A View Through The Looking Glass: How Crimes Appear From The Immigration Court Perspective

ABSTRACT: The purpose of this Article is to provide a basic overview of a body of law that has been compared as second only to tax law in its complexity.  Our goal is to highlight the major areas where criminal laws intersect with and impact noncitizens through the Immigration and Nationality Act. No mere article could be comprehensive in this complicated area of the law that is the subject of voluminous treatises and is subject to constant and rapid revision. However it is our hope to orient non-immigration lawyers and judges to how the outcomes of their work in the criminal courts impact noncitizens when they enter our world, the immigration courts.

A VIEW THROUGH THE LOOKING GLASS: HOW CRIMES APPEAR FROM THE IMMIGRATION COURT PERSPECTIVE Hon. Dana Leigh Marks and Hon. Denise Noonan Slavin 39 Fordham Urb. L.J. 91 (2012) Download A View Through the Looking Glass, Fordham Urban Law Journal

Hon. Dana Leigh Marks and Hon. Denise Noonan Slavin*

Introduction ………………………………………………………………………………….. 92

I. Common Misconceptions ………………………………………………………… 94

II. Some Immigration Law Basics ……………………………………………….. 96

III. The Government Players ………………………………………………………. 97

IV. Those Subject to the Immigration Laws ………………………………… 97

V. Removability and Inadmissibility ……………………………………………. 99

VI. Silva-Trevino and Crimes of Moral Turpitude ……………………… 103

VII. What Is A Conviction? ………………………………………………………. 105

VIII. Good Moral Character ……………………………………………………… 106

IX. Common Forms of Immigration Relief Available in Removal         Proceedings…………………………………………………………. 108

X. Padilla v. Kentucky ………………………………………………………………. 112

Conclusion …………………………………………………………………………………… 119

* The National Association of Immigration Judges (“NAIJ”) is the certified repre­sentative and recognized collective bargaining unit which represents the Immigration Judges of the United States. NAIJ is an affiliate of the International Federation of Professional and Technical Engineers, an affiliate of the AFL-CIO.  This Article was prepared by the current President and Vice President of the NAIJ, Judge Dana Leigh Marks and Judge Denise Noonan Slavin, respectively.  The opinions expressed here do not purport to represent the views of the U.S. Department of Justice (“DOJ”), the Executive Office for Immigration Review (“EOIR”), or the Office of the Chief Im­migration Judge (“OCIJ”). The authors are grateful for and wish to acknowledge the invaluable assistance of Hon. Dorothy A. Harbeck, sister Immigration Judge, Adjunct Professor of Law at Seton Hall University School of Law, and faculty member at the Madeline Korbel Albright Institute for Global Affairs at Wellesley College, who in her personal capac­ity and “spare time” provided us with her advice and materials used in researching her Article: Dorothy A. Harbeck et al., The Impact of Padilla v. Kentucky on the Immigration Courts: Does the Potential for Vacating a Criminal Plea Effect Remov­al/Deportation Proceedings?, 1 ST. JOHN’S J. INT’L & COMP. L. 48 (2011).

INTRODUCTION

Have you ever thought you were speaking the same language, only to discover the meaning of the words was completely different? Surely any American who has been a tourist in England or Australia has had that experience. Those of us who have teenagers face such challenges on almost a daily basis.  When viewing crimes from the world of the immigration courts, the certainty that we are talking about oranges instead of apples is a frequent and sometimes perplex­ing conundrum.

Terms that seem straightforward in the criminal law context have different meanings under our immigration laws. Some disposi­tions that states treat as rehabilitative and non-criminal are treated as a criminal conviction under the immigration laws. Some non-violent, fairly trivial misdemeanors are considered aggravated felonies under our immigration laws.  Seen from the view of the immigration courts, such disconnects and starkly different realities are not infrequent and occur in ever-increasing numbers.

The points of intersection between our criminal laws and im­migration laws seem to have multiplied exponentially over the years. With the recent Supreme Court decision of Padilla v. Kentucky, the impact of criminal convictions and the ramifications they have under our immigration laws have been acknowledged as crucial concepts that every criminal lawyer has a duty to understand.1

The purpose of this Article is to provide a basic overview of a body of law that has been compared as second only to tax law in its com­plexity.2 Our goal is to highlight the major areas where criminal laws intersect with and impact noncitizens through the Immigration and Nationality Act.3  No mere article could be comprehensive in this complicated area of the law that is the subject of voluminous treatises and is subject to constant and rapid revision.4 However it is our hope to orient non-immigration lawyers and judges to how the outcomes of their work in the criminal courts impact noncitizens when they enter our world, the immigration courts.

This Article is framed as an introduction to “Immigration Law 101,” providing information needed to understand the structure of the Act and basic tools to speak the language of that Act.5  It is intended to help attorneys and judges preserve the intent of criminal court or­ders, so that they are implemented consistently with the understand­ing held by the parties at the time of issuance, averting unintended consequences when the conviction is viewed later at the immigration court level. It is our hope that this article will provide a lens through which non-immigration lawyers can peek through to our world and make sense of what they see.

We will start by briefly addressing some common misconceptions held by lawyers and non-lawyers alike.  Then we will discuss the basic structure of immigration law and some of its unique terminology. Next, we explain to whom the law applies and where the immigration courts fit into the immigration law scheme.  We will then delve more deeply into the central concepts of removability and inadmissibility, using criminal grounds as our point of reference and examples.  Then we move on to a discussion of Matter of Silva-Trevino, a 2008 Attor­ney General decision regarding crimes of moral turpitude that has dramatically changed the landscape of the issue of removability for various crimes in immigration courts.6  We next turn our focus to point out the special ways in which the term “conviction” is defined in the immigration context and how criminal acts can have immigration consequences even when no conviction exists.  Next, we provide a very simplified overview of the most common forms of relief sought in the course of removal proceedings. Finally, we will explain the possible impacts of Padilla v. Kentucky on pending removal proceed­ings and prior deportation orders.

I. COMMON MISCONCEPTIONS

In addition to being an extremely complex legal field, immigration law suffers from being a field of law plagued by rampant misconcep­tions. For example, it is not true that marrying a United States citizen confers automatic immigration status.7  Many people believe that law­ful permanent resident status is guaranteed for life, yet long-time law­ful permanent residents, including those who are married to United States citizens and are the parents of United States citizen minor chil­dren, can become deportable based on a single misdemeanor convic­tion.8  United States citizens cannot help their undocumented parents to legalize their status in the United States until they reach the age of twenty-one.9 At that juncture there are significant obstacles to lawful status (sometimes ones which cannot be overcome) if, as is generally the case, the parents entered the United States without proper inspec­tion by an immigration official or overstayed a period of nonimmi­grant status which was once held by them.10  Even more surprising to many people, some individuals who were born abroad have automati­cally inherited United States citizenship and do not even know it.11

There are also widely held misconceptions regarding the authority of immigration judges to grant relief.  In many cases, an immigration judge has no discretion to stop removal in a sympathetic case.12  Be­cause immigration court proceedings are civil in nature, respondents are not entitled to free legal representation and 60% of respondents are unrepresented, a figure which rises to 84% when non-detained cases are taken out of the calculation.13  Immigration judges have a typical caseload of more than 1200 pending cases, a number that has recently been on the rise.14  Most immigration judges are scheduled to be in court on the bench thirty-six hours each week.15 They do their jobs without bailiffs or court reporters and have access to only one-fourth of a judicial law clerk on average, as four judges usually share one clerk.16  Perhaps most challenging of all, the majority of immigra­tion judges’ decisions are rendered orally from the bench immediately at the conclusion of proceedings, without the benefit of a transcript or time for research or reflection.17

II. SOME IMMIGRATION LAW BASICS

Terminology in this field is problematic even within the immigra­tion law itself.  The current law was amended in 1996, replacing de­portation and exclusion proceedings with removal proceedings.18  The proper technical term for an order expelling someone from the Unit­ed States is now “removal,” however colloquially many people still refer to having been ordered “deported.”  Thousands of outstanding deportation orders still exist19 and can be either enforced or reinstat­ed in a variety of factual contexts.20  The term “deportation,” howev­er, is still frequently used in colloquial speech to describe both depor­tation and removal proceedings, despite significant legal differences between the two.21

Removal proceedings commence when a charging document called a Notice to Appear issued by the Department of Homeland Security (“DHS”) is filed with the immigration court.22  The individual against whom the charges are lodged is referred to as the respondent.  In re­moval proceedings, the immigration judge must decide whether the individual is removable as charged.23 After that decision is made, the judge must also decide if the individual can apply to remain in the United States.  These applications to remain in the United States are generally referred to as “applications for relief from removal.”24

