The BIA refined its interpretation of the “single scheme of criminal misconduct” exception to the multiple crimes involving moral turpitude ground of removal. Matter of Islam, 25 I&N Dec. 637 (BIA 2011) (Pauley, Malphrus, and Mullane, Board Members). Board Member Pauley wrote the panel’s opinion.

This case involved an LPR who was convicted of criminal possession of stolen property (involving a credit or debit card), N.Y. Penal § 165.45(2), and, four months later, forgery in the third degree, N.Y. Penal § 170.05. DHS charged him as removal pursuant to INA § 237(a)(2)(A)(ii) for having been convicted “of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.” These convictions arose, according to Islam’s statements, from his use of two credit and debit cards at four locations, including different retail outlets, in adjoining counties where he made five purchases over the course of a few hours. Matter of Islam, 25 I&N Dec. at 638.

The BIA noted that forgery and possession of stolen property “have long been considered” CIMTs. Matter of Islam, 25 I&N Dec. at 638. “Therefore the sole issue on appeal is whether the respondent’s convictions arose out of a ‘single scheme of criminal misconduct.’” Matter of Islam, 25 I&N Dec. at 639.

The BIA relied quite heavily on its earlier explanation in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), of the single scheme clause:

“In Matter of Adetiba, 20 I&N Dec. at 512, we concluded that separate crimes involving the unauthorized use of four different credit cards obtained in four different fictitious names, which resulted in harm to different victims, did not arise out of a ‘single scheme of criminal misconduct,’ even if they were committed pursuant to an elaborate plan and the same modus operandi was used for each offense…. Reviewing our past precedents, we found the statutory language to mean that when an alien has performed an act, which, in and of itself, constitutes a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct. Thus, we determined that the single scheme exception “refers to acts, which although separate crimes in and of themselves, were performed in furtherance of a single criminal episode, such as where one crime constitutes a lesser offense of another or where two crimes flow from and are the natural consequence of a single act of criminal misconduct.” Matter of Islam, 25 I&N Dec. at 639 (internal quotations and citations omitted).

 An example of a single scheme, it added, might be “where a person breaks into a store with the intent to commit larceny and, in connection with that criminal act, also commits an assault with a deadly weapon.” Matter of Islam, 25 I&N Dec. at 640.

Because the single scheme clause is “a quintessentially ambiguous term,” Matter of Islam, 25 I&N Dec. at 641, and “neither the language nor the legislative history of the statute provides any insight into what Congress meant by that phrase,” Matter of Islam, 25 I&N Dec. at 639, the Board explained federal courts owe deference to its interpretation. Matter of Islam, 25 I&N Dec. at 640-41 (discussing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) and Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005)). This is only important in federal circuits that had not adopted the Matter of Adetiba approach—for example, the Second Circuit which adopted a more expansive approach in Nason v. INS, 394 F.2d 223 (2d Cir. 1968), and which the respondent had urged the Board to follow. Matter of Islam, 25 I&N Dec. at 639.

The BIA concluded by noting its agreement with the IJ’s “determination that under the analysis set forth in Matter of Adetiba, the DHS has established by clear and convincing evidence that the respondent’s convictions for crimes involving moral turpitude did not arise out of a single scheme of criminal misconduct.” Matter of Islam, 25 I&N Dec. at 641. The respondent, accordingly, is removable for having been convicted of multiple CIMTs. Matter of Islam, 25 I&N Dec. at 642.

A report by the Congressional Research Service tells of increased funding for the federal government’s programs targeting immigrants convicted of crimes, including immigration-related crimes, and an accompanying increase in the number of immigrants arrested and imprisoned. Marc R. Rosenblum & William A. Kandel, Congressional Research Service, Interior Immigration Enforcement: Programs Targeting Criminal Aliens (Oct. 21, 2011). The CRS is a non-partisan unit of the Library of Congress.

Between fiscal year 2004 and FY 2001, the report explained, funding for programs targeting so-called “criminal aliens” skyrocketed along with a corresponding increase in arrest and imprisonment rates. “Congress appropriated a total of about $690 million for these four programs [the Criminal Alien Program, Secure Communities, § 287 agreements , and the National Fugitive Operations Program] in FY2011, up from $23 million in FY2004. At the same time, the number of aliens arrested through programs targeting criminal aliens increased from about 11,000 to over 289,000.” Rosenblum & Kandel at 1.

