Kawashima v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AKIO KAWASHIMA; FUSAKO 
KAWASHIMA,
Petitioners, No. 04-74313
v.  Agency Nos.
A38-554-590
ALBERTO R. GONZALES, Attorney A38-554-591
General,
Respondent.

AKIO KAWASHIMA; FUSAKO 
KAWASHIMA, aka Fusako Nakajima, No. 05-74408
Petitioners, Agency Nos.
v.  A38-554-590
ALBERTO R. GONZALES, Attorney A38-554-591
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 8, 2007—Pasadena, California
Filed September 18, 2007
Before: Diarmuid F. O’Scannlain, Edward Leavy, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge O’Scannlain
12503
12506 KAWASHIMA v. GONZALES
COUNSEL
Judith L. Wood, Law Offices of Judith L. Wood, Los Ange-
les, California, argued the cause for the petitioners, and filed
briefs; Todd Beacraft, Law Offices of Judith L. Wood, Los
Angeles, California, was on the briefs.
Nancy Freedman, Office of Immigration Litigation, Washing-
ton, DC, argued the cause for the respondent; Peter D. Keis-
ler, Assistant Attorney General, Civil Division, M. Jocelyn
Lopez Wright, Assistant Director, and James A. Hunolt,
Senior Litigation Counsel, Office of Immigration Litigation,
Washington, DC, were on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We are called upon to determine whether aliens’ convic-
tions for subscribing to a false statement on a tax return and
KAWASHIMA v. GONZALES 12507
for aiding and assisting in the preparation of a false tax return
qualify as “aggravated felonies” under the relevant immigra-
tion laws, and therefore constitute removable offenses.
I
Akio Kawashima and Fusako Kawashima1 are natives and
citizens of Japan. The Kawashimas were admitted to the
United States as lawful permanent residents on June 21, 1984.
In a Notice to Appear dated August 3, 2001, the Service2
alleged that Mr. Kawashima was subject to removal based on
his 1997 conviction for subscribing to a false statement on a
tax return, in violation of 26 U.S.C. § 7206(1). Another
Notice of Removal, also dated August 3, 2001, alleged that
Mrs. Kawashima was subject to removal based on her 1997
conviction for aiding and assisting in the preparation of a false
tax return, in violation of 26 U.S.C. § 7206(2). Both Notices
alleged that the loss to the victim, the revenue loss to the gov-
ernment, exceeded $10,000, and that the Kawashimas were
subject to removal because their convictions qualified as “ag-
gravated felony” offenses, as defined in 8 U.S.C.
§ 1101(a)(43)(M)(i)-(ii) (“subsection (M)”).
After holding a removal hearing, the IJ concluded that the
Kawashimas’ convictions were aggravated felonies. Accord-
ingly, the IJ found the Kawashimas removable, denied their
motion to terminate the proceedings, and ordered that they be
removed to Japan.
1
We refer to Akio as Mr. Kawashima and Fusako as Mrs. Kawashima.
We refer to Akio and Fusako collectively as the “Kawashimas.”
2
On March 1, 2003, the Immigration and Naturalization Service (“INS”)
ceased to exist as an agency under the U.S. Department of Justice and its
functions were transferred to the Bureau of Immigration and Customs
Enforcement within the newly-formed Department of Homeland Security.
We refer to the INS and its successor as the “Service.”
12508 KAWASHIMA v. GONZALES
The Kawashimas appealed the IJ’s decision, and the BIA
remanded because the transcript containing the testimony of
the hearing and the IJ’s oral decision was defective. After fur-
ther proceedings, the IJ again denied the Kawashimas’ motion
to terminate the proceedings and once again ordered the
Kawashimas removed to Japan. The BIA affirmed without a
separate opinion.
The Kawashimas subsequently filed a motion to reopen to
seek waiver of inadmissibility under the Immigration and
Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182(c)
(repealed 1996). The BIA denied the motion as untimely.