III. THE GOVERNMENT PLAYERS

The nation’s Immigration Court, which has fifty-nine locations in the United States, Puerto Rico and Saipan, employs approximately 260 immigration judges. These courts comprise the trial level tribunal which determines whether or not a respondent in proceedings is re­movable as charged.25  Often of equally great consequence to the in­dividual, immigration judges are additionally charged with identifying and adjudicating a variety of applications for benefits which may be available.  When these benefits are sought at the immigration court level, they are frequently referred to generically as “relief from re­moval.”  Decisions made by the immigration judges can be appealed to the Board of Immigration Appeals by either party.26

IV. THOSE SUBJECT TO THE IMMIGRATION LAWS

Most basic to our immigration laws is the fact that people fall into two categories, United States citizens and noncitizens, whom the Act defines as “aliens.”27  No United States citizen can be removed (de­ported), denied admission or prosecuted for a crime in which alienage is an element.28  Proof that one is a United States citizen is the most comprehensive defense to a charge of removability or inadmissibility as it mandates termination of the proceedings.29

There are four basic ways to become a United States citizen: birth in the United States or a U.S. territory; derivation of U.S. citizenship at birth abroad through U.S. citizen parent(s); acquisition of U.S. citi­zenship upon the naturalization of a minor child’s parent(s); or natu­ralization.30

All persons who are not United States citizens are termed aliens and are subject to our immigration laws.  Because the term “alien” is often misunderstood and viewed as a pejorative term outside the im­migration law field, this article will refer to “individuals” or “people,” with the understanding that for purposes of our discussion, those re­ferred to in that way are not United States citizens or nationals.

Noncitizens fall into various categories under the Act: lawful per­manent residents (immigrants);31 non-immigrant visa holders;32 un­documented;33 and many others who are present with the knowledge of the government but hold a variety of different statuses, including, but not limited to parolees,34 deferred action status,35 extended volun­tary departure,36 and deferred enforced departure.37

Lawful permanent residents can live and work in the United States permanently so long as they do not become inadmissible or deporta­ble, terms which will be described later in this Article.  They can travel outside the United States and return, subject to certain re­strictions.38 They can petition for their spouses and unmarried sons and daughters to become lawful permanent residents, subject to nu­merical limitations, which are often referred to as a “quota” or “visa number requirement.”39 Lawful permanent residents may choose to naturalize to become United States citizens after a specified period of residence.40 ­

The Act contains more than twenty categories of nonimmigrant vi­sas.41  Examples include tourists for pleasure or business, students, temporary professional workers, performers and athletes, and victims of violent crimes or human trafficking.42  These categories have strict initial qualification criteria, as well as explicit conditions which must be fulfilled in order to maintain valid status.43  Individuals holding such status must comply with all terms of their visa or they become subject to removal.44

Undocumented individuals, sometimes referred to as “illegal al­iens” or “undocumented workers,” include people who have entered the United States without proper inspection by an official of the DHS and those who entered with a visa or permission that has expired or become invalid.45

V. REMOVABILITY AND INADMISSIBILITY

Under the Act, there are separate provisions which render an indi­vidual inadmissible to enter the United States (sometimes despite an otherwise valid visa) and provisions which cause an individual who is in the United States to become removable.46 With few exceptions, every time a noncitizen seeks to enter the United States from a trip abroad, he or she is subject to the grounds of inadmissibility.  The grounds of inadmissibility also apply to individuals in the United States who are seeking to obtain lawful permanent resident status; a statutory prerequisite for “adjustment” to that new status includes a mandate that the applicant is not inadmissible.47  Even people who are already in the United States and who hold legal status can become removable by violating a condition of their immigrant or nonimmi­grant status or by committing an act or crime that is a ground for re­moval.48

The interplay between these complicated and contradictory provi­sions relating to inadmissibility and removability creates fertile ground for confusion, even for experienced immigration practitioners. Additionally problematic is the fact that individuals who are inadmis­sible or removable due to criminal convictions (as well as some viola­tions of civil protective orders) are often barred from satisfying statu­tory eligibility requirements for various forms of relief from removal.49  State, local or foreign convictions, as well as federal con­victions, may render someone inadmissible, removable, or bar them from relief.50 One reason this may occur is because the Act provides that many types of convictions, and some types of conduct, bar people from demonstrating the good moral character required for most forms of relief.51  Placed in this context, it is easy to see how unin­tended consequences can flow from criminal convictions due to the complex interplay of various provisions of the Act. When one factors in diverse state and federal statutory language along with the variety of prerequisites and obligations imposed by state sentencing disposi­tions, it begins to become quite clear why application of the Act sometimes results in distorted and disparate outcomes at the immi­gration court level.52  Particularly where the impact of a criminal dis­position is not thoroughly considered in advance, the risk of unin­tended consequences is extremely high in this rapidly changing area.

Very generally, the following is a non-exhaustive list of the criminal convictions which often render individuals, including lawful perma­nent residents, removable from the United States.  They include con­victions for: an aggravated felony,53 a crime of moral turpitude,54 a crime relating to a controlled substance (other than simple possession of less than thirty grams of marijuana for personal use),55 a crime of domestic violence,56 a firearm offense,57 or document fraud.58

The most common criminal convictions which render individuals with otherwise valid visas inadmissible to the United States include: a crime involving moral turpitude,59 any crime relating to a controlled substance (with no small-quantity personal-use exception),60 and two convictions for any crime where the aggregate sentence imposed is five years or more.61

Several grounds of inadmissibility and a few grounds of removal are explicitly based on conduct and, thus, do not require a conviction.

Some examples include admission of the essential elements of a crime of moral turpitude62 or controlled substance offenses,63 prostitution,64 alien smuggling,65 or fraud or misrepresentation of a material fact to procure or seek to procure an immigration benefit.66 In such cases, the DHS may seek to use portions of a criminal trial record where no conviction occurred to prove an individual is deportable.

As used in the Act, the term aggravated felony can be particularly misleading to those not familiar with the idiosyncrasies of the Act’s provisions.67 The definition of aggravated felony contains twenty-one subdivisions.68  It includes such offenses as murder, rape, sexual abuse of a minor, crimes of violence, some theft offenses with a sentence of at least one year, and illicit trafficking in controlled substances, fire­arms, or destructive devices.69  It is not too surprising to see these of­fenses characterized as aggravated felonies.  Some misdemeanor con­victions carrying a sentence of one year, however, are also aggravated felonies—an outcome which is not so intuitive.70  For example, mis­demeanor convictions for simple battery (unless it is mere offensive touching), reckless endangerment, assault, unlawful imprisonment, menacing or threatening coercion and theft have come within the ambit of the aggravated felony definition.71

Although the Act has no specific definition of crimes involving moral turpitude, case precedent describes these crimes as those which shock the public conscience; those which are inherently base, vile, or depraved; or those which are contrary to the rules of morality and du­ties owed between persons.72  Crimes involving moral turpitude have been found to include those which involve evil or malicious intent73 or inherent depravity;74 intentional or reckless behavior which risks or causes great bodily harm;75 theft with intent to permanently deprive the owner;76 and crimes involving intent to defraud.77

Crimes of moral turpitude provide an excellent example of multi­ple and differing ramifications under the Act depending on the pro­cedural context. An individual is rendered removable if convicted of a crime of moral turpitude which carries a possible sentence of one year or more within their first five years of admission to the United States.78  He or she is also removable if convicted of two crimes of moral turpitude not arising out of a single scheme regardless of the sentence imposed.79  Yet any conviction for a crime of moral turpi­tude renders an individual inadmissible to the United States, unless he or she can qualify for the narrowly drawn juvenile or petty offense exceptions.80  Thus a lawful permanent resident may not be remova­ble from the United States for a crime committed five years after coming here, but if he or she leaves the United States—even for a short period like a four-day cruise—that lawful permanent resident will not be able to re-enter.  Moreover, conviction for or admission of a crime of moral turpitude can preclude an individual from demon­strating good moral character, which is often a statutory prerequisite to relief.81

VI. SILVA-TREVINO AND CRIMES OF MORAL TURPITUDE

Perhaps most unusual of all the law relating to crimes of moral tur­pitude in the immigration court following the Attorney General’s decision in Mat­ter of Silva-Trevino.82 Silva-Trevino has been described by the Board of Immigration Appeals as “a comprehensive decision clarifying the concept of moral turpitude and articulating a methodology for deter­mining whether a particular offense is a crime of moral turpitude.”83 Surprisingly, the greatest impact of this decision does not seem to be on the definition of a crime of moral turpitude, though the decision does reaffirm that a crime of moral turpitude must be committed with specific intent, deliberateness, willfulness or recklessness.84  What is groundbreaking in this decision is the analytical framework it sets forth to determine whether a particular offense falls within that defi­nition.

Under Silva-Trevino, a three step analysis is used.  The first step is familiar to many: the traditional categorical analysis of the elements of the statute, an approach set forth by the Supreme Court decision of Taylor v. United States.85 Going a bit further, the Attorney General, citing Gonzales v. Duenas-Alvarez, held that the assessment of whether a given conviction for a particular offense is a categorical match should be based on the existence of a reasonable possibility, as opposed to a theoretical possibility, that the statute under which the individual was convicted applies to conduct that does not involve moral turpitude.86  If this step yields an unambiguous result, the in­quiry stops there. If not, the analysis proceeds to the second step, the well-understood modified categorical approach.

