Doe v. Attorney General of the United States, 659 F.3d 266

Background

Rodov, a Belarus-born refugee and lawful permanent resident since 2001, was paroled into the U.S. for prosecution after an arrest warrant related to a wire‑fraud scheme.
He pled guilty in 2008 to aiding and abetting wire fraud; the plea and stipulation identified a scheme causing losses over $120,000, with a specific $6,447 transfer cited.
DHS initiated removal proceedings, arguing Rodov’s conviction involved moral turpitude and rendered him inadmissible or ineligible for cancellation; Rodov sought cancellation of removal and CAT relief.
The IJ cancelled removal under § 1229b(a) finding Rodov not an aggravated felon and reserved CAT/asylum issues for later, indicating potential CAT relief if needed.
The BIA reversed, holding Rodov’s loss amount and conduct met aggravated felony criteria; it denied asylum and CAT relief, and declined remand for CAT considerations.
Rodov petitioned for review; the Third Circuit affirmed in part, reversed as to CAT, and remanded for CAT consideration, with a concurring/dissenting view on the burden of proof at entry.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a returning LPR can be treated as an applicant for admission at the border	Rodov argues he is an LPR, not an applicant for admission, so parole was improper.	DHS may treat a returning LPR as an applicant for admission if the crime statute applies under § 1101(a)(13)(C)(v).	Yes; the majority holds Rodov could be regarded as an applicant for admission at entry under probable cause standard.
What burden of proof applies to showing 'committed' under § 1101(a)(13)(C)(v)	Rodov contends government burden should require clear evidence or conviction.	Government may rely on a lesser standard leveraging probable cause at the border.	Government bears the burden under a probable-cause standard to show 'committed' before treating him as seeking admission.
Whether Rodov’s offense constitutes an aggravated felony for removal purposes	Rodov argues the loss amount tied to the single counted transaction is below $10,000 and not aggravated.	The total loss from the entire scheme, as evidenced by the plea/stipulation, supports aggravated felony.	The court adopts a tailored, fact-focused approach (modified categorical) and upholds that the entire scheme supports aggravated felony.
Remand for CAT and asylum considerations	Rodov seeks CAT/asylum relief if removal based on the aggravated felony is upheld.	BIA appropriately denied CAT/asylum; no remand necessary.	Remand is required for the immigration judge to address CAT claims; BIA’s CAT statements are vacated to the extent they constitute an order.

Key Cases Cited

Leocal v. Ashcroft, 543 U.S. 1 (U.S. 2004) (aggravated felony analysis and standard of proof for moral turpitude offenses)
Restrepo v. Att'y Gen., 617 F.3d 787 (3d Cir. 2010) (modified categorical approach for crimes with varying conduct)
Alaka v. Att'y Gen., 456 F.3d 88 (3d Cir. 2006) (focus on conviction versus acts; loss attributed to specific offense)
Khalayleh v. INS, 287 F.3d 978 (10th Cir. 2002) (discusses scope of 'offense' for aggregated losses in certain contexts)
De Vega v. Gonzales, 503 F.3d 45 (1st Cir. 2007) (interprets 'committed' to include conduct beyond formal convictions)
United States v. Mi Kyung Byun, 539 F.3d 982 (9th Cir. 2008) (use of 'committed' to consider underlying conduct beyond elements)
United States v. Charlesworth, 217 F.3d 1155 (9th Cir. 2000) (plain meaning of 'committed' in sentencing context)
Cannon v. Macon Cnty., 1 F.3d 1558 (11th Cir. 1993) (due process considerations in restraint/retention of status)