Christopher Rad v. Attorney General United States ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-1404
____________
CHRISTOPHER RAD,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________
On Petition for Review of a Decision of
the Board of Immigration Appeals
[Agency No. A034-985-319]
Immigration Judge: John P. Ellington
____________
Argued September 15, 2020
Before: KRAUSE, RESTREPO, and BIBAS, Circuit Judges
(Opinion Filed: December 21, 2020)
Christopher Rad
Pike County Correctional Facility
175 Pike County Boulevard
Lords Valley, PA 18428
Pro Se Petitioner
Jacob A. Bashyrov
Craig A. Newell, Jr.[Argued]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
Ana Builes
Hannah Mullen [Argued]
Tyler Purinton
Adam Walker
Brian S. Wolfman, Esq.
Georgetown University Law Center
600 New Jersey Avenue, N.W., Suite 312
Washington, DC 20001
Bradley Girard
Americans United for Separation of Church and State
1310 L Street, N.W., Suite 200
Washington, DC 20005
Court-Appointed Amicus Curiae
2
____________
OPINION OF THE COURT
____________
KRAUSE, Circuit Judge.
Since its earliest days, the internet has provided a forum
for users to share ideas, do business, and gather information in
relative anonymity. Whether the CAN-SPAM Act’s rarely-
invoked but potentially far-reaching criminal provisions alter
that paradigm is the central question presented by this appeal.
See 18 U.S.C. § 1037(a). In one view, the Act implements a
sweeping anti-anonymity principle that compels individuals
and businesses to disclose their identity in every commercial
email they send and every domain name they register.
Recognizing the troubling constitutional and practical
consequences of this approach, we read the Act differently.
Rather than penalizing everyday practices, the Act reflects and
reinforces longstanding norms. So long as marketers refrain
from making false statements in contexts where consumers
have come to expect accuracy, their conduct comports with the
norms embedded in the architecture of the internet—and with
the Act. With this narrow, norms-based interpretation in mind,
we conclude that Petitioner’s convictions for conspiring to
violate the CAN-SPAM Act necessarily entail deceit, and
therefore satisfy the first element of an aggravated felony under
8 U.S.C. § 1101(a)(43)(M)(i).
3
The second element, that Petitioner’s crimes inflicted
victim losses over $10,000, is a different story. In reviewing a
removal order, we are bound by one of administrative law’s
most fundamental principles: We judge the agency’s decision
“solely by the grounds [it] invoked,” SEC v. Chenery Corp.,
332 U.S. 194, 196 (1947). The Board of Immigration Appeals’
initial removal order overlooked crucial differences between
sentencing hearings and immigration proceedings, so we
remanded. But the revised order rests on the same flawed
understanding of the loss element as its predecessor, and we
therefore cannot approve the agency’s analysis. Even as we
reject the Board’s rationale, however, we hold that intended
losses, not just actual ones, may meet the loss requirement for
Petitioner’s conspiracy offenses, see 8 U.S.C.
§ 1101(a)(43)(U). Because the Board never addressed this
possibility, we are compelled to provide yet another
opportunity for it to examine the loss element.
I. Factual and Procedural Background
A. The CAN-SPAM Act
To provide context for this appeal, we offer a brief
introduction to the CAN-SPAM Act. The Act’s purpose is to
address the harms caused by “unsolicited commercial . . .
[e]mail,” otherwise known as spam. 15 U.S.C. § 7701(a)(2).
To that end, the Act empowers consumers to sue marketers
who relay misleading messages or refuse to honor opt-out
requests. Id. § 7703 et seq. It also enables prosecutors to bring
criminal charges against spammers who embrace especially
4
abusive tactics. See 18 U.S.C. § 1037(a). Two of those tactics
are the subject of this appeal.
The first involves falsifying an email’s header
information. By definition, a header records a message’s
“source, destination, and routing.” 15 U.S.C. § 7702(8). In
most cases, a sender’s computer populates the header with
accurate information about the message’s origin. See Dan
Boneh, The Difficulties of Tracing Spam Email 2-3, FTC (Sept.
9, 2004), https://perma.cc/7NG3-M4MV. In some cases,
however, spammers manipulate headers to report false
information. Id. This tactic, called “spoofing,” confuses spam
filters, misleads recipients, and impedes investigators. Id. at 4,
11. The Act therefore prohibits it. See 18 U.S.C. § 1037(a)(3).
The second tactic consists of registering a domain name
using a false identity. As a general matter, a domain name
describes an “alphanumeric designation which is registered
with . . . [a] registration authority as part of an electronic
address on the [i]nternet.” 15 U.S.C. § 7702(4). To prevent
multiple users from claiming the same domain, the Internet
Corporation for Assigned Names and Numbers (ICANN)
administers a registration system. What ICANN Does and
Doesn’t Do, ICANN (June 22, 2012),
https://www.icann.org/en/system/files/files/what-icann-does-
22jun12-en.pdf. Under ICANN’s rules, a registrant cannot
reserve a domain without publicly disclosing their contact
information. FAQ: Domain Name Registrant Contact
Information, ICANN (Feb. 25, 2012),
https://www.icann.org/resources/pages/faqs-f0-2012-02-25-
5
en. This requirement makes it easier for law enforcement
agencies to investigate fraud, hacking, and other criminal
activities conducted over the internet. See Jon Leibowitz,
Prepared Statement of the Federal Trade Commission Before
ICANN 4 (June 2006), https://perma.cc/98UG-9L9N. Not
surprisingly, spammers sometimes flout ICANN’s rules—and
avoid the scrutiny those rules facilitate—by registering domain
names using false contact information. This tactic, too,
violates the Act. See 18 U.S.C. § 1037(a)(4).
B. Rad’s Trial and Sentencing
Though the CAN-SPAM Act came into force almost
two decades ago, its criminal provisions have given rise to only
a handful of prosecutions, one of which underlies this case. In
2012, a grand jury approved a nine-count superseding
indictment against Petitioner Christopher Rad. According to
the indictment, Rad and several co-conspirators acquired
shares of penny stocks, “pumped” the prices of those stocks by
bombarding investors with misleading spam emails, and then
“dumped” their shares on the market at a profit. A.R. 75–76.
Of relevance here, Count I charged Rad with conspiring to
commit false header spamming, see § 1037(a)(3), false domain
name spamming, see § 1037(a)(4), and securities fraud, see 15
U.S.C. §§ 78j and 78ff.1 At trial, a jury convicted Rad of the
1
The remaining counts, which charge both substantive
and inchoate violations of the CAN-SPAM Act, played no part
in the Board’s removal decision, and are therefore irrelevant to
this appeal.
6
first two conspiracies, but failed to reach a verdict as to the
third.
