“Deceit by Definition” – Third Circuit Holds that a Conviction under 18 U.S.C. § 287 Is Categorically an Aggravated Felony Involving Deceit and Bars a Retroactive INA § 212(h) Waiver

1. Introduction

In Robert Wayne Lanoue v. Attorney General of the United States, No. 24-2583 (3d Cir. July 1, 2025), the United States Court of Appeals for the Third Circuit confronted two recurring questions in immigration-crime litigation:

Does a federal conviction for submitting false claims to the Government under 18 U.S.C. § 287 qualify as an “offense that involves fraud or deceit” within the aggravated felony definition at INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i)?
Can a lawful permanent resident (LPR) who later becomes deportable on that basis obtain— retroactively—a waiver of inadmissibility under INA § 212(h) (8 U.S.C. § 1182(h)) by arguing that prior re-entries should be treated as fresh applications for admission?

The court’s precedential opinion, authored by Judge Bibas and joined by Judges Hardiman and Fisher, answered both questions in the Government’s favor, thereby cementing two distinct but related principles:

Principle #1 – Categorical Deceit: A § 287 conviction is, by its elements, necessarily a crime “involving deceit,” satisfying the aggravated-felony definition without further factual inquiry.
Principle #2 – No Retroactive § 212(h): An LPR who was neither convicted of nor admitted the underlying offense at the time of a prior re-entry cannot later invoke § 212(h) to waive removability triggered by the subsequent conviction.

2. Summary of the Judgment

Robert Lanoue, a Canadian national and LPR resident for nearly forty years, pled guilty to submitting more than USD 3 million in false reimbursement claims to the Department of Veterans Affairs (VA) through a scuba-diving school he operated. An Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) concluded that the conviction rendered him removable as an aggravated felon and that he was ineligible for discretionary relief. The Third Circuit denied his petition for review, holding:

Section 287’s textual elements (“knowingly” submitting a false claim) categorically constitute deceit.
The Government established—by clear and convincing evidence—that the victim’s loss exceeded USD 10,000, satisfying the monetary threshold of § 101(a)(43)(M)(i).
Lanoue cannot rely on § 212(h) because, at each point of entry, he had neither been convicted of nor admitted the offense, and the statute does not permit a waiver to be granted retroactively.

3. Analytical Commentary

3.1 Precedents Cited and Their Significance

Kawashima v. Holder, 565 U.S. 478 (2012): Supreme Court found that tax offenses could involve fraud or deceit; key for defining “deceit” generically.
Mathis v. United States, 579 U.S. 500 (2016): Reiterated the “categorical approach” comparing elements, not facts, of offenses; Third Circuit applied Mathis to § 287.
Rad v. Attorney General, 983 F.3d 651 (3d Cir. 2020): Supplied an in-circuit definition of “deceit” as “the act of intentionally giving a false impression.”
Wang v. Attorney General, 898 F.3d 341 (3d Cir. 2018) & Nijhawan v. Holder, 557 U.S. 29 (2009): Both govern proof of the USD 10,000 loss element, allowing reliance on plea stipulations and restitution orders.
Vartelas v. Holder, 566 U.S. 257 (2012): Clarified “admission/conviction upon entry” requirements; foreclosed Lanoue’s retroactive waiver theory.
Larios v. Attorney General, 978 F.3d 62 (3d Cir. 2020): Discussed how to match state offenses to the federal “deceit” descriptor, providing analytical scaffolding adopted here.
Myrie v. Attorney General, 855 F.3d 509 (3d Cir. 2017): Quoted for jurisdictional limitations over aggravated-felony findings.

3.2 The Court’s Legal Reasoning in Detail

3.2.1 The Categorical Approach Applied to § 287

The panel first rejected the Government’s forfeiture argument, finding that Lanoue’s brief, while cursory, preserved the deceit issue. Turning to substance, Judge Bibas invoked Kawashima, Mathis, and Larios to articulate the two-step categorical method:

Identify the “generic” offense (here, “deceit”)
Compare statutory elements of § 287 with that generic definition

Section 287 criminalizes making a claim “knowing [it] to be false, fictitious, or fraudulent.” That textual combination of affirmative misrepresentation (actus reus) and knowledge of falsity (mens rea) necessarily entails an intentional false impression. Ergo, every violation equals deceit—nothing further is required.

