Doe v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 10-2272

____________

JOHN DOE,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________

On Petition for Review from the Board of Immigration

Appeals

BIA-1 No. A071-154-580

Immigration Judge: The Honorable Andrew Arthur

____________

Argued

July 12, 2011

Before: RENDELL, SMITH, and FISHER, Circuit Judges

(Filed: September 8, 2011)

1

Justin Conlon (Argued)

Law Offices of Justin Conlon

605 Washington Avenue

P.O. Box 304

North Haven, CT 06473

Counsel for Petitioner

John M. McAdams, Jr.

Jennifer P. Williams

Lindsay W. Zimliki (Argued)

United States Department of Justice

Office of Immigration Litigation

Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

____________

OPINION

____________

SMITH, Circuit Judge.

Petitioner Igor Rodov has been admitted to the United

States as a lawful permanent resident, and he would like to

remain here. The government wants to remove him from the

country, citing his conviction for aiding and abetting a wire

fraud scheme that cost its victims more than $120,000. The

2

Board of Immigration Appeals sided with the government, and

Rodov seeks review in this court.

I

Rodov (who identifies himself by name throughout his

unsealed court filings, notwithstanding the desire for anonymity

suggested by the case caption) was first admitted to the United

States in 1998 as a refugee from Belarus, where he had been

threatened by anti-Semitism. He became a lawful permanent

resident in 2001. In 2007, he returned to the States from a trip

abroad, only to discover that he was subject to an arrest warrant

arising out of his association with a wire fraud scheme. The

government released him into the country, but did not formally

“admit” him. Rather, the Department of Homeland Security

(DHS) purported to “parole” him into the country, pursuant to 8

U.S.C. § 1182(d)(5)(A), for the purpose of prosecuting him.

The investigation into Rodov’s criminal activities

eventually resulted in a plea agreement. Rodov waived his right

to an indictment; a one-count information filed in the United

States District Court for the District of Connecticut charged him

with aiding and abetting wire fraud in violation of 18 U.S.C. §§

2 and 1343. He pled guilty on February 29, 2008. The plea

agreement (supplemented by an attached “Stipulation of Offense

Conduct”) set out the particulars of his crime: Between January

and November of 2006, Rodov opened several bank accounts in

his own name. A third party (identified only as “John Doe”)

then proceeded to deposit fraudulently obtained tax refunds in

Rodov’s accounts. Rodov admitted that he had reason to believe

that the funds were of criminal origin, and that he had

3

knowingly and intentionally aided and abetted the wire fraud.

Both the information and the stipulation identify a single use of

the interstate wires in furtherance of the scheme: On June 16,

2006, John Doe knowingly caused a $6,447 tax refund to be

wired into Rodov’s Bank of America account. The stipulation

goes on to state that “the loss amount attributable to the

defendant through his participation in the aforementioned

scheme and artifice to defraud was more than $120,000, but less

than $200,000.” Following entry of Rodov’s guilty plea, Judge

Burns sentenced him to 12 months’ incarceration and three

years’ supervised release, and ordered him to pay $208,214 in

restitution.

DHS thereafter initiated removal proceedings. According

to the government, Rodov is an alien seeking admission into the

United States, and his conviction of a “crime involving moral

turpitude” precludes such admission. See 8 U.S.C. §

1182(a)(2)(A)(i)(I). Rodov responded by asserting that he is

not, in fact, an applicant for admission (but is, rather, a lawful

permanent resident entitled to admission); that cancellation of

his removal is warranted under 8 U.S.C. § 1229b; and that the

Convention Against Torture (CAT) bars the government from

forcing him to return to Belarus. The government replied that

because Rodov has committed a crime involving moral

turpitude, 8 U.S.C. § 1101(a)(13)(C)(v) directs that he be treated

as an applicant for admission notwithstanding his permanent

resident status; that his crime is an “aggravated felony” that

renders him ineligible for § 1229b cancellation; and that Rodov

cannot meet the requisites for relief under the CAT.

4

The immigration judge agreed with Rodov. The court

first ruled that Rodov’s crime is not an aggravated felony,

because the information and plea agreement refer only to a

single transaction that caused a loss of less than $10,000. See 8

U.S.C. § 1101(a)(43)(M)(i). In a subsequent decision, the judge

“note[d]” that Rodov was an arriving alien and concluded that

he was removable on account of his conviction. The court

nevertheless cancelled Rodov’s removal, pursuant to § 1229b(a),

after concluding that the balance of various factors weighed in

his favor. The court then, “[a]s an aside,” stated that if it had

needed to reach Rodov’s arguments for asylum and relief under

the CAT, it would have rejected them.

The Board of Immigration Appeals reversed. It held that

the assessment of whether Rodov’s felony was aggravated

depends not on the single $6,447 transfer but instead on the

stipulated total loss of more than $120,000. From this it

followed that Rodov had in fact committed an aggravated

felony, and thus that his removal could not be cancelled under §

1229b. The Board then stated that Rodov was not eligible for

asylum, and concluded that he had not identified any error in the

immigration judge’s evaluation of his CAT arguments. The

BIA thus denied Rodov’s alternative grounds for relief and

declined to remand the case for further consideration.

Rodov petitioned for our review.

5

II

A

Upon Rodov’s arrival at the border in 2007, DHS

purported to parole him for prosecution. The parole statute, 8

U.S.C. § 1182(d)(5)(A), reads (emphasis added):

The Attorney General may, except as provided in

subparagraph (B) or in section 1184(f) of this

title, in his discretion parole into the United States

temporarily under such conditions as he may

prescribe only on a case-by-case basis for urgent

humanitarian reasons or significant public benefit

any alien applying for admission to the United

States, but such parole of such alien shall not be

regarded as an admission of the alien and when

the purposes of such parole shall, in the opinion

of the Attorney General, have been served the

alien shall forthwith return or be returned to the

custody from which he was paroled and thereafter

his case shall continue to be dealt with in the

same manner as that of any other applicant for

admission to the United States.

