 3, 2012 by Mike Baker

Police currently have wide latitude to search the contents of cell phones – including text messages, voice mails, photos, Internet browsing history, and reams of other data – when searching an arrestee incident to arrest.

In the Flores-Lopez case, an Indiana man was arrested at a methamphetamine bust with one cell phone on his person and two more in his truck. Police turned on those phones and checked them for their numbers without obtaining a warrant, then used the numbers to file subpoenas to the carriers for the phones’ call histories. The searches went only as deep as gathering the phones’ numbers, but the defendant appealed his conviction based on what his lawyers argued was an unlawful search that generated evidence against him.

Judge Richard Posner, writing for a three-judge panel, said, “If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are, they should be entitled to read the address book in a cell phone.”

Posner further reasoned that the on-site, warrantless search was justified in case a co-conspirator attempted to remotely “wipe” information from the phone. Judge Posner views the issue not as whether law enforcement can search a phone without a warrant, but how much they can search the phone, according to Forbes.

Questions left unanswered by Posner’s opinion: If a suspect’s laptop computer is in his car at the time of arrest, can the police search it without a warrant? What about a tablet? Or a smartphone? Without guidance from the courts regarding where police should draw the line in a warrantless search, police officers will use this case to test the limits of the law, and violate suspects’ rights in the process. Can a password save your cell phone from the search incident to arrest doctrine? Can police attempt to break into a password-protected phone? How long can police spend trying to crack a password? How long can police spend searching cell phones before the search ceases to be contemporaneous? Will police have enough time to crack the password? What happens if police are unable to break the password on their own? Can police ask or even demand that an arrestee enter the password himself or verbally provide the password? Defense counsel will be forced to confront two legal issues: (1) whether the Miranda doctrine offers any legal protection, and (2) whether police compulsion of the password violates the Fifth Amendment protection against self-incrimination. Does the Fourth Amendment allow warrantless searches incident to arrest of a second-generation cell phone, where the record is unclear about how many hours later the search occurred, where it occurred, and the limitations and capabilities of the phone?

1 01/25/2012 01/25/2012 Oral Argument
2 02/29/2012 02/29/2012 Opinion (POSNER)

United States Court of Appeals

For the Seventh Circuit

No. 10-3803

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ABEL FLORES-LOPEZ, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:09-cr-00136-WTL-KPF-2—William T. Lawrence, Judge.

ARGUED JANUARY 25, 2012—DECIDED FEBRUARY 29, 2012

Before BAUER, POSNER, and ROVNER, Circuit Judges.

POSNER, Circuit Judge. This appeal requires us to consider the circumstances in which the search of a cell phone is permitted by the Fourth Amendment even if the search is not authorized by a warrant. Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a “computer” or not) can be searched without a warrant—for a modern cell phone is a computer.

Law enforcement authorities had reason to believe that the defendant was a supplier of illegal drugs to another drug dealer, Alberto Santana-Cabrera, who in turn had a retail customer who unbeknownst to him was a paid police informant. The informant, after ordering a pound of methamphetamine from Santana-Cabrera (a large quantity—the informant’s hope was that it would induce Santana-Cabrera’s supplier to attend the sale, thus enabling the police to land a bigger fish), overheard a phone conversation between Santana-Cabrera and the defendant in which the latter said he would deliver the meth that had been ordered to a garage, where the sale would take place. The police were listening in on the conversation remotely and arrested Santana-Cabrera in the garage and the defendant in front of it.

The defendant had driven a truck containing the meth to the garage, and together with Santana-Cabrera had carried the meth into the garage to await a fourth person (actually an undercover agent), who was to bring the cash for the deal. Upon arresting the defendant and Santana-Cabrera, officers searched the defendant and his truck and seized a cell phone from the defendant’s person and two other cell phones from the truck. The defendant admitted that the cell phone found on his person was his but denied that the other cell phones were.

He was tried together with Santana-Cabrera and both were convicted of drug and related offenses. The defendant was sentenced to 10 years in prison. Their appeals were consolidated, but we are deciding SantanaCabrera’s appeal in a separate order, also issued today.

At the scene of the drug sale and arrests, an officer searched each cell phone for its telephone number, which the government later used to subpoena three months of each cell phone’s call history from the telephone company. At trial the government sought to introduce the call history into evidence. The history included the defendant’s overheard phone conversation with Santana-Cabrera along with many other calls between the defendant and his coconspirators. After a brief hearing the judge overruled the defendant’s objection, which however was limited to the call history of the cell phone that he admitted was his, since he denied owning or having used the other cell phones.

The defendant argues that the search of his cell phone was unreasonable because not conducted pursuant to a warrant. The phone number itself was not incriminating evidence, but it enabled the government to obtain such evidence from the phone company, and that evidence, the defendant argues, was the fruit of an illegal search and was therefore inadmissible.

Building on the definition in New York v. Belton, 453 U.S. 454, 460 n. 4 (1981), of a container as “any object capable of holding another object,” the government responds, with support in case law, see, e.g., United States v. Murphy, 552 F.3d 405, 410-12 (4th Cir. 2009); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007); cf. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (pager); United States v. Thomas, 114 F.3d 403, 404 n.2 (3d Cir. 1997) (dictum) (same); but see State v. Smith, 920 N.E.2d 949, 953-54 (Ohio 2009), that any object that can contain anything else, including data, is a container. A diary is a container—and not only of pages between which a razor blade or a sheet of LSD could be concealed, a possibility that justifies the police in turning each page. It is also a container of information, as is a cell phone or other computer. And since a container found on the person of someone who is arrested may be searched as an incident to the arrest even if the arresting officers don’t suspect that the container holds a weapon or contraband, and thus without any justification specific to that container, United States v. Robinson, 414 U.S. 218, 236 (1973), the government urges that a cell phone seized as an incident to an arrest can likewise be freely searched.

This is a fair literal reading of the Robinson decision. But the Court did not reject the possibility of categorical limits to the rule laid down in it. Suppose the police stop a suspected drug dealer and find a diary, but a quick look reveals that it is a personal diary rather than a record of drug transactions, yet the officers keep on reading. A court might say that acquiring information known to be unrelated to the crime of which the person being arrested is suspected is an intrusion beyond the scope of Robinson’s rule.

A modern cell phone is in one aspect a diary writ large. Even when used primarily for business it is quite likely to contain, or provide ready access to, a vast body of personal data. The potential invasion of privacy in a search of a cell phone is greater than in a search of a “container” in a conventional sense even when the conventional container is a purse that contains an address book (itself a container) and photos. Judges are becoming aware that a computer (and remember that a modern cell phone is a computer) is not just another purse or address book. “[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life. . . . [T]here is a far greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011); see also United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001); United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999); cf. United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175-77 (9th Cir. 2010); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009). An iPhone application called iCam allows you to access your home computer’s webcam so that you can survey the inside of your home while you’re a thousand miles away. “iCam—Webcam Video Streaming,” http://itunes.apple.com/us/app/icam-webcam-videostreaming/id296273730?mt=8 (visited Feb. 6, 2012, as were the other web sites that we cite in this opinion). At the touch of a button a cell phone search becomes a house search, and that is not a search of a “container” in any normal sense of that word, though a house contains data.

A complication in this case is that, remarkably, the record does not indicate the brand, model, or year of the defendant’s cell phone, so we do not know how dumb or smart it is. But does that matter? Even the dumbest of modern cell phones gives the user access to large stores of information. For example, the “TracFone Prepaid Cell Phone,” sold by Walgreens for $14.99, includes a camera, MMS (multimedia messaging service) picture messaging for sending and receiving photos, video, etc., mobile web access, text messaging, voicemail, call waiting, a voice recorder, and a phonebook that can hold 1000 entries. Walgreens, “TracFone Prepaid Cell Phone,” www.walgreens.com/store/c/tracfoneprepaid-cell-phone/ID=prod6046552-product.

