PRECEDENTIAL
          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 21-2563


               VAMUSA KOSH ISHMAEL,

                                                  Petitioner
                              v.

    ATTORNEY GENERAL UNITED STATES OF
                AMERICA


            On Petition for Review of a Final Order
             Of the Board of Immigration Appeals
                  (BIA No.: A072-803-370)
            Immigration Judge: Alice Song Hartye


                 Argued on January 18, 2023

   Before: AMBRO*, PORTER, and FREEMAN, Circuit
                      Judges


        *Judge Ambro assumed senior status on February 6,
2023.
                (Opinion Filed May 15, 2023)


Benjamin J. Hooper (Argued)
Pennsylvania Immigration Resource Center
294 Pleasant Acres Road
Suite 202
York, PA 17402

             Counsel for Petitioner

Lindsay Marshall (Argued)
United States Department of Justice
Office of Immigration Litigation
P. O. Box 848
Ben Franklin Station
Washington, DC 20044

             Counsel for Respondent


Jonah B. Eaton (Argued)
Nationalities Service Center
1216 Arch Street
4th Floor
Philadelphia, PA 19107

             Counsel for Amicus-Petitioner




                               2
                 OPINION OF THE COURT


AMBRO, Circuit Judge


    Ishmael Kosh 1 petitions us to review the order from the
Board of Immigration Appeals (“BIA”) that terminated his
asylum status and denied his applications for withholding of
removal and protection under the Convention Against Torture.
He maintains that the Department of Homeland Security
(“DHS”) improperly sought to terminate his asylum status in
asylum-only proceedings because he first entered the United
States under the Visa Waiver Program. Per Kosh, that limiting
program no longer applies to him, so he is entitled to complete-
jurisdiction removal proceedings instead. In such unlimited
proceedings, asylees can raise an adjustment-of-status claim as
a defense to removal. We conclude that, if Kosh re-entered the
country as an asylee without signing a new Visa Waiver
Program form limiting his defenses, he is entitled to complete-
jurisdiction proceedings.     We thus grant his petition for
review, vacate the BIA’s decision, and remand for further
proceedings consistent with this opinion.




1
 Though the caption throughout the immigration proceedings
and on petition to our Court refers to the petitioner as “Vamusa
Kosh Ishmael,” the parties and other documents call him
“Ishmael Kosh.” We follow the parties’ lead and do the same.




                               3
 I.    BACKGROUND

        Kosh, a Liberian citizen, arrived in the United States in
2001 with a false Portuguese passport and requested entry
under the Visa Waiver Program (“VWP”).                  It allows
noncitizens from designated countries—including Portugal,
but not Liberia—to seek admission for up to 90 days as
nonimmigrant visitors without obtaining a visa. 

(a). All VWP entrants must sign a Visa Waiver Form in
which they “waive[] any right . . . to contest, other than on the
basis of an application for asylum, any action for removal of
the alien.” 

 § 1187(b)(2). Signing this waiver form is
mandatory each time someone seeks entry through the VWP
(even if the individual already signed one on a previous trip).
See     Form      I-94W      Nonimmigrant        Visa      Waiver
Arrival/Departure Record, U.S. Customs and Border
Protection,
https://www.cbp.gov/sites/default/files/assets/documents/201
8-Mar/700120%20-%20CBP%20Form%20I-
94W%20ENG%20%281216%29%20-
20FINAL%20%28SAMPLE%29.pdf (last visited Apr. 28,
2023) (“This form must be completed by every nonimmigrant
visitor not in possession of a visitor’s visa who is a national of
one of the countries enumerated in 8 C.F.R. [§] 217.”). When
Kosh arrived in 2001, he signed upon arrival the waiver as part
of his Form I-94W.