By its plain terms, this enactment grants the Attorney General

the authority to parole only an “alien applying for admission to

the United States.” At the time he sought entry, however,

Rodov had already been admitted to the country as a lawful

permanent resident. As such, he was presumptively not to be

treated as an “alien applying for admission” (meaning that the

6

Attorney General presumptively lacked the statutory authority to

parole him), because 8 U.S.C. § 1101(a)(13)(C) provides that

“[a]n alien lawfully admitted for permanent residence in the

United States shall not be regarded as seeking an admission into

the United States for purposes of the immigration laws unless”

one of several conditions is met. 1 (We treat as synonymous

“alien applying for admission,” “alien . . . seeking an

admission,” and similar terms.)

1

In the instant proceeding, DHS seeks Rodov’s removal

because he is inadmissible—another action that the government is not

ordinarily empowered to take against a lawfully admitted permanent

resident. See Toro-Romero v. Ashcroft, 382 F.3d 930, 936 (9th Cir.

2004) (noting the distinction between aliens who are inadmissible

under 8 U.S.C. § 1182, and those who are admitted but deportable

pursuant to 8 U.S.C. § 1227). Thus the entirety of this proceeding is

premised on the notion that Rodov has been an “alien applying for

admission” since his last, fateful attempt to enter the country.

Our dissenting colleague agrees that we should deny the

petition seeking cancellation of removal, but we do not fully

understand her reasoning. Assuming arguendo that she is correct and

that the immigration official at the border possessed insufficient

evidence to conclude that Rodov had “committed” his offense at the

time he sought reentry, then he should have been freely admitted

rather than paroled. To remove him after his conviction, DHS would

have been required to initiate deportation proceedings, which it has

not done. All we have is an inadmissibility proceeding, which is

invalid in toto if Rodov is an admitted lawful permanent resident.

Thus if she is correct about the construction of the word “committed,”

we think our colleague ought to argue that the entire removal

proceeding should be declared void—at which point DHS could

immediately seek Rodov’s deportation in a separate removal action.

7

Of those conditions, only the fifth is potentially

applicable. With exceptions not relevant here, it allows the

government to regard a lawful permanent resident as an “alien . .

. seeking an admission” if he “has committed an offense

identified in [8 U.S.C. §] 1182(a)(2).” 2 8 U.S.C. §

1101(a)(13)(C)(v). Whether or not Rodov could be paroled thus

depended on whether he had “committed” an enumerated crime

at the time the government sought to parole him. The

government must have made its decision on this question at the

border, for due process would have prohibited it from stripping

a lawful permanent resident of his protected status at that time

and only determining that its action was legally permitted at

some later date. DHS’s representatives were therefore required

to determine whether or not there was adequate evidence that

Rodov had “committed” his crime when he arrived at his point

of entry, well before he had been convicted, or even formally

charged.

Rodov argues that DHS cannot have made such a

determination without a record of a conviction. Because there

2

There can be no dispute that the crime for which Rodov was

under investigation (and of which he was later convicted) is one of

those identified in § 1182(a)(2). That section specifies, inter alia,

“crimes involving moral turpitude” as one of several criminal grounds

for a declaration of inadmissibility, and fraud is universally

recognized as being such a crime. See, e.g., Jordan v. De George,

341 U.S. 223, 232 (1951) (“Whatever else the phrase ‘crime

involving moral turpitude’ may mean in peripheral cases, the decided

cases make it plain that crimes in which fraud was an ingredient have

always been regarded as involving moral turpitude.”); Ghani v.

Holder, 557 F.3d 836, 840 (7th Cir. 2009).

8

was no such record, he says, DHS cannot have validly regarded

him as an applicant for admission, and was instead required to

admit him into the country without strings attached. The

problem with this argument is that subsection (v) does not say

“convicted.” The choice of the word “committed,” rather than

“convicted,” is significant. 3 Had Congress wished to require a

conviction (a term it took some care to define, see 8 U.S.C. §

1101(a)(48)), it would have said so. Note, for instance, that 8

U.S.C. § 1182(a)(2)(A)(i) acknowledges the distinctions

between an alien who has been “convicted of” an offense, one

“who admits having committed” an offense, and one “who

admits committing acts which constitute the essential elements

of” an offense. Section 1182(a)(2)(A)(i) also demonstrates that

Congress could have chosen a broad but precise phrase like “any

alien convicted of, or who admits having committed, or who

admits committing acts which constitute the essential elements

of,” if it had wished to do so. It instead selected “committed,” a

distinct term in need of construction.

It seems likely that Congress had in mind situations akin

to that which is now before the court when it wrote the statute.

A permanent resident who has been convicted of one of the

enumerated crimes has probably already lost his “lawful” status

as a consequence (the criminal grounds for inadmissibility listed

in § 1182(a)(2) parallel the criminal grounds for deportability

under § 1227(a)(2)(A)), so a statute permitting the state to

regard him accordingly would be redundant. In addition,

subsection (iii)—covering aliens who have “engaged in illegal

3

The legislative history does not explain the choice. See S.

Rep. No. 82-1137, at 4 (1952).

9

activity after having departed the United States”—parallels

subsection (v) and clearly does not require a conviction. The

choice of “committed” is of a piece with the choice of “engaged

in.” Seen in this light, the statute’s text indicates that the

government is not required to show a conviction.

The question then becomes: What sort of showing must

be made before the government may conclude, for purposes of a

parole determination, that an alien has “committed” a crime,

and, accordingly, regard him as an applicant for admission? The

word “committed” does not contain or imply a burden of proof:

“to commit” means only “to perpetrate”; a “commission” is “the

act of doing or perpetrating.” Black’s Law Dictionary (9th ed.

2009). The word describes only historical events, and does not

say anything about what evidence exists or what a third party

knows.