As used in the report, “criminal alien” refers to “any noncitizen who has ever been convicted of a crime in the United States.” Rosenblum & Kandel at 2. This definition includes individuals who are not placed in removal proceedings on the basis of a criminal conviction. Rosenblum & Kandel at 2. Indeed, it includes individuals whose criminal conviction does not render them removable.

Most of the noncitizens arrested between 2001 and 2009, the report went on, were for illegal entry and “virtually all” of the increase in the percentage of the total number of federal arrests in this period was due to illegal entry. Rosenblum & Kandel at 4. As an example, in 2001, 41,499 noncitizens were arrested on federal charges constituting 35 percent of the total number of persons arrested that year on federal charges. In comparison, in 2009, 84,640 noncitizens were arrested on federal charges constituting 46 percent of the total number arrested. Rosenblum & Kandel at 4.

Not surprisingly given these arrest data, “immigration crimes grew as a proportion of total federal offenses for which they [noncitizens] received sentences, increasing from 47.3% of all crimes in 2001 to 68.2% by 2009.” Rosenblum & Kandel at 8. In contrast, only 0.4 percent of noncitizens convicted of a federal crime in 2009 were convicted of a violent offense and 31.4 percent were convicted of nonviolent crimes. Rosenblum & Kandel at 8 tbl.3.

To be clear, this does not suggest that more noncitizens are committing immigration crimes. It is possible that “[t]hese trends reflect changes in enforcement and prosecution policies rather than increased noncitizen criminality.” Rosenblum & Kandel at 5.

Incarceration data also shows an upward trajectory in the last decade. While in 2001 there were 129,214 noncitizens incarcerated in federal or state prisons or local jails constituting 6.4 percent of the total incarcerated population, the absolute number of incarcerated noncitizens in 2009 was 172,766 (7.2 percent of the total). Rosenblum & Kandel at 7 tbl.2. This growth was spurred by a substantial increase in the noncitizen population of local jails. Rosenblum & Kandel at 6.

None of this is surprising given the significant funding given to immigration policing programs in recent years. While the Criminal Alien Program, Secure Communities, § 287(g) agreements, and the National Fugitive Operations Program received $23.4 million in FY 2004, those programs received $199.9 million in FY 2006, $641.1 million in FY 2008, and $690.2 in FY 2011. Rosenblum & Kandel at 22 tbl.5.

The U.S. Court of Appeals for the Third Circuit recently held that Minnesota’s predatory offender registration crime does not involve moral turpitude. Totimeh v. Attorney General, Nos. 10-3939 & 11-1998, slip op. (3d Cir. Jan. 12, 2012) (McKee, Rendell, and Ambro, JJ.). The court also followed the BIA’s 2011 decision in which the Board held that the applicable date of admission for removability is the date on which the noncitizen was in the country when the crime was committed as opposed to a later adjustment of status date. Judge Ambro wrote the panel’s decision.

This case involves an individual who was admitted as a non-immigrant visitor in July 1980. In May 1983 he adjusted his status to permanent resident. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 3. Less than five years later, in January 1988, he pleaded guilty to criminal sexual conduct and in April 1998 he pleaded guilty to failing to comply with the state’s sex offender registration requirement. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 3-4.

DHS initiated removal proceedings based on the 1988 conviction alleging that Totimeh is removable for having been convicted of a CIMT within 5 years of admission. INA § 237(a)(2)(A)(i). In an amended NTA it also alleged that he is removable for having been convicted of two CIMTs at any time after admission.  INA § 237(a)(2)(A)(ii).

Hoping to obtain relief under former INA § 212(c), Totimeh conceded that the 1988 conviction involves moral turpitude. When DHS amended the NTA to add the 1998 conviction and the multiple CIMT ground of removal, Totimeh denied that the failure to register conviction constitutes a CIMT. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 4. The immigration judge determined that the failure to register conviction involves moral turpitude. In reaching this conclusion, the IJ “relied on the BIA’s decision in In re Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007), whereby it concluded that failure to register as a sex offender in violation of California’s sex offender registration act was a crime involving moral turpitude.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 5.

Totimeh subsequently claimed that he was actually admitted in July 1980 when he came to the USA as a non-immigrant rather than May 1983 when he adjusted. It is unclear from the decision whether he asserted this before the IJ or BIA. Regardless, he made this assertion without supporting it in the record. The BIA affirmed the IJ’s CIMT conclusion and determined that Totimeh’s adjustment date was the relevant date of admission thus the 1988 criminal sexual conduct conviction was a CIMT committed within 5 years of admission. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 5.