This second step is also a familiar approach, requiring examination of the traditional record of conviction documents to see whether they contain evidence that a crucial fact, one which renders the crime to be one involving moral turpitude, was an essential element which was proven in the criminal court.87  When this step yields an unambiguous result, the analysis stops there.

If the second step does not resolve the issue, the analysis proceeds to a third step. It is the third step that many find surprising. If the question of whether the crime was one of moral turpitude is still unre­solved after the modified categorical analysis, Silva-Trevino holds that the immigration judge may consider any reliable evidence which is deemed necessary and appropriate to ascertain whether the offense involved moral turpitude.88

Silva-Trevino expressly limits this departure from the traditional Taylor framework to crimes of moral turpitude; thus, this new analyt­ical approach cannot be applied to convictions for aggravated felo­nies, crimes of domestic violence, firearms cases, controlled substanc­es or any of the other grounds of removal triggered by a conviction.89

Even with the limitation of Silva-Trevino to crimes of moral turpi­tude, the addition of a third step to the traditional and well-understood categorical and modified categorical analyses signals a major sea-change for those with criminal convictions.  Immigration law has now taken another giant leap away from well-established standards shared with other fields of law and created a unique per­spective which may not be readily understood from the vantage point of non-immigration lawyers and criminal court judges.

Step three of the Silva-Trevino analysis is extremely broad and places a tremendous amount of discretion in the hands of immigration judges to determine when it is necessary and appropriate to consider evidence beyond the record of conviction, and if so, what evidence would be proper.  Indeed, many immigration judges now hold Silva-Trevino hearings to determine inadmissibility or removability. While it is clear that immigration judges may not go behind the conviction to reassess guilt or innocence, the question of what evidence is necessary and appropriate to consider remains a wide open question at this juncture. For this reason, seasoned immigration practitioners have become virtually obsessive in developing records in a way that assures no casual or unconsidered fact might creep into the moral turpitude assessment down the road.  In light of the Act’s broad inadmissibility provisions, which can be triggered by travel decades after a conviction has been entered, such caution is clearly warranted.

VII. WHAT IS A CONVICTION?

Another example of where the Act has its own unique approach and definition of terminology involves the definition of conviction.90 Some common state court judgments are regarded as convictions un­der the Act, even though they are not treated as convictions under state law. When applying the Act to inadmissibility and removability, the following state court determinations constitute convictions when some form of punishment, penalty or restriction is imposed: admis­sions of fact supporting a conviction, diversion programs if there is a finding of guilt, and deferred or withheld adjudication with a plea of guilty.91

Several state remedies that involve amelioration of a conviction will not be recognized under the Act as vitiating a conviction. Some examples of such ineffective remedies include certain plea withdraw­als or expungements.92  Even the vacation of a conviction is ineffec­tive under the Act where the conviction is vacated solely to alleviate immigration consequences.93 Nor does a presidential or gubernatorial pardon eliminate all grounds of deportability.94

There are some outcomes that clearly do not constitute a convic­tion under the Act. These include pretrial diversion before a plea is entered, deferred prosecution, convictions vacated for legal insuffi­ciency, or convictions vacated for failure of the trial court to advise the defendant of possible immigration consequences of a guilty plea.95

VIII. GOOD MORAL CHARACTER

Other examples under the Act where criminal conduct and crimi­nal convictions implicate an individual’s status are the provisions re­lating to good moral character.  The Act defines good moral character in the negative, by describing several specific categories of individuals who cannot demonstrate good moral character.96 Then it provides a catch-all provision, which makes clear that the fact that an individual is not included in one of the specified categories does not preclude a finding that good moral character is lacking.97  Among those who cannot demonstrate good moral character based on conduct are ha­bitual drunkards,98 those whose income is derived principally from gambling,99 and anyone who has given false testimony for the purpose of obtaining a benefit under the Act.100

The criminal grounds which preclude good moral character are based on a reference back to the grounds of inadmissibility relating to crimes of moral turpitude, multiple convictions with an aggregate sen­tence of confinement for five years or more, and controlled substance law violations.101  These provisions also specifically include anyone who has been convicted of an aggravated felony,102 two or more gam­bling offenses,103 or who has been confined to a penal institution for an aggregate period of one hundred and eighty days as a result of a conviction or multiple convictions.104 Even without convictions, indi­viduals may be precluded from demonstrating good moral character when their conduct falls into the inadmissibility grounds applicable to prostitution, alien smuggling and illegal gambling.105

Falling into a category where one is precluded from demonstrating good moral character has far-reaching consequences under the Act, as many immigration benefits, including naturalization, require a showing of good moral character for a specified period of time.

Immigration judges conduct trials in order to rule on whether the DHS has met its burden of proving alienage and removability by clear, convincing, and unequivocal evidence.106  These civil adminis­trative determinations are governed by the specific provisions of the Act, which provide for due process, fundamental fairness and several protections very similar to rights afforded criminal defendants, alt­hough the formal rules of evidence do not apply.107

In the majority of cases, the issue of alienage and/or removability is not contested. The bulk of an immigration judge’s role in most cases is to rule on whether a respondent in proceedings is statutorily eligi­ble for any relief from removal and, if so, to determine if he or she merits relief in the exercise of discretion.108  The forms of relief most often sought in removal proceedings include waivers,109 cancellation of removal for permanent residents,110 adjustment to lawful perma­nent residence status based on family or employer sponsorship,111 cancellation of removal for non-lawful permanent residents,112 asy­lum,113 and voluntary departure.114

Each of these forms of relief has specified statutory requirements, but in addition most have a discretionary component—even if an in­dividual fulfills all the statutory requirements, the application may be denied in the discretion of the judge.115  It is beyond the scope of this Article to discuss in detail the statutory requirements and discretion­ary facts which go into ruling on requests for these immigration bene­fits. A brief overview, however, will help provide context and serve to clarify the ramifications of convictions and criminal behavior, demonstrating how they actually play out in immigration court.  Ac­cordingly, a very basic explanation of the statutory requirements of several benefits commonly sought as relief from removal is provided below.

Most important in this discussion is to note the themes regarding statutory eligibility and the exercise of discretion that run through the Act, applying both to these selected benefits as well as most others. For example, criminal convictions, as well as some criminal behavior for which no conviction results, bar non-lawful permanent residents from almost all statutory eligibility for immigration benefits.116 There are waivers which exist in a variety of circumstances, but they gener­ally require qualifying relatives and a showing that the respondent’s removal would cause them extreme hardship, a narrowly defined term under the Act.117 Few benefits under the Act are available to non-lawful permanent residents found to be lacking good moral char­acter. Moreover, behavior which does not automatically preclude good moral character under the Act may nevertheless be considered in arriving at the determination of whether a favorable exercise of discretion is warranted.118

Lawful permanent residents who are removable for crimes other than an aggravated felony may apply for cancellation of removal if they have been lawful permanent residents for five years, have resid­ed continuously in the United States for seven years after having been admitted in any status, and can demonstrate that they are deserving of the favorable exercise of discretion.119  There are bars to this waiv­er based on the timing of the commission of the crime and the initia­tion of removal proceedings.120  A similar waiver, but more generous since it is applicable to more crimes, is available to lawful permanent residents whose convictions were obtained by plea agreements prior to April 24, 1996.121  While cancellation of removal can only be grant­ed to a lawful permanent resident one time,122 a waiver of some con­victions may be available to lawful permanent residents who are re­turning to the United States or those who can apply to readjust their status, if their removal would result in extreme hardship to a qualify­ing relative.123

Very generally, an individual may apply for adjustment of status to that of a lawful permanent resident based on an approved petition filed by a specified qualifying relative or employer if he or she has been inspected and admitted or paroled into the United States and is not inadmissible to the United States.124  There are several additional potential disqualifiers too complex to discuss here, but one extremely relevant factor is that the applicant must demonstrate that he or she is deserving of the favorable exercise of discretion.125  It is important to note that, regardless of whether the applicant for this benefit is apply­ing while in removal proceedings or not, the grounds of inadmissibil­ity are central to eligibility since one of the statutory prerequisites for adjustment of status is to show that one is not inadmissible.126

Some respondents in removal proceedings are eligible to apply for cancellation of removal for non-lawful permanent residents.127  To demonstrate statutory eligibility, a respondent must demonstrate ten years of continuous physical presence, good moral character during that period, that he or she has not been convicted of offenses that are described as grounds for removal or inadmissibility under certain listed sections of the Act, and that his or her removal would cause a United States citizen or lawful permanent resident spouse, parent or child exceptional and extremely unusual hardship.128  This benefit is also available only in the exercise of discretion.129 Repeating and ex­panding on the theme seen in adjustment of status eligibility, note that the criminal grounds of inadmissibility and removability, as well as the good moral character criminal preclusions, are grafted onto this benefit as potential bars to demonstrating statutory eligibility.