The Kawashimas timely filed separate petitions for review
of the BIA’s affirmance of the IJ’s removal order and the
BIA’s denial of the motion to reopen. We consolidated the
petitions for review pursuant to 8 U.S.C. § 1252(b)(6).
II
We are faced with the task of determining whether Mr.
Kawashima’s conviction for willfully making and subscribing
to a false statement on a tax return, in violation of § 7206(1),
and Mrs. Kawashima’s conviction for aiding and assisting in
the preparation of a false tax return, in violation of § 7206(2),
constitute aggravated felonies. Section 1101(a)(43)(M)
defines an “aggravated felony” to include “an offense that (i)
involves fraud or deceit in which the loss to the victim or vic-
tims 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)(i)-(ii).
A
As a threshold statutory interpretation matter, we must
decide whether tax offenses other than those described in
§ 7206(1) qualify as aggravated felonies under subsection
KAWASHIMA v. GONZALES 12509
(M)(i).3 The Kawashimas argue that subsection (M)(i) is inap-
plicable in this case, reasoning that subsection (M)(ii)’s spe-
cific reference to § 7201 indicates Congress’s intent to
exclude all federal tax offenses from the definition of aggra-
vated felonies under the more general subsection (M)(i). We
are not persuaded.
[1] The plain text of subsection (M)(i) sets forth two
requirements for an offense to qualify as an aggravated fel-
ony. First, the offense must “involve fraud or deceit.” Second,
the “loss to the victim or victims” must exceed $10,000. Fer-
reira v. Ashcroft, 390 F.3d 1091, 1096 (9th Cir. 2004). In our
view, §§ 7206(1) and (2) necessarily “involve fraud or deceit”
because the provisions require the government to prove either
that the defendant “willfully” subscribed to a statement in a
tax return he did not believe to be true, or that the defendant
“willfully” aided and assisted in the making of a false or
fraudulent return. See infra, Part II.C. Moreover, because the
government is a qualifying victim, see, e.g., Balogun v. U.S.
Attorney Gen., 425 F.3d 1356, 1361 (11th Cir. 2005), a tax
loss in excess of $10,000 satisfies the second prong of subsec-
tion (M)(i). Thus, according to the plain meaning of the statu-
tory language, convictions for violating §§ 7206(1) and (2) in
which the tax loss to the government exceeds $10,000 consti-
tute aggravated felonies under subsection (M)(i). And because
such interpretation does not lead to an absurd or unreasonable
result, our inquiry must end.4
3
The Kawashimas’ convictions do not constitute aggravated felonies
under subsection (M)(ii) because that provision is limited to tax offenses
in violation of § 7201. Mr. Kawashima was convicted under § 7206(1) and
Mrs. Kawashima was convicted under § 7206(2). See United States v.
Roselli, 366 F.3d 58, 62 n.5 (1st Cir. 2004).
4
United States v. King, 244 F.3d 736, 740 (9th Cir. 2001) (“Unless the
plain meaning leads to an absurd or unreasonable result, which it does not
here, our ‘judicial inquiry is at an end.’ ” (citation omitted)); see also
United States v. Gonzales, 520 U.S. 1, 8 (1997) (“Where there is no
ambiguity in the words, there is no room for construction. The case must
be a strong one indeed, which would justify a court in departing from the
plain meaning of words . . . in search of an intention which the words
themselves did not suggest.” (internal citation and quotation marks omit-
ted)).
12510 KAWASHIMA v. GONZALES
[2] We recognize that a divided panel of the Third Circuit
reached a contrary conclusion in Ki Se Lee v. Ashcroft, 368
F.3d 218 (3d Cir. 2004), a case cited by neither party. There,
the court found that the presence of subsection (M)(ii)
reflected Congress’s intent to specify tax evasion as the only
removable tax offense, and thereby exclude tax offenses from
the scope of subsection (M)(i). Writing in dissent, however,
then-Judge (now Justice) Alito concluded that the plain text
of subsection (M)(i) did not preclude the inclusion of tax
offenses within its definition of aggravated felonies. Id. at 226(Alito, J., dissenting). We are persuaded by Judge Alito’s
interpretation of the statute.
