Kawashima v. Holder Jr.

615 F.3d 1043

Akio KAWASHIMA; Fusako Kawashima, Petitioners,

v.Eric H. HOLDER Jr., ^* Attorney General, Respondent.

Akio Kawashima; Fusako Kawashima, aka Fusako Nakajima, Petitioners,

v.Eric H. Holder Jr.,^* Attorney General, Respondent.

Nos. 04-74313, 05-74408.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 8, 2007.

Opinion Filed Sept. 18, 2007.

Opinion Withdrawn; New Opinion Filed July 1, 2008.

Opinion Withdrawn; New Opinion Filed Jan. 27, 2010.

Opinion Withdrawn; New Opinion Filed Aug. 4, 2010.

COPYRIGHT MATERIAL OMITTED.

Jenny C. Lin-Alva and Edward O.C. Ord, Ord & Norman, San Francisco, CA, filed a supplemental brief on behalf of the petitioners. Thomas J. Whalen, Eckert Seamans Cherin & Mellott, Washington, D.C., was also on the brief.

Nancy Freedman, Office of Immigration Litigation, Washington D.C., argued the cause for the respondent. Peter D. Keisler, Assistant Attorney General, Civil Division, Washington, D.C., M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration Litigation, and James A. Hunolt, Senior Litigation Counsel, Office of Immigration Litigation, were also on the brief.

Jennifer J. Keeney, Senior Litigation Counsel, Office of Immigration Litigation, Washington, D.C., filed a supplemental brief on behalf of the respondent. Tony West, Assistant Attorney General, Civil Division, Washington, D.C., and Donald E. Keener, Deputy Director, Office of Immigration Litigation, were also on the brief.

Stephen W. Manning, American Immigration Lawyers Association, Portland, OR, filed a brief on behalf of amicus curiae the American Immigration Lawyers Association and in support of the petitioners' supplemental brief. Jessica M. Boell, American Immigration Lawyers Association, Jennifer M. Rotman, American Immigration Lawyers Association, and Andrew Knapp, American Immigration Lawyers Association, were also on the brief.

Jenny C. Lin-Alva, Ord & Norman, LLC, San Francisco, CA, filed a petition for rehearing with a suggestion for rehearing and a reply on behalf of the petitioners. Edward O.C. Ord, Ord & Norman, LLC, Thomas J. Whalen, Eckert Seamans Cherin & Mellott, Washington, D.C., and Mark Johnston, Eckert Seamans Cherin & Mellott, were also on the petition and the reply.

Jennifer J. Keeney, Senior Litigation Counsel, Office of Immigration Litigation, Washington, D.C., filed a brief opposing rehearing on behalf of the respondent. Tony West, Assistant Attorney General, Civil Division, Washington, D.C., Donald E. Keener, Deputy Director, Office of Immigration Litigation, Matthew B. George, Trial Attorney, Office of Immigration Litigation, and Katherine A. Smith, Trial Attorney, Office of Immigration Litigation, were also on the brief.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A38-554-590, A38-554-591.

Before: DIARMUID F. O'SCANNLAIN, EDWARD LEAVY, and CONSUELO M. CALLAHAN, Circuit Judges.

Dissent to Order by Judge GRABER; Opinion by Judge O'SCANNLAIN.

ORDER

The opinion filed in this case on January 27, 2010, and published at 593 F.3d 979, is withdrawn. A new opinion is filed contemporaneously with the filing of this order.

The panel has voted unanimously to deny the petition for rehearing. Judges O'Scannlain and Callahan have voted to deny the petition for rehearing en banc, and Judge Leavy has so recommended.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or petitions for rehearing en banc will be entertained.

GRABER, Circuit Judge, with whom WARDLAW and PAEZ, Circuit Judges, join, dissenting from denial of rehearing en banc:

I respectfully dissent from denial of rehearing en banc.

An aggravated felony is, among 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). The panel holds that it is plain that the term “loss to the victim or victims” in subsection (i) necessarily encompasses tax revenue loss to the Government even though subsection (ii) specifically governs tax revenue loss to the Government. The panel opinion reaches that conclusion only by contravening clear rules of statutory interpretation.