An individual is eligible to apply for asylum in the United States if he or she can demonstrate past persecution or a well-founded fear of future persecution on account of race, religion, nationality, member­ship in a particular social group, or political opinion.130 While there are several specified bases which mandate a denial of an application for asylum, relevant here are the provisions which preclude a grant of relief to an applicant who has been convicted by a final judgment of a particularly serious crime in the United States.131  A conviction of an aggravated felony is considered a conviction of a particularly serious crime by definition in the Act.132

Perhaps the most commonly sought form of relief from removal, albeit the most limited in terms of the status it affords, is voluntary departure. To avoid the adverse consequences of an order of remov­al, such as monetary sanctions and a bar to many immigration bene­fits for a period of ten years, an individual in removal proceedings may request voluntary departure.133 Voluntary departure provides permission to leave the United States at one’s own expense, rather than being removed by the government.134  Prehearing voluntary de­parture is sought at one’s first appearance in immigration court and only aggravated felons and persons engaged in terrorist activities are barred from eligibility.135  When requesting voluntary departure at the conclusion of a removal hearing, one must show, inter alia, physical presence in the United States for at least one year prior to service of the charging document, good moral character for the preceding five years, and additionally, that the individual is not removable as an ag­gravated felon or terrorist.136

X. PADILLA V. KENTUCKY

Now that we have provided a basic overview of the potential effects of criminal convictions on noncitizens, we will examine how these effects play out in immigration court.  Noncitizens with criminal convictions, their families, and sometimes even their attorneys, who come before the immigration court often feel like they have entered a carnival “house of mirrors.”  An all too frequent lament heard in im­migration courts across the country goes something like, “But I’ve al­ready served my time/completed my probation successfully/paid my fine—how can I be charged with the same crime here?”  It is under­standable that people may confuse the “collateral” immigration con­sequences of a criminal conviction with the “punishment” of their sentence and feel they are being punished twice for the same crime. The United States Supreme Court has called the effect of being or­dered deported or removed to be the equivalent of banishment, a sen­tence to life in exile, loss of property, life or all that makes life worth living, and, in essence, a “punishment of the most drastic kind.”137 An order of removal (deportation) can effectively amount to a death sen­tence when an alien will be subject to persecution upon return to his or her country.138  When an immigration judge explains that although a person may have satisfied the sentence of the criminal court there may still be immigration consequences to the conviction, common re­sponses include, “I never would have accepted the plea agreement if I had known,” or, “My attorney told me that it was an ‘adjudication withheld’ and not even a real conviction.”  Thus, it was not surprising that the Supreme Court was asked to address the conditions under which plea agreements would be binding when a miscommunication about immigration consequences occurred.

In Padilla v. Kentucky,139 it was as if the Supreme Court had heard the laments of noncitizens in immigration courts.  Padilla himself, a lawful permanent resident for over forty years and a Vietnam veteran who faced deportation based on an aggravated felony after pleading guilty to transportation of a large amount of marijuana, claimed that he would not have accepted the plea had he not been misinformed by his attorney that he “did not have to worry about immigration status since he had been in the country so long.”140  The Court again recog­nized the dramatic, harsh consequences of criminal convictions for noncitizens. Indeed, it noted that immigration law had changed dra­matically and that immigration reforms had “expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation.”141 Based on these changes, the Court found that “as a matter of federal law, deportation is an in­tegral part—indeed, sometimes the most important part—of the pen­alty that may be imposed on noncitizen defendants who plead guilty to specified crimes,”142 reflecting the chorus oft-heard in immigration courts. For these reasons, the Court majority opinion rejected the finding of the state court that erroneous advice about immigration consequences is merely “collateral” and thus not covered by the Sixth Amendment’s guarantee of effective assistance of counsel.143  Ulti­mately, the Court held that Padilla’s attorney’s incorrect advice was constitutionally deficient, and the case was remanded to determine if prejudice resulted.144  The Court did not limit its holding to alleged affirmative misadvise, and further held that it is the duty of counsel to provide advice about issues like deportation.145 Finally, the court considered the concerns that its holding might open a “floodgate” of challenges to plea agreements, but held that such a flood was unlikely based on past experience with similar cases, the possibility that such attacks could result in less favorable outcomes for the defendants, and that informed consideration of possible immigration consequenc­es could only benefit the plea bargaining process.146

The immediate effect of Padilla on immigration proceedings is evi­dent—noncitizens who are able to vacate their pleas may escape the consequence of a removal/deportation order.  If a noncitizen’s crimi­nal conviction is vacated on the basis of a procedural defect in the underlying criminal proceedings, it no longer constitutes a conviction for immigration purposes and removal proceedings are terminated without an order of removal.147  In Matter of Adamiak, the Board held that a conviction vacated under an Ohio statute for failure of the trial court to advise the noncitizen defendant of the possible immigra­tion consequences of a guilty plea is no longer valid for immigration purposes.148  Immigration courts may scrutinize the basis for a vacatur, because case law requires that the conviction not be vacated solely for rehabilitative or immigration purposes.149  A noncitizen try­ing to avoid the immigration consequences of a criminal conviction should be prepared to present evidence of the underlying reasons for the vacatur if it is not clear from the criminal court order itself, such as a copy of the motion to vacate or a transcript of the hearing on the motion.150

Surprisingly, one of the first questions that may be created by Pa­dilla is whether it imposes any additional duties on an immigration judge. An immigration judge is required to address all issues related to removability and to inform respondents appearing before him or her of any “apparent eligibility to apply for any of the benefits enu­merated” in the immigration law.151  This is a formidable task because of the complex and constantly-changing law in this area.  Could this duty require immigration judges to advise noncitizens of relief that may be available to them if they are able to set aside a conviction based on a claim of ineffective assistance of counsel?  It is black-letter law that an immigration judge cannot go behind a record of convic­tion to determine the guilt or innocence of a respondent.152  But if an unrepresented respondent advises the court of a potential ineffective-assistance-of-counsel claim, does the immigration judge have a duty to advise a respondent of relief which would be available if the con­viction were to be set aside by the appropriate criminal court?  The regulatory language uses the words “apparent eligibility,” suggesting that a broad interpretation should be given.  In addition, the recently published Ethics and Professionalism Guide for Immigration Judges reveals that immigration judges are held responsible for complying with the standards applicable to all attorneys in the Department of Justice, even those applicable to prosecutors.153 Thus, the Padilla case may impose an additional duty on immigration judges.

Another possibility is that noncitizens who wish to pursue post-conviction relief under Padilla may appear in immigration court and request termination of proceedings to pursue such relief.  Given that, as discussed above, an immigration court will not go behind a record of conviction, this may not be sufficient grounds for termination.  The DHS may “cancel” a notice to appear before it is filed with the immi­gration court or may move to dismiss on various grounds after it has been filed.154  Although neither of these remedies explicitly mentions the vacatur of a criminal court conviction as an appropriate justifica­tion, several of the grounds are broad.  For example, a motion to dis­miss can be because “[c]ircumstances of the case have changed after the notice to appear was issued to such an extent that continuation is no longer in the best interests of the government.”155 A case can also be administratively closed—which temporarily removes the case from the docket—if not opposed by either party.156

Noncitizens in immigration proceedings who may want to pursue post-conviction relief under Padilla may also request that the court continue the proceedings until the motion to vacate is decided by the criminal court.  Immigration judges have broad discretionary authori­ty over continuances, which are allowed for “good cause” and for a “reasonable time.”157 “Good cause” is not defined in the regulations, but has been interpreted on a case-by-case basis.158

It is instructive to look at the case law that has developed on mo­tions for continuance based on a visa petition pending with the DHS since in both cases the immigration court is being asked to delay pro­ceedings to wait for the decision of another entity, which could impact a respondent’s eligibility for relief from removal.  In Matter of Gar­cia,159 the Board held that, as a general rule, discretion should be fa­vorably exercised where a prima facie approvable visa petition and adjustment application has been submitted.  Thus, in seeking a con­tinuance based on a motion to vacate a criminal conviction, a nonciti­zen should present prima facie evidence regarding the  motion—i.e., the motion itself, affidavit of criminal counsel regarding misadvise or failure to advise regarding immigration consequences of the plea, or a plea colloquy.

