We tried. We really did. We studied the issue extensively. We strategized on approaches. We enlisted the talented students at the Stanford Immigrant Rights Clinic. We drafted two amicus briefs (one is available here). But still! Kawashima III is that important dinner guest whom you’ve been courting for awhile, who shows up late, swills your expensive wine quickly like it was water from the tap and after the pears poached in Campari are cleared, he belches, grabs his jacket and leaves. It makes one feel used, like a car. That is the way it works sometimes in our adjudication system because, alas, Article III of the United States Constitution does not grant us the power to decide law.

The Ninth Circuit recently issued its third published decision in the ongoing Kawashima litigation. Kawashima v. Holder, Slip Op. Docket Nos. 04-74313 and 05-75508, 2010 U.S. App. LEXIS 1839 (9th Cir. 01/27/2010)(Kawashima III). See also Kawashima v. Gonzales, 503 F.3d 997 (9th Cir. 2007)(Kawashima I), withdrawn Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008)(Kawashima II), withdrawn Kawashima III, supra. The Kawashima cases involve the government’s efforts to remove two long-time permanent residents, a husband and wife, each convicted of a federal tax offense by guilty plea in 1997. In 2001, the government commenced removal proceedings against Mr. and Mrs. Kawashima, charging that each had been convicted of an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000″ within the meaning of INA § 101(a)(43)(M)(i), and therefore was subject to removal under INA § 237(a)(2)(A)(iii), for having been convicted of an aggravated felony at any time after admission.

The analysis required in Kawashima – and the analysis that Nijhawan requires – isn’t all that complex. Even so, the panel lead by Judge O’Scannlain, didn’t apply it correctly. In the latest chapter of their roller-coaster litigation saga, the Ninth Circuit upheld Mr. Kawashima’s removal order (after having vacated it in Kawashima II and upholding it in Kawashima I), and remanded Mrs. Kawashima’s proceedings to the Board of Immigration Appeals (after having vacated her removal order in both Kawashima I and II). The purpose of Mrs. Kawashima’s remand is for the Board to determine what types of evidence may be considered under Nijhawan v. Holder, 129 S.Ct. 2294 (2009), to establish the tax loss to the government as the victim of Mrs. Kawashima’s crime. In other words, Mrs. Kawashima loses by winning. As explained by the Ninth Circuit,

[Nijhawan] added a new step to the familiar categorical/modified categorical approaches first announced in Taylor v. United States, 495 U.S. 575 (1990). Under this approach, we must first decide whether a requirement under a generic crime is an “element” of the generic crime instead of simply a description of the “particular circumstances” in which the offender committed the crime on a specific occasion. If the requirement is an “element,” we apply the Taylor approach; if the requirement is “circumstance specific,” we ensure that the BIA used “fundamentally fair procedures” to determine whether the offender’s crime satisfies the description of the generic offense.

Kawashima III, Slip Op. at 1664 (internal citations omitted). Consequently, because the BIA has not had an opportunity to decide Mrs. Kawashima’s case in accord with the fundamentally fair procedures required by Nijhawan, the Court ordered a limited remand of her proceedings to the Board for a ruling in the first instance. Id. at 1669.

Curiously, the Court applied a circumstance-specific approach to affirm Mr. Kawashima’s removal order without remanding it first to the Board for consideration. With little discussion, the Court concluded that Mr. Kawashima’s stipulation in his written plea agreement as to the tax loss to the government was consistent with fundamentally fair procedures. Id. at 1665. In Mrs. Kawashima’s case, on the other hand, none of the documents cognizable under a modified categorical approach in her record of conviction establishes the amount of loss to the government. Id. at 1666 – 1669.

As explained (we thought quite convincingly) in our second amicus brief filed in the Kawashima case in August 2009, we believe that Nijhawan abrogated, in part, the Board’s decision in Matter of Babaisakov, 24 I & N Dec. 306 (BIA 2007), in which the Board rejected any limitations on the types of evidence that may be considered to determine the amount of loss to the victim under INA § 101(a)(43)(M)(i). We have no problem – as an analytical matter – with the Board having the first opportunity to publish a new decision that implements the Supreme Court’s decision in Nijhawan. Indeed we asked the Kawashima panel to do just that with Mr. Kawashima’s case – send it back to the Board for a decision in the first instance. But the court applied Nijhawan itself to deny Mr. Kawashima’s petition for review. And somewhat inconsistently sent Mrs. Kawashima’s back to the BIA for a determination of what types of evidence outside the record of conviction may be considered to establish the amount of loss to the victim. We admit to confusion about the panel’s inconsistent treatment of the two petitioners. In another case, we suppose.

No doubt there will be many additional developments in light of Nijhawan and its progeny, such as Kawashima III. AILA members briefing cases involving the application of Nijhawan’s circumstance-specific approach are invited to contact the Amicus Committee.

– blogging by Debbie Smith, AILA Amicus Committee