        Kosh then confessed his Portuguese passport was fake
and sought asylum. His matter was referred to an immigration
judge (“IJ”) pursuant to 

(b), which affords IJs
jurisdiction over asylum applications by VWP entrants.
Although Kosh ultimately did not qualify for VWP entry
because his Portuguese passport was fake, he was still




                                4
restricted to the VWP’s asylum-only proceedings based on his
initial application for entry through that program. See Shkembi
v. Att’y Gen., 

 (3d Cir. 2022). 2

        In his asylum application, Kosh claimed he feared
returning to Liberia, which at the time had an ongoing civil
war. Because his family members were involved with the
United Liberation for Democracy political party, they faced
significant violence and other dangers. His father had been
murdered and Kosh himself was arrested before escaping

2
  Unlike Kosh, the noncitizen in Shkembi was denied asylum
in his limited-jurisdiction removal proceeding following his
fraudulent entry under the VWP. See 

. Because of
that denial, he argued he should not be bound by the VWP’s
limitations because he was a citizen of a non-VWP-participant
country and thus could not have entered properly under that
program. 

 Our Court’s decision in Shkembi rejected that
argument and made clear that noncitizens who fraudulently
enter the United States under the VWP with a fake passport
cannot use their own fraud to escape waivers made under that
program. 

. In line with this precedent, Kosh was
placed appropriately in asylum-only proceedings back in
2001. But Shkembi goes no further than that. It does not
explain the outer bounds of the waiver. The opinion states
neither that the waiver lasts indefinitely nor that any particular
action cuts off its applicability. And because Shkembi himself
never obtained asylum, the opinion could not instruct on what
happens after a noncitizen, like Kosh, is granted asylum and
travels legally using his refugee travel documents. Thus the
dissent’s reliance on Shkembi to reason that Kosh should still
be bound by the VWP in 2023 without regard to what occurred
in the last two decades takes its holding too far.




                                5
prison and fleeing to the United States. The IJ granted Kosh
asylum on March 1, 2001. Over the next few years, he lived in
the United States as an asylee, married his wife, and had four
children. He left the country in 2005 using his refugee travel
document and apparently re-entered later that year.

        In 2006, Kosh became involved with a tax fraud
conspiracy. He worked as a manager and tax preparer for a
sham tax service company that filed false information on its
clients’ tax returns to increase their refunds. The company then
kept the additional refund amounts for itself and passed on a
lower amount to its clients. Kosh played a large role in the
conspiracy. He was involved for its full duration, was a
manager or supervisor to five or more other participants in the
criminal activity, recruited customers, and even started a new
sham tax preparation business after the initial scheme was shut
down.

        In 2016, a jury convicted Kosh of conspiracy to defraud
the United States, in violation of 

, and filing
false and fraudulent income tax returns, in violation of 

(2). (He was acquitted of identity theft and one
count of filing false and fraudulent income tax returns.) Kosh
received concurrent sentences of 52 months and 36 months in
prison and was ordered to pay over $239,000 in restitution,
jointly and severally, with his co-defendants.

        Between his arrest and conviction, the United States
Citizenship and Immigration Services (“USCIS”) denied
Kosh’s application to adjust his status to that of a lawful
permanent resident. See 

. He was statutorily
eligible to apply because he had lived in the United States as
an asylee for over a year and, although his criminal convictions




                               6
could make him ineligible for adjustment of status, DHS can
waive that ground of inadmissibility “for humanitarian
purposes, to assure family unity, or when it is otherwise in the
public interest.” 

(c). Kosh’s denial was
“without prejudice to the alien’s right to renew the application
in [removal] proceedings under part 240 of this chapter.” 

(f).

        Then, in 2020, DHS moved to reopen Kosh’s old
asylum-only proceeding from 2001 to terminate his asylum
status, given his criminal conviction. An IJ in Texas granted
that motion. He then transferred venue to York, Pennsylvania
(based on Kosh’s place of confinement) for a hearing on DHS’s
motion to terminate his asylee status. Kosh, through counsel,
moved to terminate the proceedings because the Court had, in
his view, inappropriately reopened asylum-only proceedings.
He maintained that DHS, instead of reopening his earlier
proceedings, should have filed removal proceedings under 8
U.S.C. § 1229a, which would have allowed him to seek
adjustment of status. The type of proceeding Kosh sought,
which is set out in 8 U.S.C. § 1229a, is also called a “§ 240
proceeding” because the statute was created under section 240
of the Immigration and Nationality Act (“INA”).