A recent case has given some guidance on considerations in mo­tions to continue. In Matter of Hashmi, the Board announced various factors to consider when determining if good cause exists to continue immigration proceedings based on a visa petition pending with the DHS. Those factors include: (1) the DHS response to the motion; (2) whether the underlying petition is prima facie approvable; (3) the re­spondent’s statutory eligibility for relief; (4) whether respondent’s re­lief application will merit a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.160 These factors were described as merely illustrative, and the Board noted that the focus of the inquiry should be on the ultimate likelihood of success of relief from removal before the court.161  Thus, in addition to pleadings before the criminal court, a noncitizen seeking a contin­uance may want to submit a copy of the application for relief that he wishes to pursue with supporting documents to show he or she is a worthy candidate for that relief. Most importantly, the Board stressed, “if the DHS affirmatively expresses a lack of opposition, the proceedings ordinarily should be continued . . . in the absence of unu­sual, clearly identified, and supported reasons for not doing so.”162 Therefore, a noncitizen requesting a continuance should seek the concurrence of the DHS.  Ultimately, however, the outcomes of deci­sions on continuances are difficult to predict since they are heavily dependent on the unique facts presented in each case.

Another recent case addressing the denial of a continuance pend­ing the appeal of a state court denial of a motion to withdraw a guilty plea based on ineffective assistance of counsel illustrates the analysis that may occur regarding a motion to continue to vacate a plea.163 The First Circuit found that the denial of the motion to continue was not an abuse of discretion, noting that the immigration judge had al­ready continued the removal hearing several times while the nonciti­zen’s motion for post-conviction relief was pending with the state criminal court.  In addition, the Court observed that the conviction record “reflect[ed] that [the noncitizen] acknowledged, in writing, the fact that his guilty plea to the controlled substance charge [would] cause deportation, exclusion from admission to the United States, or denial of naturalization or other immigration consequences.”164

Having addressed how Padilla may affect noncitizens with pending removal proceedings, the next query may be how it will affect nonciti­zens who have been ordered deported either based on criminal con­victions that were the result of a plea they now wish to challenge, or noncitizens who were ordered deported because they were not eligi­ble for relief from removal based on a plea that they are moving to vacate.  In such cases, a noncitizen may seek to move to reopen the removal proceedings.

Initially, it should be noted that by regulation, a person who has been physically deported and is outside the United States cannot file a motion to reopen.165 However, this regulation has been found to be invalid by at least one circuit court.166

Motions to reopen in removal proceedings are disfavored because there is a strong public interest in bringing litigation to a close, espe­cially in immigration cases where “granting such motions too freely will permit endless delay of deportation.”167  There are strict require­ments in the regulations for motions to reopen including numerical and time requirements.168  Specifically, a party may file only one mo­tion to reopen, and that motion must be filed no later than ninety days after the date on which the final administrative decision was rendered.169 While there are some regulatory exceptions to these numerical and time bars, they are very limited and none of them ex­plicitly address the vacatur of a criminal conviction upon which a re­moval order is based.170  Thus, unless a noncitizen’s motion can be construed to fall within one of these limited exceptions, the motion is barred if the conviction is vacated more than ninety days after his or her removal order is final. A respondent can avoid numerical and time bars by requesting that an immigration judge or the Board reo­pen proceedings sua sponte, but sua sponte reopening may only be used in exceptional circumstances and not to cure a filing defect or circumvent the regulations.171

Despite all of these restrictions, the Board “has routinely been will­ing to overlook the untimeliness of an alien’s motion to reopen when a conviction supporting a removal order is vacated . . .”172 In fact, the Third Circuit identified ten unpublished cases where the Board reo­pened proceedings, finding that convictions supporting removal or­ders were or may have been invalid under Pickering.173 While none of these decisions are precedential, this seems to indicate that there may be a willingness to address motions to reopen based on vacated convictions. Case law in this area is likely to rapidly evolve in light of the Supreme Court’s decision in Padilla.

CONCLUSION

We hope that our overview of immigration law and how the Su­preme Court’s decision in Padilla may affect it has not left you feeling “Curiouser and Curiouser.”  As Justice Alito noted in his concurring opinion, immigration law is so complex and specialized that it is not always easy to tell when the law is clear.174  What does appear clear is that the Padilla case will have an impact on state court determinations of whether counsel has been constitutionally deficient regarding past pleas, and if so, whether the deficiency was prejudicial.  As these is­sues are raised and presented in immigration court, it will be incum­bent on immigration judges and the Board of Immigration Appeals to decide whether to delay or reopen removal proceedings.  While we do not have a crystal ball, this Article has given you a glimpse into some of the factors which will be considered in making these decisions, the language we speak in the immigration courts, and how these decisions appear through our looking glass.