Totimeh later moved to reopen his case before the BIA to supplement it with documents retrieved through a FOIA request. The BIA denied this motion. The Third Circuit expressed dismay that Totimeh was forced to obtain this information through a FOIA request rather than having the government simply turn it over when he asserted that he had been admitted in 1980.

“It is strange,” the court explained in a footnote, “that the Government did not provide this information to Totimeh or the IJ at the time the former asserted his correct admission date, and instead forced him to seek out the documents through a FOIA request. This resulted in unnecessary delay, an additional written decision by the BIA, and an additional appeal to us. We expect that the Government will respond (and quickly) in the future with such information in similar circumstances.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 6 n.3.

While I agree that this is “unnecessary delay,” it’s not “strange”—at least not if by strange the court means unusual. On the contrary, it’s routine practice. The Third Circuit’s expectation that the government “will respond (and quickly)” in the future is commendable, but without the threat of some kind of sanction I’m skeptical that such comments will make a difference.

Given the BIA’s decision, the Third Circuit was faced with deciding, first, whether Minnesota’s predatory offender registration statute is a CIMT and, second, if it is not a CIMT, what date is the proper date of admission for determining whether Totimeh was convicted of a CIMT within 5 years of admission (the 1980 date on which he was admitted as a non-immigrant or the 1983 date of his adjustment of status). Totimeh, Nos. 10-3939 & 11-1998, slip op. at 7.

At the time of Totimeh’s 1998 conviction, the Minnesota predatory offender registration statute, Minn. Stat. § 243.166.5, “defined the offense as ‘knowingly violat[ing] any of [the statute’s] provisions or intentionally provid[ing] false information.’” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 9. Among other things, the statute “required registered offenders to provide a written notice of a change in residence at least five days before changing residence.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 10.

To decide whether this offense involves moral turpitude, the Third Circuit turned to the Tenth Circuit’s decision in Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011), in which the Tenth Circuit held that Colorado’s sex offender registration statute is not a CIMT. (I previously mentioned Efagene in a post about a Ninth Circuit decision.) Following Efagene’s reasoning, the Third Circuit concluded that the Minnesota predatory offender registration statute “can be committed without intent,” is a regulatory offense designed to assist law enforcement, and “does not regulate a crime that of itself is inherently vile or intentionally malicious.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 12-13.

In addition, the BIA’s interpretation of the Minnesota offense conflicts with the BIA’s prior interpretation of the CIMT provision as not including regulatory or licensing crimes, thus it “is not entitled to Chevron deference,” referring to Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), which normally requires courts to defer to an agency’s reasonable interpretation of statutes within its area of expertise. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 13.

Accordingly, the Third Circuit held that Minnesota’s predatory offender registration offense does not necessarily involve moral turpitude. As such, Totimeh is not removable for having been convicted of two or more CIMTs. INA § 237(a)(2)(A)(ii).

The court then turned to deciding whether Totimeh was removable for having been convicted of one CIMT within five years of admission. INA § 237(a)(2)(A)(i). Because there is no question that the 1988 criminal sexual conduct conviction constitutes a CIMT, whether Totimeh is removable for having been convicted of a CIMT within five years of admission depends on the date on which Totimeh was admitted.

Here the court quickly concluded that the BIA incorrectly applied its own precedential decision and DHS erroneously argued in support of the BIA’s position. Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011), the court explained, held that the “date of admission” for purposes of INA § 237(a)(2)(A)(i), “refers to the single ‘date of admission by virtue of which the alien was present in the United States when he [or she] committed [the] crime.’” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 7 (quoting Matter of Alyazji, 25 I&N Dec. at 406). (The Immigration Law Profs blog has more information about Alyazji.)

It does not matter that Totimeh later adjusted his status because at the time of the 1988 conviction he was in the USA as a result of the 1980 admission. The 1983 adjustment merely extended the stay that began with the 1980 admission. “[O]nce an alien is in the United States legally, the five-year clock starts. Later adjustment of the reason that the alien may stay does not restart a clock that never stopped.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 15.

Many thanks and congratulations to Wayne P. Sachs of the Sachs Law Group, LLC, in Philadelphia who argued on behalf of Totimeh and alerted me to this wonderful decision.

The new semester started last week and I’m thrilled that my crImmigration seminar is off and running. I’ve been looking forward to teaching a class devoted entirely to the convergence of criminal law and immigration law for years and the fourteen students who are currently enrolled (there’s a 15-person maximum) are letting me do it this semester for the first time.