       On September 30, 2020, the IJ denied Kosh’s motion to
terminate. She held that, because another IJ had previously
granted him asylum in limited proceedings, DHS properly
moved to reopen those proceedings to terminate his asylee
status. Further, she ruled that the Court lacked jurisdiction in
the limited proceeding to decide an adjustment-of-status
application and could only consider Kosh’s application for
fear-based relief.




                               7
        Kosh applied for all three types of fear-based relief:
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). On December 21, 2020,
after a merits hearing, the IJ terminated Kosh’s asylee status
and denied his applications for relief. She held that his
convictions were aggravated felonies under 

(a)(43)(M)(i) (offenses involving fraud or deceit where
the loss exceeds $10,000) and (a)(43)(U) (conspiracy to
commit an aggravated felony). Kosh was thus no longer
eligible for asylum or withholding of removal. 

(b)(2)(A)(ii); 

(b)(3)(B)(ii). In addition,
the IJ denied the CAT application on the merits. Overall, she
found that conditions in Liberia had changed since the civil war
and that relief was not due based on Kosh’s ethnicity, Muslim
faith, or alleged threats against him.

        Kosh filed a pro se appeal to the BIA.3 It rejected his
arguments that (1) the IJ erred in denying his motion to
terminate and in placing him in asylum-only proceedings, (2)
his convictions are neither aggravated felonies nor particularly
serious crimes, and (3) he met his burden of proof for CAT
relief.4 Kosh, through new counsel, filed before us a petition
for review and a motion for a stay of removal pending review.
Dkt. Nos. 1, 2. Our Court granted the stay. Dkt. No. 16.


3
  An attorney entered her appearance after Kosh filed his
appeal. While counsel’s name appears on the BIA’s decision,
the administrative record does not include a brief filed by
counsel. The BIA addressed the arguments raised by Kosh as
a pro se litigant.
4
  Kosh does not challenge the denial of CAT relief on petition
to us, though he did challenge it before the BIA.




                               8
 II.   JURISDICTION AND STANDARD OF REVIEW

     The BIA had jurisdiction under 

(b).
We have jurisdiction under 

.

       We review the final administrative decision of the BIA.
Camara v. Att’y Gen., 

 (3d Cir. 2009). Legal
determinations get a fresh review. Serrano-Alberto v. Att’y
Gen., 

 (3d Cir. 2017). For factual
determinations, we are bound by findings of fact that are
supported by substantial evidence “unless a reasonable
adjudicator would be compelled to arrive at a contrary
conclusion.” 

.

III.   ANALYSIS

        Kosh argues we should vacate the BIA’s order of
removal because (1) the Government did not meet its burden
of showing he committed an aggravated felony to terminate his
grant of asylum, and (2) it improperly placed him in asylum-
only proceedings, depriving him of the opportunity to raise a
claim for adjustment of status to lawful permanent resident in
defense of removal. Though his first argument fails, if Kosh
re-entered the country as an asylee and did not agree to any
new waiver of defenses, he is correct that he is entitled to an
unrestricted removal proceeding that will allow him to present
his claim for lawful permanent residence to an IJ.

          a. Kosh was convicted of an aggravated felony.

       Kosh is ineligible for asylum if his conviction was for
“an aggravated felony.” 

(b)(2)(A)(ii) and
(b)(2)(B)(i). That includes an offense that “involves fraud or




                              9
deceit in which the loss to the victim or victims exceeds
$10,000” and “conspiracy to commit [such an] offense.” 

(a)(43)(M)(i) and (U). Kosh concedes his
convictions involved fraud but argues the Attorney General has
not shown his convicted offenses resulted in victim loss
exceeding $10,000.