1. See Padilla v. Kentucky, 130 S. Ct. 1473, 1494 (2010). The Third Circuit became
the first circuit court of appeals to rule that Padilla has retroactive applicability.
See United States v. Orocio, 645 F.3d 630, 641 (3d Cir. 2011). Subsequent decisions
from other circuits, however, have held that Padilla should not be retroactively applied.
See United States v. Chang Hong, No. 10-6294, 2011 WL 3805763, at *1 (10th
Cir. Aug. 30, 2011); Chaidez v. United States, No. 10-3623, 2011 WL 3705173, at *3,
*8 (7th Cir. Aug. 23, 2011).
2. See Castro-O’Ryan v. U.S. Dep’t of Immigration and Naturalization, 847 F.2d
1307, 1312 (9th Cir. 1988) (“With only a small degree of hyperbole, the immigration
laws have been termed ‘second only to the Internal Revenue Code in complexity.’”)
(citation omitted).
3. The Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163
(codified as amended in scattered sections of 8 U.S.C.) will hereinafter be referred to
as the “Act” or the “INA.” Immigration law is exclusively of the federal domain.
The U.S. Supreme Court has held that the authority to admit or exclude noncitizens
from the United States is fundamentally a sovereign act. See United States ex. rel.
Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).
4. See, e.g., DAN KESSELBRENNER & LORY D. ROSENBERG, IMMIGRATION LAW
& CRIMES (2002); IRA J. KURZBAN, IMMIGRATION LAW SOURCEBOOK (12th ed. 2010).
5. Please be advised that the citations provided in these footnotes are not intended
to be exhaustive, but rather to serve as starting points of authority to research
these propositions.
6. See Silva-Trevino, 24 I. & N. Dec. 687 (B.I.A. 2008).
7. A noncitizen married to a U.S. citizen must first be granted an immigrant visa
and then be admitted to the United States at a port of entry or through adjustment of
status, at which time the grounds of inadmissibility are applied. See 8 U.S.C. §
1181(a) (2006) (requiring that a noncitizen possess a valid unexpired immigrant visa
at the time of application for admission); id. § 1182(a) (listing the grounds of inadmissibility
under which a noncitizen will be rendered ineligible for admission to the
United States); id. § 1255(a)(2) (requiring that a noncitizen be eligible for an immigrant
visa and be admissible to qualify for adjustment of status).
8. See Habibi v. Holder, No. 06-72111, 2011 WL 4060417, at *4 (9th Cir. Sept. 14,
2011) (affirming the Board of Immigration Appeals’ determination that the lawful
permanent resident petitioner was removable and ineligible for relief from removal,
even though his sole conviction was classified as a misdemeanor under California
law).
9. See 8 U.S.C. § 1151(b)(2)(A)(i) (defining “immediate relatives” as including
only parents of U.S. citizens who are “at least 21 years of age”).
10. See id. § 1255(a) (requiring that the noncitizen have been “inspected and admitted
or paroled into the United States” to be eligible for adjustment of status); id. §
1182(a)(9) (rendering inadmissible individuals with specified periods of unauthorized
presence).
11. See Compagnie Generale Transatlantique v. United States, 78 F. Supp. 797,
798—99 (Ct. Cl. 1948) (“Any child hereafter born out of the limits and jurisdiction of
the United States, who [sic] father or mother or both at the time of the birth of such
child is a citizen of the United States, is declared to be a citizen of the United States .
. . .”).
12. See 8 U.S.C. § 1229a(c)(4)(A) (requiring the noncitizen seeking relief from
removal to establish not only that a favorable exercise of discretion is warranted if
the relief sought is discretionary, but also that he satisfies statutory eligibility for relief).
13. ARNOLD & PORTER LLP, REFORMING THE IMMIGRATION SYSTEM: PROPOSALS
TO PROMOTE INDEPENDENCE, FAIRNESS, EFFICIENCY AND PROFESSIONALISM IN THE
ADJUDICATION OF REMOVAL CASES 5–8 (2010), available at http://www.
americanbar.org/content/dam/aba/migrated/Immigration/PublicDocuments/aba_com
plete_full_report.authcheckdam.pdf.
14. See Oversight Hearing on the Executive Office for Immigration Review Before
the Subcomm. on Immigration, Citizenship, Refugees, Border Sec., and Int’l
Law of the H. Comm. on the Judiciary, 111th Cong. 2 (2010) (statement of J. Dana
Leigh Marks, President, National Association of Immigration Judges), available at
http://judiciary.house.gov/hearings/pdf/Marks100617.pdf [hereinafter Marks Testimony];
ARNOLD & PORTER LLP FOR THE AMERICAN BAR ASSOCIATION COMMISSION
ON IMMIGRATION, REFORMING THE IMMIGRATION SYSTEM: PROPOSALS TO PROMOTE
INDEPENDENCE, FAIRNESS, EFFICIENCY AND PROFESSIONALISM IN THE ADJUDICATION
OF REMOVAL CASES (EXECUTIVE SUMMARY) ES-28 (2010) [hereinafter ABA
EXECUTIVE SUMMARY], available at http://www.americanbar.org/content/dam/aba/
migrated/Immigration/PublicDocuments/ReformingtheImmigrationSystemExecutive
Summary.authcheckdam.pdf; see also Backlog in Immigration Courts Continues to
Climb, TRAC IMMIGRATION (March 11, 2011), http://trac.syr.edu/immigration/
reports/225/.
15. See Marks Testimony, supra note 14, at 2.
16. By comparison, most federal district court judges have a caseload of around
400 pending cases. In addition to having a bailiff and court reporter to assist them,
most of them have three full time law clerks. See id. Also by comparison, Veterans
Law Judges decided 729 veterans benefits cases (less than 200 of which involved
hearings) per judge in 2008, and Social Security Judges decided approximately 544
cases per judge in 2007. See ABA EXECUTIVE SUMMARY, supra note 14, at ES-28.
17. See TRAC Immigration, Case Backlogs in Immigration Courts Expand, Resulting
Wait Times Grow, TRAC IMMIGRATION (Jun. 18, 2009), http://trac.syr.edu/
immigration/reports/208/; see also Improving Efficiency and Ensuring Justice in the
Immigration Court System: Hearing Before the S. Comm. on the Judiciary, 111th
Cong. (2011) (statement of the National Association of Immigration Judges), available
at http://judiciary.senate.gov/hearings/hearing.cfm?id=e655f9e2809e5476862f735d
a16c9946 (click webcast).
18. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 104-208, § 304, 110 Stat. 3009-546, 587-97.
19. See Fact Sheet: ICE Fugitive Operations, U.S. IMMIGR. & CUSTOMS ENFORCEMENT
(Aug. 19, 2009), http://www.ice.gov/news/library/factsheets/fugops.htm
(estimating that by the end of the 2009 fiscal year, there were approximately 535,000
“fugitive alien cases” in which a noncitizen had been ordered removed, deported, or
excluded by an immigration judge, but had not left the United States or reported to
DHS for removal).
20. See 8 U.S.C. § 1231(a)(5) (2006) (providing for the reinstatement of a removal
order where a noncitizen reentered the United States illegally after having been removed
or having departed voluntarily under an order of removal).
21. Removal proceedings are a unified process for what were previously referred
to under the INA as exclusion proceedings and deportation proceedings. See, e.g.,
IIRIRA, §§ 304(a)(3), 306(a), 309(d), 110 Stat. at 589–96, 607–12, 627 (codified as
amended at 8 U.S.C. §§ 1101, 1229a–c, 1231, 1252); Gerald L. Neuman, Habeas Corpus,
Executive Detention, and the Removal of Aliens, 98 COLUM. L. REV. 961, 966
(1998) (“IIRIRA realigned the vocabulary of immigration law, creating a new category
of ‘removal’ proceedings that largely replaces what were formerly exclusion
proceedings and deportation proceedings . . . .”). In many ways the procedures remain
substantially unchanged as there are still significant legal distinctions between
those individuals who are seeking admission as opposed to those who have already
entered the country, either legally or illegally. Compare 8 U.S.C. § 1229a(c)(2)(A)
(stating that the applicant bears the burden of demonstrating he is clearly and beyond
doubt entitled to admission), with id. § 1229a(c)(3) (stating that the burden is on
DHS to demonstrate that an individual who has been admitted is removable).
22. See 8 U.S.C. § 1229(a).
23. See id. § 1229a(c)(1)(A).
24. See id. § 1229a(c)(4).
25. See Office of the Chief Immigration Judge, U.S. DEP’T OF JUSTICE,
http://www.justice.gov/eoir/ocijinfo.htm (last updated Apr. 2011). The Immigration
Court is housed within the Executive Office for Immigration Review (EOIR), Office
of the Chief Immigration Judge (OCIJ), which is located in the U.S. Department of
Justice. See id.
26. See id. EOIR also houses the Board of Immigration Appeals (“Board” or
“B.I.A.”), which is responsible for administrative appellate review of removal decisions.
See 8 C.F.R. § 1003.1(b)(2011).
27. See 8 U.S.C. § 1101(a)(3) (defining any person not a citizen or national of the
United States as an “alien.”).
28. See United States v. Higuera-Llamos, 574 F.3d 1206, 1209 (9th Cir. 2009)
(“Alienage is a specific element of this offense [illegal reentry under 8 U.S.C. §
1326(a)], and the government must prove alienage beyond a reasonable doubt.”).
29. See 8 U.S.C. § 1101(a)(3) (defining “alien” as “any person not a citizen or national
of the United States”); id. § 1229a(a)(1) (providing that “[a]n immigration
shall conduct proceedings for deciding the inadmissibility or deportability of an
alien”) (emphasis added).
30. See 8 U.S.C. §§ 1401, 1427, 1431, 1433; see also U.S. CONST. art. I, § 8, cl.4.
31. See 8 U.S.C. § 1101(a)(20).
32. Id. § 1101(a)(26).
33. Id. § 1182(a)(7)(A).
34. When used in the Act, “parole” is a status which can be provided to an individual
who is stopped at a port of entry and alleged to be inadmissible. Rather than
detain all such persons pending a hearing before an immigration judge, at the discretion