In preparation for sentencing, the Probation Office
circulated a Presentence Investigation Report (“PSR”)
recommending that the District Court raise Rad’s offense level
to reflect the losses his crimes inflicted on investors. See
U.S.S.G. § 2B1.1(b)(1). The PSR began by estimating that
Rad realized about $2.9 million in “illicit gains” over the
course of the conspiracy. A.R. 42. It then acknowledged that,
because “countless victims” purchased stocks “based on the
spamming scheme,” the losses stemming from Rad’s conduct
could not “reasonabl[y] be determined.” Id. at 46. It
nonetheless advised the Court to treat Rad’s gains as a proxy
for victim losses and to lengthen his sentence accordingly. Id.;
see U.S.S.G. § 2B1.1, cmt. n.3(B) (“The court shall use the
gain that resulted from the offense as an alternative measure of
loss . . . if there is a loss but it reasonably cannot be
determined.”). For his part, Rad questioned whether his crimes
caused any losses and emphasized the absence of evidence
“that any single person lost anything” as a result of the
conspiracy. A.R. 67.
At sentencing, the District Court ordered Rad to serve a
total of seventy-one months in prison, including thirty-five
months attributable to Count I. Because neither party
introduced a transcript of the sentencing hearing, the
administrative record is silent as to how the Court analyzed and
7
resolved the victim loss issue.2 We upheld the District Court’s
judgment on appeal.
C. Removal Proceedings
Not long after the District Court sentenced Rad, the
Department of Homeland Security (“DHS”) initiated removal
proceedings. Under the Immigration and Naturalization Act
(“INA”), DHS retains authority to remove noncitizens who
commit “aggravated felonies.” 8 U.S.C. § 1227(a)(2)(A)(iii).
That category includes any crime that (1) “involves fraud or
deceit” (2) “in which the loss to the victim or victims exceeds
$10,000.” Id. § 1101(a)(43)(M)(i).
In proceedings before an Immigration Judge (“IJ”),
DHS characterized Rad’s CAN-SPAM Act convictions as
felonies involving deceit and the requisite level of victim
losses. The IJ agreed and the Board affirmed.
2
Despite the possible relevance of the transcript of
Rad’s sentencing hearing, we cannot take judicial notice of
materials outside the administrative record. See Berishaj v.
Ashcroft, 378 F.3d 314, 330 (3d Cir. 2004) (“[C]ourts
reviewing the determination of an administrative agency must
approve or reject the agency’s action purely on the basis of . . .
the record compiled before[] the agency itself.”); cf. Nbaye v.
Att’y Gen., 665 F.3d 57, 59–60 (3d Cir. 2011) (remanding to
permit the Board to consider extra-record information in the
first instance).
8
When Rad filed his first petition for review before this
Court, DHS urged us to remand to permit the Board to “further
consider[]” whether Rad’s offenses constitute aggravated
felonies. A.R. 318. In explaining why remand was warranted,
DHS collected controlling precedents that the Board had failed
to address in its initial order. We therefore sent the case back
to the Board.
On remand, the agency proceeded to retread the ground
it covered in its initial analysis of the loss element. Rather than
reviewing evidence from Rad’s sentencing hearing, the Board
depended on an inference drawn from the criminal judgment.
Because “a 35-month sentence was ultimately imposed for
[Count I],” the agency reasoned, “the sentencing judge [must
have] added at least 6 levels based on victim loss—a
determination that would have required the court to assess the
loss at greater than $40,000.” A.R. 5; see U.S.S.G.
§ 2B1.1(b)(1)(D). So, while the Board conceded that “the
precise quantum of victim loss is not readily ascertainable,” it
nevertheless presumed “the amount of loss . . . exceeded
$10,000.” A.R. 5. Having classified Rad’s crimes as
aggravated felonies, the agency ordered him removed from the
United States.
9
We now consider Rad’s second, timely-filed petition for
review.3
II. Jurisdiction and Standard of Review
The Board exercised jurisdiction under 8 C.F.R.
§ 1003.1(b)(3). We retain jurisdiction to consider “whether
[Rad]’s conviction qualifies as an aggravated felony because it
is a ‘purely legal question, and one that governs our own
jurisdiction.’” Fan Wang v. Att’y Gen., 898 F.3d 341, 343 (3d
Cir. 2018). Our review of that question is plenary. See Singh
v. Att’y Gen., 677 F.3d 503, 508 (3d Cir. 2012).
III. Analysis
To demonstrate that Rad’s crimes count as aggravated
felonies, DHS bears the burden of establishing two elements.
See Kiareldeen v. Ashcroft, 273 F.3d 542, 553–54 (3d Cir.
2001). The first is that violations of 18 U.S.C. §§ 1037(a)(3)
and (a)(4) categorically involve “fraud or deceit.” 8 U.S.C.
§ 1101(43)(M)(i). In analyzing this requirement, “we focus on
the crime’s statutory elements ‘rather than . . . the specific facts
3
Because Rad brought this appeal pro se, we asked
Georgetown University Law Center’s Appellate Courts
Immersion Clinic to serve as amicus. We express our gratitude
to the Clinic for accepting this matter pro bono, and we
commend the Clinic for its superb briefing and argument in this
complex case. Lawyers who act pro bono fulfill the highest
service that members of the bar can offer to indigent parties
and to the legal profession.
10
underlying the crime.’” Singh, 677 F.3d at 508 (alteration in
original) (quoting Kawashima v. Holder, 565 U.S. 478, 483
(2012)). The second element, whether Rad caused over
$10,000 in losses, 8 U.S.C. § 1101(43)(M)(i), is a different
story. That requirement hinges on “the specific way in which
[Rad] committed the crime[s],” and we therefore review the
indictment, judgment, presentence investigation report, and
any other “sentencing-related material” that sheds light on
Rad’s conduct. Nijhawan v. Holder, 557 U.S. 29, 34, 42
(2009). As we shall see, DHS has met its burden as to the first
element, but we must remand for the Board to revisit the
second.
A. The Fraud or Deceit Element
The central question presented here is whether 18
U.S.C. §§ 1037(a)(3) and (a)(4) categorically “involve[] fraud
or deceit.”4 8 U.S.C. § 1101(43)(M)(i). In answering this
question, we begin by defining deceit; we proceed to survey
the scope of the CAN-SPAM Act; and we conclude by asking
whether the least-culpable conduct covered by the Act entails
deceit. Because the parties focus on deceit, we do the same.
4
Although prosecutors charged Rad with conspiracy to
commit securities fraud, the jury failed to reach a verdict as to
that charge. DHS therefore concedes that the conspiracy to
commit securities fraud charge does not justify Rad’s removal.
