659 F.3d 266 (3rd Cir. 2011), 10-2272, Doe v. Attorney General of United States

Docket Nº:10-2272.
Citation:659 F.3d 266
Opinion Judge:SMITH, Circuit Judge.
Party Name:John DOE, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
Attorney:Justin Conlon (Argued), Law Offices of Justin Conlon, North Haven, CT, for Petitioner. John M. McAdams, Jr., Jennifer P. Williams, Lindsay W. Zimliki (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Judge Panel:Before: RENDELL, SMITH, and FISHER, Circuit Judges. RENDELL, Circuit Judge— concurring in part and dissenting in part.
Case Date:September 08, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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659 F.3d 266 (3rd Cir. 2011)

John DOE, Petitioner

v.

ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 10-2272.

United States Court of Appeals, Third Circuit.

September 8, 2011

Argued July 12, 2011.

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Justin Conlon (Argued), Law Offices of Justin Conlon, North Haven, CT, for Petitioner.

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 admitted to the United States as a lawful permanent

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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 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 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.

The immigration judge agreed with Rodov. The court first ruled that Rodov's

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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.

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 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

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" alien applying for admission," " alien ... seeking an admission," and similar terms.)

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)." 28 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 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

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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...

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