The balance of the statute does not specify either who

bears the burden of proof, or how heavy that burden is. The

Immigration and Nationality Act contains a section concerning

burdens of proof at removal proceedings, 8 U.S.C. § 1229a(c),

but it is not helpful. Subsection (c)(2)(B) provides that an alien

claiming lawful permanent resident status has the burden of

proving, “by clear and convincing evidence, that [he] is lawfully

present in the United States pursuant to a prior admission,” but

there is no dispute that Rodov fit that description at the time he

attempted to reenter the country. Subsection (c)(2)(A) provides

that an applicant must establish, “clearly and beyond doubt,”

that he is entitled to admission, but this does not apply to the

predicate question of whether the alien is an applicant. While

we suppose that it could be argued that one of these subsections

10

should apply here, absent an explicit textual basis we will not

require a person to prove that he has not committed an offense

in order to ensure that he is treated in a manner consistent with

his lawful permanent resident status—particularly since the

preamble to § 1101(a)(13)(C) indicates that a permanent

resident is presumptively to be regarded as such.

Another subpart of the burden-of-proof statute, §

1229a(c)(3)(A), directs that “the Service has the burden of

establishing by clear and convincing evidence that, in the case of

an alien who has been admitted to the United States, the alien is

deportable.” This section too is not by its text applicable here:

the question is not whether Rodov is deportable, but whether he

should have been treated as an “alien who has been admitted to

the United States” when he sought to enter the country.

Subsection (c)(3)(B) lists several documents that the

government may use to prove that an alien has been convicted of

a crime, but as explained above we do not think that the statute

requires that a conviction be proved.

There is a hole in the Immigration and Naturalization

Act: it requires an immigration officer to determine whether an

arriving lawful permanent resident has committed a crime, but

omits mention of how the officer is to do so. Obviously, some

burden of proof must be met, and we think it necessary to

prescribe one as a matter of federal common law. “A federal

court has the power ‘to declare, as a matter of common law or

‘judicial legislation,’ rules which may be necessary to fill in

interstitially or otherwise effectuate the statutory patterns

enacted in the large by Congress.’” Cunningham v. R.R. Ret.

Bd., 392 F.3d 567, 575 (3d Cir. 2004) (quoting United States v.

11

Little Lake Misere Land Co., 412 U.S. 580, 593 (1973)). To our

knowledge, no other federal court of appeals has addressed this

question, so we are left to infer the correct rule from the

statute’s purposes, understood in light of general legal

principles. One such principle, suggested above, is that a party

is not ordinarily required to prove a negative: we do not think

that an alien should have to present evidence that he has not

committed a crime in order to avert adverse government action.

The burden thus must be on the government. But how heavy is

it? Here we are informed by the legislatively and

administratively prescribed procedure. The initial decision

whether to treat a permanent resident as an alien seeking

admission is made by an immigration officer working at the

alien’s point of arrival in the country. See 8 C.F.R. §

1235.3(b)(5)(ii). There is no hearing, and no neutral arbiter who

can be entrusted to assess whether the available evidence is

sufficient to satisfy a “preponderance” or “clear and convincing”

standard. An elevated standard would also invite a comparison

of the government’s evidence against that proffered by the alien-

defendant; but a person who has not been charged, and who may

not even be aware that he is the subject of a criminal

investigation, will not have had the opportunity to retain counsel

or develop a defense. And one of the purposes of the provision

allowing an arriving permanent resident to be treated as an

applicant for admission appears to have been to permit the

government to invoke procedures like § 1182(d)(5) parole—

including parole for purposes of prosecution. Requiring that the

government develop evidence sufficient to win its case before it

can take the step of paroling a person for prosecution would

make little sense.

12

At the same time, revoking a person’s lawful-resident

status entails restraints on the rights and privileges that he had

previously enjoyed. General due process principles therefore

counsel that something more than an immigration officer’s say-

so must be required. With that in mind, we think the proper

standard to employ here is probable cause to believe that the

alien has committed one of the crimes identified in 8 U.S.C. §

1182(a)(2). Ordinary procedures, familiar to anyone with a

passing knowledge of criminal law and procedure, should be

followed in determining whether probable cause exists: Where

a warrant has issued for the alien’s arrest on suspicion of the

commission of one of the enumerated crimes, probable cause

will be presumed. Where such a warrant has not issued,

treatment of the arriving alien as an applicant for admission

rather than as a permanent resident will be contingent on a

judge’s (or a magistrate’s) assessment of the proffered basis for

believing probable cause to exist. And, of course, if it becomes

apparent at some later point that probable cause no longer exists,

the government may no longer “regard[]” the lawful permanent

resident as an applicant for admission. Cf., e.g., Cannon v.

Macon Cnty., 1 F.3d 1558, 1563 (11th Cir. 1993) (holding that a

detainee has a constitutional right to be released from

confinement “after it was or should have been known that [he]

was entitled to release”).

It follows from this holding that, at the time Rodov

sought re-entry into the United States, the government possessed

sufficient evidence to establish that he had “committed” the

crime of aiding and abetting wire fraud for purposes of §

1182(a)(13)(C)(v). There was by that time an outstanding

warrant for Rodov’s arrest, and he has never challenged its

13

validity—thus implicitly conceding that probable cause existed.4

Accordingly, DHS was permitted to regard him as an applicant

for admission, to parole him for purposes of prosecution, and to

seek his removal as an inadmissible alien (rather than as a

deportable permanent resident).

