3 Cir: Probable cause needed to consider returning LPR as seeking admission; aiding & abetting wire fraud is aggravated felony

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, John Doe, “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 Doe 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, Doe 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 [Doe] 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 Doe 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 [Doe] 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 Doe) 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 Doe. 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 Doe 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.