Given the modern understanding that a warrant is presumptively required for a search—though actually the text of the Fourth Amendment limits searches pursuant to warrants, see references in United States v. Sims, 553 F.3d 580, 582-83 (7th Cir. 2009), and requires of searches without a warrant only that they be reasonable, the authority to search a person incident to an arrest, without a warrant, requires justification. The usual justification offered is “the need [of the arresting officers] to disarm and to discover evidence,” United States v. Robinson, supra, 414 U.S. at 235, or, more exactingly, evidence that the defendant or his accomplices might destroy, discard, or conceal. Chimel v. California, 395 U.S. 752, 763 (1969). The restrictions on searching without a warrant are relaxed when police arrest the driver or passenger of a moving vehicle. They can search the passenger compartment even if they have no reason to think they’ll find any evidence, provided that “the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009). But in this case the arrest, and the search of the cell phone found on the defendant’s person, took place after he had parked and left his vehicle, and so any special rules applicable to searches when police stop a vehicle and arrest an occupant are inapplicable.

In some cases, a search of a cell phone, though not authorized by a warrant, is justified by police officers’ reasonable concerns for their safety. One can buy a stun gun that looks like a cell phone. Best Stun Gun, “Cell Phone Stun Guns—Security Products in Disguise,” www.beststungun.com/cell-phone-stun-gun.html; Safety Products Unlimited, “The Cell Phone Stun Gun,” www. safetyproductsunlimited.com/cell_phone_stun_gun.html. But the defendant’s cell phone, once securely in the hands of an arresting officer, endangered no one. It did, however, contain evidence or leads to evidence—as the officers knew was likely because they knew from their informant that as is typical of drug dealers the defendant had used cell phones to talk to Santana-Cabrera and other coconspirators.

But was there any urgency about searching the cell phone for its phone number? Yet even if there wasn’t, that bit of information might be so trivial that its seizure would not infringe the Fourth Amendment. In United States v. Concepcion, 942 F.2d 1170, 1172-73 (7th Cir. 1991), police officers tested the keys of a person they had arrested on various locks to discover which door gave ingress to his residence, and this we said was a search—and any doubts on that score have been scotched by United States v. Jones, 132 S. Ct. 945, 949 (2011), which holds that attaching a GPS device to a vehicle is a search because “the Government physically occupied private property for the purpose of obtaining information.” But we went on to hold in Concepcion that a minimally invasive search may be lawful in the absence of a warrant, even if the usual reasons for excusing the failure to obtain a warrant are absent, a holding that is implied by Robinson and survives Jones, which declined to decide whether the search entailed in attaching a GPS device requires a warrant. Id. at 954.

So opening the diary found on the suspect whom the police have arrested, to verify his name and address and discover whether the diary contains information relevant to the crime for which he has been arrested, clearly is permissible; and what happened in this case was similar but even less intrusive, since a cell phone’s phone number can be found without searching the phone’s contents, unless the phone is passwordprotected—and on some cell phones even if it is. On an iPhone without password protection two steps are required to get the number: touching the “settings” icon and then the “phone” icon. On a Blackberry only one step is required: touching the “phone” icon. Moreover, the phone company knows a phone’s number as soon as the call is connected to the telephone network; and obtaining that information from the phone company isn’t a search because by subscribing to the telephone service the user of the phone is deemed to surrender any privacy interest he may have had in his phone number. Smith v. Maryland, 442 U.S. 735, 742-43 (1979).

We are quite a distance from the use of the iCam to view what is happening in the bedroom of the owner of the seized cell phone.

It’s not even clear that we need a rule of law specific to cell phones or other computers. If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are, United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993), they should be entitled to read the address book in a cell phone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone. There is an analogy (implied in United States v. Mann, 592 F.3d 779 (7th Cir. 2010), and cases discussed there) to the requirement that wiretaps “minimize the interception of communications not otherwise subject to interception.” 18 U.S.C. § 2518(5); Scott v. United States, 436 U.S. 128, 13043 (1978); United States v. Mansoori, 304 F.3d 635, 64549 (7th Cir. 2002).

But set all this to one side and assume that justification is required for police who have no warrant to look inside a cell phone even if all they’re looking for and all they find is the phone number. The government emphasizes the danger of “remote wiping.” Instant wiping, called “local wiping,” as by pressing a button on the cell phone that wipes its contents and at the same time sends an emergency alert to a person previously specified, see, e.g., Andrew Quinn, “U.S. Develops ‘Panic Button’ for Democracy Activists,” Mar. 25, 2011, www.reuters.com/article/2011/03/25/us-rights-usatechnology-idUSTRE72O6DH20110325; BlackBerry, “Set Maximum Password Attempts IT Policy Rule,” http://docs.blackberry.com/en/admin/deliverables/4222/ Set_Maximum_Password_Attempts_204136_11.jsp, was not a danger in this case once the officers seized the cell phone. But remote-wiping capability is available on all major cell-phone platforms; if the phone’s manufacturer doesn’t offer it, it can be bought from a mobile-security company. See, e.g., “Find My iPhone,” www.apple.com/ iphone/built-in-apps/find-my-iphone.html; “McAfee Mobile Security for Android,” www.mcafeemobilesecurity. com; “Kaspersky Mobile Security 9,” http://usa.kaspersky. com/products-services/home-computer-security/mobilesecurity. Wiped data may be recoverable in a laboratory, but that involves delay.

According to Apple, a person with a “jailbroken” iPhone (that is, a “self-hacked” iPhone, modified by its owner to enlarge its functionality or run unauthorized applications) could enable anonymous phone calls to be made, a capability that Apple claims “would be desirable to drug dealers.” David Kravets, “iPhone Jail-breaking Could Crash Cellphone Towers, Apple Claims,” Wired, July 28, 2009, www.wired.com/threatlevel/2009/07/ jailbreak/. Apple would like the “jailbreaking” of its phones made illegal, so it is not a disinterested commentator on the use of its phones by those dealers. See, e.g., Adam Cohen, “The iPhone Jailbreak: A Win against Copyright Creep,” Time U.S., July 28, 2010, www.time.com/time/nation/article/ 0,8599,2006956,00.html.

Other conspirators were involved in the distribution of methamphetamine besides Santana-Cabrera and the defendant, and conceivably could have learned of the arrests (they might even have been monitoring the transaction with the informant in the garage from afar) and wiped the cell phones remotely before the government could obtain and execute a warrant and conduct a search pursuant to it for the cell phone’s number; and conceivably the defendant might have had time to warn them before the cell phone was taken from him, giving them time to wipe it. “Conceivably” is not “probably”; but set off against the modest benefit to law enforcement of being able to obtain the cell phone’s phone number immediately was only a modest cost in invasion of privacy. Armed with that number the officers could obtain the call history at their leisure, and the defendant does not deny that if the number was lawfully obtained the subpoenaing of the call history from the phone company was also lawful and the history thus obtained could therefore properly be used in evidence against him.