Although we have reached the result sought by the

government, we believe it necessary to consider the position that

the Attorney General has advanced in his briefing and at oral

argument. According to the government, there is no need for us

to concern ourselves with the burden-of-proof question, because

DHS was permitted to parole Rodov into the country for

prosecution irrespective of whether he is an alien seeking

4

Contra our colleague’s suggestion, an unchallenged and

presumptively valid arrest warrant certainly does imply the existence

of “some evidence that the crime has taken place.” Post, at 9

(emphasis removed). A warrant issues only when a “neutral and

detached magistrate” is satisfied that probable cause exists, Johnson

v. United States, 333 U.S. 10, 14 (1948), which means that he has

been shown evidence “sufficient to warrant a prudent man in

believing that the petitioner had committed or was committing an

offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). See also, e.g.,

Schneyder v. Smith, --- F.3d ---, 2011 WL 3211504, *7 (3d Cir. July

29, 2011) (“For probable cause to exist, the evidence available must

provide police or the warrant-issuing magistrate with reasonable

grounds to believe that the person to be arrested is guilty of a

crime.”). Although the immigration official who paroled Rodov into

the country probably did not have before him all of the evidence with

which the government established probable cause to believe that he

had aided and abetted wire fraud, the arrest warrant was more than a

sufficient proxy.

14

admission or a lawful permanent resident. And because the

decision to parole an alien is, according to the Attorney General,

committed to his essentially unreviewable discretion, we lack

jurisdiction to review his decision. If this were true, counsel’s

infelicitous description of parole as a legal “black hole” from

which there is no prospect of escape except through an act of

executive grace would be fairly accurate—though it might also

be subject to serious due process challenge. But for reasons

suggested above, the government’s position is quite obviously

contrary to the plain language of the statutes that are in play

here. Section 1182(d)(5)(A) grants discretion to order parole

only of “alien[s] applying for admission to the United States,”

and § 1101(a)(13)(C) provides that a lawful permanent resident

“shall not be regarded as seeking an admission” unless one of

several conditions (including commission of a designated

offense) is met. The Attorney General is not empowered to

finally decide whether any of those six prerequisites is satisfied.

Whether one of them has been established is a legal question

subject to our review in the same manner as other analogous

determinations—for instance, if Rodov had contested the issue,

we would have assessed the probable cause question just as

though this were a criminal appeal. Because the statutes do not

grant the Attorney General discretion regarding parole unless

and until one of the conditions enumerated in § 1101(a)(13)(C)

is satisfied, his claim that we are without jurisdiction to review

this predicate issue rings hollow.

The government cites two BIA decisions, In re

Badalamenti, 19 I. & N. Dec. 623, 626 (B.I.A. 1988), and In re

Accardi, 14 I. & N. Dec. 367, 368–69 (B.I.A. 1973), for the

proposition that parole is not limited to applicants for admission.

15

Although the BIA’s interpretation of a statute within its

enforcement jurisdiction is entitled to Chevron deference, see

En Hui Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010),

that rule of interpretation does not apply unless the statute is

ambiguous. Roth v. Norfalco LLC, --- F.3d --- (3d Cir. 2011)

(citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 844 (1984)). Whatever the merits of the BIA’s

interpretation as regards Messrs. Badalamenti and Accardi

(neither was a citizen or lawful permanent resident; both had

been brought to the country involuntarily for the specific

purpose of prosecution), it unambiguously does not have any

application to a person in Rodov’s position, whose rights as a

permanent resident had vested subject only to a limited set of

conditions. The Attorney General’s effort to dodge the burden-

of-proof issue is thus futile, and counsel’s conspicuous decision

not to address it (despite the fact that Rodov raised it in his

opening brief, at 43–46) has left us with access to only one side

of the argument. Suffice it to say that the government has not

been helpful.

B

Rodov next argues that the government should be

equitably estopped from treating him as an arriving alien, even if

the statutes permit it. Although labeled “estoppel,” this claim is

really in the nature of a due process complaint. See Rodov Br.

54 (“The petitioner submits that [the equitable estoppel]

requirements should not be applied in the case at bar because the

nature of his due process/equitable estoppel claim does not

relate to an affirmative misrepresentation made by the

Government, as is often done, but instead relates to procedural

16

manipulation by the Government to make removal of the

petitioner easier.”). In support, Rodov cites Doggett v. United

States, 505 U.S. 647, 656 (1992), and United States v. Marion,

404 U.S. 307, 324 (1971), for the notion that the government

cannot manipulate procedure to gain a tactical advantage in

litigation. In both of those cases, the government conceded that

intentional, bad-faith, and prejudicial delays in moving forward

with a prosecution would implicate constitutional guarantees.

Neither case is directly applicable here (Rodov’s argument

concerns not delays but the statutorily-authorized decision to

treat him as an applicant for admission), and Rodov has not

presented a compelling case for the fairly extravagant

interpretation of their holdings that he wishes us to adopt. At

least in the absence of an argument more substantial than those

with which we are today presented, we cannot conclude that the

Attorney General’s invocation of statutorily-authorized

procedural devices violates the Due Process Clause.

III

Having concluded that Rodov was properly regarded as

an applicant for admission, we now turn to the merits of the

BIA’s order that he be removed from the country as an

inadmissible alien. The primary question here is whether the

crime to which Rodov pled guilty is an “aggravated felony” for

purposes of the immigration laws. If so, Rodov is ineligible to

have his removal cancelled, and the BIA’s reversal of the

immigration judge’s cancellation order must be affirmed.

Because Rodov’s offense (aiding and abetting wire fraud)

clearly “involves fraud or deceit,” it qualifies as an “aggravated

17

felony” if “the loss to the victim or victims exceeds $10,000.” 8

U.S.C. § 1101(a)(43)(M)(i).

The usual approach to deciding whether a crime is an

aggravated felony is to look only at the elements and nature of

the offense in question, without considering the particular facts

underlying the conviction. See Leocal v. Ashcroft, 543 U.S. 1, 7

(2004). But “where, as here, ‘a statute criminalizes different

kinds of conduct, some of which would constitute [aggravated

felonies] while others would not, the court must apply a

modified categorical approach by which a court may look

beyond the statutory elements to determine” whether the alien

was actually convicted of an aggravated felony. Restrepo v.