11
1. How the INA Defines Deceit
Our initial task is to stake out the boundaries of the
INA’s deceit provision. On this front, at least, we need not
write on a blank slate. We long ago recognized that the INA
uses “deceit” in its commonly accepted legal sense—namely,
“the act of intentionally giving a false impression.” Valansi v.
Ashcroft, 278 F.3d 203, 209 (3d Cir. 2002) (citing Black’s Law
Dictionary 413 (7th ed. 1999)). In the intervening years, at
least one of our sister circuits has endorsed this definition; none
have disputed it; and the IJ and DHS invoked it in this case.
See James v. Gonzales, 464 F.3d 505, 508 & n.14 (5th Cir.
2006); Patel v. Mukasey, 526 F.3d 800, 802–03 (5th Cir. 2008).
A similar understanding of deceit emerges from one of
the Supreme Court’s removal cases, Kawashima v. Holder, 565
U.S. 478 (2012). There, the Court equated “deceit” with “‘the
act or practice of deceiving (as by falsification, concealment,
or cheating).’” Id. at 484 (quoting Webster’s Third New
International Dictionary 584 (1993)). At its core, this
definition turns on the gerund “deceiving,” a word that means
“caus[ing] to believe the false.” Deceive, Merriam-Webster
Unabridged, https://www.unabridged.merriam-webster.com/
unabridged/deceiving (last visited Oct. 15, 2020). That leaves
little, if any, practical difference between Valansi’s and
Kawashima’s definitions. Here, for example, §§ 1037(a)(3)
and (a)(4) necessarily entail deceit, no matter which
formulation applies. To see why, we must abandon the
familiar domain of the INA and venture into the terra incognita
of the CAN-SPAM Act.
12
2. What the CAN-SPAM Act Prohibits
The categorical approach presupposes that we
understand the least-culpable conduct covered by a criminal
statute. Yet no controlling cases analyze §§ 1037(a)(3) and
(a)(4), and few courts at any level have done so. For their part,
the parties paint drastically different pictures of the Act. While
DHS depicts the false-header and domain-name spamming
provisions as proscribing a specific set of abuses, Amicus
portrays those provisions as announcing that all senders of
commercial email must comply with a sweeping anti-
anonymity principle. We conclude, however, that far from
upending pre-existing norms, the Act reflects and reinforces
them. To show how it does so, we look first to the Act’s text.
We then explain why the doctrine of constitutional avoidance
supports our narrow reading of the Act. And finally, we
identify where Amicus’s more expansive construction goes
astray.
a) Statutory text
Our inquiry begins—and, as it turns out, largely ends—
with the terms of the Act itself. In relevant part, 18 U.S.C.
§ 1037(a) specifies that:
Whoever, in or affecting interstate or foreign
commerce, knowingly
...
13
(3) materially falsifies header information in
multiple commercial electronic mail messages
and intentionally initiates the transmission of
such messages, [or]
(4) registers, using information that materially
falsifies the identity of the actual registrant, for
five or more electronic mail accounts or online
user accounts or two or more domain names, and
intentionally initiates the transmission of
multiple commercial electronic mail messages
from any combination of such accounts . . .
or conspires to do so, shall be punished . . . .
(emphasis added).
In advancing a far-reaching interpretation of the Act,
Amicus downplays these provisions, and instead highlights
Congress’s subsequent definition of the word “materially”:
For purposes of paragraphs (3) and (4) of
subsection (a), header information or registration
information is materially falsified if it is altered
or concealed in a manner that would impair the
ability of a recipient of the message, an Internet
access service processing the message on behalf
of a recipient, a person alleging a violation of this
section, or a law enforcement agency to identify,
locate, or respond to a person who initiated the
14
electronic mail message or to investigate the
alleged violation.
Id. § 1037(d)(2) (emphasis added). As Amicus would have it,
this language transforms a statute designed to target specific
abuses into one that compels marketers to divulge their
“identi[ty]” and “locat[ion]” in every email they send and
every domain name they register. Id. For example, Amicus
posits that a small business that uses a private
(“Anonymous@Generic.com”), vague
(“Jane@Sportsfan.com”) or whimsical
(“Bigfoot@Podiatry.com”) email address has “concealed” its
“identi[ty]” in a way that risks prosecution. Id. And, likewise,
Amicus predicts that the thousands of individuals who pay
proxies to register domain names on their behalf have similarly
“impair[ed]” recipients’ ability to “identify” or “locate” them.
Id. All of this commonplace conduct falls within the scope of
§§ 1037(a)(3) and (a)(4), Amicus warns, whenever the sender
conveys a sufficient quantity of commercial emails.5
5
The Act applies to defendants who send “multiple”
emails, which it defines as “more than 100 electronic mail
messages during a 24-hour period, more than 1,000 electronic
mail messages during a 30-day period, or more than 10,000
electronic mail messages during a 1-year period.” 18 U.S.C.
§ 1037(d)(3). This element does little to shield everyday
conduct from prosecution, given that businesses—from stores
announcing a new location to local politicians soliciting
donations—often have occasion to send more than a hundred
emails in a day.
15
But we normally refuse to construe statutes as
“criminaliz[ing] a broad range of day-to-day activity,” and the
CAN-SPAM Act is no exception. United States v. Kozminski,
487 U.S. 931, 949 (1988). Rather than penalizing everyday
practices, the Act implements pre-existing norms. Cf. Orin S.
Kerr, Norms of Computer Trespass, 116 COLUM. L. REV. 1143,
1146 (2016) (contending that computer trespass statutes should
be interpreted in light of prevailing norms). Since the
internet’s earliest days, the protocol that permits computers to
exchange emails has mandated that a message’s header include
a field that reflects its sender’s address. See David Dickinson,
Note, An Architecture for Spam Regulation, 57 FED. COMM.
L.J. 129, 132 (2004). And, for almost as long, ICANN has
required registrants to divulge their own contact information,
or that of a proxy, when claiming a domain name. FAQ:
Domain Name Registrant Contact Information, ICANN (Feb.
25, 2012), https://www.icann.org/resources/pages/faqs-f0-
2012-02-25-en.
These accountability mechanisms do not dictate that
senders reveal who they are or where they are located in every
message, and neither does the Act. Instead, senders need only
provide recipients with a reliable way of contacting them,
whether by replying to a particular account or by
communicating through a proxy. So long as individuals and
businesses refrain from inserting false contact information in
contexts where internet users have come to expect accuracy,
their conduct comports with prevailing norms—and with the
Act.
16
Start with the prohibition on false header spamming.