The defendant argues that the officers could have eliminated any possibility of remote wiping just by turning off the cell phone. Without power a cell phone won’t be connected to the phone network and so remote wiping will be impossible. See, e.g., T-Mobile, “Mobile Security FAQs,” http://support.t-mobile.com/docs/DOC1852; “MobileMe: Troubleshooting, Find My iPhone,” http://support.apple.com/kb/TS2734. But a “roving bug” installed in the phone could record everything that the phone’s microphone could pick up even though the phone was turned off (because “turning off” a cell phone often just means a reduction in power—a kind of electronic hibernation). United States v. Tomero, 471 F. Supp. 2d 448, 450 and n. 2 (S.D.N.Y. 2007); Nicole Perlroth, “Traveling Light in a Time of Digital Thievery,” New York Times, Feb. 11, 2012, p. A1, www.nytimes.com/2012/ 02/11/technology/electronic-security-a-worry-in-an-age-ofdigital-espionage.html; Vic Walter & Krista Kjellman, “Can You Hear Me Now?,” ABC News, Dec. 5, 2006, http://abcnews.go.com/blogs/headlines/2006/12/can_you _hear_me/. What we said in Ortiz about pagers is broadly applicable to cell phones: “The contents of some pagers also can be destroyed merely by turning off the power or touching a button. See, e.g., United States v. Meriwether, 917 F.2d 955, 957 (6th Cir. 1990). Thus, it is imperative that law enforcement officers have the authority to immediately ‘search’ or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.” United States v. Ortiz, supra, 84 F.3d at 984.

And if the phone is either turned off or powered down to a level at which it appears to be turned off, the police can’t obtain information from it, even its phone number, knowledge of which as we said is minimally invasive of privacy. The alternative to searching the cell phone forthwith or turning it off (really turning it off—not just powering it down) is to place it in a “Faraday bag” or “Faraday cage” (essentially an aluminum-foil wrap) or some equivalent, which isolates the cell phone from the phone network and from Bluetooth and wireless Internet signals. See, e.g., Department of Justice, Computer Crime and Intellectual Property Section, “Awareness Brief: Find My iPhone” (June 18, 2009); Cindy Murphy, “Cellular Phone Evidence: Data Extraction and Documentation,” http://mobileforensics.files.wordpress.com/2010/07/ cell-phone-evidence-extraction-process-development-1-18.pdf. (Faraday bags or cages are found in consumer products such as microwave ovens to keep the microwaves in, and in coaxial cables to keep interfering radio signals out.) It is also possible to “mirror” (copy) the entire cell phone contents, to preserve them should the phone be remotely wiped, without looking at the copy unless the original disappears. See Keir Thomas, “Is Smartphone Security Good Enough?,” PCWorld, Apr. 20, 2011, www.pcworld.com/businesscenter/article/225771/is_ smartphone_security_good_enough.html; American Civil Liberties Union of Michigan, “ACLU Seeks Records about State Police Searches of Cellphones,” Apr. 13, 2011, www.aclumich.org/issues/privacy-andtechnology/2011-04/1542; Cellebrite, “UFED Ultimate,” www.cellebrite.com/ mobile-forensics-products/forensicsproducts/ufed-ultimate.html.

We said it was conceivable, not probable, that a confederate of the defendant would have wiped the data from the defendant’s cell phone before the government could obtain a search warrant; and it could be argued that the risk of destruction of evidence was indeed so slight as to be outweighed by the invasion of privacy from the search. But the “invasion,” limited as it was to the cell phone’s number, was also slight. And in deciding whether a search is properly incident to an arrest and therefore does not require a warrant, the courts do not conduct a cost-benefit analysis, with the invasion of privacy on the cost side and the risk of destruction of evidence (or of an assault on the arresting officers) on the benefit side of allowing the immediate search. Toting up costs and benefits is not a feasible undertaking to require of police officers conducting a search incident to an arrest. Thus, even when the risk either to the police officers or to the existence of the evidence is negligible, the search is allowed, United States v. Robinson, supra, 414 U.S. at 235, provided it’s no more invasive than, say, a frisk, or the search of a conventional container, such as Robinson’s cigarette pack, in which heroin was found. If instead of a frisk it’s a strip search, the risk to the officers’ safety or to the preservation of evidence of crime must be greater to justify the search. Campbell v. Miller, 499 F.3d 711, 717 (7th Cir. 2007), citing Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983). Looking in a cell phone for just the cell phone’s phone number does not exceed what decisions like Robinson and Concepcion allow.

We need not consider what level of risk to personal safety or to the preservation of evidence would be necessary to justify a more extensive search of a cell phone without a warrant, especially when we factor in the burden on the police of having to traipse about with Faraday bags or mirror-copying technology and having to be instructed in the use of these methods for preventing remote wiping or rendering it ineffectual. We can certainly imagine justifications for a more extensive search. The arrested suspect might have prearranged with co-conspirators to call them periodically and if they didn’t hear from him on schedule to take that as a warning that he had been seized, and to scatter. Or if conspirators buy prepaid SIM (subscriber identity module) cards, each of which assigns a different phone number to the cell phone in which the card is inserted, and replace the SIM card each day, a police officer who seizes one of the cell phones will have only a short interval within which to discover the phone numbers of the other conspirators. See Adrian Chen, “The Mercenary Techie Who Troubleshoots for Drug Dealers and Jealous Lovers,” Gawker, Jan. 25, 2012, http://gawker.com/5878862/. (This is provided the phone number is on the SIM card; in some iPhones, for example, it is not.) The officer who doesn’t make a quick search of the cell phone won’t find other conspirators’ phone numbers that are still in use.

But these are questions for another day, since the police did not search the contents of the defendant’s cell phone, but were content to obtain the cell phone’s phone number.

AFFIRMED.

2-29-12
_________________

Search Incident to Arrest Doctrine

Modified from article: Password Protected? Can a Password Save Your Cell Phone from a Search Incident to Arrest? 96 Iowa L. Rev. 1125, * Copyright (c) 2011 The University of Iowa. Iowa Law Review May, 2011 96 Iowa L. Rev. 1125

The starting point for the broad search incident to arrest doctrine is the Supreme Court’s 1969 decision in Chimel v. California. 395 U.S. 752 (1969) In Chimel, the Court suppressed evidence found when police searched Ted Chimel’s entire home, including his attic and garage, following an arrest for burglary. Despite suppressing the evidence, the Chimel decision provided broad authority for the police to search incident to arrest. The Court held that contemporaneous with a lawful arrest, police could search for weapons that an arrestee could use against the officer and to prevent an arrestee from concealing or destroying evidence. The Court limited the scope of the search to the arrestee’s person and the area within his immediate control from which he might gain possession of a weapon or destroy evidence. Thus, while police could not rummage through Chimel’s entire house following arrest, they were free to search anywhere on his person or his immediate grabbing space.

A few years after Chimel, in United States v. Robinson, 414 U.S. 218 (1973), the Court moved a step further and clarified that police could open closed containers when searching incident to arrest. Police arrested Willie Robinson for the crime of operating a motor vehicle with a revoked license. During a search incident to arrest of Robinson’s person, the arresting officer felt an object in Robinson’s coat pocket but was unsure of what it was. The officer reached into the pocket and pulled out a crumpled cigarette package. Still unsure what was in the package, the officer opened it and discovered capsules of heroin. Even though Robinson was not initially arrested for a drug crime and the officer had no reason to believe the package in his pocket contained drugs, the Supreme Court upheld the search. The Court announced a bright-line rule permitting police officers to open and search through all items on an arrestee’s person, even if they are in a closed container, and even if the officers have no suspicion that the contents of the container are illegal.

