Robert Wayne Lanoue v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA On Petition for Review of a…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 24-2583
_______________
ROBERT WAYNE LANOUE,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA
_______________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A040-235-305)
Immigration Judge: Adrian N. Armstrong
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on June 6, 2025
Before: HARDIMAN, BIBAS, and FISHER, Circuit Judges
(Filed: July 1, 2025)

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Stephen C. Fleming
119 S. Burrowes Street
Suite 601
State College, PA 16801
Counsel for Petitioner
Jaclyn G. Hagner
Tatiana G. Pino
U NITED STATES D EPARTMENT OF JUSTICE
O FFICE OF I MMIGRATION L ITIGATION
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Breaking the law has consequences. For lawful permanent
residents like Robert Lanoue, those can include removal from
this country. He pleaded guilty to submitting false claims to the
government under 18 U.S.C. § 287. Because that is categori-
cally a crime of deceit that cost the government more than
$10,000, it is an aggravated felony and thus makes him remov-
able. And he is not eligible for an § 1182(h) waiver of removal.
We will thus deny his petition for review.

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I. LANOUE F ACED R EMOVAL F OR
D EFRAUDING THE GOVERNMENT
Lanoue, a Canadian, came to the United States nearly four
decades ago as a lawful permanent resident. Almost a decade
ago, he opened a scuba school with his wife. A few years later,
his scuba school was accepted into a government program,
funded by the post-9/11 GI Bill, that reimbursed him for teach-
ing veterans how to scuba dive. But Lanoue lied to the govern-
ment about the program’s details. He pleaded guilty to “know-
ingly submit[ting] or caus[ing] to be submitted false and fraud-
ulent claims for payment to the Department of Veterans’ Affairs
in violation of 18 U.S.C. §§ 287 and 2.” AR 226. Those false
claims cost the Department more than $3 million.
After Lanoue’s conviction, the government started removal
proceedings, claiming that his crime was an aggravated felony
because it involved fraud or deceit and caused more than
$10,000 in losses. Lanoue disputed both points and sought a
waiver of inadmissibility. The immigration judge found both
points satisfied, denied the waiver, and ordered him removed.
The Board of Immigration Appeals dismissed the appeal. We
review constitutional or other legal challenges de novo, but
otherwise lack jurisdiction to review the aggravated-felony
finding and the denial of a waiver. 8 U.S.C. § 1252(a)(2)(B)(i),
(C), (D); Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017).
II. F ILING FALSE C LAIMS IS AN
AGGRAVATED F ELONY INVOLVING D ECEIT
Before we reach the merits, we first face a threshold issue.
The government says Lanoue’s Third Circuit brief forfeited his
challenge to whether his crime involved deceit. We disagree

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because Lanoue’s opening brief contests this part of the
Board’s holding. The Board held that 18 U.S.C. § 287 categor-
ically involves deceit. Though Lanoue’s brief should say more,
it does argue that the crime requires only an intent to mislead,
not an intent to deceive. That is enough to preserve the issue
for our review.
On the merits, though, Lanoue’s arguments fail. When an
alien commits certain crimes, he is deportable. 8 U.S.C.
§ 1227(a)(2). One such kind of crime is “an aggravated felony.”
§ 1227(a)(2)(A)(iii). Lots of crimes count as aggravated felo-
nies, but one is relevant here: “an offense that … involves fraud
or deceit in which the loss to the victim … exceeds $10,000.”
§ 1101(a)(43)(M)(i). We must decide if Lanoue’s conviction
under 18 U.S.C. § 287 is (1) a crime of deceit that (2) caused
the government to lose more than $10,000. We need not say
anything about whether his crime involved fraud because deceit
alone is enough to satisfy the aggravated felony bar in 8 U.S.C.
§ 1101(a)(43)(M)(i) (requiring only “fraud or deceit” (empha-
sis added)). See Rad v. Att’y Gen., 983 F.3d 651, 659, 666 (3d
Cir. 2020).
Lanoue’s crime categorically requires deceit. Under the cat-
egorical approach, to decide whether § 287 is a crime of deceit,
we compare it to the generic federal definition of a crime of
deceit, “while ignoring the particular facts of th[is] case.”
Mathis v. United States, 579 U.S. 500, 504 (2016). Though no
federal statute lays out the elements, an offense is a crime of
deceit if the statute’s required actions (actus reus) and mental
state (mens rea) “necessarily entail … deceitful conduct.” Ka-
washima v. Holder, 565 U.S. 478, 484 (2012); see also Larios
v. Att’y Gen., 978 F.3d 62, 69–70 (3d Cir. 2020) (explaining

