A criminal charge may complicate immigration matters.   In 2021, the Third Circuit Court of Appeals decided on this type of  case, in Rad v. AG.  The Court of Appeals is a federal court, and hears appeals for cases over which it has jurisdiction.  The Court of Appeals is divided into different circuits, which cover different states and U.S. Territories.  A decision from this Appeals court is quite important.  It sets precedent for its jurisdiction, and can be used for advocacy in other jurisdictions.  Her, the court vacated Mr. Rad’s removal (deportation) order and remanded for further development of the record about his conviction.  Vacating an order of removal means that the removal (deportation) order was cancelled.

The Court of Appeals reviewed a case from the Board of Immigration Appeals (BIA).  Mr. Rad petitioned (asked) the Court to hear his case.  The BIA had issued a removal order for him, meaning he had to leave the United States.   Mr. Rad had an underlying conviction for violating the CAN-SPAM ACT.  The Act tries to regulate unwanted commercial email, or spam.  It empowers prosecutors to charge spammers who use particularly abusive tactics.  One such tactic is falsifying an email’s header info, or where the information came from.  This is called “spoofing.” Another type is registering a domain name, under a false identity.  A domain can’t be obtained, without providing contact information.  Allegedly, Mr. Rad and his co-conspirators obtained penny stocks, sent out misleading emails and “pumped’ up the prices of the stocks, then sold them.  He was convicted of false header spamming and false domain name spamming.

The Department of Homeland Security (DHS) initiated removal proceedings after his criminal conviction.   Removal proceedings are held in the immigration court by an immigration judge, to determine if the non-citizen should be removed from the U.S.   DHS obtained a removal order.

One basis of authority for DHS to bring removal proceedings is non-U.S. citizens who commit aggravated felonies. One category of aggravated felony is a fraud conviction in which the loss to the victims is over $10,000.00.  To be an aggravated felony, the crime has to involve deceit.  Deceit is defined in the legal context as “the act of intentionally giving a false impression.”  The Appeals Court determined that Petitioner’s alleged actions involved deceit. Therefore, it was an aggravated felony.  The Court was unable to determine from the record if Mr. Rad’s actions necessarily resulted in losses to the victim(s)of $10,000.00.

The Court vacated the deportation order. Vacate in this legal context means to overrule. The Court remanded this case to make a determination on the $10,000.00 loss to the victim(s).    Remand means the Court returns the case to a lower-level court. If the record establishes a loss of more than $10,000, the aggravated felony finding will be reinstated. IF the record cannot establish at least that amount of loss, the aggravated felony finding could not be supported and Mr. Rad may be able to avoid removal from the U.S.

The Appeals Court was very cautious in determining the monetary loss to the victims, due to Mr. Rad’s actions.  The burden is on the DHS to prove the loss based on the record without speculating or manipulating the loss. What non-citizens and their attorneys need to learn from this decision is to challenge every fact that the government must prove to secure an order of removal. Just because the DHS alleges a fact does not mean it is true. The core of a strong defense is to put the government to its burden of proof.


You can reach the Law Office of Eric M. Mark at 201 Washington St., Newark, NJ 07102 or by appointment only in Jersey City, New Jersey.




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