The Supreme Court in New York v. Belton, 453 U.S. 454 (1981) — permitted searches incident to arrest of the entire interior of automobiles (although not the trunk) following a valid arrest. In Belton, the officer stopped a car for speeding and, upon smelling marijuana, arrested the occupants. With the occupants safely removed from the vehicle, the officer then searched the passenger compartment of the car and found a jacket in the backseat. The officer unzipped the jacket pockets and found cocaine. In upholding the search of the jacket, the Court explained the value of “a straightforward rule, easily applied and predictably enforced.” Id. at 459. To make matters simple and predictable, the Court permitted police, following a lawful arrest, to search the entire passenger compartment of a vehicle and to open any containers inside the vehicle regardless of whether they could contain a weapon or evidence of a crime.

After years of expanding the scope of the search incident to arrest doctrine, the Supreme Court scaled back police authority to search vehicles incident to arrest in 2009. In Arizona v. Gant, 129 S. Ct. 1710 (2009) police arrested the defendant for driving with a suspended license, handcuffed him, and placed him in the back of a police car. Thereafter, police searched Rodney Gant’s vehicle and found a jacket in the backseat that contained cocaine. The Gant Court narrowed the Belton rule and held that police can only search a vehicle incident to arrest if “the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search” or if “it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” While the Gant decision is clearly an effort to narrow the search incident to arrest doctrine, at present the decision is only applicable to searches of vehicles and it is debatable how much change it will foster.

Searching Cell Phones Incident to Arrest

As wireless technology has become ubiquitous, courts have been called upon to apply the search incident to arrest doctrine to digital devices. The first such cases began to appear in the mid-1990s and involved very simple pagers and beepers that stored only phone numbers and short messages. Courts universally upheld the search incident to arrest of such devices. For example, in United States v. Chan, 830 F. Supp. 531 (N.D. Cal. 1993). police activated a pager and retrieved telephone numbers that linked Sam Chan to a drug ring. The federal court upheld the search of Chan’s pager because it was nothing more than an electronic container and Supreme Court precedent authorized the search of containers incident to arrest.

The court further explained that it was irrelevant that the arrestee could not retrieve a weapon from the pager nor plausibly destroy any evidence from the pager. Put simply, the court embraced the search incident to arrest doctrine’s bright-line rule for wireless technology and saw no reason to distinguish pagers from traditional searches of luggage, boxes, and other containers.

Following Chan, half a dozen other courts upheld similar searches of pagers. See United States v. Hunter, 1998 WL 887289 (4th Cir. Oct. 29, 1998); United States v. Ortiz, 84 F.3d 977 (7th Cir. 1996); United States v. Stroud, 1994 WL 711908 (9th Cir. Dec. 21, 1994); United States v. Diaz-Liazaraza, 981 F.2d 1216 (11th Cir. 1993); United States v. Reyes, 922 F. Supp. 818 (S.D.N.Y. 1996); United States v. Lynch, 908 F. Supp. 284 (D. V.I. 1995).

In the years following the Chan decision upholding the search incident to arrest of pagers, cell phone use increased dramatically in the United States. Early generation cell phones were not markedly different than pagers, but did contain additional data such as outgoing call logs and text messages. And law enforcement officers quickly recognized that drug dealers could use cell phones to text their drug transactions without having to speak on the phone. Accordingly, police began to search cell phones incident to arrest and courts were called upon beginning in the mid-2000s to assess the constitutionality of such searches.

The most prominent case upholding the search incident to arrest of a cell phone is the Fifth Circuit’s decision in United States v. Finley.United States v. Finley, 477 F.3d 250 (5th Cir. 2007). After arresting Jacob Finley as part of a staged drug sale, police searched the cell phone in his pocket incident to arrest. Officers found incriminating text messages related to drug trafficking, and Finley was subsequently convicted. On appeal, Finley contended that the search of his cell phone was unlawful because the Fourth Amendment permitted only the seizure, not the warrantless search, of his phone. Just as in the pager context, the Fifth Circuit refused to draw a distinction between wireless technology and searches of more traditional containers. The court explained that “police officers are not constrained to search only for weapons or instruments of escape on the arrestee’s person; they may also, without any additional justification, look for evidence of the arrestee’s crime on his person in order to preserve it for use at trial.” Id. at 259-60. In short, the Fifth Circuit did not recognize any conceptual difference between searching physical containers for drugs and searching electronic equipment for digital information.

Over the last few years, dozens of courts have authorized police to conduct warrantless searches of cell phones when arresting individuals. Under the “search incident to arrest” doctrine, police are free to search text messages, call histories, photos, voice mails, and a host of other data if they arrest an individual and remove a cell phone from his pocket. Given that courts have offered little protection against cell-phone searches, can individuals protect themselves by password protecting their phones? Unfortunately, password protecting a cell phone offers minimal legal protection when an individual is lawfully searched incident to arrest. In conducting such a search, police may attempt to hack or bypass a password. Because cell phones are often found in arrestees’ pockets, police may take the phones to the police station, where computer-savvy officers will have the time and technology to unlock a phone’s contents. And if police are unable to decipher the password, they may request or even demand that an arrestee turn over his password, without any significant risk of suppression of evidence found on the phone under the Miranda doctrine or the Fifth Amendment’s Self-Incrimination Clause. In short, while password protecting a cell phone may make it more challenging for police to find evidence, the password itself offers very little legal protection to arrestees. Accordingly, legislative or judicial action is needed to narrow the search-incident-to-arrest doctrine with respect to cell phones.

Posted in Fourth Amendment, GPS Surveillance, U.S. Supreme Court, Uncategorized | Leave a comment

Is Immigration Good for America?

Posted on February 26, 2012 by Mike Baker
Cato Journal

An Interdisciplinary Journal of Public Policy Analysis
Volume 32 Number 1, Winter 2012

The Winter 2012 issue of the Cato Journal is devoted to answering a single question: “Is Immigration Good for America?” In 13 articles, 16 scholars answer with a resounding “Yes!” The consensus is that immigrants provide a net benefit to the U.S. economy and to U.S. workers. There is also a consensus among the authors that the current immigration system, with its patchwork of arbitrary numerical caps, needlessly squanders the full economic potential of immigration. The authors call for a thorough revamping of the immigration system to make it more responsive to labor demand, to attract highly skilled professionals and entrepreneurs, and to offer a pathway to legal status for the unauthorized population.

Here are highlights from the issue:

• Daniel T. Griswold, former Director of the Herbert A. Stiefel Center for Trade Policy Studies at the Cato Institute, concludes that “basic economic analysis and numerous empirical studies have confirmed that immigrants boost the productive capacity of the United States through their labor, their human capital, and their entrepreneurial spirit. Instead of competing head-to-head with American workers, immigrants typically complement native-born workers by filling niches in the labor market.”

• Joel Kotkin, Distinguished Presidential Fellow at Chapman University, and Erika Ozuna, Research Fellow at Pepperdine University, say that “the United States should make efforts to keep entrepreneurs and all kinds of skilled workers, whom the country will need, particularly as the Baby Boom generation retires.” The authors warn that “if attitudes harden against immigration, America will sacrifice much of its demographic and cultural uniqueness. We would also suffer the loss of a major source of entrepreneurial growth and innovation.”

• Stuart Anderson, Executive Director of the National Foundation for American Policy, points out that “fixing problems with the U.S. legal immigration system does not involve raising or reducing federal spending, or designing elaborate new agencies or policies. In general, much can be accomplished by simply raising the quotas for temporary visas for both low- and high-skilled workers and increasing the number of green cards available for family and employer-sponsored immigrants.”