The court in Ki Se Lee applied two interpretive canons in
support of its reading. First, the court applied the canon that
prescribes that, whenever possible, a statute should be inter-
preted to avoid rendering other provisions superfluous. Id. at
223. In the court’s view, reading subsection (M)(i) to include
tax offenses would render subsection (M)(ii) superfluous
because any of the tax evasion offenses described by § 7201
would fall within the scope of subsection (M)(i)’s “fraud or
deceit” provision. Id. at 222-23. Second, the court applied the
familiar canon that the “specific governs the general.” Id. at
223. Noting that subsection (M)(i) is a general provision that
covers “fraud and deceit” and subsection (M)(ii) is a narrower
provision that only covers federal tax evasion, the court rea-
soned that this canon also supported its conclusion that tax
evasion in violation of § 7201, as described in subsection
(M)(ii), is the only removable tax offense. Id. at 224.5
[3] While such canons are valuable tools in interpreting a
5
The Kawashimas also argue that the canon that construes ambiguities
in a deportation statute in favor of the alien supports their argument that
subsection (M)(ii) precludes the inclusion of tax offenses in subsection
(M)(ii). That canon, however, is inapplicable where, as in this case, the
statutory language is clear. See Cardoza-Fonseca v. INS, 480 U.S. 421,
449 (1987).
KAWASHIMA v. GONZALES 12511
statute’s text, it is unnecessary to resort to these devices
where, as with subsection (M)(i), the statutory text is clear.
See Ki Se Lee, 368 F.3d at 226 (Alito J., dissenting); see also
Clark v. Martinez, 543 U.S. 371, 385 (2005). Subsection
(M)(i) plainly categorizes an offense as an aggravated felony
as long as it includes two elements, “fraud and deceit” and
loss to the victim in excess of $10,000. No further limitations
are imposed.
Further, the interpretation adopted by the court in Ki Se Lee
imputes an intent to Congress that is not supported by the stat-
ute’s text. As the dissent in Ki Se Lee noted, “[i]f Congress
had not wanted subsection (M)(i) to apply to ‘tax offenses,’
Congress surely would have included some language in that
provision to signal that intention. As adopted, however, sub-
section (M)(i) contains no such hint.” Id.Finally, there are many reasons why Congress might have
included subsection (M)(ii) even though many, if not all, of
the tax offenses it describes would fall within the scope of
subsection (M)(i). As the dissent in Ki Se Lee emphasized,
“[s]ubsection (M)(ii) may have been enacted simply to make
certain—even at the risk of redundancy—that tax evasion
qualifies as an aggravated felony.” Id. Although we recognize
that the avoidance of surplusage in statutory text is an impor-
tant goal, Congress harbors other important goals as well
when adopting legislation. Judge Alito’s dissent suggested
two examples. First, even if Congress could not think of a tax
evasion offense under § 7201 that would not involve “fraud
or deceit” and therefore be adequately covered by subsection
(M)(i), Congress has often realized its inability to anticipate
every possible type of case, and may have added subsection
(M)(ii) just to ensure that no tax evasion case fell outside sub-
section (M)’s definition of an aggravated felony. Id. at 226.
Alternatively, Congress might have wanted to ensure that no
court would hold that tax evasion falls outside the definition
of an aggravated felony simply because “fraud” and “deceit”
are not specific elements of that offense. Id. at 226-27.
12512 KAWASHIMA v. GONZALES
[4] We therefore respectfully decline to adopt the Third
Circuit’s interpretation of subsection (M)(i). Accordingly, we
conclude that tax offenses not covered by subsection (M)(ii)’s
specific reference to § 7201 qualify as aggravated felonies
under subsection (M)(i) where the loss exceeds $10,000.