of DHS some are “paroled” into the United States, thereby allowing them to be
free from detention during the pendency of their application process or proceedings
before the immigration court. See id. § 1182(d)(5)(A) (“The Attorney General may .
. . in his discretion parole into the United States temporarily under such conditions as
he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant
public benefit any alien applying for admission to the United States . . . .”).
35. On rare occasions, DHS exercises its prosecutorial discretion to allow otherwise
removable individuals to remain in the United States. Some of these individuals
have never been in removal proceedings while others are subject to final orders of
removal. This is a temporary status which can be terminated at any time DHS
chooses, thereby restoring the individual to the legal position he held prior to the
grant of deferred action. See Memorandum from John Morton, Dir., U.S. Immigr. &
Customs Enforcement, to Field Office Dirs., Special Agents in Charge, and Chief
Counsel, U.S. Immigr. & Customs Enforcement, (June 17, 2011), available at http://
www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.
36. See KURZBAN, supra note 4.
37. Id.
38. See 8 U.S.C. §§ 1101(a)(20), (27)(A); Huang, 19 I. & N. Dec. 749, 752 (B.I.A.
1988).
39. See 8 U.S.C. § 1153(a)(2).
40. See id. § 1427(a)(1); 8 C.F.R. § 319.1(a)(3) (2011).
41. See 8 U.S.C. § 1101(a)(15).
42. See id.
43. See id.
44. See id. § 1227(a)(1)(C).
45. See id. § 1182(a)(6)(A)(i) (“An alien present in the United States without being
admitted or paroled, or who arrives in the United States at any time or place other
than as designated by the Attorney General, is inadmissible.”); id. § 1227(a)(1)(B)
(“Any alien who is present in the United States in violation of this chapter or any
other law of the United States, or whose nonimmigrant visa (or other documentation
authorizing admission into the United States as a nonimmigrant) has been revoked
under section 1201(i) of this title, is deportable.”).
46. Compare id. § 1182(a) (describing classes of inadmissible aliens), with id. §
1229(a)(1) (describing reasons for removal proceedings).
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47. See id. § 1255(i)(1)(C).
48. See id. § 1227(a)(1)(C).
49. See id. § 1229b(a)(3) (stating the Attorney General may cancel removal of
alien who is inadmissible or deportable from the U.S. if the alien has not been convicted
of an aggravated felony); id. 1229b(b)(1)(B)–(C) (stating that failure to show
good moral character during the statutory period and convictions for certain offenses
bar eligibility for non-lawful permanent resident cancellation of removal); id. §
1229b(d)(1)(B) (stating that commission of offenses described in the criminal
grounds of inadmissibility under § 1182(a)(2) that render the noncitizen either inadmissible
under § 1182(a)(2) or deportable under § 1227(a)(2) stops the accrual of
continuous residence for lawful permanent resident cancellation of removal and of
continuous physical presence for non-lawful permanent resident cancellation of removal);
id. § 1229c(a)(1) (stating that aggravated felony convictions bar eligibility for
pre-conclusion voluntary departure); id. § 1229c(b)(1)(B)–(C) (stating that failure to
show good moral character during the statutory period and aggravated felony convictions
bar eligibility for post-conclusion voluntary departure). If an individual violates
a protective order by conduct which involves a credible threat of violence, repeated
harassment or bodily injury to the person or persons for whom the protective order
was issued, he or she is removable pursuant to § 1227(a)(2)(E)(ii).
50. See id. § 1227(a)(2)(B)(i).
51. See id. § 1101(f); infra Part VIII.
52. See United States v. Aguila Montes De Oca, 655 F.3d 915, 940 (9th Cir. 2011)
(“The process of mapping a generic federal definition onto state crimes—defined
variously by a combination of common law definitions, model penal codes, statutes,
and judicial exposition—has exposed the diversity of legal thought among state legislatures
and courts.”).
53. See 8 U.S.C. § 1227(a)(2)(A)(iii).
54. A person convicted of a crime of moral turpitude is removable if the potential
term of imprisonment for the crime is one year or longer and the offense was committed
within five years of admission to the United States. See id. § 1227(a)(2)(A)(i).
55. See id. § 1227(a)(2)(B)(i).
56. See id. § 1227(a)(2)(E)(i).
57. See id. § 1227(a)(2)(C).
58. See id. § 1227(a)(3)(B).
59. See id. § 1182(a)(2)(A)(i). This ground of inadmissibility does not apply to an
individual who committed this crime when he or she was under eighteen years of age,
where the crime was committed more than five years before the application for a visa
or admission, or if the maximum possible term of imprisonment was one year or less
and the individual was not sentenced to more than six months in prison. See id. §
1182(a)(2)(A)(ii)(I)–(II).
60. See id. § 1182(a)(2)(A)(i)(II).
61. See id. § 1182(a)(2)(B).
62. See id. § 1182(a)(2)(A)(i)(I) (subject to exceptions for juvenile and petty offenses,
contained in § 1182(a)(2)(A)(ii)(I)–(II)).
63. See id. §§ 1182(a)(1)(A)(iv), (a)(2)(A)(i)(II), (a)(2)(C), 1227(a)(2)(B)(ii).
64. See id. § 1182(a)(2)(D).
65. See id. §§ 1182(a)(6)(E)(i), 1227(a)(1)(E)(i).
66. See id. §§ 1182(a)(6)(C)(i), 1227(a)(1)(E)(i).
67. See id. § 1101(a)(43).
68. See id.
69. See id.
70. See 2 KATHERINE A. BRADY ET AL., DEFENDING IMMIGRANTS IN THE NINTH
CIRCUIT: IMPACT OF CRIMES UNDER CALIFORNIA AND OTHER STATE LAWS 9–36
(10th ed. 2008).
71. See generally 2 BRADY ET AL., supra note 70, ch. 9.
72. See S. REP. NO. 81-1515, at 351 (1950) (describing an act of moral turpitude as
“[a]n act of baseness, vileness, or depravity, in the private and social duties which a
man owes to his fellow man or to society”) (internal citation omitted).
73. See Flores, 17 I. & N. Dec. 225, 227 (B.I.A. 1980) (“An evil or malicious intent
is said to be the essence of moral turpitude.”).
74. See Olquin-Rufino, 23 I. & N. Dec. 896 (B.I.A. 2006); Danesh, 19 I. & N. Dec.
669, 670 (B.I.A. 1988) (“Moral turpitude . . . refers generally to conduct [which is] inherently
base, vile, or depraved, [and] contrary to [accepted] rules of morality and
the duties owed between [persons] or [to] society in general.”).
75. See Solon, 24 I. & N. Dec. 239, 240 (B.I.A. 2007) (“Moral turpitude may also
inhere in criminally reckless conduct, i.e., conduct that reflects a conscious disregard
for a substantial and unjustifiable risk.”); see, e.g., Franklin, 20 I. & N. Dec. 867, 867
(B.I.A. 1994) (finding that involuntary manslaughter constitutes a crime involving
moral turpitude); Wojtkow, 18 I. & N. Dec. 111, 113 (B.I.A. 1981) (finding that second
degree murder is a crime involving moral turpitude); Medina, 15 I. & N. Dec.
611, 614 (B.I.A. 1976) (finding that aggravated assault is a crime involving moral turpitude).
76. See Castillo-Cruz v. Holder, 581 F.3d 1154, 1159–61 (9th Cir. 2009).
77. See Torres-Varela, 23 I. & N. Dec. 78, 84 (B.I.A. 2001) (describing why fraud
is readily categorized as a crime involving moral turpitude).
78. See 8 U.S.C. § 1227(a)(2)(A)(i) (2006).
79. See id. § 1227(a)(2)(A)(ii).
80. See id. § 1182(a)(2)(A)(ii).
81. See id. § 1101(f).
82. See Silva-Trevino, 24 I. & N. Dec. 687 (B.I.A. 2008). But see Jean-Louis v.
Att’y Gen. of the U.S., 582 F.3d 462, 470 (3d Cir. 2009) (specifically declining to follow
Silva-Trevino).
83. Louissaint, 24 I. & N. Dec. 754, 756 (B.I.A. 2009).
84. See Silva-Trevino, 24 I. & N. Dec. at 689 n.1, 706 n.5.
85. See Taylor v. United States, 495 U.S. 575, 588 (1990).
86. See Silva-Trevino, 24 I. & N. Dec. at 690 (citing Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (1987)).
87. See id. at 704; Sweetser, 22 I. & N. Dec. 709, 715 (B.I.A. 1999).
88. See Silva-Trevino, 24 I. & N. Dec. at 704.
89. See id.
90. See 8 U.S.C. § 1101(a)(48)(A) (2006); see also Ozkok, 19 I. & N. Dec. 546,
551–52 (B.I.A. 1988).
91. Ozkok, 19 I. & N. Dec. at 551–52.
92. For example, withdrawal of plea following successful completion of probation
in Arizona pursuant to A.R.S. § 13-907(a), or, in California, a plea pursuant to deferred
entry of judgment (DEJ), Proposition 36, or Penal Code § 1204.3 does not
eliminate a conviction for immigration purposes. See Murillo-Espinoza v. INS, 261
F.3d 771, 774 (9th Cir. 2001). Another example is New Jersey’s pre-trial intervention
program. See N.J. CT. R. 3:28, available at http://www.judiciary.state.nj.us/rules/r3-
28.htm; see also Salazar-Regina, 23 I. & N. Dec. 223, 227 (B.I.A. 2002); Roldan, 22 I.
& N. Dec. 512, 527 (B.I.A. 1999).
93. See Chavez-Martinez, 24 I. & N. Dec. 272, 273 (B.I.A. 2007); Pickering, 23 I.
& N. Dec. 621, 624 (B.I.A. 2003), rev’d on other grounds, 465 F.3d 263 (6th Cir.
2006); see also 8 U.S.C. § 1101(a)(48) (defining “conviction” under the Act).
94. See 8 U.S.C. § 1227(a)(2)(A)(vi).
95. See, for example, the pre-Padilla New Jersey Supreme Court ruling in State v.
Nunez-Valdez, 975 A.2d 418, 424 (N.J. 2009), holding that ineffective assistance of
counsel vitiates a guilty plea. See also N.J. STAT. ANN. § 2C:43-12 to -22 (West 2005 &
Supp. 2011); N.J. CT. R. 3:28.
96. See 8 U.S.C. § 1101(f).
97. See id.
98. See id. § 1101(f)(1).
99. See id. § 1101(f)(4).
100. See id. § 1101(f)(6).
101. See id. § 1101(f)(3) (providing an exception for a single offense of simple possession
of thirty grams or less of marijuana).
102. See id. § 1101(f)(8).
103. See id. § 1101(f)(5).
104. See id. § 1101(f)(7).