• Pia M. Orrenius, Senior Economist at the Federal Reserve Bank of Dallas, and Madeline Zavodny, Professor of Economics at Agnes Scott College, argue that “it seems virtually inevitable that the United States will conduct a legalization program at some point given the size of the undocumented population.” However, research on the failings of the 1986 legalization demonstrates the “importance of enacting a legalization program only in the context of comprehensive immigration reform designed to reduce future unauthorized inflows as much as possible.”

• Raúl Hinojosa-Ojeda, Founding Director of the North American Integration and Development Center at the University of California, Los Angeles, describes how “legalizing currently unauthorized immigrants and creating flexible legal limits on future immigration in the context of full labor rights would raise wages, increase consumption, create jobs, and generate additional tax revenue—particularly in those sectors of the U.S. economy now characterized by the lowest wages.”

In sum, the contributors to this issue of the Cato Journal make a compelling case for the creation of a rational immigration system that offers the greatest benefit to both immigrant and native-born workers, and which adds the greatest value to the U.S. economy. As the authors emphasize, this would be a welcome change from the current dysfunctional system, which has facilitated the growth of an unauthorized population now numbering 11 million. While the federal government may be unwilling to tackle immigration reform, the status quo is clearly unacceptable—and unsustainable.

1. Gordon Hanson, “Immigration and Economic Growth.”  Pretty good, especially on the interaction between high-skilled native labor and low-skilled immigrant labor:

One contribution of low-skilled immigrants is to make it possible for high-skilled workers to spend more time on the job and less time doing non-work related chores… The majority of highly educated women are married to highly educated men (Isen and Stevenson 2010: 13). For both to work outside the home often requires hiring outside labor to care for children, clean the home, launder clothes, and tend to the yard. In a study of immigration’s impact on U.S. cities, Cortes (2008) finds that metropolitan areas that have had larger influxes of low-skilled immigrants have lower prices for dry cleaning, child care, housing cleaning, yard care, and other labor-intensive services. Lower prices for these services translate into more hours spent at work for high-skilled workers, particularly among women with a professional degree or PhD (Cortes and Tessada 2009). Low-skilled immigration thus indirectly contributes to productivity growth by raising the effective supply of high-skilled labor.

2. Giovanni Peri, “Immigration, Labor Markets, and Productivity.”  If all labor is identical, the effect of immigration on domestic wages is clearly negative, at least in the short-run.  But in reality, immigrant labor and native labor are very different – and it matters.  Peri provides an excellent survey of the evidence.  One highlight:

In Peri and Sparber (2009) we show that, due to the limited knowledge of the language, immigrants have a comparative advantage in manual type of jobs. Hence they specialize in those, and in firms and sectors that hire immigrants, this produces higher demand for jobs of coordination and interaction typically staffed by natives, whose language skills are superior. This dynamic specialization in tasks according to skills pushes natives to upgrade their jobs (as communication-intensive occupations pay better than manual intensive ones) and protects their wages from competition with immigrants.

3. Joel Kotkin and Erika Ozuna, “America’s Demographic Future.”  A good intro to the demographic effects of immigration.  Immigration is keeping America young and working:

Mexican and other immigrants are one key reason why America boasts a fertility rate 50 percent higher than Russia, Germany, or Japan, and well above that of China, Italy, Singapore, Korea, and virtually all of eastern Europe (The Economist 2002; United Nations 2005; Longman 2004: 60). Consequently, it is widely believed America’s workforce will continue to grow even as that of Japan, Europe, Korea, and eventually even China will start to shrink.

Between 2000 and 2050, for example, the U.S. workforce is projected to grow by over 40 percent, while that of China shrinks by 10 percent, the EU by 25 percent and, most remarkably, Japan’s by over 40 percent (U.S. Census Bureau International Database).

4. Stuart Anderson, “America’s Incoherent Immigration System.” A solid moderate reformist piece:

[M]uch can be accomplished by simply raising the quotas for temporary visas for both low- and high-skilled workers and increasing the number of green cards available for family and employer-sponsored immigrants.

5. Pia Orrenius and Madeline Zavodny.  “The Economic Consequences of Amnesty for Unauthorized Immigrants.”  Pretty good, but most readers will get more out of the broader articles on the labor market and fiscal effects of immigration.

6. Edward Alden. “Immigration and Border Control.”  Alden wants people to acknowledge the trade-off between the ease of legal immigration and the cost of border enforcement.  Perhaps he’s just being strategic, but Alden shows little concern for the well-being of immigrants or the immorality of treating people like criminals for doing an honest day’s work:

There are certainly many–indeed the majority of the American public at the moment–who would argue against higher levels of immigration. That is perfectly reasonable. But the debate should be an honest one. Larger legal quotas, especially for less-skilled workers, would reduce the need for enforcement; smaller quotas would increase it. Instead, the discussion is a disingenuous one in which many in Congress insist that the border must first be “secured” before any serious consideration of immigration reform can be permitted.

7. Jim Harper. “Internal Enforcement, E-Verify, and the Road to a National ID.”  A frightening picture of rapid technological progress in the war on illegal immigration.  But like Alden, Harper shows little concern for the rights of immigrants.  And he frustratingly equivocates between the “values of the people” as expressed in private behavior, and the “values of the people” as expressed in the voting booth:

[T]he goal of many of E-Verify’s proponents is to bring the rule of law to the immigration environment. Fealty to law is important for the maintenance of a just and stable society, and immigration law is widely disrespected and often broken. But good law is not a hammer waved over the heads of subservient people. Good law gives expression to the values of the people.

Immigration law is disrespected and broken not because it is poorly enforced, but because it is inconsistent with the will of the people. In the main, the majority of the American people express their will quietly but insistently in their decisions to hire good, hard workers, and to enjoy the product of these workers’ labor, indifferent to where the worker was born.

8. Margaret Stock. “Is Birthright Citizenship Good for America?” Stock’s answer, of course, is yes.  But her piece is not persuasive.  People oppose birthright citizenship because they oppose immigration.  If you don’t change their minds about immigration, you won’t change their minds about birthright citizenship, either.

9. Daniel Griswold. “Immigration and the Welfare State.”  Griswold provides a careful survey of the literature on the fiscal effects of immigration, and never forgets that immigrants count, too.

Highlights:

False stereotypes notwithstanding, immigrants have an awesome work ethic:

The typical foreign-born adult resident of the United States today is more likely to participate in the work force than the typical native-born American. According to the U.S. Department of Labor (2011), the labor-force participation rate of the foreign-born in 2010 was 67.9 percent, compared to the native-born rate of 64.1 percent. The gap was especially high among men. The labor-force participation rate of foreign-born men in 2010 was 80.1 percent, a full 10 percentage points higher than the rate among native-born men.

Labor-force participation rates were highest of all among unauthorized male immigrants in the United States. According to estimates by Jeffrey Passell (2006) of the Pew Hispanic Center, 94 percent of illegal immigrant men were in the labor force in the mid-2000s.

Immigrants display reverse welfare magnetism:

The 10 states with the largest percentage increase in foreign-born population between 2000 and 2009 spent far less on public assistance per capita in 2009 compared to the 10 states with the slowest-growing foreign-born populations–$35 vs. $166 (see Table 1). In the 10 states with the lowest per capita spending on public assistance, the immigrant population grew 31 percent between 2000 and 2009; in the 10 states with the highest per capita spending on public assistance, the foreign-born population grew 13 percent (U.S.
Census 2011, NASBO 2010: 33).

What about illegals?

