Once again, the issue of aggravated felonies laid out in INA 101(a)(43) will be the topic of an important court case. On November 7, the Supreme Court heard oral arguments in the case of Kawishima v. Holder. The Kawishimas are seeking cancellation of removal, but given prior false statement on a corporate tax return, the Supreme Court must determine if such an action constitutes the fraud and deceit specifically mentioned in INA101(a)(43)(M)(i). The issue has already led to a circuit split. Although the 9th Circuit is traditionally the most favorable for immigrants, the 9th Circuit ruled that the Kawishimas did commit an aggravated felon because of their actions. In a similar case in 2004, the 3rd Circuit did not consider a similar action as an aggravated felony. The Kawashimas’ argument rests on the fact that their actions did not involve fraud or deceit. Rather, they were mere false statements. Attorney General Holder believes that by pleading guilty to the charges, the Kawashimas committed fraud by implication.
The impacts of this case are numerous. First, it highlights the need for immigrants to have a better understanding of when they plead guilty to certain crimes as the consequences of pleading guilty to an aggravated felony are great. The consequences of an aggravated felony conviction include being ineligible for asylum, naturalization, or cancellation of removal. Although the Supreme Court ruled in Padilla v. Kentucky that immigrants must be informed of the immigration consequences prior to pleading guilty to certain crimes, one can’t help but wonder whether this should apply retroactively to people like the Kawishimas. Additionally, it highlights the need for a great understanding of INA 101(a)(43). When aggravated felony was added to the INA in 1986 it included two infractions – murder and the trafficking of drugs and firearms. The list has gradually expanded to a confusing myriad of offenses that are open to interpretation and often times long litigation. Finally, it shows the dangers of a circuit split in the context of immigration law. Why should immigrants in one particular circuit receive more judicial and substantive rights than those in another circuit? The INA is federal law and its interpretation and applicability must be uniform and applied everywhere.
Danielle Beach-Oswald is the current President and Managing Partner of Beach-Oswald Immigration Law Associates in Washington, DC. Ms. Beach utilizes her 19 years of experience in immigration law to help individuals immigrate to the United States for humanitarian reasons. Born in Brussels, Belgium, Ms. Beach has lived in England, Belgium, Italy and Ivory Coast and has traveled extensively to many countries. Ms. Beach advocates for clients from around the world who seek freedom from torture in their country, or who are victims of domestic violence and trafficking. She has also represented her clients at U.S. Consulates in Romania, China, Canada, Mexico, and several African countries. With her extensive experience in family-based and employment-based immigration law Ms. Beach not only assists her clients in obtaining a better standard of living in the United States, she also helps employers obtain professional visas, and petitions for family members. She also handles many complex naturalization issues. Ms. Beach has unique expertise representing clients in immigration matters pending before the Federal District Courts, Circuit Courts, Board of Immigration Appeals and Immigration Courts. She has won over 400 humanitarian cases in the United States. Her firm's website is www.boilapc.com.