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that where no federal statute gives a definition with which to
match a state crime, we focus on the state statute’s actus reus
and mens rea).
Both § 287’s actions and mental state entail deceit. It applies
to anyone who (1) makes a claim against the federal govern-
ment (2) “knowing such claim to be false, fictitious, or fraud-
ulent.” 18 U.S.C. § 287. The action is submitting a false claim
for the government to pay. The mental state requires lying
because the claimant must know the claim is false. That is
exactly what “deceit” means: “the act of intentionally giving a
false impression” by “falsification, concealment, or cheating.”
Rad, 983 F.3d at 659. There is no way to violate § 287 without
committing deceit. So § 287 is categorically a crime of deceit.
III. LANOUE ’ S FALSE CLAIMS C OST THE V ICTIM
M ORE THAN $10,000
Lanoue also disputes whether the government’s loss exceeded
$10,000. 8 U.S.C. § 1101(a)(43)(M)(i). We look at the actual
loss that the defendant caused, which the government must
prove by clear and convincing evidence. Wang v. Att’y Gen.,
898 F.3d 341, 348–49 (3d Cir. 2018). The government has
proven that loss. Lanoue stipulated that his false claims cost
the government between $1.5 and $3.5 million. See Nijhawan
v. Holder, 557 U.S. 29, 42–43 (2009) (considering a stipulation
as permissible evidence of loss). And in his plea agreement, he
pegged the loss requiring restitution at more than $3 million.
See id. at 43 (considering a restitution order as evidence of loss).
Lanoue argues that the loss amount should be lower than
that amount of restitution because he used all the VA money
on classes for veterans. His story is that the problem with his

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program was just that it did not have enough non-veterans
enrolled. But compliance with the program’s rules is manda-
tory to receive funding in the first place. Plus, Lanoue agreed
in his plea that he had “falsely represented the hours of instruc-
tion received by veteran[s].” AR 222. Finally, Lanoue insists
that he could not have personally caused such losses because
he was part of a larger scheme. But the restitution order broke
down the responsibility of each defendant and held him jointly
and severally liable for the full amount. And he has no evidence
to overcome the government’s strong evidence to the contrary.
IV. L ANOUE IS N OT ELIGIBLE FOR A § 212( H) WAIVER
As a fallback, Lanoue argues that he may apply retroac-
tively for a waiver to let him reenter the United States. After
the government started investigating his false claims, he thrice
left the United States and thrice returned. So he says that each
time he reentered, he “should have been identified … as an
‘applicant for admission’ and been able to prosecute an INA
§ 212(h) waiver.” Pet’r’s Br. 40. A § 212(h) waiver can let some-
body who was inadmissible because of a prior criminal convic-
tion enter the United States anyway and stay in the country.
Not so. To be sure, 8 U.S.C. § 1182(h) lets the Attorney
General waive inadmissibility for aliens seeking admission
who have committed certain crimes. But Lanoue does not qual-
ify. To qualify, a lawful permanent resident either must have
been convicted of a crime at the time that he entered or must
admit to one then. 8 U.S.C. § 1101(a)(13)(C)(v); Vartelas v.
Holder, 566 U.S. 257, 275 & n.11 (2012). But each time he
reentered, Lanoue had neither been convicted of filing false
claims nor admitted to doing so. It is not enough that the

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government was investigating or even prosecuting him then.
See Vartelas, 566 U.S. at 257 n.11. Because he did not qualify
for a waiver then, he cannot qualify for one retroactively now.
*****
Filing false claims against the government under 18 U.S.C.
§ 287 is categorically a crime involving deceit. And the gov-
ernment proved that Robert Lanoue’s false claims cost the vic-
tim far more than $10,000. So the crime is an aggravated felony
under 8 U.S.C. § 1101(a)(43)(M)(i), making him removable.
Because he does not qualify for a waiver, we will deny the petition.

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