More Circuit Splitting Over "Aggravated Felony" Definition: En Banc Ninth Holds Categorical Approach Applies to Loss Amount Under § 1101(a)(43)(M)

The INA's "aggravated felony" definition includes, among many other things, “an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the government exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M). Recently, in Arguelles-Olivares v. Mukasey, the Fifth Circuit held that the Taylor/Shepard categorical approach does not apply when determining whether a prior offenses qualifies as an aggravated felony under (a)(43)(M). Thus, "[t]he requirement that the offense was one 'in which the loss to the victim or victims exceeds $10,000' is a factual matter to be determined from the record of conviction, but the amount of loss is not required to be an element of the conviction itself." And the "record of conviction" can include a broad range of documents; Arguelles-Olivares affirmed the district court's reliance on a PSR for the loss amount.

In so holding, Arguelles-Olivares added to a circuit split on the question. In an odd turn, that split has become starker, while a separate one has apparently disappeared.

Last September, the en banc Ninth Circuit held in Navarro-Lopez v. Gonzales, 503 F.3d 1063, that the modified categorical approach "only applies when the particular elements of the crime of conviction are broader than the generic crime." It does not apply at all "[w]hen the crime of conviction is missing an element of the generic crime altogether[.]" This was apparently a reversal of course for the Ninth Circuit on the categorical approach, bringing it in line with the Fifth Circuit on this question (as discussed in the Ninth Circuit Blog's commentary here and here).

Which brings us to this week's en banc decision from the Ninth Circuit in Kawashima v. Mukasey, Nos. 04-74313, 05-74408 (July 1, 2008). Applying Navarro-Lopez to § 1101(a)(43)(M), the court held that if loss amount was not an element of the prior tax or fraud conviction, then the offense is not an aggravated felony. As the opinion notes, this means that virtually no offense will ever qualify under (a)(43)(M) because loss amount is not an element of most fraud and tax offenses. And it would apply to other portions of the aggravated felony definition, as well, including (D) (money laundering 'if the amount of the funds exceeded $10,000) and (K)(ii) (Mann Act offenses "if committed for commercial advantage").

Two judges concurred in Kawashima, agreeing that it properly applied Navarro-Lopez. But they argued that Navarro-Lopez incorrectly interpreted the INA by applying the Taylor/Shepard categorical approach to the aggravated felony determination. (Notably, however, they didn't argue that Navarro-Lopez incorrectly interpreted Taylor.)

All of this creates the odd situation in which the Ninth Circuit evidently agrees with the Fifth Circuit's understanding of the Taylor/Shepard categorical approach, but disagrees as to whether that approach applies to determinations under one obscure provision in the INA. This Twilight Zone-ish scenario could very well lead to further developments in both cases. The Kawashima concurrence reads like a cert petition, so given the issues involved the case probably has a better-than-average chance of winding up Supreme Court's docket next term. And it'll also be interesting to see whether Kawashima affects a pending petition for rehearing in Arguelles-Olivares.

UPDATE: Blog Neuve contributor Steve Kalar offers additional thoughts on Kawashima here, and adds that Taylor/Shepard issues are at play in yet another Ninth Circuit en banc in United States v. Snellenberger.