B
Our next task is to determine whether the Kawashimas’
convictions under §§ 7206(1) and (2) meet subsection
(M)(i)’s definition. To do so, we rely on the familiar two-step
test set forth in Taylor v. United States, 495 U.S. 575 (1990).
See, e.g., Ferreira, 390 F.3d at 1095. First, we “look to the
statute under which the person was convicted and compare its
elements to the relevant definition of an aggravated felony in
8 U.S.C. § 1101(a)(43). . . . Under this categorical approach,
an offense qualifies as an aggravated felony if and only if the
full range of conduct covered by the [statute of conviction]
falls within the meaning of that term.” Id. (citations and inter-
nal quotation marks omitted).
If the statute of conviction is broader than the definition of
the relevant removal offense, we must then proceed to the
“modified” categorical approach. Id. Under the modified cate-
gorical approach, we conduct a “limited examination of docu-
ments in the ‘record of conviction.’ ” Id. (quoting Chang v.
INS, 307 F.3d 1185, 1189 (9th Cir.2002)). Upon this examina-
tion, we ask “whether there is sufficient evidence to conclude
that the alien was convicted of the elements of the generically
defined crime even though his or her statute of conviction was
facially overinclusive.” Id.The record of conviction that forms the boundaries of our
investigation is limited to a “narrow, specified set of docu-
ments that includes ‘the state charging document, a signed
plea agreement, jury instructions, guilty pleas, transcripts of
a plea proceeding and the judgment.’ ” Id. We may not “look
beyond the record of conviction itself to the particular facts
KAWASHIMA v. GONZALES 12513
underlying the conviction.” Id. If the record of conviction
fails to establish that the petitioner’s offense qualifies as an
aggravated felony, the government has failed to meet its bur-
den of proving that the defendant committed an aggravated
felony. Id.[5] The conduct proscribed by §§ 7206(1) and (2), the stat-
utes under which the Kawashimas were convicted, is broader
than the conduct that meets the definition of an aggravated
felony under subsection (M)(i). Simply stated, the statutes
under which the Kawashimas were convicted do not require
proof of monetary loss in excess of $10,000. See Li v. Ash-
croft, 389 F.3d 892, 896 (9th Cir. 2004). Accordingly, we
must turn to the modified categorical approach in this case.
1
[6] The information, plea agreement, and admission in Mr.
Kawashima’s case establish that he was convicted of violating
7206(1). That section has four elements: “(1) the defendant
made and subscribed a return, statement, or other document
that was incorrect as to a material matter; (2) the return, state-
ment, or other document subscribed by the defendant con-
tained a written declaration that it was made under the
penalties of perjury; (3) the defendant did not believe the
return, statement, or other document to be true and correct as
to every material matter; and (4) the defendant falsely sub-
scribed to the return, statement, or other document willfully,
with the specific intent to violate the law.” United States v.
Boulware, 384 F.3d 794, 810 (9th Cir. 2004) (emphasis
added). Thus, Mr. Kawashima’s conviction under § 7206(1)
necessarily involved “fraud or deceit.” See Ki Se Lee, 368
F.3d at 226 (Alito, J., dissenting) (“ ‘Fraud’ or ‘deceit’ is a
necessary element of 26 U.S.C. § 7206(1) . . . .”).
Moreover, the record of conviction establishes that the
offense for which Mr. Kawashima was convicted resulted in
a loss to the government of more than $10,000. Specifically,
12514 KAWASHIMA v. GONZALES
Mr. Kawashima stipulated in the plea agreement that the
“total actual tax loss” was $245,126.