Att’y Gen., 617 F.3d 787, 791 (3d Cir. 2010) (quoting United

States v. Stinson, 592 F.3d 460, 462 (3d Cir. 2010)) (alteration

in original); Nijhawan v. Holder, 129 S. Ct. 2294, 2302 (2009)).

The wire fraud statute, 18 U.S.C. § 1343, makes no distinctions

on the basis of the amount of loss, so we must look to the

specific facts of this case to determine whether the relevant loss

amount exceeds the $10,000 threshold. Rodov argues that his

crime does not clear this bar, because the plea agreement

specifically identifies as the basis for his conviction only a

single specific transaction in the amount of $6,447. The

government responds by pointing out that the plea agreement

stipulated that Rodov was personally responsible for causing a

loss of more than $120,000.

We agree in principle with Rodov’s assertion that a court

assessing whether a felony is aggravated must limit itself to

consideration of “the loss ‘tethered’ to the alien’s specific

offense of conviction.” Rodov Br. 29–30 (citing Alaka v. Att’y

18

Gen., 456 F.3d 88, 105–07 (3d Cir. 2006); Nijhawan, 129 S. Ct.

at 2303). Indeed, that rule is dictated by Alaka, a case in which

the petitioning alien had pled guilty to one of three counts of

aiding and abetting bank fraud. Although the overall scheme

caused a total of $47,969 in losses, the guilty plea identified just

a single act—with respect to which the loss was only $4,716.68.

See 456 F.3d at 92, 107. Focusing on the particular contents of

the plea agreement (rather than the indictment or the sentence),

we held that “it was legal error for the IJ to consider the amount

of intended loss for all of the charges rather than the single

count for which she was convicted.” Id. at 106.

We then noted the possible existence of an “exception to

the strict emphasis on the plea agreement,” id. at 108, arising out

of the Tenth Circuit’s opinion in Khalayleh v. INS, 287 F.3d 978

(10th Cir. 2002). That case involved a resident alien who had

pled guilty to one count of a four-count indictment alleging the

use of four insufficient-funds checks to defraud a bank. The

specific count to which he pled guilty involved a check in the

amount of $9,308, but the total actual loss resulting from the

four checks exceeded $24,000. The Tenth Circuit

acknowledged that if each of the counts had been a distinct

crime, the petitioner would have been able to argue that only the

one giving rise to the guilty plea was relevant to the

determination of whether his felony was aggravated. Id. at 980.

The court concluded, however, that:

Count Two of the indictment did not allege a

discrete fraud involving only the $9,308 check. It

alleged a scheme to defraud that encompassed a

number of checks. . . . The “offense” of

19

conviction was the entire scheme charged in

Count Two of the indictment. Hence, the “loss”

to be measured is the loss resulting from that

scheme.

Id. Because it was the overall scheme that mattered, and not the

individual check, the court counted the entire $24,000 loss

amount and concluded that the crime in question was an

aggravated felony. Id.

While the Alaka panel described the Tenth Circuit’s

approach, we did not express an opinion on its merits. We did

not address the question whether Alaka’s crimes were all part of

a common scheme, though we did state that our holding was

“not affected by the District Court’s conclusion, for sentencing

purposes, that Alaka’s conduct as to the dismissed charges was

‘part of a common scheme or plan as the offense of

conviction.’” 456 F.3d at 108.

This case does not require us to consider whether

Khalayleh’s approach is the law of this circuit. Rodov did not

plead guilty to a single discrete act of accepting a $6,447

transfer. He admitted to aiding and abetting the entire scheme.

In the section of his plea agreement discussing the nature and

elements of his offense, Rodov admitted to knowingly and

intentionally aiding and abetting a plan to obtain money via

fraudulent pretenses, using the interstate wires. That section

makes no mention of any specific transaction: it refers to the

entire scheme as the underlying crime which Rodov admitted to

aiding and abetting. Furthermore, the “Stipulation of Offense

Conduct” specifies that Rodov aided and abetted the fraud by

20

“opening several bank accounts in his personal name with local

banking institutions,” into which John Doe caused a number of

fraudulent tax refunds to be deposited. And, of course, the

stipulation also indicates that Rodov’s conduct caused between

$120,000 and $200,000 in losses. Taking these terms of the plea

agreement together, it is plain that Rodov was convicted of

aiding and abetting the entire fraudulent scheme. His admitted

participation was not limited to one $6,447 deposit; that

transaction appears to the court to have been included in the plea

agreement to establish the “use of the interstate wires” element

of the underlying offense. Because Rodov pled guilty not to a

single fraudulent transaction but to aiding and abetting the

whole of a large-scale criminal endeavor, there is no need to

decide whether conduct outside the specific offense of

conviction can be pertinent to the aggravated felony

determination. Rodov was in fact convicted of committing all of

the relevant conduct. The BIA’s conclusion that his crime

constituted an aggravated felony was correct.

IV

Rodov’s final argument to the immigration judge was

that he is entitled to asylum, withholding of removal, and

protection under the Convention Against Torture. Because the

immigration judge (erroneously, as it turns out) granted his

request for cancellation of removal on other grounds, there was

no need for him to address the CAT questions. The court

nevertheless stated “as an aside” that, “if it were to consider the

respondent’s application for asylum it would deny that

application,” as well as the request for withholding of removal

under the CAT. The BIA correctly reversed the immigration

21

judge’s cancellation of Rodov’s removal on the basis of his

conviction of an aggravated felony, and then went on to reject

his contentions under the CAT. On appeal to this court, Rodov

argues that the BIA should have remanded his case to the

immigration judge for a decision on his CAT arguments.

Given the immigration judge’s prior statements, Rodov’s

CAT requests are likely to go unfulfilled. However, we must

conclude that proper procedure requires us to remand the case to

the immigration judge. The BIA’s jurisdiction is limited to

“[d]ecisions,” see 8 C.F.R. § 1003.1(b), and the immigration

judge explicitly did not decide the CAT questions, see App. 162,

339–40. Thus the BIA lacked jurisdiction to address Rodov’s

CAT arguments, and the case must be remanded so that the

immigration judge can address them in the first instance.