What makes Amicus’s construction of § 1037(a)(3) so
sweeping is that it requires an email address’s semantic content
to match the sender’s reality. If a commercial message arrives
from “Jane@sportsfan.com,” for example, then Amicus reads
the Act as mandating that the sender be named Jane and enjoy
sports. In practice, of course, internet users routinely create
email addresses that imperfectly or inaccurately reflect their
true identities. By the same token, businesses often have
occasion to promote their services with addresses that pay
homage to fictional mascots (“Bulldog@Almamater.edu”),
celebrity endorsers (“Famous_Athlete@Nike.com”), or long-
gone founders (“Benjamin_Franklin@Printingpress.com”).
Nothing in § 1037(a)(3) criminalizes these
commonplace practices. By its terms, that subsection
prescribes penalties only for individuals who “falsify,” 18
U.S.C. § 1037(a)(3), the “source, destination, and routing
information attached to an electronic mail message,” 15 U.S.C.
§ 7702(8). In other words, the information displayed in an
email’s header must match the address from which the message
was actually sent—but not necessarily the sender’s true
identity. When a business owner conveys communications
from “Jane@Sportsfan.com,” for example, her emails’ headers
will report that address, foreclosing the application of
§ 1037(a)(3) no matter what her name is or whether she follows
sports. When a spammer manipulates her messages’ headers
so that they seem to originate from an account that does not
exist or that she does not control, by contrast, she violates the
Act. In this way, § 1037(a)(3) promotes the CAN-SPAM Act’s
17
stated purpose of enabling consumers “to decline to receive
additional commercial electronic mail from the same source,”
15 U.S.C. § 7701(b)(3), without mandating that marketers
disclose their identity and location in every message.
The same is true of the prohibition on domain-name
spamming. Under Amicus’s wide-ranging interpretation of
§ 1037(a)(4), anyone who employs a proxy service to register
a domain name risks federal prosecution. But while using a
proxy may sound complex or even criminal, it involves two
simple, innocuous steps. First, an individual pays a private
registration firm to claim a domain name on his behalf. See
Information for Privacy and Proxy Service Providers, ICANN
(Aug. 31, 2017), available at:
https://www.icann.org/resources/pages/pp-services-2017-08-
31-en. Second, the firm registers that domain with ICANN,
entering its own contact information, rather than that of the
individual who will use the domain. See id. If the Act
outlawed this popular practice, many thousands of individuals
might face criminal penalties.
Although the Ninth Circuit has hypothesized that proxy
registration “for the purpose of concealing the actual
registrant’s identity would constitute ‘material falsification,’”
we respectfully disagree. United States v. Kilbride, 584 F.3d
1240, 1259 (9th Cir. 2009). True, many domain-name owners
undoubtedly embrace proxy registration because it protects
their privacy. But the Act makes it illegal to “falsif[y] the
identity of the actual registrant,” § 1037(a)(4) (emphasis
added), and nowhere suggests that the registrant must serve as
18
the day-to-day owner of a domain. And, given that ICANN’s
rules expressly permit proxies to enter their own contact
information when claiming a domain name on someone else’s
behalf, we struggle to see how proxy registration reflects
“material falsifi[cation].” § 1037(a)(4); see also Dressler v.
Busch Entm’t Corp., 143 F.3d 778, 781 (3d Cir. 1998)
(defining “falsify” as “to engage in misrepresentation or
distortion”).
Instead, § 1037(a)(4) zeroes in on “registrant[s]”—
whether day-to-day domain users or their proxies—who claim
a domain using contact information that is not their own.6 This
prohibition reflects ICANN’s longstanding rules, which
mandate that a registrant disclose its contact information when
signing up for a domain name. FAQ: Domain Name Registrant
Contact Information, ICANN (Feb. 25, 2012),
https://www.icann.org/resources/pages/faqs-f0-2012-02-25-
en. Like its sister provision, § 1037(a)(4) therefore ensures
that recipients retain some way to communicate with the
senders of commercial emails, either by replying directly or by
contacting a proxy, without compelling senders to share who
they are and where they are from with everyone they contact.
6
Although courts and commentators typically describe
§ 1037(a)(4) as the domain-name spamming provision, that
provision also makes it illegal to register email addresses using
false information. Neither the parties nor Amicus identify any
reason to treat registration of domain names and email
addresses differently.
19
b) Constitutional avoidance
A contrary construction of §§ 1037(a)(3) and (a)(4)
would raise serious constitutional concerns. Though “the
overbreadth doctrine does not apply to commercial speech,”
Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 497 (1982), restrictions on an author’s ability to
“remain anonymous” nonetheless implicate “the freedom of
speech protected by the First Amendment,” McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334, 342 (1995). In the context
of political speech, for example, the Supreme Court has long
recognized that anonymity advances the First Amendment’s
core values: It enables “[p]ersecuted groups . . . to criticize
oppressive practices,” empowers “writer[s] who may be
personally unpopular to ensure that readers will not prejudge
[their] message[s],” and encourages dissidents to voice their
“conscience without fear of retaliation.” McIntyre, 514 U.S. at
342–43 (first alteration in original) (quoting Talley v.
California, 362 U.S. 60, 64–65 (1960)).
Whether and to what extent the First Amendment
shields speakers who share commercial messages
anonymously remains unsettled, but we see no need to wade
into that quagmire today. Cf. Sorrell v. IMS Health Inc., 564
U.S. 552, 567 (2011) (recognizing that “a great deal of vital
expression” results “from an economic motive”).
Understanding the Act narrowly, as limited to false assertions
in contexts where recipients expect accuracy, dispels the
constitutional concerns that would otherwise accompany
Amicus’s approach. See 44 Liquormart, Inc. v. Rhode Island,
20
517 U.S. 484, 496 (1996) (observing that the First Amendment
protects “the dissemination of truthful and nonmisleading
commercial messages” (emphasis added)).
c) Amicus’s arguments
Notwithstanding its excellent advocacy, Amicus offers
an interpretation of the interaction between the Act’s
substantive provisions, §§ 1037(a)(3) and (a)(4), and its
definitions, id. § 1037(d), with which we ultimately cannot
agree. Boiled down to their essence, (a)(3) and (a)(4) prohibit
commercial emailers from “materially falsif[ying]” header or
domain name information. Id. But Amicus urges that the
definition elaborated at § 1037(d)(2) does not just explain what
the word “materially” means; instead, it replaces the
“materially falsified” term altogether. Should that reading
prevail, §§ 1037(a)(3) and (a)(4) would make it a crime to
share commercial emails with header or registration
information that “conceal” the “identi[ty]” or “locat[ion]” of
the sender. Id. § 1037(d)(2). That would cast a pall over proxy
registration, anonymous emails, and the other commonplace
conduct discussed above.