A. Statutory Text Must be Read in Context

Read in isolation, there is little dispute that the term “loss to the victim or victims” is broad enough that it might encompass a tax revenue loss to the government. But it is blackletter law that we may not read statutory terms in isolation. See Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” (emphasis added)); Smith v. United States, 508 U.S. 223, 233, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) (“Just as a single word cannot be read in isolation, nor can a single provision of a statute.”); United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984) (“We do not ... construe statutory phrases in isolation; we read statutes as a whole. Thus, the [term in question] must be read in light of the immediately following phrase ....” (footnote omitted)); see also Harbison v. Bell, --- U.S. ----, 129 S.Ct. 1481, 1492, 173 L.Ed.2d 347 (2009) (Roberts, C.J., concurring in the judgment) (“We do not construe statutory phrases in isolation; we read statutes as a whole. This certainly applies to reading sentences as a whole.” (citation, alterations, and internal quotation marks omitted)).

Often, although a phrase sweeps broadly when read in isolation, surrounding statutory text clarifies that Congress actually intended a narrower meaning. Applications of that simple rule of construction appear throughout the Supreme Court's jurisprudence. For example:

• “The [relevant] term ... is not defined in the statute, and, out of context, its ordinary meaning could include [the situation at hand]. However, we must not analyze one term of [the statute] in isolation. When [the statute] is read as a whole, the better interpretation is that [the term does not encompass the situation at hand].” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 852, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001) (citation omitted).

• “If considered in isolation, the [relevant] phrase ... could embrace a wide [definition]. After all, in ordinary meaning and usage, [the term has a broad definition].... The definition of words in isolation, however, is not necessarily controlling in statutory construction. A word in a statute may or may not extend to the outer limits of its definitional possibilities. Interpretation of a word or phrase depends upon reading the whole statutory text [and upon other considerations].” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006) (citation omitted).

• “[T]he dissent's point that subsection (a) seems clear when read in isolation proves nothing, for ‘the meaning-or ambiguity-of certain words or phrases may only become evident when placed in context.’ When subsection (a) is read in context, there is no avoiding the question, ‘What could Congress have been getting at with both (a) and (c)?’ ” Corley v. United States, ---U.S. ----, 129 S.Ct. 1558, 1566 n. 5, 173 L.Ed.2d 443 (2009) (citation and alteration omitted).

• “Petitioner's interpretation of [the statutory provision] might be plausible were we to interpret that provision in isolation, but it simply is not tenable in light of the [statute's] surrounding provisions. We must not be guided by

a single sentence or member of a sentence, but look to the provisions of the whole law.” Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 99, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (plurality) (alteration and internal quotation marks omitted).

The panel's analysis defies that rule of construction by concluding that the meaning of subsection (i) is plain without regard to the very next clause in the same sentence. See Amended Op. at 1053 (concluding, before considering subsection (ii), that: “Thus, according to the plain meaning of the statutory language,” subsection (i) encompasses tax revenue losses to the government). In subsection (i), Congress gave general treatment to losses while, in subsection (ii), Congress gave specific treatment to tax revenue losses. Without regard to any other analysis, both logic and Supreme Court precedent require us to conclude that the meaning of subsection (i) is not plain and to look to other indicators of congressional intent. ¹ The panel forcefully defends its conclusion that the meaning of subsection (i) is “plain” for the simple reason that each and every other indicator of congressional intent points to the opposite conclusion: Congress intended subsection (ii), and not subsection (i), to cover tax crimes.

B. Superfluities Must be Avoided if Possible

The panel's analysis next runs afoul of the rule that, if possible, we must read statutory text to avoid superfluities. “We are not at liberty to construe any statute so as to deny effect to any part of its language. It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every word.” Market Co. v. Hoffman, 101 U.S. 112, 115, 25 L.Ed. 782 (1879); see also Knight v. Comm'r, 552 U.S. 181, 190, 128 S.Ct. 782, 169 L.Ed.2d 652 (2008) (“Thus, accepting [a particular] approach would render part of the statute entirely superfluous, something we are loath to...