[7] Based on the evidence available to us in the record of
conviction, we conclude that Mr. Kawashima’s conviction
under § 7206(1) constitutes an aggravated felony as described
in subsection (M)(i) because it involved “fraud or deceit” and
because his offense resulted in a loss to the government in
excess of $10,000. Accordingly, we deny Mr. Kawashima’s
petition for review of the BIA’s affirmance of the IJ’s order.
2
[8] The record of conviction in Mrs. Kawashima’s case
establishes that she was convicted of aiding and assisting in
the preparation of a false tax return, in violation of § 7206(2).
That section requires the government to prove the following:
“(1) the defendant aided, assisted, or otherwise caused the
preparation and presentation of a return; (2) that the return
was fraudulent or false as to a material matter; and (3) the act
of the defendant was willful.” United States v. Salerno, 902
F.2d 1429, 1432 (9th Cir. 1990) (emphasis added). Moreover,
as we observed in Salerno, “[t]he Supreme Court has repeat-
edly held that in order to make out a ‘willful violation’ of sec-
tion 7206(2) the government must prove defendants acted
with specific intent to defraud the government in the enforce-
ment of its tax laws.” Id. Thus, a conviction under § 7206(2)
necessarily “involves fraud or deceit” and therefore satisfies
the first element of an aggravated felony as described in sub-
section (M)(i).
As to the second element, however, the modified categori-
cal approach limits the scope of our review to the record of
conviction to determine whether Mrs. Kawashima’s offense
resulted in a loss to the government in excess of $10,000.
Mrs. Kawashima expressly denied that such loss occurred.
The government produced an information charging Mrs.
Kawashima with violating § 7206(2) and alleging that she
KAWASHIMA v. GONZALES 12515
willfully aided and assisted in her husband’s filing of a false
corporate tax return. The information alleges that the tax
return “did not include substantial income, namely, $76,645
that the corporation received in 1991.” Failure to report
income, however, does not represent the “tax loss” to the gov-
ernment. Thus, the information alone fails to demonstrate that
Mrs. Kawashima’s offense resulted in a tax loss to the gov-
ernment in excess of $10,000.
[9] The government failed to produce any other documents
eligible for our consideration under the modified categorical
approach. The record of conviction lacks any plea agreement,
jury instructions, guilty pleas, transcripts of a plea proceeding,
or the judgment. Nor may this court rely on the loss stipulated
in Mr. Kawashima’s plea agreement for the purpose of estab-
lishing the amount of loss caused by his wife’s offense.
Accordingly, there is no evidence available to us that estab-
lishes that Mrs. Kawashima’s conviction resulted in a tax loss
to the government in excess of $10,000.
The government argues that “it cannot reasonably be
claimed” that the tax loss did not exceed $10,000. In support
of this argument, the government directs our attention to the
Sentencing Guidelines, specifically U.S.S.G. § 2T1.1(c)
(1)(A). That section provides as follows: “If the offense
involving filing a tax return in which gross income was under-
reported, the tax loss shall be treated as equal to 28% of the
unreported gross income (34% if the taxpayer is a corpora-
tion) plus 100% of any false credits claimed against tax,
unless a more accurate determination of the tax loss can be
made.” Id. The government’s reliance on § 2T1.1(c)(1)(A) is
misplaced, however, because the Sentencing Guidelines are
irrelevant to the modified categorical approach Taylor and its
progeny require us to follow in this case. When determining
whether an offense qualifies as an aggravated felony, our
investigation is strictly limited to only the charging document,
a signed plea agreement, jury instructions, guilty pleas, tran-
12516 KAWASHIMA v. GONZALES
scripts of a plea proceeding and the judgment. Nothing more
may be considered.
[10] On the record now before us, under the modified cate-
gorical approach, we cannot conclude that Mrs. Kawashima
committed an offense involving “fraud or deceit” that resulted
in loss to the government in excess of $10,000, as required by
subsection (M)(i).6 The record of conviction in Mrs. Kawashi-
ma’s case consisted only of the information and her admission
of the conviction. Neither document establishes that the tax
loss to the government resulting from her offense exceeded
$10,000. The government failed to carry its burden.