We conclude that this capacious interpretation is
incompatible with the Act’s text and structure. Most
important, understanding § 1037(d)(2) as modifying the
“materially falsifies” term would render the verb “falsifies”
superfluous, a disfavored and here unnecessary outcome. See
Corley v. United States, 556 U.S. 303, 314 (2009). It would be
equally difficult to square with § 1037(d)’s structure. That
21
subsection defines specific terms, set off in a distinct typeface,
including “loss,” (d)(1), “multiple,” (d)(3), and “materially,”
(d)(2). By so designating the term “materially,” and not the
term “materially falsifies,” Congress sent a strong signal that
(d)(2)’s definition modifies that word alone.
Should any doubt remain, a comparison between
§ 1037(d)(2) and its civil counterpart confirms our conclusion.
In 15 U.S.C. § 7704(a)(1), Congress authorized civil suits
against senders who dispatch “materially false” or “materially
misleading” emails. The drafters went on to articulate a series
of definitions, including the following:
[T]he term “materially”, when used with respect
to false or misleading header information,
includes the alteration or concealment of header
information in a manner that would impair the
ability of an Internet access service processing
the message on behalf of a recipient, a person
alleging a violation of this section, or a law
enforcement agency to identify, locate, or
respond to a person who initiated the electronic
mail message or to investigate the alleged
violation, or the ability of a recipient of the
message to respond to a person who initiated the
electronic message.
Id. § 7704(a)(6). If this language seems familiar, that is
because it tracks § 1037(d)(2) almost word for word. Indeed,
the only meaningful difference is that § 7704(a)(6) leaves no
22
doubt that it modifies the word “materially,” not the term
“materially false.” We see little reason to distinguish
§ 1037(d)(2) and § 7704(a)(6), and good reason to read them
in parallel, given that Congress is unlikely to have intended to
enact a criminal provision that sweeps more broadly than its
civil analogue. See United States v. McKie, 112 F.3d 626, 632
(3d Cir. 1997) (recognizing that our normal practice is to
“interpret criminal statutes strictly”).
The bottom line is that we decline Amicus’s invitation
to construe §§ 1037(a)(3) and (a)(4) as requiring that
commercial emailers adhere to an anti-anonymity principle.
Instead, we embrace a narrow, norms-based reading that
reflects the Act’s text. Having traced the boundaries of the
Act’s criminal provisions, and having found this unfamiliar
territory to be smaller and less dangerous than it may first
appear, we are now equipped to answer the categorical
question at the heart of this appeal.
3. Why §§ 1037(a)(3) and (a)(4) Involve
Deceit
With a definition of deceit in mind, and a map of the
CAN-SPAM Act in view, all that remains is to decide whether
the prohibitions on false header and domain name spamming
“necessarily entail” deceit.7 Kawashima, 565 U.S. at 484. In
7
That Rad was convicted of conspiring to violate
§§ 1037(a)(3) and (a)(4), rather than substantive violations of
those provisions, does not alter our analysis of this element.
Because “[c]onspiracy to commit an aggravated felony is itself
23
applying the categorical approach, we “presume that [Rad’s]
conviction ‘rested upon [nothing] more than the least of th[e]
acts’ criminalized, and then determine whether even those acts
are encompassed by the generic federal offense.” Moncrieffe
v. Holder, 569 U.S. 184, 190–91 (2013) (quoting Johnson v.
United States, 559 U.S. 133, 137 (2010)) (second and third
alteration in original). As it happens, our adoption of a norms-
based reading of the Act requires that we resolve this issue in
DHS’s favor.
To see why, a brief review of the Supreme Court’s
decision in Kawashima is essential. That case centered on 26
U.S.C. § 7206(1), a provision that makes it illegal to insert
false statements in a tax return. To prove a violation of
§ 7206(1), the government must establish “that the document
in question was false as to a material matter, that the defendant
did not believe the document to be true and correct as to every
material matter, and that he acted willfully with the specific
intent to violate the law.” Kawashima, 565 U.S. at 483.
Because a defendant cannot be convicted without “knowingly
and willfully submitt[ing] a tax return that [i]s false as to a
material matter,” the Court held that § 7206(1) embodies
deceit. Id. at 484.
an aggravated felony,” we “proceed as though [the non-
citizen] had been convicted of the substantive offense . . .
though in fact he [was convicted of] conspiracy to commit that
offense.” Tran v. Gonzales, 414 F.3d 464, 468 n.3 (3d Cir.
2005) (citing 8 U.S.C. § 1101(a)(43)(U)).
24
The same logic extends to §§ 1037(a)(3) and (a)(4). In
Kawashima, the relevant offense concerned the entry of false
information in a tax return, a document that ordinarily contains
truthful statements. Here, likewise, the Act targets senders
who falsify email headers and domain name registration
entries, both contexts where consumers expect accuracy.
When it comes to § 1037(a)(3), for example, recipients
presume that header information reflects a sender’s email
address. Any deviation from that norm risks giving readers “a
false impression” as to a message’s origin. Valansi, 278 F.3d
at 209 (internal quotation marks omitted); see also Kawashima,
565 U.S. at 484 (classifying “falsification” as a form of
“deceit”). And when it comes to § 1037(a)(4), ICANN’s
longstanding rules mandate accurate disclosure of a
registrant’s contact information. In that context, too,
falsification tends to cause recipients, investigators, and
internet service providers “to believe what is false.” Valansi,
278 F.3d at 211. We therefore conclude that, like the provision
at issue in Kawashima, §§ 1037(a)(3) and (a)(4) necessarily
entail deceit.
Neither of Amicus’s counterarguments convinces us
otherwise. Its main contention is that many types of conduct
contravene the CAN-SPAM Act without implicating deceit.
What unites Amicus’s examples is that they assume that any
mismatch between a commercial emailer’s address and his true
identity triggers liability under § 1037(a)(3). But, as we
explained already, no matter whether a message comes from a
25
private, vague, or whimsical address, the sender remains safe
from prosecution unless he manipulates the email’s header.8
This point is best illustrated by Kilbride, a CAN-SPAM
Act prosecution that Amicus argues did not feature fraud or
deceit. The Kilbride defendants altered their emails’ headers
by “tak[ing] the user name of the person receiving the email
and put[ting] it in the user name space of the return path.”
United States v. Kilbride, 507 F. Supp. 2d 1051, 1062 (D. Ariz.
2007). For example, if the defendants sent an email “using the
domain name ‘shouldertricks.com’ and [if] the email was
8
A related issue—albeit one that neither the parties nor
Amicus explore—is whether providing ICANN with contact
information that many observers will recognize as false
qualifies as deceit. In theory, for instance, a domain registrant
could list her mailing address as Mars, Atlantis, or El Dorado.
