BY MICHAEL COHN, ACCOUNTING TODAY

The U.S. Supreme Court decided in a 6-3 opinion that a married pair of Japanese immigrants could be deported from the U.S. because of tax felony convictions.

An immigration judge had ordered the removal of resident aliens Akio and Fusako Kawashima after determining that Mr. Kawashima's conviction for willfully making and subscribing a false tax return, and Mrs. Kawashima's conviction for aiding and assisting in the preparation of a false tax return, qualified as crimes involving fraud or deceit. The Board of Immigration Appeals agreed and the couple took the case to the Ninth Circuit Court and then the Supreme Court.

The Supreme Court held that convictions in which the government's revenue loss exceeds $10,000 qualify as aggravated felonies and the couple could be deported.

In a majority opinion Tuesday from Justice Clarence Thomas, the court rejected the Kawashimas' argument that they should not be deported for committing an aggravated felony because their crimes did not involve the fraud or deceit required by the relevant clause of the criminal code. Citing an earlier case, Gonzalez v. Duenas-Alvarez, Thomas noted that the relevant section of the law 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."

While the words "fraud" and "deceit" were missing from the relevant section of the code and are not themselves formal elements of the crime, the court noted that the relevant clause is not limited to offenses that include fraud or deceit as formal elements. It instead refers more broadly to offenses involving fraud or deceit, offenses with elements that necessarily entail fraudulent or deceitful conduct. Mr. Kawashima was convicted because he "knowingly and deceitfully submitted a tax return that was false as to a material matter," according to the court, while Mrs. Kawashima was convicted of a felony by "knowingly and willfully assisting her husband's filing of a materially false tax return." The court also rejected the Kawashimas' argument that the relevant clause should be considered inapplicable to tax crimes.

"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 Section 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 Section 7201 was a deportable offense," said Thomas.

Joining Thomas in the majority opinion were Chief Justice John Roberts, along with Associate Justices Antonin Scalia, Anthony Kennedy, Samuel Alito and Sonia Sotomayor.

Justice Ruth Bader Ginsburg filed a dissenting opinion, in which Justices Stephen Breyer and Elena Kagan joined.

"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," she wrote.