Jоhn DOE, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
No. 10-2272.
United States Court of Appeals, Third Circuit.
Argued July 12, 2011. Filed: Sept. 8, 2011.
266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282
John M. McAdams, Jr., Jennifer P. Williams, Lindsay W. Zimliki (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Before: RENDELL, SMITH, and FISHER, Circuit Judges.
OPINION
SMITH, Circuit Judge.
Petitioner Igor Rodov has been admit
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 wаs 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
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
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
The immigration judge agreed with Rodov. The court first ruled that Rodov‘s
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
Rodov petitioned for our review.
II
A
Upon Rodov‘s arrival at the border in 2007, DHS purported to parole him for prosecution. The parole statute,
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 Attorney General presumptively lacked the statutory authority to parole him), because
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
Rodov argues that DHS cannot have made such a determination without a record of a conviction. Because there 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
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
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,
Another subpart of the burden-of-proof statute,
There is a hole in the Immigration and Nationality Act: it requires an immigration officer to determine whether an
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
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
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 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 thеre 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
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 manipulation by the Government to make removal of the petitioner easier.“). In support, Rodov cites Doggett v. United States, 505 U.S. 647, 656, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), and United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (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 thе 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 felony” if “the
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, 125 S.Ct. 377, 160 L.Ed.2d 271 (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’ whethеr 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, 557 U.S. 29, 129 S.Ct. 2294, 2302, 174 L.Ed.2d 22 (2009). The wire fraud statute,
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 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 сaused 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 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
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 “opening several bank accounts in his own 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 tеrms 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 Tоrture. 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 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
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.
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’ dеtermination 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
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
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
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
II.
As the majority explains,
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 аrrest 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. 272). See Cunningham v. R.R. Ret. Bd., 392 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. 272). 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 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.3 The lack of due рrocess in such a system, 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
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, 101 S.Ct. 2061, 68 L.Ed.2d 500 (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 “committеd” an offense. See De Vega v. Gonzales, 503 F.3d 45, 47 (1st Cir.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
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
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.2008), for example, the court was called on to interpret
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 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 mean
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.7 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 thе crime has taken place. The majority equates the type of proof to “historical events.” (Maj. Op. 271). I agree. Yet, probable cause for an arrest does not constitute proof of historical events or the fact of commission.
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 the offense has actually been committed. Importantly, thе 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
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, admis
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.
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 prоve his CAT claim—but I would reach this result on the basis that he is deportable under
In re LEMINGTON HOME FOR the AGED.
Official Committee of Unsecured Creditors, on Behalf of the Estate of Lemington Home for the Aged, Appellant v. Arthur Baldwin; Linda Cobb; Jerome Bullock; Angela Ford; Joanne Andiorio; J.W. Wallace; Twyla Johnson; Nicole Gaines; William Thompkins; Roy Penner; Melody Causey; James Shealey; Leonard R. Duncan; Renee Frazier; Claudia Allen; Eugene Downing; George Calloway; B.J. Leber; Reverend Ronald Peters.
No. 10-4456.
United States Court of Appeals, Third Circuit.
Argued July 11, 2011. Filed: Sept. 21, 2011.