Undocumented immigrants are even more likely to self-select states with below-average social spending. Between 2000 and 2009, the number of unauthorized immigrants in the low-spending states grew by a net 855,000, or 35 percent. In the high-spending states, the population grew by 385,000, or 11 percent (U.S. Census 2011; NASBO 2010: 33; Passel and Cohn 2011). One possible reason why unauthorized immigrants are even less drawn to high-welfare-spending states is that, unlike immigrants who have been naturalized, they are not eligible for any of the standard welfare programs.

The paper goes on to cover the net multigenerational fiscal effects of immigration, with extra sections on educational spending, health spending, and Social Security.  Though the net fiscal effect seems positive, there’s a clear federal-state conflict:

The 1997 National Research Council study determined that the typical immigrant and descendants represent an $80,000 fiscal gain to the government in terms of net present value. But that gain divides into a positive $105,000 fiscal impact for the federal government and a negative $25,000 impact on the state and local level (NRC 1997: 337).

While the net fiscal effects of illegal immigration in Texas were modestly negative, the net economic effect for Texas was strongly positive:

[U]nauthorized immigrants in fiscal year 2005 paid a total of $2.09 billion in taxes at the state and local level, while consuming $2.60 billion in services (Strayhorn 2006: 20). Education was the main expenditure on the state level, and health care on the local level. Thus the net fiscal cost for state and local taxpayers in Texas from illegal immigration that year was $504 million.

The fiscal cost, however, was more than offset by the boost to the size of the Texas economy, another finding consistent with other state studies. The Texas comptroller used a general equilibrium model known as the Regional Economic Model Inc… The model found that the resulting drop in the state’s labor force would cause wages of remaining workers to rise slightly–by less than 1 percent. But the higher wages caused by a tightening labor market would make producers in the state less competitive, resulting in a modest decline in the value of the state’s exports. The state’s economy would shrink by 2.1 percent or $17.7 billion (Strayhorn 2006: 17)

Griswold’s not apologizing for the welfare state.  But libertarians who see the welfare state as an argument for restricting immigration are straining out a gnat and swallowing a camel.
10. Raul Hinojosa-Ojeda. “The Economic Benefits of Comprehensive Immigration Reform.”  Provides a computable general equilibrium model of the effects of different immigration reform scenarios.  Unfortunately, this approach just isn’t transparent enough to change a skeptic’s mind.  And I can’t understand how the same model could imply that:

(a) Comprehensive immigration reform (amnesty, more or less) “results in higher wages–and higher worker productivity–for all workers in industries where large numbers of immigrants are employed.”

AND

(b) Under mass deportation, “Wages do rise for less-skilled native-born workers under this scenario, but they fall for higher-skilled natives and the U.S. economy loses a large numbers of jobs.”

Perhaps I’m missing something, but how can amnesty and mass deportation both boost wages for less-skilled natives?

11. Joshua Hall, Benjamin VanMetre, and Richard Vedder. “U.S. Immigration Policy in the 21st Century: A Market-Based Approach.”  A lot of good material, but it ends on a disappointingly agnostic and amoral note:

As has been shown in this article, for every pro-immigration argument there is an opposing anti-immigration argument and thus it is unlikely that there will be an immigration policy that everyone will agree on. It is possible, however, to devise an immigration policy that would appeal both to those supporting more immigrants and to those who complain about the character of immigration after 1965.

Namely:
[C]reating an international market for visas. To start, each business day of the year 5,000 visas for entry to the United States would be sold in a NASDAQ-style marketplace by the federal government and each immigrant would need a visa to enter the country. There would also be a limited number of visas, maybe 100,000 annually, provided free by the federal government to refugees fleeing political, religious, or other persecution as is
done under current law.

Is Immigration Good for America?

James A. Dorn
Editor’s Note
(PDF, 2 pp., 33Kb)

Daniel T. Griswold
Introduction: Is Immigration Good for America?
(PDF, 4 pp., 49Kb)

Bryan Caplan
Why Should We Restrict Immigration?
(PDF, 20 pp., 177Kb)

Gordon H. Hanson
Immigration and Economic Growth
(PDF, 10 pp., 95Kb)

Giovanni Peri
Immigration, Labor Markets, and Productivity
(PDF, 20 pp., 175Kb)

Joel Kotkin and Erika Ozuna
America’s Demographic Future
(PDF, 16 pp., 140Kb)

Stuart Anderson
America’s Incoherent Immigration System
(PDF, 14 pp., 126Kb)

Pia M. Orrenius and Madeline Zavodny
The Economic Consequences of Amnesty for Unauthorized Immigrants
(PDF, 22 pp., 196Kb)

Edward Alden
Immigration and Border Control
(PDF, 18 pp., 151Kb)

Jim Harper
Internal Enforcement, E-Verify, and the Road to a National ID
(PDF, 14 pp., 117Kb)

Margaret D. Stock
Is Birthright Citizenship Good for America?
(PDF, 20 pp., 164Kb)

Daniel T. Griswold
Immigration and the Welfare State
(PDF, 16 pp., 147Kb)

Raúl Hinojosa-Ojeda
The Economic Benefits of Comprehensive Immigration Reform
(PDF, 26 pp., 219Kb)

Joshua C. Hall, Benjamin J. VanMetre, and Richard K. Vedder
U.S. Immigration Policy in the 21st Century: A Market-Based Approach
(PDF, 20 pp., 174Kb)

Book Reviews

James Madison
by Richard Brookhiser
Reviewed by John Samples
(PDF, 3 pp., 117Kb)

The Ethics of Voting
by Jason Brennan
Reviewed by Aaron Ross Powell
(PDF, 6 pp., 219Kb)

The Concept of Justice: Is Social Justice Just?
by Thomas Patrick Burke
Reviewed by Trevor Burrus
(PDF, 4 pp., 219Kb)

Posted in Immigration, the Cato Journal | Leave a comment

Marriage Fraud Doctrines.

Posted on February 25, 2012 by Mike Baker

This Article examines the astonishing array of doctrines used to determine what constitutes marriage fraud. It begins by locating the traditional nineteenth-century annulment-by-fraud doctrine within the realm of contract fraud, observing that in the family law context fraudulent marriages were voidable solely at the option of the injured party. The Article then explains how, in the twentieth century, a massive expansion of public benefits tied to marriage prompted new marriage fraud doctrines to develop in various areas of the law, shifting the concept of the injured party from the defrauded spouse to the public at large. It proposes a framework for understanding these new doctrines by demonstrating that courts apply different tests for finding fraud depending on the value of the benefit sought compared to the cost to the individual of using marriage to obtain it. Furthermore, the Article argues that marriage is an ineffective means for distributing public benefits that serve specific objectives; in other words, marriage is being asked to do too much work. As a possible response to this problem, the Article concludes that lawmakers could disaggregate the components of marriage to which they attach public benefits. This would improve the efficacy of public benefits distribution without entirely dismantling the institution of marriage or jeopardizing the stability that it may provide to society.  Kerry Abrams, University of Virginia School of Law.

California Law Review, Vol. 100, No. 1, 2012
Virginia Public Law and Legal Theory Research Paper No. 2012-12

Number of Pages in PDF File: 69

Suggested Citation:  Abrams, Kerry, Marriage Fraud (February, 07 2012). California Law Review, Vol. 100, No. 1, 2012; Virginia Public Law and Legal Theory Research Paper No. 2012-12. Available at SSRN: http://ssrn.com/abstract=2000956

Posted in Adjustment of Status, Immigration Marriage Fraud Amendments Act of 1986, Immigration Marriage Fraud Amendments of 1986, Marriage Fraud | Leave a comment

Making a false tax return “involv[ing] fraud or deceit” when the loss to the government exceeds $10,000 is an aggravated felony.

