Wednesday, January 27, 2010

Kawashima v. Holder (9th Cir. - Jan. 27, 2010)

Judge O'Scannlain writes this morning:

"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 [2007 cite] 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 [cite], which caused us to reconsider. We published a second opinion [2008 cite] 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 [2008 cite]. 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, [2009 cite], 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."

In short: "Third time's a charm?"