Christopher Rad v. Attorney General United States, 983 F.3d 651

Petitioner Christopher Rad was convicted by a jury of conspiring to violate the CAN‑SPAM Act’s false‑header and false‑domain registration provisions, 18 U.S.C. §§ 1037(a)(3), (a)(4).
At sentencing the district court imposed 35 months on Count I (part of a 71‑month aggregate sentence); the PSR estimated ~$2.9 million in illicit gains but noted victim losses were difficult to determine.
DHS initiated removal proceedings, asserting Rad’s convictions are aggravated felonies under 8 U.S.C. § 1101(a)(43)(M)(i): offenses that involve fraud or deceit and caused victim losses exceeding $10,000.
The BIA affirmed removal by inferring the sentencing court’s Guidelines calculation showed losses >$10,000; the Third Circuit previously remanded for reconsideration, the BIA repeated its reasoning, and Rad filed a second petition.
The Third Circuit held §§ 1037(a)(3) and (a)(4) categorically involve deceit (so the fraud/deceit element satisfied) but vacated the BIA’s loss finding and remanded because the BIA improperly relied on sentencing/GUIDELINES reasoning rather than the INA standards and failed to consider intended losses for conspiracy under subsection U.

Issue	Plaintiff's Argument (Rad)	Defendant's Argument (DHS/BIA)	Held
Whether §§1037(a)(3) & (a)(4) categorically "involve fraud or deceit" for §1101(a)(43)(M)(i)	CAN‑SPAM can criminalize benign anonymity or proxy use; not all covered conduct is deceitful	Provisions target falsification of headers/registrant info and thus necessarily entail deceit	Court: Narrow, norms‑based reading; statutes target material falsification in contexts where accuracy is expected, so they categorically involve deceit — element satisfied
Whether Rad’s convictions reflect victim losses > $10,000 under §1101(a)(43)(M)(i)	BIA wrongly inferred losses from sentencing outcome; sentencing Guidelines differ from INA loss rules; no tethering or clear‑and‑convincing finding	BIA inferred loss >$10k from the district court’s sentence/Guidelines application	Court: Vacated BIA order and remanded — BIA erred by treating Guidelines and INA as coextensive; must assess tethering to convicted conduct, applicable burden, and whether intended losses for conspiracy satisfy the $10k threshold

SEC v. Chenery Corp., 332 U.S. 194 (agency decision judged only by the grounds it invoked)
Kawashima v. Holder, 565 U.S. 478 (equating deceit with falsification, concealment, or cheating)
Nijhawan v. Holder, 557 U.S. 29 (agency may review sentencing‑related materials to assess loss but must apply correct standards)
Moncrieffe v. Holder, 569 U.S. 184 (categorical approach framing)
Johnson v. United States, 559 U.S. 133 (categorical approach methodology)
Singh v. Attorney General, 677 F.3d 503 (distinguishing Sentencing Guidelines relevant conduct from INA loss tethering)
Alaka v. Attorney General, 456 F.3d 88 (sentencing "relevant conduct" vs. INA narrower tethering)
Valansi v. Ashcroft, 278 F.3d 203 (INA uses deceit in the ordinary legal sense: giving a false impression)
Li v. Ashcroft, 389 F.3d 892 (conspiracy/attempt can count based on intended losses)
Ljutica v. Holder, 588 F.3d 119 (recognizing intended loss may satisfy aggravated‑felony conspiracy loss element)
Corley v. United States, 556 U.S. 303 (avoid interpretations that render statutory words superfluous)
United States v. Kilbride, 584 F.3d 1240 (example of CAN‑SPAM header manipulation prosecution)