105. See id. § 1101(f)(3) (precluding a showing of good moral character if the
noncitizen “admits the commission” of an offense described in sections 1182(a)(2)(D)
(prostitution) and 1182(a)(2)(6)(E) (alien smuggling)); id. § 1101(f)(4) (precluding a
showing of good moral character for a person whose income is derived principally
from illegal gambling); Urzua Covarrubias v. Gonzales, 487 F.3d 742, 744–46 (9th
Cir. 2007) (affirming agency’s determination that the petitioner was precluded from
establishing good moral character based on his admission of alien smuggling in his
testimony before the immigration judge).
MARKS
106. See Woodby v. INS, 385 U.S. 276, 286 (1966). But see 8 U.S.C. §
1229a(c)(2)(B).
107. See Wadud, 19 I. & N. Dec. 182, 188 (B.I.A. 1984); 8 C.F.R. § 1240.7 (2011).
108. Virtually all forms of immigration relief are discretionary, with the exception
of a couple of remedies provided to fulfill the international treaty obligations of the
United States not to remove an individual to a country where he or she would face
persecution or government torture. See 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16.
109. See 8 U.S.C. § 1182(h).
110. See id. § 1229b(a).
111. See id. §§ 1151–1159.
112. See id. § 1229b(b).
113. See id. § 1158.
114. See id. § 1229c.
115. See id. § 1229a(c)(4)(A) (requiring the noncitizen to establish both statutory
eligibility and, if the relief
116. See, e.g., id. § 1101(a)(f)(3) (precluding noncitizens who are convicted of or
“admit committing” offenses described in the criminal grounds of inadmissibility
listed in sections 1182(a)(2)(A)–(D) and 1182 (a)(6)(E)); id. §§ 1158(b)(2)(A)(ii),
(B)(i) (stating that convictions for a “particularly serious crime,” which includes aggravated
felonies, bar eligibility for asylum); id. 1229b(a)(3) (stating that aggravated
felony convictions bar eligibility for lawful permanent resident cancellation of removal);
id. § 1229b(b)(1)(B)–(C) (stating that failure to show good moral character
during the statutory period and convictions for certain offenses bar eligibility for nonlawful
permanent resident cancellation of removal); id. § 1229b(d)(1)(B) (stating that
“commission” of certain offenses stops the accrual of continuous residence for lawful
permanent resident cancellation of removal and of continuous physical presence for
non-lawful permanent resident cancellation of removal); id. § 1229c(a)(1) (stating
that aggravated felony convictions bar eligibility for pre-conclusion voluntary departure);
id. § 1229b(b)(1)(B)–(C) (stating that failure to show good moral character
during the statutory period and aggravated felony convictions bar eligibility for postconclusion
voluntary departure).
117. See id. § 1182(h)—(i).
118. See, e.g., C-V-T-, 22 I. & N. Dec. 7, 10 (B.I.A. 1998); Edwards, 20 I. & N. Dec.
191, 194–95 (B.I.A. 1990); Villegas Aguirre, 13 I. & N. Dec. 139, 140 (B.I.A. 1971).
119. See 8 U.S.C. § 1229b(a).
120. See id. § 1229b(d).
121. See INS v. St. Cyr, 533 U.S. 289, 326 (2001), superseded by statute, REAL ID
Act of 2005, 8 U.S.C. § 1778 (2006).
122. See 8 U.S.C. § 1229b(c)(6).
123. See id. § 1182(h).
124. See generally id. § 1255.
125. See id.
126. See id. § 1255(a).
127. See id. § 1229b(b).
128. See id. § 1229b(b)(1).
129. See id. § 1229b(b).
130. See id. §§ 1101(a)(42), 1158(a).
131. See id. § 1158(b)(2)(ii).
132. See id. § 1158(b)(2)(B)(i); see also Y-L-, 23 I. & N. Dec. 270, 274 (B.I.A.
2002) (finding that aggravated felonies which involve unlawful drug trafficking presumptively
constitute serious crimes absent extraordinary and compelling circumstances
for purposes of withholding of removal, a similar, but more stringent, form of
relief).
133. See 8 U.S.C. § 1229c(a)(1).
134. See id.
135. See id. § 1229c(b)(1)(c).
136. See id. § 1229c(b)(1).
137. Lehman v. United States, 353 U.S. 685, 691 (1957); accord Jordan v. De
George, 341 U.S. 223, 231 (1951); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948); Ng
Fung Ho v. White, 259 U.S. 276, 284 (1922).
138. See INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Padilla-Agustin v.
INS, 21 F.3d 970, 978 (9th Cir. 1994).
139. 130 S. Ct. 1473 (2010).
140. Id. at 1478.
141. Id.
142. Id. at 1480 (emphasis added) (citations omitted).
143. Id. at 1482. Ultimately, the court found that the “collateral versus direct distinction
is . . . ill-suited to evaluating” the claim for ineffective assistance of counsel in
the deportation context. Id.
144. See id. at 1483–84.
145. See id. at 1484.
146. See id. at 1485–86.
147. See Rodriguez-Ruiz, 22 I. & N. Dec. 1378, 1380 (B.I.A. 2000). But it should
be noted that a criminal conviction vacated based on a state rehabilitative statute or
to ameliorate the immigration consequences remains a conviction for immigration
purposes. See Pickering v. Gonzales, 465 F.3d 263, 269 (6th Cir. 2006); Rodriguez-
Ruiz, 22 I. & N. Dec. at 1379.
148. See Adamiak, 23 I. & N. Dec. 878, 881 (B.I.A. 2006).
149. See Nath v. Gonzales, 467 F.3d 1185, 1188–89 (9th Cir. 2006) (“A vacated
conviction can serve as the basis of removal only if the conviction was vacated for
reasons ‘unrelated to the merits of the underlying criminal proceedings,’ that is, for
equitable, rehabilitation, or immigration hardship reasons. But a conviction vacated
because of a ‘procedural or substantive defect’ is not considered a ‘conviction’ for
immigration purposes and cannot serve as the basis for removability.” (quoting Pickering,
23 I. & N. Dec. 621, 624 (B.I.A. 2003), rev’d on other grounds, 454 F.3d 525
(6th Cir. 2006))).
150. See Chavez-Martinez, 24 I. & N. Dec. 272, 273–74 (B.I.A. 2007) (noting the
conflict between circuits regarding which party bears the burden of proving why the
conviction was vacated and holding that in the context of a removal order, the party
seeking reopening bears the burden); see also Rumierz v. Gonzales, 456 F.3d 31, 40–
41 (1st Cir. 2006) (holding that the noncitizen bears the burden of proving that a conviction
was not vacated solely for immigration reasons). But see Nath v. Gonzales,
467 F.3d 1185, 1188–89 (9th Cir. 2006) (placing burden of proving why the conviction
was set aside on the government); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107
n.3 (9th Cir. 2006) (same for motions to reopen).
151. 8 C.F.R. §§ 1240.8(d), 1240.11(a)(2) (2011) (emphasis added).
152. See, e.g., De La Cruz v. INS, 951 F.2d 226, 228 (9th Cir. 1991) (upholding
immigration judge’s refusal to grant continuance of deportation hearing to determine
whether respondent was informed of deportation consequences of his guilty plea before
finding him removable and denying voluntary departure); Sirhan, 13 I. & N.
Dec. 592, 594 (B.I.A. 1970).
153. See EXEC. OFFICE FOR IMMIGR. REVIEW, U.S. DEP’T OF JUSTICE, ETHICS AND
PROFESSIONALISM GUIDE FOR IMMIGRATION JUDGES, art. II (2011), available at
www.justice.gov/eoir/sibpages/IJConduct/EthicsandProfessionalismGuideforIJs.pdf.
154. See 8 C.F.R. §§ 239.2(a), (c).
155. Id. § 239.2(a)(7).
156. Gutierrez-Lopez, 21 I. & N. Dec. 479, 480 (B.I.A. 1996).
157. Hashmi, 24 I. & N. Dec. 785, 788 (B.I.A. 2009); 8 C.F.R. §§ 1003.29, 1240.6.
158. See, e.g., Singh v. Holder, 638 F.3d 1264, 1274 (9th Cir. 2011) (holding the
immigration judge did not abuse her discretion in finding the petitioner had not
shown good cause for his second motion for a continuance in order to provide corroborative
evidence in support of his asylum application); Jimenez-Guzman v. Holder,
642 F.3d 1294, 1296–98 (10th Cir. 2011) (holding the agency did not abuse its discretion
in finding no good cause for the petitioner’s motion for a continuance to
await the adjudication in state court of his motion for post-conviction relief where he
had already been granted several continuances).
159. Garcia, 16 I. & N. Dec. 653, 657 (B.I.A. 1978), superseded by statute, Immigration
Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, as recognized in Arthur, 20 I.
& N. Dec. 475, 479 (B.I.A. 1992).
160. Hashmi, 24 I. & N. Dec. at 790.
161. Id.
162. Id. at 791 (emphasis added).
163. See Jimenez-Guzman v. Holder, 642 F.3d at 1294.
164. Id. at 1296, 1299.
165. See 8 C.F.R. §§ 1003.2(d), 1003.23(b)(1) (2011).
166. See Coyt v. Holder, 593 F.3d 902, 907 (9th Cir. 2010) (“[T]he physical removal
of a petitioner by the United States does not preclude the petitioner from pursuing a
motion to reopen.”); William v. Gonzales, 499 F.3d 329, 334 (4th Cir. 2007).
167. INS v. Abudu, 485 U.S. 94, 108 (1988).
168. See 8 C.F.R. § 1003.2(c)(2).
169. See id.
170. See, e.g., 8 C.F.R. § 1003.2(c)(3) (providing for exceptions in reopening certain
in absentia orders to apply for asylum or withholding of removal, joint motions,
and orders based on fraud).
171. See, e.g., Beckford, 22 I. & N. Dec. 1216, 1218 (B.I.A. 2000); J-J-, 21 I. & N.
Dec. 976, 984 (B.I.A. 1997).
172. Cruz v. Att’y Gen. of the U.S., 452 F.3d 240, 246 (3d Cir. 2006).
173. See id. at 246 n.3.
174. See Padilla v. Kentucky, 130 S. Ct. 1473, 1490 (2010) (Alito, J., concurring).

Posted in Aggravated felony, AGGRAVATED FELONY CASE SUMMARY, BIA, CIMT, Citizenship, Crime involving moral turpitude, Immigration law | Tagged | Comments Off on A View Through The Looking Glass: How Crimes Appear From The Immigration Court Perspective

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

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?

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.

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.

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).

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