[11] The government contends that we must remand to
afford it another opportunity to compile a record of convic-
tion. Under similar circumstances in Notash v. Gonzales, 427
F.3d 693 (9th Cir. 2005), the government failed to introduce
into the record documents that the court could have examined
under the modified categorical approach. Id. at 699. Without
remanding the case to allow the government to introduce new
evidence or allow the agency to apply the modified categori-
cal approach, we concluded that the government failed to
meet its burden of proving that the petitioner was convicted
of the predicate offense and therefore granted the petition for
review. Id. Here, as in Notash, our precedents clearly estab-
lish the limited number of documents a court may consider
under the modified categorical approach. In such a case, the
government should not have a second bite at the apple.7
6
The government argues that Mrs. Kawashima waived her argument
that her offense did not result in a loss to the government in excess of
$10,000 because she did not dispute the matter in her briefing to this court.
We disagree. The Kawashimas adequately raised the argument in their
opening briefing, arguing that the tax offenses did not constitute aggra-
vated felonies because they did not involve “fraud or deceit in which the
loss to the victim exceeds $10,000.” (emphasis added).
7
The government’s reliance on INS v. Ventura, 537 U.S. 12, 16-18
(2002), in support of remand is misplaced. The Court in Ventura consid-
KAWASHIMA v. GONZALES 12517
Accordingly, we grant Mrs. Kawashima’s petition for review
of the BIA’s affirmance of the IJ’s order and we vacate her
order of removal.
III
Our final task is to determine whether the BIA erred in
denying the Kawashimas’ motion to reopen.8
A
[12] Mr. Kawashima argues that his motion to the BIA was
a special motion pursuant to 8 C.F.R. § 1003.44 to seek sec-
tion 212(c) relief. Section 1003.44 “applies to certain aliens
who formerly were lawful permanent residents, who are sub-
ered an issue on which the BIA had not yet had an opportunity to rule. In
this case, however, the issue of whether Mrs. Kawashima’s conviction was
an aggravated felony was already decided by the BIA. See also
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1133-34 (9th Cir. 2006)
(“Ventura undeniably involved an issue the BIA had not considered . . .
[B]y contrast, whether the offense underlying [the defendant’s] 2003 con-
viction was a crime of domestic violence under federal law is an issue the
BIA has already addressed . . . .”).
8
The government contends that we lack jurisdiction over the Kawashi-
mas’ petition for review of the BIA’s decision, citing 8 U.S.C.
§ 1252(a)(2)(c). That provision strips a court of jurisdiction to review “any
final order of removal against an alien who is removable by reason of hav-
ing committed” certain offenses, including an “aggravated offense.” See
8 U.S.C. § 1252(a)(2)(c); see also id. § 1227(a)(2)(A)(iii). However, the
government’s argument ignores § 1252(a)(2)(D), which provides that,
despite subsection (c), a court remains vested with the jurisdiction to
review “constitutional claims or questions of law raised upon a petition for
review.”
As a threshold matter, the Kawashimas argue that the BIA applied the
incorrect regulation when it determined that their motion was untimely.
Whether the BIA applied the appropriate regulation is decidedly a “ques-
tion of law” over which we retain jurisdiction. See Florez-de Solis v. INS,
796 F.2d 330, 333 (9th Cir. 1986) (“[Petitioner’s] contention that the BIA
applied an incorrect standard is a question of law reviewed de novo.”).
12518 KAWASHIMA v. GONZALES
ject to an administratively final order of deportation or
removal, and who are eligible to apply for relief under former
section 212(c) of the Act and 8 CFR 1212.3 with respect to
convictions obtained by plea agreements reached prior to a
verdict at trial prior to April 1, 1997.” 8 C.F.R. § 1003.44(a).