These examples may well involve material falsification within
the meaning of the CAN-SPAM Act, given that the use of a
false address makes it more difficult for investigators to locate
the sender. See 18 U.S.C. § 1037(d)(2). But even these
hypotheticals entail deceit. While listing one’s home address
as Mars may come across as obviously untrue to an average
adult, it will still “giv[e] a false impression” to children and the
credulous. Valansi, 278 F.3d at 209. And Kawashima
implicitly rejected a parallel hypothetical: A conceivable way
of falsifying a tax return would be to include an imaginary
number or a figure with an impossible number of digits; yet
this possibility failed to prevent the Supreme Court from
classifying § 7206(1) as a crime that categorically entails
deceit. See Kawashima, 565 U.S. at 483–84. We follow the
same approach here.
26
received by an individual with the email address of
‘trresa@aol.com,’ [the] program would . . . show a return path
for the email of ‘trresa@shouldertricks.com.’” Id. Amicus
makes much of Kilbride because, as DHS admits, “[n]o
reasonable recipient would have been misled into thinking he
sent himself [emails].” Dep’t’s Supp. Br. at 25. But recipients
(or, as is more likely, law enforcement investigators) may well
have been misled into thinking the messages originated from
the account displayed in the headers. That constitutes deceit.
Amicus’s fallback argument draws on the CAN-SPAM
Act’s larger structure. In the subsection immediately
preceding §§ 1037(a)(3) and (a)(4), Congress made it a crime
“to relay or retransmit” commercial emails “with the intent to
deceive or mislead recipients . . . as to the origin of such
messages.” 18 U.S.C. § 1037(a)(2). According to Amicus, the
drafters’ use of the verb “deceive” in an adjacent provision
establishes that the “materially falsifies” element cannot be
coextensive with deceit. See Russello v. United States, 464
U.S. 16, 23 (1983). We agree that the juxtaposition of
§§ 1037(a)(3) and (a)(4), on one hand, and (a)(2), on the other,
reveals that “falsifi[cation]” and “decei[t]” are not identical.
That provides little help to Rad, however, because the Act
reflects that §§ 1037(a)(3) and (a)(4) focus more narrowly than
(a)(2), not more broadly. Unlike their sister provision, the
prohibitions on header and domain name spamming include
the limiting adverb “materially.” §§ 1037(a)(3), (a)(4). They
also hinge on “falsification,” id., and therefore exclude other
ways of deceiving others, such as “concealment or cheating,”
Kawashima, 565 U.S. at 484. So, while the Act’s structure
27
suggests that §§ 1037(a)(3) and (a)(4) may not criminalize all
deceitful conduct, it confirms that the only conduct those
provisions prohibit involves deceit.
In the end, our narrow, norms-based reading of
§§ 1037(a)(3) and (a)(4) turns out to be decisive.9 Because the
Act targets false statements made in contexts where internet
users expect accuracy, even the least culpable violations entail
deceit. We thus affirm the Board’s judgment that Rad’s
offenses fulfill 8 U.S.C. § 1101(a)(43)(M)(i)’s fraud or deceit
requirement. That does not end our inquiry, however, because
DHS also bears the burden of showing that Rad’s crimes reflect
over $10,000 in victim losses. To that subject, we now turn.
9
We acknowledge that our reading diverges from the
Board’s. But the Board’s interpretation, which construes the
Act’s interstate commerce element as including a mens rea
requirement, conflicts with well-settled interpretative
principles. See Torres v. Lynch, 136 S. Ct. 1619, 1631 (2016)
(“[C]ourts have routinely held that a criminal defendant need
not know of a federal crime’s interstate commerce connection
to be found guilty.”). And, “[a]lthough we give Chevron
deference to the [Board]’s interpretation of the aggravated
felony provisions of the INA if we determine that the statute is
ambiguous,” the Board “is not entitled to Chevron deference
as to whether a particular federal criminal offense is an
aggravated felony.” Bobb v. Att’y Gen., 458 F.3d 213, 217 n.4
(3d Cir. 2006).
28
B. The Victim Loss Element
The final question we confront is whether Rad’s crimes
inflicted victim losses that exceed the statutory threshold.
Unlike the categorical approach applied above, our evaluation
of this element depends on “the specific way in which an
offender committed the crime” and we therefore retain
authority to consider any “sentencing-related material[]” that
sheds light on Rad’s conduct. Fan Wang, 898 F.3d at 349–50
(quoting Nijhawan, 557 U.S. at 42). In reviewing the Board’s
analysis of that material, we are bound by one of administrative
law’s most fundamental principles: We must judge an
agency’s decision “solely [on] the grounds [it] invoked.” Dia
v. Ashcroft, 353 F.3d 228, 241 (3d Cir. 2003) (quoting SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947)).10 Because the
challenged order overlooks crucial differences between
sentencing hearings and immigration proceedings, we cannot
adopt the Board’s reasoning. Below, we catalog the problems
with its analysis, and then explain our decision to give DHS
one last chance to make its case.
1. Where the Challenged Order Errs
To understand why remand is required, one need look
no further than the Board’s order. Rather than examining
evidence from Rad’s sentencing hearing, the agency fixated on
10
“Where, as here, the B[oard] issues a written decision
on the merits, we review its decision, not that of the IJ.”
Moreno v. Att’y Gen., 887 F.3d 160, 163 (3d Cir. 2018)
(internal quotation marks omitted).
29
the outcome of that proceeding. Working backwards from the
thirty-five month sentence the District Court imposed for
Count I, the Board surmised that the Court must have “added
at least 6 levels based on victim loss—a determination that
would have required the court to assess the loss at greater than
$40,000.” A.R. 5. Otherwise, the Board reasoned, it would
have been “mathematically impossible” for the Court to
sentence Rad to as many months in prison as it did. Id. Having
inferred that the District Court found Rad responsible for over
$10,000 in losses under the Sentencing Guidelines, the Board
presumed it could do the same under the INA. What underlies
this result is the premise that loss determinations follow the
same rules no matter whether they occur in the course of an
immigration proceeding or a sentencing hearing.
But that premise is fundamentally flawed. Rather than
codifying similar standards for calculating losses, the
Guidelines and INA prescribe frameworks that differ in almost
every respect: They require that losses be connected to
different types of conduct, elaborate different tests for deciding
when an offender’s gains serve as a proxy for victims’ losses,
and hold the government to different burdens of proof. See
Singh, 677 F.3d at 511 (describing the Guidelines and INA as
“apples and oranges”). We outline these distinctions below,
and, in doing so, lay bare three defects in the Board’s
reasoning.
30
a) Whether Losses Must be Tied to
Convicted Conduct
One way that loss determinations under the Guidelines
and the INA diverge is that they train on different kinds of
conduct. For sentencing purposes, a district court may review
losses resulting from any “relevant conduct,” which “need not
be admitted, charged in the indictment, or proven to a jury.”