3.2.2 Proof of the USD 10,000 Threshold

Echoing Nijhawan, the court distinguished the categorical element analysis (for deceit) from the “circumstance-specific” loss inquiry. The Government met its burden by pointing to:

A plea stipulation acknowledging losses between USD 1.5 – 3.5 million.
A restitution order fixing losses at more than USD 3 million.

Lanoue’s counter-arguments (that funds were used for veterans or that co-defendants shared blame) were insufficient to rebut clear and convincing documentary evidence.

3.2.3 Ineligibility for INA § 212(h) Waiver

The panel treated Lanoue’s “retroactive waiver” theory as a misreading of §§ 101(a)(13)(C)(v) and 212(h). Under Vartelas, an LPR returning to the U.S. is deemed an “applicant for admission” only if the prior offense was already acknowledged or adjudicated at the port‐of-entry. Because Lanoue was unconvicted and made no admission at each re-entry, the IJ and BIA correctly determined that § 212(h) relief was unavailable ab initio and remains so.

3.3 Potential Impact on Future Litigation

Uniform Treatment of § 287 Convictions: Across circuits, some uncertainty had persisted about whether § 287 always involves deceit. The Third Circuit’s precedential ruling offers a clear answer for immigration courts within the circuit and may influence other tribunals.
Heightened Predictability for Practitioners: Defense counsel contemplating pleas under § 287 must now advise LPR clients that deportability is virtually automatic once the USD 10,000 loss threshold is crossed.
Clarification of § 212(h) Temporal Requirements: By reiterating Vartelas, the panel forecloses creative retroactivity arguments, streamlining waiver litigation.
Guidance for Restitution-Based Proof: The court re-affirmed that plea agreements and restitution orders are enough to satisfy the “loss” element, reducing evidentiary contests.
Possible Supreme Court Interest: While most circuits align on deceit analysis, the decision’s categorical reasoning may be cited if a future circuit split emerges over other fraud statutes.

4. Complex Concepts Simplified

Categorical Approach: Think of matching puzzle-piece shapes. Courts look only at statutory words (shapes), ignoring real-world facts, to see whether the offense matches a generic category like “deceit.”
Aggravated Felony: In immigration law, an umbrella term that triggers near-automatic deportation and bars most relief. It covers dozens of offense types, including those “involving fraud or deceit” with losses over USD 10,000.
Mens Rea / Actus Reus: Latin for “mental state” and “guilty act.” “Deceit” requires both—the act of false representation plus knowledge that it is false.
§ 212(h) Waiver: A discretionary forgiveness tool allowing certain inadmissible non-citizens to enter or remain. LPRs convicted of aggravated felonies after admission usually cannot invoke it.
Joint and Several Liability: Each co-defendant can be held fully liable for the total loss; the Government may collect all restitution from any one of them.

5. Conclusion

The Third Circuit’s decision in Lanoue delivers two notable holdings. First, it removes all doubt that a conviction for presenting false claims under 18 U.S.C. § 287 is a categorical “crime involving deceit,” satisfying the aggravated-felony ground of removability once the USD 10,000 loss threshold is met. Second, it clarifies that an LPR cannot revive a § 212(h) waiver retroactively after conviction when, at prior re-entries, there was no admitted or adjudicated offense. The ruling reinforces the predictable—if unforgiving—intersection of criminal convictions and immigration consequences, reminding practitioners that “breaking the law has consequences” and tightening the doctrinal links between federal fraud statutes and removal provisions. Future defendants and their counsel now have unequivocal notice: a guilty plea to § 287, coupled with significant financial loss, almost certainly means deportation, and the path to discretionary relief is foreclosed.