To obtain relief under this provision, an alien “must file a spe-
cial motion to seek section 212(c) relief on or before April 26,
2005.” Id. § 1003.44(h). Furthermore, the provision imposes
strict procedural requirements. In particular, the alien’s
motion “must contain the notation ‘special motion to seek sec-
tion 212(c) relief.’ ” Id. § 1003.44(f) (emphasis added).
[13] Mr. Kawashima claims that the required notation
appears on page nine of the Kawashimas’ motion. However,
this page fails to contain any of the necessary text. Instead, it
simply quotes 8 C.F.R. § 1003.44(b), which states, among
other things: “Generally, a special motion under this section
to seek section 212(c) relief must establish that the alien . . . .”
This language fails in all respects to comply with the strict
requirements imposed by 8 C.F.R. § 1003.44(h) and was inad-
equate to place the BIA and the district counsel on notice that
Mr. Kawashima intended to make a special motion to seek
section 212(c) relief.
Standing alone, Mr. Kawashima’s failure to include the
precise language required by § 1003.44(h) is a sufficient basis
on which to reject his attempt to construe the Kawashimas’
motion as one seeking section 212(c) relief. Even if it were
not, however, the cover page and first page of the motion state
no less than four times: “Motion to Reopen Proceedings and
Stay Deportation Under Magana-Pizano v. INS.”9 A motion
9
The motion contained no citation to Magana-Pizano, but Mr.
Kawashima might have been referring to our opinion in Magana-Pizano
v. INS, 200 F.3d 603 (9th Cir. 1999). Although that opinion did discuss
§ 212(c) and the Antiterrorism and Effective Death Penalty Act in that
opinion, it did not concern a motion to reopen. In any event, the motion’s
reference to Magana-Pizano does not comply with the requirements
imposed by 8 C.F.R. § 1003.44(f).
KAWASHIMA v. GONZALES 12519
styled in this manner cannot reasonably be spared by text hid-
den in a lengthy quote found on page nine of the brief.
[14] Section 1003.44 does not require mere notice, it
imposes strict procedural requirements to qualify for relief,
including the notation “special motion to seek section 212(c)
relief.” Accordingly, we conclude that the BIA did not err in
applying the 90-day filing deadlines for general motions to
reopen pursuant to 8 C.F.R. § 1003.2(c)(2) and in denying
Mr. Kawashima’s motion to reopen as untimely because it
was filed almost eight months late.10 Therefore, we deny Mr.
Kawashima’s petition for review of the BIA’s denial of the
motion to reopen.
B
Since we have granted Mrs. Kawashima’s petition for
review, we dismiss her petition for review of the BIA’s denial
of her motion to reopen as moot. See Goldeshtein v. INS, 8
F.3d 645, 646 n.1, 650 (9th Cir. 1993) (dismissing as moot
petitioner’s motion to reopen after concluding that the peti-
tioner is not removable because he was not convicted of a
predicate offense involving moral turpitude).
IV
For the foregoing reasons, the petition for review of the
BIA’s affirmance of the IJ’s removal order is DENIED with
respect to Akio Kawashima (04-74313) and GRANTED with
respect to Fusako Kawashima (05-74408). The petition to
10
Pursuant to 8 C.F.R. § 1003.2(c)(2), a general motion to reopen “must
be filed no later than 90 days after the date on which the final administra-
tive decision was rendered in the proceeding sought to be reopened, or on
or before September 30, 1996, whichever is later.” The BIA’s final admin-
sitrative decision upholding the IJ’s order of removal was rendered on
August 16, 2004. The Kawashimas filed their motion to reopen either on
April 26, 2005 (or April 27, 2005), more than eight months after the BIA’s
final decision.
12520 KAWASHIMA v. GONZALES
review the BIA’s denial of the motion to reopen is DENIED
with respect to Akio Kawashima (04-74313) and DIS-
MISSED as MOOT with respect to Fusako Kawashima (05-
74408).