Alaka v. Att’y Gen., 456 F.3d 88, 108 (3d Cir. 2006); see
U.S.S.G. § 1b1.3(a); United States v. Payano, 930 F.3d 186,
198 (3d Cir. 2019) (“[A] sentencing court possesses great
discretion in the conduct it may consider . . . even if the
conduct was not proven at trial[.]”). For immigration purposes,
however, the agency must “focus narrowly on the loss amounts
that are particularly tethered to convicted counts.”11 Alaka,
456 F.3d at 107; see Knutsen v. Gonzales, 429 F.3d 733, 736–
37 (7th Cir. 2005) (explaining that the “plain language” of the
INA “forecloses inclusion of losses stemming from
unconvicted offenses”). And even then, in contrast to the
Guidelines, see Singh, 677 F.3d at 511–12, the amounts must
reflect actual and not merely intended losses, at least in the case
11
To be clear, while the Board cannot consider losses
stemming from unconvicted conduct when analyzing
§ 1101(a)(43)(M)(i), our decision today does not prevent the
agency from reviewing that conduct when deciding whether to
grant discretionary relief, such as cancellation of removal, see
id. § 1229b(b)(1). See In re C-V-T-, 22 I. & N. Dec. 7, 11–12
(BIA 1998) (empowering IJs to account for the “nature,
recency, and seriousness” of a noncitizen’s crimes when
determining whether to afford discretionary relief).
31
of substantive offenses, see Section III.B.2 infra (addressing
conspiracy and attempt offenses). To visualize the relationship
between these standards, imagine two concentric circles: The
INA, the inner circle, covers actual losses tied to the convicted
conduct itself, while the Guidelines, the outer circle,
encompasses both actual and intended losses from convicted
conduct and all other related conduct.
This case illustrates that distinction. At its core, the
Board’s loss analysis centers on the allegations that Rad
conspired to “pump” the price of penny stocks by misleading
investors and then “dump” his shares of those stocks at a profit.
A.R. 4–5. But most of the indictment’s counts feature CAN-
SPAM Act charges, and only one, the conspiracy-to-commit-
securities-fraud count, alleges that Rad duped investors into
buying stocks that later declined in value. And, although the
Board presumed Rad was guilty of securities fraud, the verdict
form reveals that the jury declined to convict Rad of that
charge. Thus, the agency’s loss analysis rests on the mistaken
assumption that the District Court found Rad guilty of
securities fraud, and that victim losses are attributable to him
on that basis.
That error would make little difference if the Guidelines
governed. In that scenario, the Board could easily characterize
the unconvicted aspects of the pump-and-dump scheme as
“related” to Rad’s CAN-SPAM Act convictions. Id.; see
U.S.S.G. § 1B1.3(a) (defining as related conduct “all acts and
omissions . . . by the defendant . . . that occurred during the
commission of the defense of conviction”). Under the INA,
32
however, the agency can only consider losses stemming from
the pump-and-dump scheme if that scheme embodies the
“specific way” Rad committed the CAN-SPAM Act
conspiracy counts, Nijhawan, 557 U.S. at 34, or if a “direct
link” ties the conduct underlying those counts to investors’
losses, Fan Wang, 898 F.3d at 351. It could be the case, for
example, that Rad’s use of false headers and domain names
enabled him to reach more investors or earn greater trust from
the investors he did reach, prompting them to purchase stocks
that ultimately declined in value. Whatever the connection
between Rad’s CAN-SPAM Act offenses and investor losses,
however, the challenged order omits any discussion of it.
Whether any victim losses are “particularly tethered” to Rad’s
convictions is thus an issue we must leave for the BIA to
resolve in the first instance. Alaka, 456 F.3d at 107.
b) How an Offender’s Gains Affect
the Loss Calculation
Another difference between sentencing hearings and
immigration proceedings is the role an offender’s gains play in
the loss determination. The Guidelines make clear that when
“there is a loss but it reasonably cannot be determined,” a
district court may increase the offense level based on “the gain
that resulted from the offense.” U.S.S.G. § 2B1.1, cmt. n.3(b).
The relevant INA section, by contrast, trains on “loss to the
victim or victims,” 8 U.S.C. § 1101(a)(43)(M)(i), and makes
33
no provision for the agency to treat gains and losses as
interchangeable.12
This is not to say that the Board may never use an
offender’s gains to support the loss element. In many cases, a
defendant’s earnings will provide powerful circumstantial
evidence of victim loss.13 In a fraud case, for instance, DHS
may be able to show the statutory threshold is satisfied by using
the defendant’s commission percentage to estimate the volume
of fraudulent sales. As this example attests, DHS can establish
the loss element without specifically identifying a victim or
12
The Board’s decision does not purport to interpret the
INA’s loss element, and, in any event, we refuse to afford
Chevron deference to unpublished Board decisions. See Mahn
v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014) (“We join our
sister circuits in concluding that unpublished, single-member
B[oard] decisions are not entitled to Chevron deference.”).
13
In this respect, the INA resembles a previous version
of the Guidelines, which did not authorize courts to treat gains
as a substitute for losses. See United States v. Hoffecker, 530
F.3d 137, 197 (3d Cir. 2008) (“The court need only make a
reasonable estimate of the loss, given the available
information.”) (quoting U.S.S.G. § 2F1.1, cmt. 8 (1997), a
now-deleted subsection). Under that version of the Guidelines,
the question was whether “some logical relationship [links] the
victim’s loss and the defendant’s gain so that the latter can
reasonably serve as a surrogate for the former.” United States
v. Dickler, 64 F.3d 818, 826 (3d Cir. 1995). We read the INA
as requiring the agency to answer a similar question whenever
it uses an offender’s gains as a proxy for victim losses.
34
victims; all the statutory text requires is that victims exist, and
that they have collectively lost over $10,000. See 8 U.S.C.
§ 1101(a)(43)(M)(i).
What is fatal to the challenged order is not that the
agency used gains to estimate losses, but that it simply equated
them, without evaluating how, if at all, Rad’s earnings relate to
investor harms. And, contrary to DHS’s suggestion, the
District Court’s sentencing decision cannot fill the gap left by
the agency’s missing analysis. Considering that the Guidelines
leave open the possibility that the District Court elevated Rad’s
offense level without calculating the losses attributable to his
conduct, and that the Probation Office urged that approach, we
have no assurance that the Court found Rad’s crimes to have
caused over $10,000 in losses. Ultimately, then, the Board’s
failure to substantiate any relationship between Rad’s profits
and investors’ injuries supplies a second ground on which to
disapprove the challenged order.
c) Which Burden of Proof Governs
A third distinction between the Guidelines and the INA
is that they articulate different burdens of proof. While a
preponderance-of-the-evidence standard applies at sentencing,
see United States v. Fisher, 502 F.3d 293, 305 (3d Cir. 2007),
a clear-and-convincing evidence standard governs removal
proceedings, see Kiareldeen, 273 F.3d at 553. Given that the
District Court analyzed the loss issue under a different and less
demanding burden of proof, the agency would have needed to
perform an independent review of the evidence to confirm that
35
Rad’s crimes inflicted harm. See Nijhawan, 557 U.S. at 42
(directing the Board to “assess findings made at sentencing
‘with an eye . . . to the burden of proof of employed’”) (quoting
In re Babaisakov, 24 I. & N. Dec. 306, 319 (2007)). Neither
the Board nor the IJ did so. That provides us with yet another
reason to reject the agency’s loss analysis.
