Dong Kim v. Eric Holder, Jr., No. 10-60714 (5th Cir. 2011)
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Case: 10-60714 Document: 00511512330 Page: 1 Date Filed: 06/17/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-60714 Summary Calendar June 17, 2011 Lyle W. Cayce Clerk DONG CHOL KIM, Petitioner v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent Petitions for Review of Orders of the Board of Immigration Appeals BIA No. A039 772 846 Before KING, DeMOSS, and CLEMENT, Circuit Judges. PER CURIAM:* South Korean native and citizen Dong Chol Kim petitions this court for review of an order of the Board of Immigration Appeals (BIA) concluding that he was removable because his conviction for making a false statement on an income tax return in violation of 26 U.S.C. § 7206(1) qualified as an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(a)(43)(M). Kim concedes that a § 7206(1) offense may qualify as an aggravated felony for immigration purposes, but he contends that the Government failed to carry its burden of * Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4. Case: 10-60714 Document: 00511512330 Page: 2 Date Filed: 06/17/2011 No. 10-60714 proving that his § 7206(1) offense involved a loss of more than $10,000. Our review of the record controverts this assertion. The record contains the indictment and judgment for Kim s offense, which establish that the actual loss was $54,232. Because the indictment charged both Kim and his wife, Kim contends that the government has failed to establish the amount of the loss that is attributable solely to Kim. However, spouses who file a joint tax return, such as Kim and his wife, are jointly and severally liable. See 26 U.S.C. § 6013(d)(3); Cheshire v. Comm r of Internal Revenue, 282 F.3d 326, 331 (5th Cir. 2002). So the entire amount is attributable to Kim. The indictment and judgment constitute reasonable, substantial, and probative evidence and show that the Government has established Kim s removability by clear and convincing evidence. See Arguelles-Olivares v. Mukasey, 526 F.3d 171, 178 (5th Cir. 2008). The petition for review is DENIED. 2
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