Posted on February 24, 2012 by Mike Baker

In removal proceedings against resident aliens who were convicted of willfully making and subscribing a false tax return under 26 USC section 7206(1) and aiding and assisting in the preparation of a false tax return under 26 USC section 7206(2), the orders of removal are affirmed, as violations of sections 7206(1) and (2) are crimes “involv[ing] fraud or deceit” under 8 USC section 1101(a)(43)(M)(i) and are therefore aggravated felonies subjecting the respondents to removal when the loss to the government exceeds $10,000. (PDF)

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 deported under §1227(a)(2)(A)(iii). The Board of Immigration Appeals affirmed. 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 determine whether the Kawashimas’ offenses involve fraud or deceit within the meaning of Clause (i). Section 7206(1) provides that any person 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 correct as to every material matter,” shall be guilty of a felony. Although 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 deceit―meaning offenses with elements that necessarily entail fraudulent or deceitful conduct. Mr. Kawashima’s conviction under §7206(1) involved deceitful conduct in that he knowingly and willfully submitted a tax return that was false as to a material matter. Mrs. Kawashima 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 felony involving deceit by knowingly and willfully assisting her husband’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 interpreted as being inapplicable to tax crimes is also rejected. Clause (i) defines “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 revenue loss to the Government exceeds $10,000.” Contrary to the Kawashimas’ 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 Congress’ 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, interpreting Clause (i) to include tax crimes does not violate the presumption against superfluities. The specific inclusion of tax evasion in Clause (ii) does not make it redundant to Clause (i) because the inclusion 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 considered the Guidelines when drafting 8 U. S. C. §1101(a)(43)(M). Moreover, the differences between §1101(a)(43)(M) and the Guidelines undercut any inference that Congress was incorporating the distinction 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 application. 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. Ginsburg, J., filed a dissenting opinion, in which Breyer and Kagan, JJ., joined.

2027167377 I9c78fd845c6611e18b1ac573b20fcfb7 w_cs_sct2 2012 WL 538277 FEBRUARY 21, 2012 AKIO KAWASHIMA, et ux., PETITIONERS v. ERIC H.HOLDER, Jr., ATTORNEY GENERAL S.Ct. 13-5652 Opinion of the Court  565 U. S. ____ (2012) KAWASHIMA v.HOLDER 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, Washington, 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 Government 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 willfully making and subscribing a false tax return in violation of 26 U. S. C. §7206(1). Mrs. Kawashima pleaded guilty to one count of aiding and assisting in the preparation of a false tax return in violation of 26 U. S. C. §7206(2).

Following their convictions, the Immigration and Naturalization 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 aggravated felony at any time after admission is deportable”).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 being deportable for committing offenses under subparagraph (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 victims exceeds $10,000; or (ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.” 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 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 under §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 government in excess of $10,000.” Id., at 1055. The Ninth Circuit 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 agreement 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 Government in excess of $10,000. Id., at 1056-1057.

We granted the Kawashimas’ petition for a writ of certiorari 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 conviction 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 involved 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 employ a categorical approach by looking to the statute defining the crime of conviction, rather than to the specific facts underlying the crime. See Gonzales v. Duenas-Alvarez, 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 Kawashimas 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 declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to
every material matter,” shall be guilty of a felony. Mr. Kawashima does not dispute that the elements of a violation of §7206(1) include, inter alia, that the document in question was false as to a material matter, that the defendant did not believe the document to be true and correct as to every material matter, and that he acted willfully with the specific intent to violate the law. See, e.g., United States v. Aramony, 88 F. 3d 1369, 1382 (CA4 1996); United States v. Kaiser, 893 F. 2d 1300, 1305 (CA11 1990); United States v. 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 offenses 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 elements 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 International Dictionary 584 (1993). Mr. Kawashima’s conviction under §7206(1) establishes that he knowingly and willfully submitted a tax return that was false as to a material matter. He therefore committed a felony that involved “deceit.”

Turning to Mrs. Kawashima, our analysis follows a similar path. Mrs. Kawashima was convicted of violating 26 U. S. C. §7206(2), which declares that any person who “[w]illfully aids or assists in . . . the preparation or presentation 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 violation 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 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 convicted of an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” has committed an aggravated felony and is subject to depor-tation pursuant to 8 U. S. C. §1227(a)(2)(A)(iii). The elements of willfully making and subscribing a false corporate tax return, in violation of 26 U. S. C. §7206(1), and of aiding and assisting in the preparation of a false tax return, in violation of 26 U. S. C. §7206(2), establish that those crimes are deportable offenses because they necessarily entail deceit.

B

     The Kawashimas’ second argument is based on inferences drawn from the interaction of Clause (i) and Clause (ii). The full text of subparagraph (M) reads as follows:

“(43) The term ‘aggravated felony’ means–

.     .     .     .     .

“(M) an offense that–

“(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or

“(ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.”

The Kawashimas argue that when Clause (i) is read together with Clause (ii), Clause (i) must be interpreted as being inapplicable to tax crimes. In their view, subparagraph (M), when considered in its entirety, demonstrates that Congress was addressing two mutually exclusive categories of crimes in subparagraph (M)’s two clauses: general, 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 between Clauses (i) and (ii) indicate that Congress intended to exclude tax crimes from Clause (i). Specifically, they note that Clause (i) addresses “loss to the victim,” whereas Clause (ii) addresses “revenue loss to the Government.”

This difference in language does not establish Congress’ intent to remove tax crimes from the scope of Clause (i). Clause (i) covers a broad class of offenses that involve fraud or deceit. Clause (i) thus uses correspondingly broad language to refer to the wide range of potential losses and victims. Clause (ii), on the other hand, is limited to the single type of offense “described in section 7201 of title 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 intended 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 Government are aggravated felonies. The Kawashimas assert that, if Clause (i) applies to tax crimes, then qualifying convictions for tax evasion under Clause (ii) would also qualify as aggravated felonies under Clause (i), because tax evasion is a crime involving fraud or deceit. To buttress this argument, the 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) (“Numerous 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, according 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 deceit.” We think it more likely that Congress specifically included tax evasion offenses under 26 U. S. C. §7201 in Clause (ii) to remove any doubt that tax evasion qualifies as an aggravated felony.

Several considerations support this conclusion. Like §§7206(1) and (2), §7201 does not, on its face, mention fraud or deceit. Instead, §7201 simply provides that “[a]ny person who willfully attempts in any manner to evade or defeat any tax imposed by [the Internal Revenue Code] or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony.” Accordingly, neither fraud nor deceit is among the elements of a conviction under §7201, which include: (1) willfulness; (2) the existence of a tax deficiency; and (3) an affirmative act constituting an evasion or an attempted evasion of the tax. Boulware v. United States, 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 applicable 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 limitations 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 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 affirmative acts of fraud or deceit, it is still true that the elements of tax evasion pursuant to §7201 do not necessarily involve fraud or deceit. Thus, we conclude that the specific inclusion of tax evasion in Clause (ii) was intended to ensure that tax evasion pursuant to §7201 was a deportable 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 treatment 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 effective Nov. 1, 2001). The Commission simultaneously included “offenses involving taxation” as a separate category. §§2T1.1 et seq. (Nov. 2011). Although the Kawashimas acknowledge that they have found no evidence that Congress actually considered the Guidelines, they contend that “it is likely that the language of [Clause (i)] and [Clause (ii)] was taken from the Sentencing Guidelines” by the sponsors of the bill that expanded the definition of aggravated felony to include subparagraph (M). Brief for Petitioners 29. Therefore, the theory goes, we can infer from the similar language in the Guidelines that Congress did not intend Clause (i) to include tax crimes.