The course is divided into three units: “criminals” in the immigration system; “immigrants” in the criminal justice system; and enforcing crImmigration. Each unit will run several weeks. The syllabus provides more detail about what we’ll cover in each section, including reading assignments, but some highlights are two weeks discussing Padilla v. Kentucky, 130 S. Ct. 1473 (2010), a week on Arizona, and a week on immigration imprisonment.

Students will be required to get their hands dirty with some real-world simulations. They’ll have to write a legal brief arguing to an immigration judge that a particular offense is not a crime of violence. After that they will have to don a judicial hat and decide whether Padilla ought to apply retroactively. They will close the semester with a policy paper on a relevant topic of their choice.

I’m proud and excited that Capital Law is one of the few law schools in the country offering this type of course.

The BIA held that a conviction for violating Rhode Island’s prohibition against criminal solicitation was a crime of violence where the crime solicited was assault. Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011) (Pauley, Greer, and Mullane, Board members). Board member Pauley wrote the panel’s decision.

This case involved an LPR who was convicted of criminal solicitation, R.I. Gen. L. § 11-1-9, after pleading nolo contendere. The record of conviction explained that Guerrero was charged with solicitation to commit the crime of assault. Matter of Guerrero, 25 I&N Dec. at 631.

Several years ago, the U.S. Court of Appeals held that Rhode Island’s assault offense is a crime of violence “because it has as an element the ‘attempted use, or threatened use of physical force against the person or property of another.’” Lopes v. Keisler, 505 F.3d 58, 63 (1st Cir. 2007) (quoting 18 U.S.C. § 16(a)). The First Circuit relied on the first of two alternative definitions of crime of violence used for immigration, INA § 101(a)(43)(F), and criminal law purposes, 18 U.S.C. § 16(a). The second definition provides that “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” is a COV. 18 U.S.C. § 16(b).

Though the BIA discussed the First Circuit’s holding in Lopes, it ultimately rested its conclusion on § 16(b)’s “substantial risk” requirement. To convict someone of criminal solicitation, the BIA explained, “the State must show that the accused intended that the solicited crime, in this case assault with a dangerous weapon, would be committed.” Matter of Guerrero, 25 I&N Dec. at 635. Accordingly, “although the respondent’s solicitation offense ‘can be committed without the use of force and before any actual force is used, this does not diminish the substantial risk of violence that solicitation of . . . assault inherently presents.’” Matter of Guerrero, 25 I&N Dec. at 635.

In effect, the BIA, relying on the First Circuit’s holding that Rhode Island assault necessarily involves the use or threatened use of physical force, concluded that solicitation to commit assault necessarily involves a substantial risk that physical force would be used to actually perform the assault. As such, it concluded that Rhode Island solicitation to commit assault constitutes a crime of violence as defined by 18 U.S.C. § 16(b). Matter of Guerrero, 25 I&N Dec. at 636. 

In December the U.S. Supreme Court struck down the comparable grounds rule that had long been used to determine whether an individual facing deportation could seek relief under former INA § 212(c). Judulang v. Holder, No. 10-694, slip op. (U.S. Dec. 12, 2011). I wrote an article for LexisNexis analyzing the Supreme Court’s decision and its relevance for immigration practitioners. U.S. Supreme Court Holds BIA’s Comparable-Grounds Requirement for § 212(c) Relief is Arbitrary and Capricious, 2011 Emerging Issues 6164 (2011). The terms of my agreement with Lexis don’t allow me to make it available here for free, but interested readers can find it in the Lexis database (in the Emerging Issues Analyses section) or purchase it from the Lexis web site.

It’s exam time again. The semester has wrapped up so it’s time for me to grade Immigration and Torts exams. As a result, I won’t have time to post new updates to the blog for a few weeks. By then the holidays will be here so I won’t post during that time either.

Plus, I need to get ready for the new semester and the new course I’ll be teaching: crImmigration: The Intersection of Criminal Law and Immigration Law! I’m extremely excited to spend a semester thinking through the convergence of criminal law and immigration law with a small group of students. The course is capped at 15 and right now there are 14 enrolled so I’m excited that students are excited about the class (hence my earlier statement about being extremely excited)!

New crImmigration.com posts will appear after the new year. Right now I’m planning to resume on January 10, 2012. Meanwhile, you can follow the latest crImmigration developments on my Facebook page, Twitter account, or on LinkedIn.

The U.S. Court of Appeals for the Sixth Circuit recently held that it lacks jurisdiction to review the weight that an IJ attaches to evidence of hardship for purposes of Cancellation of Removal. Ettienne v. Holder, No. 10-3896, slip op. (6th Cir. Oct. 5, 2011) (Rogers, McKeague, and Donald, JJ.) Judge Rogers wrote the panel’s decision.

