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