V

For the reasons set forth above, we will deny the petition

for review in part, affirming the BIA’s decision in all respects

except with regard to Rodov’s CAT claims. We will grant the

petition with respect to the BIA’s statements concerning the

CAT, vacating those statements insofar as they constitute an

order. We will remand the case to the immigration court for the

limited purpose of deciding the CAT questions.

22

RENDELL, Circuit Judge – concurring in part and dissenting

in part.

I.

I agree with the majority’s rulings on most of the

issues in this appeal, including its decision to affirm the

BIA’s denial of Rodov’s application for asylum and

withholding of removal, and to remand the case to the

immigration judge to decide whether Rodov is entitled to

protection under the Convention Against Torture. In

particular, I agree with the majority’s analysis of the statutory

provisions governing the timing of the immigration officials’

determination of whether a returning lawful permanent

resident (“LPR”) has “committed” an offense. However, I

cannot agree with the majority’s view as to what that

determination should be based on. The majority concludes

that, for the purposes of 8 U.S.C. § 1101(a)(13)(C)(v), the

mere existence of an arrest warrant was sufficient to establish

that Rodov had “committed” the relevant offense. In so

concluding, the majority disregards the true meaning of the

term, “committed,” and improperly lowers the bar regarding

the evidence needed for officials at the point of entry to find

that Rodov “committed” a crime. 1 This is a significant issue

of first impression and an important one for returning LPRs.

While probable cause for an arrest warrant may be sufficient

to show the likelihood of commission, it does not provide any

proof whatsoever that the alien has indeed committed an

1

The BIA failed entirely to grapple with this issue, concluding

without analysis that, because Rodov later pled guilty to a

fraud offense, he had “committed” that offense at the time he

sought admission to the United States.

1

offense. I think that more is required to establish commission

under 8 U.S.C. § 1101(a)(13)(C)(v) than probable cause to

believe an alien has committed an offense. Therefore, I

respectfully dissent in part from the majority’s opinion.

Given this, I would reason through the analysis as

follows. First, it was improper for the Government to regard

Rodov as an applicant for admission at the time he sought

reentry because, at that point, there was no evidence

whatsoever—and no admission by Rodov—that he had

“committed” an offense listed in § 1182(a)(2). Thus, under

§ 1101(a)(13)(C), Rodov, an “alien lawfully admitted for

permanent residence,” should not have been regarded as an

“applicant for admission” when he reentered the United

States in 2007, and should not have been paroled. If Rodov

was not seeking admission, then, under 8 U.S.C. § 1227, he

should have been permitted to enter as an LPR.

In order to remove him from the country, the

Government would have to show that he was deportable for a

reason other than “inadmissib[ility] at the time of entry or of

adjustment of status.” 8 U.S.C. § 1227(a)(1). After Rodov

was convicted of aiding and abetting wire fraud in January

2009, the DHS could have issued a Notice to Appear

(“NTA”) charging him as an LPR who was deportable under

INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), which

provides that “[a]ny alien convicted of an aggravated felony

at any time after admission is deportable.” The DHS did

properly find that, because Rodov’s crime constituted an

aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i), he

was not statutorily eligible for cancellation of removal.

Accordingly, were DHS to bring deportation proceedings

2

against him, it would most likely determine him to be

deportable. However, he cannot be excluded as inadmissible.

For the reasons set forth below, however, I disagree

with respect to the majority’s holding as to the threshold issue

it addresses, namely, whether officials at the point of entry

had a sufficient basis for concluding that he had committed an

offense under 8 U.S.C. § 1101(a)(13)(C)(v). I suggest that

they did not.

II.

As the majority explains, 8 U.S.C. § 1101(a)(13)(C)(v)

states that a returning LPR who has “committed” a crime

identified in § 1182(a)(2), including a crime involving moral

turpitude, should be considered an applicant for admission

and thus subject to the various grounds of inadmissibility

included in 8 U.S.C. § 1182. Under the majority’s reading,

the determination that a returning LPR has “committed” a

crime of moral turpitude can be based on the entry officials’

knowledge that there is an outstanding arrest warrant

charging him with such a crime. Because of the lack of

existing caselaw on this issue, the majority establishes this as

a “matter of federal common law.” (Maj. Op. 11). See

Cunningham v. R.R. Ret. Bd., 329 F.3d 567, 575 (3d Cir.

2004) (“A federal court has the power to declare, as a matter

of common law or judicial legislation, rules which may be

necessary to fill in interstitially or otherwise effectuate the

statutory patterns enacted in large by Congress.”) (internal

citation and quotation marks omitted) (quoted in Maj. Op.

11)). In sua sponte setting forth a rule as to the sufficiency of

the evidence for a finding that someone has “committed” a

crime under subsection (v), the majority does little more than

3

ruminate on what standard it thinks is the most fair. As the

majority itself acknowledges, its reading of subsection (v)

assigns the immigration officer stationed at an LPR’s point of

arrival responsibility for determining whether the alien should

be stripped of his LPR status and treated as an applicant for

admission, or should be admitted and processed as an LPR. 2

The lack of due process in such a system, 3 the majority

asserts, calls for a lower burden of proof in determining

whether an LPR has “committed” a crime. Not too low,

however, because “[g]eneral due process principles . . .

counsel that something more than an immigration officer’s

say-so must be required.” (Maj. Op. 13). Striking a

compromise between two extremes—a conviction

requirement, on the one hand, and an immigration officer’s

independent assessment, on the other—the majority settles on

probable cause as the appropriate standard. 4

2

See Maj. Op. 13 (acknowledging that an immigration

officer’s determination at the point of entry that an LPR has

committed a crime of moral turpitude “revok[es] . . . [that]

person’s lawful-resident status,” and, thus, “entails restraints

on the rights and privileges that he had previously enjoyed.”).

