May 9, 2011
After four extensions, the government finally filed its response to the petition for certiorari in Kawashima. As we previously reported (see here and here), that petition raises a question on which the courts of appeals are in conflict — whether a tax offense other than tax evasion can be an “aggravated felony” for purposes of the immigration laws, which would justify deportation of a resident alien. Maybe the government was spending all that extra time considering whether to “acquiesce” in the petition and invite the Supreme Court to resolve the conflict, or maybe it was just taking its sweet old time. In any event, the government has filed a brief urging the Court to deny certiorari.
The brief in opposition acknowledges that there is a conflict in the circuits, terming it “a narrow disagreement.” But the government argues that there is no need for the Court to resolve that disagreement. In particular, the government argues that the Court’s recent decision in Nijhawan v. Holder, 129 S. Ct. 2294 (2009), supports the government’s position and, since the Third Circuit’s contrary decision was issued before Nijhawan, “the narrow disagreement in the courts of appeals may be resolved without further intervention of this Court.” On the merits, the government resists the petition’s statutory construction analysis by arguing that “fraud or deceit” is not necessarily an element of tax evasion under 26 U.S.C. § 7201. If it is not, then theoretically 8 U.S.C. §1101(a)(43)(M)(ii) is not superfluous, as the petition argues.
In their reply brief, petitioners vigorously contest the government’s premise that “fraud or deceit” is not necessarily an element of tax evasion under 26 U.S.C. § 7201 by analyzing the structure of the Code’s criminal tax provisions. Among other things, petitioners state that the government’s “reasoning defies logic: the greater offense [section 7201] does not necessarily involve ‘fraud or deceit,’ but the lesser offense [section 7206] necessarily does.” With respect to the government’s assertion that this circuit conflict does not warrant the Supreme Court’s attention, petitioners maintain that the need to stop unlawful deportations presents a compelling reason for Supreme Court review.
The Court is likely to act on the petition on May 16.