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 ...
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