We reject the Kawashimas’ reliance on the Guidelines. The Kawashimas’ argument is at odds with the fact that, unlike the Guideline that the Kawashimas cite, Clause (ii) does not refer to all offenses “involving taxation.” Rather, Clause (ii) is expressly limited to tax evasion offenses under §7201. That textual difference undercuts any inference that Congress was considering, much less incorporating, the distinction drawn by the Guidelines.

C

     Finally, the Kawashimas argue that subparagraph (M)’s treatment of tax crimes other than tax evasion is ambiguous, 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 aggravated felonies pursuant to 8 U. S. C. §1101(a)(43)(M)(i). Because the Kawashimas are subject to deportation as aliens who have been convicted of aggravated felonies pursuant to 8 U. S. C. §1227(a)(2)(A)(iii), the judgment of the Court of Appeals is affirmed.

It is so ordered.

Ginsburg, J., dissenting  565 U. S. ____ (2012) KAWASHIMA v.HOLDER 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 felony” 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 delineated exclusively in §1101(a)(43)(M)(ii) (or Clause (ii)), and that §1101(a)(43)(M)(i) (or Clause (i)) does not encompass tax crimes. The Court rejects this argument, and holds that any tax offense “involv[ing] fraud or deceit,” if the loss to the fisc exceeds $10,000, ranks as an “aggravated felony.” See ante, at 11. Because the Kawashimas’ tax offense involved deceit and meets the monetary threshold, the Court concludes, they have committed an aggravated felony and are therefore deportable.

The Court’s construction of the statute is dubious, as I see it. For one thing, it effectively renders Clause (ii) superfluous. Further, the Court’s reading sweeps a wide variety of federal, state, and local tax offenses–including misdemeanors–into the “aggravated felony” category. In addition, today’s decision may discourage aliens from pleading guilty to tax offenses less grave than tax evasion, thereby complicating and delaying enforcement of the internal revenue laws. I conclude that Clause (i) does not address tax offenses, and would therefore hold that making a false statement on a tax return in violation of §7206 is not an “aggravated felony.”

I

     Any alien convicted of an “aggravated felony” after admission to the United States is deportable. 8 U. S. C. §1227(a)(2)(A)(iii). Subparagraph (M) of §1101(a)(43) includes as an “aggravated felony”:

“an offense that–

     “(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or

     “(ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.”

Notably, Clause (i) speaks of “loss to the victim,” Clause (ii) of “revenue loss to the 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 submitting a false statement proscribed by §7206, the Kawashimas maintain, is not an “aggravated felony” that would render them deportable under 8 U. S. C. §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 deportation. Under the Government’s construction, because the crime of making a false statement on a tax return involves “fraud” or “deceit,” the Kawashimas committed an aggravated felony. See ante, at 5 (“the words ‘fraud’ and ‘deceit’ are absent from the text of §7206(1) and are not themselves formal elements of the crime,” nonetheless, “[the] elements [of a §7206 crime] necessarily entail fraudulent or deceitful conduct”).

The Court’s task is to determine which reading of
the statute is correct. If the two proffered constructions of 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 interpreted 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 §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 constituting 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 conduct, 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 necessarily involves fraud. See, e.g., Carty v. Ashcroft, 395 F. 3d 1081, 1085, n. 7 (CA9 2005) (fraud is “implicit in the nature 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] evasion 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 conviction for tax evasion under 26 U. S. C. §7201 “conclusively establishes fraud in a subsequent civil tax fraud proceeding.” 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 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 process of construction of the civil [fraud] and criminal tax provisions has demonstrated that their constituent elements 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 carrying 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 evasion, 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 statute of limitations was three years; for tax offenses that involve defrauding the United States, however, the limitation period was six years. An averment of intent to defraud, 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, Scharton 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 assets 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 indictments for tax evasion unaccompanied by any act of fraud or deceit. Tr. of Oral Arg. 30-31.

The canon that statutes should be interpreted to avoid 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 circumstances.” 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 attribute to the [provision] would [rarely] arise,” a construction moored to a case “most unlikely” to exist should be rejected. Id., at 31. It is highly improbable that “a proviso 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 “drastic measure” of deportation, and which are not. See Fong Haw Tan, 333 U. S., at 10. It is implausible that Congress, when drafting §1101(a)(43)(M), intended to address, or was even aware of, the Government’s scenario: a taxpayer who files a truthful return, then, to thwart collection of the tax due, moves all her assets offshore. Far more likely, Congress did not intend to include tax offenses 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 aggravated 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 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. Ashcroft, 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 criminal 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 employee); §7205 (“suppl[ying] false or fraudulent information” to an employer); §7207 (filing a return “known . . . to be false as to any material matter”). On the state and local level, see, e.g., Cal. Rev. & Tax. Code Ann. §1610.4 (West 1998) (“Every person who wilfully states anything which he knows to be false in any oral or written statement, not under oath, required or authorized to be made as the basis of an application to reduce any tax or assessment, is guilty of a misdemeanor.”); N. D. Cent. Code Ann. §57-37.116 (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).
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 conviction under §7206 does not require proof of an attempt to escape a tax). For this reason, the Government has allowed 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 important 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.

*  *  *

     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 judgment of the Court of Appeals for the Ninth Circuit.

FOOTNOTES

Footnote 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.
Footnote 2

Before 1996, there were two procedures for removing aliens from the country: “deportation” of aliens who were already present, and “exclusion” of aliens seeking entry or reentry into the country. Since 1996, the Government has used a unified procedure, known as “removal,” for both exclusion and deportation. See 8 U. S. C. §§1229, 1229a. We use the terms “deportation” and “removal” interchangeably in this opinion.
Footnote 3

We note that the issue whether the Kawashimas’ offenses satisfy the second requirement of Clause (i)–that the loss to the victim exceeded $10,000–is not before us. We address only whether their offenses of conviction qualify as crimes “involv[ing] fraud or deceit.”

FOOTNOTES

Footnote 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).
Footnote 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).

Posted in Aggravated felony, U.S. Supreme Court | Leave a comment

I-601 Provisional Waiver Is Not in Effect

Posted on February 22, 2012 by Mike Baker

USCIS is considering changes that would allow certain immediate relatives (the spouse, children or parents of a U.S. citizen) who can demonstrate extreme hardship to a U.S. citizen spouse or parent to receive a provisional waiver of the unlawful presence bars before leaving the United States.

These procedures are not in effect and will not be available to potential applicants until USCIS publishes a final rule in the Federal Register specifying the effective date. USCIS plans to publish a notice of proposed rulemaking in the coming months and will consider all comments received as part of that process before publishing a final rule.

  • Do not send an application requesting a provisional waiver at this time. USCIS will reject any application requesting this new process and we will return the application package and any related fees to the applicant. USCIS cannot accept applications until a final rule is issued and the process change becomes effective. 
  • Be aware that some unauthorized practitioners of immigration law may wrongly claim they can currently file a provisional waiver application (Form I-601) for you. These same individuals may ask you to pay them to file such forms although the process is not yet in place. Please avoid such scams. USCIS wants you to learn the facts about protecting yourself and your family against scammers by visiting uscis.gov/avoidscams.

If you already have an immigrant visa interview with the U.S. Department of State, we strongly encourage you to attend. The Department of State may cancel your immigrant visa registration if you fail to appear at this interview.

Posted in I-601, Provisional Waivers, Unlawful Presence, Waivers | Leave a comment