On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A38-554-590 & A38-554-591.
The opinion of the court was delivered by: O'scannlain, Circuit Judge
Argued and Submitted February 8, 2007-Pasadena, California
Before: Diarmuid F. O'Scannlain, Edward Leavy, and Consuelo M. Callahan, Circuit Judges.
The opinion filed on July 1, 2008, and appearing at 530 F.3d 1111 (9th Cir. 2008) is withdrawn. The superseding opinion will be filed concurrently with this order. The government's "Petition for Rehearing En Banc" is DENIED as moot. The parties may file new petitions for rehearing or rehearing en banc as provided by Federal Rule of Appellate Procedure 40.
We are called upon to decide whether petitioners' convictions for subscribing to a false statement on a tax return and for aiding and assisting in the preparation of a false tax return qualify as "aggravated felonies" that subject them to removal under the relevant immigration laws.
This is our third published opinion in this case. In our first opinion, Kawashima v. Gonzales, 503 F.3d 997 (9th Cir. 2007), withdrawn 503 F.3d 1111 (9th Cir. 2008) ("Kawashima I"), we conducted a limited examination of the record of petitioners' convictions to answer such question. One day after our panel opinion was filed, our en banc court decided Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), which caused us to reconsider. We published a second opinion, Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008), withdrawn ___ F.3d ___ (9th Cir. 2010) ("Kawashima II"), in which we answered the question by applying Navarro-Lopez to Kawashima's conviction in light of our circuit's existing caselaw construing the statute defining "aggravated felony."
After we published our second opinion, the government filed a petition for rehearing en banc. While the government's petition was pending before us, the Supreme Court granted certiorari in Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. 2008), cert. granted, 129 S.Ct. 988 (2009). Like the case before us, Nijhawan concerned whether a particular conviction for a financial offense constitutes an "aggravated felony" under relevant immigration laws. After the Court issued its opinion, Nijhawan v. Holder, 129 S.Ct. 2294 (2009), we ordered the parties to file supplemental briefs on Nijhawan's impact on the case before us. In light of this recent guidance from the Court, we issue this hopefully final opinion in this litigation.
Akio Kawashima and Fusako Kawashima*fn1 are natives and citizens of Japan. The Kawashimas were admitted to the United States as lawful permanent residents on June 21, 1984.
In 1997, Mr. Kawashima pled guilty to subscribing to a false statement on a tax return, in violation of 26 U.S.C. § 7206(1). In his plea agreement, he stipulated that the "total actual tax loss" for the purpose of determining his offense level under the Sentencing Guidelines was $245,126. Mr. Kawashima further conceded that he could be ordered to pay the same amount in restitution. On the same date, Mrs. Kawashima pled guilty to aiding and assisting in the preparation of a false tax return, in violation of 26 U.S.C. § 7206(2). Her plea agreement was not included in the record before us.
On August 3, 2001, the Immigration and Naturalization Service*fn2 issued separate Notices to Appear to the Kawashimas alleging that the couple was removable because their prior convictions constituted aggravated felonies under 8 U.S.C. § 1101(a)(43)(M)(i) ("subsection M(i)") (defining as an aggravated felony any offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000"). See id. § 1227(a)(2)(A)(iii) (stating that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable").*fn3
After holding a removal hearing, an Immigration Judge ("IJ") concluded that the Kawashimas' convictions were aggravated felonies under subsection M(i). Accordingly, the IJ found the Kawashimas removable, denied their motion to terminate the proceedings, and ordered that they be removed to Japan.
The Kawashimas appealed the decision, and the Board of Immigration Appeals ("BIA") remanded because the transcript containing the testimony of the hearing and the IJ's oral decision was defective. After further proceedings, the IJ again denied the Kawashimas' motion to terminate proceedings and ...