To sum up, whether a victim loss question implicates
the Guidelines or the INA has sweeping consequences. It
determines whether losses must be tethered to convicted
conduct, dictates the role the offender’s gains play in the loss
calculation, and decides the relevant burden of proof. Yet the
challenged order glosses over these differences and instead
treats the Guidelines and the INA as coextensive. This error
infects almost every aspect of the agency’s analysis, from the
conduct it examined to the standard it applied. Because we are
bound to review what the Board did, not what it might have
done, we have no choice but to vacate the challenged order.
See Dia, 353 F.3d at 241.
2. Why Remand Is Warranted
All that remains is to decide whether to give the Board
what would be a third chance to evaluate this element. When
an agency has “had two opportunities to address the legal and
factual issues” in a case, we normally refuse to “give it a third
bite at th[e] apple.” Yusupov v. Att’y Gen., 650 F.3d 968, 993
(3d Cir. 2011) (quoting Zhu v. Gonzales, 493 F.3d 588, 602
(5th Cir. 2007)). That is especially true where, as here, the
Board failed to meaningfully revise its reasoning after the first
36
remand. Though DHS’s motion to remand highlighted
controlling cases that the initial order overlooked, including an
opinion that emphasizes the disjunction between the INA and
the Guidelines, see Singh, 677 F.3d at 511, the agency persisted
in ignoring those authorities. Should this troubling trend
continue, we will have no choice but to eschew remand and
instead direct the Board to reject DHS’s request to remove Rad.
See, e.g., Yusupov, 650 F.3d at 993.
In this case, however, we find ourselves compelled to
give the Board one last opportunity to review the victim loss
element. The Supreme Court announced in Florida Power &
Light Co. v. Lorion that “if [an] agency has not considered all
relevant factors . . . the proper course, except in rare
circumstances, is to remand to the agency for additional
investigation or explanation.” 470 U.S. 729, 744 (1985).
Thus, we remand at this point not to permit the Board to retread
the evidence and arguments it has twice encountered, but to
allow it to examine an avenue for attributing victim losses that
it never considered. See Kang v. Att’y Gen., 611 F.3d 157, 168
(3d Cir. 2010) (explaining that we decline to remand only when
“application of the correct legal principles to the record could
lead . . . to [a single] conclusion” (emphasis omitted)).
More specifically, Rad’s offenses may reflect intended,
rather than actual, losses. As discussed above, the jury
convicted Rad of conspiracy to violate §§ 1037(a)(3) and
(a)(4), not substantive violations of those provisions. That
matters because Rad’s crimes implicate 8 U.S.C.
§ 1101(a)(43)(U), which establishes that “an attempt or
37
conspiracy to commit” an offense under § 1101(a)(43)(M)
counts as an aggravated felony. In the past, we have
acknowledged that a question exists as to whether “intended
loss” may “satisf[y] the loss requirement for attempts or
conspiracies to commit a deceit offense under subparagraph
(U),” but we have not had occasion to resolve the issue. Singh,
677 F.3d at 511 n.7.
Today, we join the Second Circuit, Ninth Circuit, and
Board in recognizing that a conspiracy or attempt to commit
fraud or deceit involving over $10,000 in intended losses
qualifies as an aggravated felony.14 See Li v. Ashcroft, 389
F.3d 892, 896 n.8 (9th Cir. 2004), overruled on other grounds
by Nijhawan, 557 U.S. 29; Ljutica v. Holder, 588 F.3d 119,
125–26 (2d Cir. 2009); In re S-I-K-, 24 I. & N. Dec. 324, 327
(BIA 2007). This makes sense both as a textual matter and as
a practical one. Read together, subsections M and U define an
“offense” as conduct that “involves fraud or deceit in which the
loss to the victim . . . exceeds $10,000,” and go on to clarify
that “an attempt or conspiracy to commit” that “offense”
constitutes an aggravated felony. 8 U.S.C.
14
The Ninth Circuit also suggested that “potential” loss
may satisfy 8 U.S.C. § 1101(a)(43)(U). Li, 389 F.3d at 896
n.8. Under our precedent, however, a conspiracy must feature
“an intent to achieve a common illegal goal.” United States v.
John-Baptiste, 747 F.3d 186, 204–05 (3d Cir. 2014) (emphasis
added). Thus, a noncitizen cannot “conspir[e] to commit” an
offense under § 1101(a)(43)(M)(i) unless he intends to commit
a crime that would, if completed, result in over $10,000 in
losses. § 1101(a)(43)(U).
38
§§ 1101(a)(43)(M)(i), (U). It follows that a conspiracy to
inflict losses satisfies subsection U, even if it never produces
harm. And, because many conspiracies involve no actual
losses at all, a contrary conclusion would dramatically limit the
scope of subsection U as applied to subsection M—a result
Congress is unlikely to have intended. See United States v.
Watkins, 339 F.3d 167, 178 (3d Cir. 2003) (“A conspiracy
charge does not require proof of success in committing the
offense[.]”).
On remand, the Board must decide whether, in
conspiring to violate §§ 1037(a)(3) and (a)(4), Rad intended to
cause over $10,000 in investor losses. Perhaps Rad agreed to
use false headers and domain names to evade spam filters,
reach a larger audience, and induce more investors to purchase
stocks he expected to plummet in value. Perhaps Rad meant
for the false headers and domain names to confuse investors,
prompting them to launch costly investigations. See, e.g., Tian
v. Holder, 576 F.3d 890, 896 (8th Cir. 2009) (finding that
expenses a victim incurred in investigating computer crimes
satisfied the INA’s $10,000 loss requirement). Or perhaps not.
We express no opinion as to the ultimate outcome and leave it
to the agency to explore these and other possibilities on
remand.
IV. Conclusion
For the foregoing reasons, we grant the petition for
review, vacate the Board’s removal order, and remand for
39
further consideration of whether Rad’s CAN-SPAM Act
convictions reflect over $10,000 in intended losses.
40