This case involves a woman who entered the United States on what appears to be a non-immigrant visa (the court is unclear about this) and admitted to marriage fraud in 1990. Ettienne, No. 10-3896, slip op. at 3. DHS did not initiate removal proceedings until 2001 when she sought to adjust her status to that of permanent residence on the basis of her marriage to her United States citizen husband. Ettienne, No. 10-3896, slip op. at 3. DHS charged her with being inadmissible due to the marriage fraud, INA § 237(a)(1)(G)(ii), and unlawful presence, INA § 237(a)(1)(B). Ettienne, No. 10-3896, slip op. at 3. Ettienne sought Cancellation of Removal for Non-LPRs pursuant to INA § 240A(b)(1). Ettienne, No. 10-3896, slip op. at 3.

The IJ “determined that Ettienne had not satisfied the final requirement [for Cancellation]—showing that her removal would cause Bradley [her husband] or the children to suffer more hardship than would normally be expected under the circumstances, 8 U.S.C. § 1229b(b)(1)(A)-(C).” Ettienne, No. 10-3896, slip op. 5. Her Cancellation application was therefore denied. Ettienne, No. 10-3896, slip op. at 5. The BIA affirmed the IJ’s hardship determination. Ettienne, No. 10-3896, slip op. 5.

On appeal to the Sixth Circuit, Ettienne argues that “the BIA failed to consider all the hardship factors in their totality, as required by the BIA’s precedential decision in In re Gonzalez Recinas, 23 I&N Dec. 467, 473 (BIA 2002).” Ettienne, No. 10-3896, slip op. at 6. Specifically, she “argues that the IJ ignored the totality requirement by failing to specifically identify every hardship factor that Ettienne’s family would face upon her removal.” Ettienne, No. 10-3896, slip op. at 6.

The Sixth Circuit concluded that it has no jurisdiction to consider such an argument because this amounts to a request that the Sixth Circuit weigh the evidence itself rather than leave this task to the IJ. “This is a challenge to the weighing of the evidence that, if accepted, would effectively eliminate the jurisdictional bar on review of denials of cancelation of removal,” the court explained. Ettienne, No. 10-3896, slip op. 6.

While the court acknowledged its power to review claims that the IJ or BIA incorrectly applied questions of law or “nondiscretionary issues,” Ettienne, No. 10-3896, slip op. at 6, it “lacks jurisdiction over claims that can be evaluated only by engaging in head-to-head comparisons between the facts of the petitioner’s case and those of precedential decisions. The BIA will sometimes reach opposite conclusions in cases that have many factual similarities, but this does not reflect a failure of the agency to follow its own precedent. Rather, the different outcomes are an expected result of the discretionary weighing required to make individualized determinations.” Ettienne, No. 10-3896, slip op. 8.

Accordingly, the court concluded, “we lack jurisdiction over claims that the IJ failed to consider or put insufficient emphasis on particular factors in the Petitioner’s case.” Ettienne, No. 10-3896, slip op. at 8.

The U.S. Court of Appeals for the Third Circuit held that an immigration officer must have probable cause to believe that an LPR returning to the United States from a trip abroad has committed an offense listed in INA § 212(a)(2) to determine that the LPR is seeking admission. John Doe v. Attorney General, No. 10-2272, slip op. (3d Cir. Sept. 8, 2011) (Rendell, Smith, and Fisher, JJ.). Judge Smith wrote a majority opinion joined by Judge Fisher. Judge Rendell wrote separately concurring in part and dissenting in part.

This case involved an LPR who was paroled into the United States upon return from a trip abroad. Doe, No. 10-2272, slip op. at 3. The immigration officer at the port of entry learned that the non-citizen, Igor Rodov, “was subject to an arrest warrant arising out of his association with a wire fraud scheme.” Doe, No. 10-2272, slip op. at 3. He was paroled “for the purpose of prosecuting him.” Doe, No. 10-2272, slip op. at 3. He subsequently pled guilty. Doe, No. 10-2272, slip op. at 3.

DHS later initiated removal proceedings charging him with having been convicted of a crime involving moral turpitude, thus rendering him inadmissible under INA § 212(a)(2)(A)(i)(I). Doe, No. 10-2272, slip op. at 4. DHS argued that he is not eligible for cancellation of removal because his conviction constitutes an aggravated felony. Doe, No. 10-2272, slip op. at 4.