3

As the majority points out, when an immigration officer

determines an alien’s admissibility status at the point of entry,

“[t]here is no hearing, and no neutral arbiter who can be

entrusted to assess whether the available evidence is

sufficient to satisfy a ‘preponderance’ or ‘clear and

convincing’ standard.” (Maj. Op. 12).

4

See Maj. Op. 13 (“With [general due process principles] in

mind, we think the proper standard to employ here is probable

4

Neither the majority, nor the BIA in the opinion from

which Rodov has appealed, offers support for the conclusion

that the existence of an arrest warrant, presumably based on

probable cause, is sufficient to establish “commission” of a

crime for the purposes of subsection (v). While the majority

is correct that other Courts of Appeals have not addressed this

exact question, I do not think that the absence of precise

authority on the question merits our formulation of a new,

substantive rule of federal common law. See Carley v.

Wheeled Coach, 991 F.2d 1117, 1128-29 (3d Cir. 1993)

(noting the “well-established principle that rules of federal

common law should be narrowly drawn and imposed only in

rare circumstances where there is a ‘significant conflict’

between a federal interest and the application of state law”);

Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630,

641 (1981) (“Absent some congressional authorization to

formulate substantive rules of decision, federal common law

exists only in such narrow areas as those concerned with the

rights and obligations of the United States, interstate and

international disputes implicating the conflicting rights of

States or our relations with foreign nations, and admiralty

cases.”).

Not only is the promulgation of such a rule uncalled

for, it is actually in conflict with relevant authority as to what

is necessary to prove “commission” of an offense. Existing

caselaw supports the view that more than just probable cause

is needed to find that an alien or LPR has “committed” an

offense. See De Vega v. Gonzales, 503 F.3d 45, 47 (1st Cir.

cause to believe that the alien has committed one of the

crimes identified in 8 U.S.C. § 1182(a)(2).”).

5

2007) (“The relevant category for this case covers LPRs who

have ‘committed an offense identified in section 1182(a)(2),’

meaning those LPRs who have been convicted of, ‘or who

admit[ ] having committed, or who admit[ ] committing acts

which constitute the essential elements of,’ a crime involving

moral turpitude.”) (internal citations omitted)). 5

5

In other cases where LPRs have been regarded as “seeking

admission” and found inadmissible due to having committed

crimes of moral turpitude, they had been convicted of a crime

or did not challenge the “seeking admission” designation.

See, e.g., Alaka v. Att’y Gen., 456 F.3d 88, 92 (3d Cir. 2006)

(at the time she reentered, petitioner had been convicted in the

U.S. for aiding and abetting bank fraud); Nadal-Ginard v.

Holder, 558 F.3d 61, 66 (1st Cir. 2009) (at the time of

attempted reentry, petitioner had been convicted of four

counts of larceny); Singh v. U.S. Dep’t of Homeland Sec., 526

F.3d 72, 76 n.5 (2d Cir. 2008) (the court noted that Singh,

who was found to be inadmissible for committing a crime of

moral turpitude, “was convicted of his offense after he had

applied for admission,” but, because he “does not rely on this

fact as a possible ground for challenging the inadmissibility

ruling . . . any argument to that effect is waived, and we do

not address it.”). But see Oduko v. Immigration &

Naturalization Serv., 2008 WL 1925042 (2d Cir. Apr. 30,

2008). In Oduku, an unpublished opinion, the Second Circuit

ruled that petitioner could properly be regarded as having

“committed” a crime of moral turpitude when, at the time of

his attempted reentry, he had been indicted, but not convicted,

of criminal possession of stolen property. Id. at *1. The

Second Circuit explained, briefly: “Here, the BIA's

interpretation of § 101(a)(13)(C) is reasonable as Congress

selected the term ‘committed’ rather than the term

6

The majority correctly draws attention to the choice of

the word “committed,” instead of “convicted,” in subsection

(v); clearly, “commission” of an offense includes a broader

category of acts than only “conviction.” However, as De

Vega suggests, it is reasonable to read § 1101(a)(13)(C)(v)’s

language—“committed an offense identified in section

1182(a)(2)”—as encompassing the behavior specifically

identified in § 1182(a)(2)(A)(i)(I): conviction of, admission

of committing, or admission of committing essential elements

of, a crime involving moral turpitude. See De Vega, 503 F.3d

at 47. It makes sense to use “committed” rather than

“convicted” in order to include offenses for which aliens have

not been convicted, but which they have admitted to

committing.

The use, and interpretation in the caselaw, of the word

“committed” in sentencing statutes also supports this reading.

When sentencing statutes use the word “committed,” we are

to consider not only the elements of the offense but also

underlying facts and conduct to see if they establish, by a

preponderance of the evidence, that defendant committed an

offense, even if he was not convicted for that offense. In

United States v. Mi Kyung Byun, 539 F.3d 982 (9th Cir.

‘convicted.’ . . . Because Oduko committed the offense

involving moral turpitude prior to his attempted reentry, he

came under the exception in INA § 101(a)(13)(C) and was

properly treated as an arriving alien.” Id. at *2 (internal

citations omitted). However, this authority does not bind us

and, even if it did, the circumstances are distinguishable

because indictment for a crime requires a higher level of

proof than the mere issuance of an arrest warrant.

7

2008), for example, the court was called on to interpret 18

U.S.C. § 2423, which criminalizes transportation of minors

with intent to engage in criminal sexual activity, focusing on

the phrase, “when committed against a minor.” Id. at 985

(quoting 18 U.S.C. § 2423) (emphasis added). The Ninth

Circuit explained that the “use of the word ‘committed,’

rather than ‘convicted’ persuasively indicates that, in

determining whether the victim of Byun’s crime was a minor,

we may consider not only the elements of the crime of which

Byun was convicted but her actual conduct.” Id. at 991. See

also Taylor v. United States, 495 U.S. 575, 600 (1990)

(noting that the use of “convicted” instead of “committed” in

18 U.S.C. § 924, which provides a sentencing enhancement

for a defendant convicted of unlawful possession who has

three prior convictions for violent felonies, indicates that

Congress intended the sentencing court to look to the crimes

for which defendant was convicted, “not to the facts

underlying the prior convictions.”).

