FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AKIO KAWASHIMA; FUSAKO 

KAWASHIMA,

No. 04-74313 Petitioners,

Agency Nos. v. 

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

A38-554-591 ALBERTO R. GONZALES, Attorney

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
COUNSEL

Judith L. Wood, Law Offices of Judith L. Wood, Los Angeles, 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, Washington, DC, argued the cause for the respondent; Peter D. Keisler, 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’ convictions for subscribing to a false statement on a tax return and

12506 KAWASHIMA v. GONZALES
for aiding and assisting in the preparation of a false tax return

qualify as “aggravated felonies” under the relevant immigration 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 government, exceeded $10,000, and that the Kawashimas were

subject to removal because their convictions qualified as “aggravated 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. Accordingly, the IJ found the Kawashimas removable, denied their

motion to terminate the proceedings, and ordered that they be

removed to Japan. 

1We refer to Akio as Mr. Kawashima and Fusako as Mrs. Kawashima.

We refer to Akio and Fusako collectively as the “Kawashimas.” 

2On 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.” 

KAWASHIMA v. GONZALES 12507
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 further 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 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)(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

12508 KAWASHIMA v. GONZALES
(M)(i).3

 The Kawashimas argue that subsection (M)(i) is inapplicable in this case, reasoning that subsection (M)(ii)’s specific reference to § 7201 indicates Congress’s intent to

exclude all federal tax offenses from the definition of aggravated 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 felony. First, the offense must “involve fraud or deceit.” Second,

the “loss to the victim or victims” must exceed $10,000. Ferreira 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 subsection (M)(i). Thus, according to the plain meaning of the statutory language, convictions for violating §§ 7206(1) and (2) in

which the tax loss to the government exceeds $10,000 constitute aggravated felonies under subsection (M)(i). And because

such interpretation does not lead to an absurd or unreasonable

result, our inquiry must end.4

3The 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). 

4United 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 omitted)). 

KAWASHIMA v. GONZALES 12509
[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 interpreted 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 reasoned 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

5The 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). 

12510 KAWASHIMA v. GONZALES
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 statute’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, subsection (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 important 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 subsection (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. 

KAWASHIMA v. GONZALES 12511
[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 internal 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 categorical approach, we conduct a “limited examination of documents in the ‘record of conviction.’ ” Id. (quoting Chang v.

INS, 307 F.3d 1185, 1189 (9th Cir.2002)). Upon this examination, 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 documents 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

12512 KAWASHIMA v. GONZALES
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 burden of proving that the defendant committed an aggravated

felony. Id.

[5] The conduct proscribed by §§ 7206(1) and (2), the statutes 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. Ashcroft, 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, statement, or other document subscribed by the defendant contained 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 subscribed 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,

KAWASHIMA v. GONZALES 12513
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 repeatedly held that in order to make out a ‘willful violation’ of section 7206(2) the government must prove defendants acted

with specific intent to defraud the government in the enforcement 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 subsection (M)(i). 

As to the second element, however, the modified categorical 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

12514 KAWASHIMA v. GONZALES
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 government. Thus, the information alone fails to demonstrate that

Mrs. Kawashima’s offense resulted in a tax loss to the government 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 establishing the amount of loss caused by his wife’s offense.

Accordingly, there is no evidence available to us that establishes 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 underreported, the tax loss shall be treated as equal to 28% of the

unreported gross income (34% if the taxpayer is a corporation) 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, tranKAWASHIMA v. GONZALES 12515
scripts of a plea proceeding and the judgment. Nothing more

may be considered. 

[10] On the record now before us, under the modified categorical 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. Kawashima’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 conviction. 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 categorical 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 establish 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

6The 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 aggravated felonies because they did not involve “fraud or deceit in which the

loss to the victim exceeds $10,000.” (emphasis added). 

7The government’s reliance on INS v. Ventura, 537 U.S. 12, 16-18

(2002), in support of remand is misplaced. The Court in Ventura consid12516 KAWASHIMA v. GONZALES
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 section 212(c) relief. Section 1003.44 “applies to certain aliens

who formerly were lawful permanent residents, who are subered 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 conviction was a crime of domestic violence under federal law is an issue the

BIA has already addressed . . . .”). 

8The government contends that we lack jurisdiction over the Kawashimas’ 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 having 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 “question 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.”). 

KAWASHIMA v. GONZALES 12517
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 special 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 section 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 inadequate 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

9The 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). 

12518 KAWASHIMA v. GONZALES
styled in this manner cannot reasonably be spared by text hidden 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 petitioner 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

10Pursuant 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 administrative decision was rendered in the proceeding sought to be reopened, or on

or before September 30, 1996, whichever is later.” The BIA’s final adminsitrative 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. 

KAWASHIMA v. GONZALES 12519
review the BIA’s denial of the motion to reopen is DENIED

with respect to Akio Kawashima (04-74313) and DISMISSED as MOOT with respect to Fusako Kawashima (05-

74408).

12520 KAWASHIMA v. GONZALES