Because Rodov was an LPR, the Third Circuit first had to determine whether he was properly paroled into the United States or whether he should have been admitted. “Parole,” the court explained, is available only to individuals “applying for admission to the United States.” Doe, No. 10-2272, slip op. at 6 (quoting INA § 212(d)(5)(A)). Crucially, LPRs returning from abroad “shall not be regarded as seeking an admission into the United States” unless they fall within one of six exceptions to this presumption. INA § 101(a)(13)(C). One of these exceptions is for LPRs who have “committed an offense identified in section 212(a)(2).” INA § 101(a)(13)(C)(v). A conviction for a crime involving moral turpitude is included in INA § 212(a)(2).

Combined, these statutory provisions require nuanced mental gymnastics.  As an LPR, Rodov was presumed to not be seeking admission.  Accordingly, he could only be paroled into the United States if he was deemed to be seeking an admission. He could only be deemed to be seeking an admission if he was deemed to have committed an offense listed in INA § 212(a)(2). In the court’s words, “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.” Doe, No. 10-2272, slip op. at 9

Because Rodov had not been convicted (or even prosecuted at the time he returned to the United States) this means that “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 prosecuted.” Doe, No. 10-2272, slip op. at 9.

The key question facing the court, then, was “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?” Doe, No. 10-2272, slip op. at 10. The INA, the court explained, does not answer this question. Rather, “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.” (The Third Circuit incorrectly refers to the INA as the “Immigration and Naturalization Act” when it is actually titled the “Immigration and Nationality Act.”)

To fill this statutory “hole,” the Third Circuit turns to federal common law. Doe, No. 10-2272, slip op. at 11. First it identifies whose duty it is to show that a returning LPR has committed a § 212(a)(2) offense, then it explains how that is to occur.

“The burden must be on the government,” the court explains, because the “initial decision…is made by an immigration officer working at the alien’s port of arrival in the country.” Doe, No. 10-2272, slip op. at 11. Despite the fact that the revocation of LPR status is a restraint on the rights and privileges of individuals granted this status, the immigration officer’s decision that a particular returning LPR is seeking admission is reached without a hearing, without a neutral arbiter, and without providing the LPR time to obtain counsel or develop a defense. Doe, No. 10-2272, slip op. at 12.

Having determined that the burden rests on the government to show that a returning LPR is seeking admission, the court then turned to the proper standard that immigration officers must use to reach that determination: “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),” the U.S. Code’s parallel citation to INA § 212(a)(2). Doe, No. 10-2272, slip op. at 13.

At first blush this seems to require that immigration officers suddenly become familiar with the massive Fourth Amendment probable cause jurisprudence. Fortunately for immigrants and immigration officials alike, the court simplifies the practical application of this standard by announcing, “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.” Doe, No. 10-2272, slip op. at 13. In practice, this means that an entry in a database indicating that a warrant exists will be sufficient to satisfy the Third Circuit’s probable cause requirement.

The probable cause determination is more complicated where no warrant exists. In those situations, “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.” Doe, No. 10-2272, slip op. at 13.

The court does not venture to explain how this is supposed to happen. Presumably an immigration officer will not seek a judge’s opinion on probable cause while the returning LPR is waiting at the port of entry. The only realistic option is that a returning LPR who is deemed to be seeking admission and is either paroled (as happened here to Rodov) or, as happens every day to countless individuals, is detained and sent to an immigration prison pending removal proceedings, contests the immigration official’s probable cause determination.

In those instances, will it be an IJ who decides whether probable cause exists or is this the role of a federal judge? Assuming this is to be decided by an IJ, does this mean that immigration judges (at least those in the Third Circuit) must suddenly familiarize themselves with probable cause caselaw?

These questions do not apply to Rodov. Since a warrant existed at the time he returned to 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 [INA § 101(a)(13)(C)(v)].” Doe, No. 10-2272, slip op. at 13. He was, therefore, properly considered to be seeking admission. “Accordingly, DHS was permitted…to parole him for purposes of prosecution, and to seek his removal as an inadmissible alien (rather than as a deportable permanent alien).” Doe, No. 10-2272, slip op. at 14.

Because Rodov pleaded guilty “to aiding and abetting the whole of a large-scale criminal endeavor” that, according to a plea agreement stipulation, “caused between $120,00 and $200,000 in losses,” his conviction fell within the fraud or deceit in excess of $10,000 type of aggravated felony, INA § 101(a)(43)(M)(i). Doe, No. 10-2272, slip op. at 21.