In United States v. Charlesworth, 217 F.3d 1155,

1159-60 (9th Cir. 2000), the Ninth Circuit addressed the

question of whether a sentencing judge properly denied the

four-level reduction in U.S.S.G. § 2P1.1, which provides

penalties for escape and instigating or assisting escape from a

prison, based on evidence that a defendant “committed” a

felony. The Ninth Circuit, noting that the term “committed”

should be given its plain meaning, explained that the “use of

the word ‘committed’ . . . suggests that neither a conviction

for a felony nor even an indictment is required.” Id. at 1159.

Rather, the court noted that proof of “uncharged facts or

conduct” that have been established by a preponderance of

the evidence “is sufficient to establish that the defendant

committed a felony in order to preclude the reduction of the

8

sentence under § 2P1.1(b)(3).” Id. See also United States v.

Strachan, 968 F.2d 1161, 1162-63 (11th Cir. 1992) (noting

that, because the sentencing guidelines do not define

“committed,” it must be given its ordinary meaning, and

holding that a district court can deny the reduction under

§ 2P1.1(b)(3) “if a preponderance of the evidence

demonstrates that the defendant committed a disqualifying

offense, even if there has been no formal conviction.”);

United States v. Durham, 178 F.2d 796, 799 (6th Cir. 1999)

(assuming, without directly addressing the question, that §

2P1.1(b)(3) requires neither a conviction nor an indictment in

order to preclude application of the reduction).

While, in interpreting “committed” in the immigration

statute, we do not have the same preponderance standard in

place, the treatment of the word “committed” in the

sentencing context is still instructive. It suggests that, if we

give the word “committed” its plain meaning, 6 it describes

facts or conduct. Perhaps those facts need not be established

by a preponderance of evidence in all statutory contexts, but,

at the time a person can be regarded as having “committed” a

crime, there must be some evidence that the crime has taken

place. The majority equates the type of proof to “historical

events.” (Maj. Op. 10). I agree. Yet, probable cause for an

6

See United States v. Thomas, 315 F.3d 190, 196 (3d Cir.

2002) (“[T]he ‘plain meaning’ is our starting point. We do

not lightly disregard the statutory language.”) (citing

Immigration & Naturalization Serv. v. Elias-Zacarias, 502

U.S. 478, 482 (1992)).

9

arrest does not constitute proof of historical events or the fact

of commission. 7

Even assuming it is appropriate to fashion federal

common law here, I am still skeptical of the majority’s

analysis. To begin with, the definition of “probable cause”

itself casts doubt on the majority’s interpretation. Probable

cause to arrest is present “when the facts and circumstances

within the arresting officer’s knowledge [at the time of the

arrest] are sufficient in themselves to warrant a reasonable

person to believe that an offense has been or is being

committed by the person to be arrested.” Merkle v. Upper

Dublin Sch. Dist., 211 F.3d 782, 788, 789 (3d Cir. 2000)

(citation omitted) (internal quotation marks omitted).

Probable cause to arrest establishes that an officer believes

that an offense has been committed; it is not proof that that

the offense has actually been committed. Importantly, the

statute does not state that the determination is whether the

LPR “may have” committed or even “probably” committed

the offense. The required finding is that he did commit the

offense. The existence of probable cause (assuming the

warrant was so supported) is not proof that the crime was

actually committed. 8

7

See also Black’s Law Dictionary, Entry on “Commission”

(9th ed. 2009) (defining “commission” as “[t]he act of doing

or perpetrating (as a crime).”).

8

While the majority suggests that the Government should not

have to develop evidence before paroling a person, (Maj. Op.

12), the statute requires the Government to make a

determination, and that determination must have an adequate

basis in fact. Surely they could ask him about the warrant or

10

In addition, it seems antithetical to the “general due

process principles” cited by the majority itself that a

determination of an alien’s or LPR’s status using a lowered

burden of proof for commission occurs without any legal

process whatsoever. As noted above, even the majority

acknowledges the absence of process and counsel, and the

significance of the restraints resulting from the determination.

If the absence of the availability of process at the point of

entry means anything at all, it means that more definitive

proof—evidence as to commission, admission, or

conviction—is required for an immigration official to

conclude that someone has “committed” a crime. The

majority misunderstands what a heightened standard—one

requiring, for example, conviction or admission—would

mean in practice. It would not necessitate “a comparison,”

presumably conducted by the immigration official at the point

of entry, “of the government’s evidence against that proffered

by the alien-defendant.” (Maj. Op. 12). To the contrary, the

immigration official could only deem an LPR to be “seeking

admission,” and thus subject to being paroled when he has

some evidence that the LPR actually committed a listed

offense.

Here, there were no statements by the petitioner, nor

any facts known to the airport official that could be

considered evidence that the petitioner had committed the

crime charged. Surely, the mere presence of an arrest warrant

is not enough.

get copy of it and follow up with some investigation before

imposing restraints on him.

11

III.

Ultimately, as noted above, I would reach the same

result as the majority here—that Rodov cannot remain in the

country unless he can prove his CAT claim—but I would

reach this result on the basis that he is deportable under 8

U.S.C. § 1227(a)(2)(A)(iii) because he was convicted of

committing an aggravated felony. I disagree with the

majority’s conclusion that he was an applicant for admission

upon reentry to the U.S. who was later deemed inadmissible

when he was convicted of a crime of moral turpitude, because

probable cause to believe he committed a crime of moral

turpitude does not provide sufficient proof of “commission”

so as to fulfill 8 U.S.C. § 1101(a)(13)(C)(v) and strip him of

his LPR status.

12