        The Attorney General has the burden to show by clear
and convincing evidence that the loss amount specifically
“tethered” to Kosh’s convictions exceeds $10,000. Nijhawan
v. Att’y Gen., 

 (3d Cir. 2008), aff’d, 

 (2009). Because Kosh participated in a conspiracy, the
loss must stem from the “specific way” he participated in the
scheme. Rad v. Att’y Gen., 

 (3d Cir.
2020).

        Here, the IJ and BIA relied on substantial evidence in
the record showing that Kosh’s specific involvement in the
conspiracy resulted in a loss greater than $10,000. The record
includes the judgment of the U.S. District Court of the District
of Minnesota and the presentence investigation report. The
judgment requires Kosh to pay $239,601 in restitution. The
presentence investigation report explains that the estimated
losses from his participation in the conspiracy are the full $2.5
million because he was a main participant in the scheme.
Given that Kosh’s participation in the scheme caused losses up
to at least $239,601 (the amount of restitution ordered in the
judgment against him) and possibly up to $2.5 million (the full
loss estimated in the presentence report), his contribution far
exceeds the $10,000 threshold. We affirm the IJ and BIA’s
factual finding that Kosh committed an aggravated felony.




                               10
          b. Although Kosh committed an aggravated
             felony, he may still be eligible for adjustment
             of status to lawful permanent resident.

       Because Kosh was convicted of an aggravated felony,
he is no longer eligible for asylum. 

(b)(2)(A)(ii); (b)(2)(B)(i). However, this conviction does
not foreclose a claim for adjustment of status to lawful
permanent resident. In general, asylees may apply for an
adjustment of status to lawful permanent resident if they meet
the statutory requirements contained in 

(b).
The adjustment statute requires that an asylee has lived in the
United States for at least one year and “is admissible.” 

(b). As explained above, Kosh is inadmissible
because he was convicted of an aggravated felony. However,
the IJ may waive inadmissibility based on criminal convictions
“for humanitarian purposes, to assure family unity, or when it
is otherwise in the public interest.” 

(c). So
Kosh could adjust his status if he convinces an IJ that
humanitarian purposes or family unity weigh in favor of
waiving his inadmissibility.

       Kosh meets the statutory requirements to apply for
adjustment of status and an accompanying waiver of
admissibility. Even though the USCIS already denied his
application for adjustment of status, he has the right to renew
his application before an IJ. 

(f). Thus, the
question we turn to next—whether DHS can reopen asylum-
only proceedings or must initiate complete removal
proceedings (where Kosh could renew his adjustment claim)—
affects the defenses he can raise and the chances he has to
remain in the United States.




                              11
          c. If Kosh did not waive defenses to removal at
             his last entry, he is entitled to raise his claim
             for lawful permanent residence in an
             unrestricted removal proceeding.

        Kosh still faces a hurdle because DHS reopened his
asylum-only proceeding from 2001, and in that proceeding the
IJ did not have jurisdiction to consider his claim for adjustment
of status to lawful permanent resident. The parties dispute
whether he is limited to asylum-only proceedings because he
previously entered the United States through the VWP, under
which he waived his right to challenge his removal on non-
asylum grounds. We hold that the VWP no longer applies to
an individual who leaves and re-enters the country as an asylee
without signing an additional waiver of defenses to removal.
Absent a new waiver upon his last entry, Kosh is entitled to
raise his adjustment claim before an IJ in unrestricted
proceedings.

        When Kosh first entered the United States in 2001, he
signed the Visa Waiver Form that says, “I hereby waive any
rights to review or appeal of an immigration officer’s
determination as to my admissibility, or to contest, other than
on the basis of an application for asylum, any action in
deportation.” A.R. 773. Because he signed this waiver, his
first immigration proceedings were limited to the question of
asylum. But now he may be no longer bound by that waiver
(or the limited procedures that come with it) if he left the
country and re-entered as an asylee without signing a new
waiver, not as a VWP entrant, in 2005. 5
5
 Kosh presents two distinct reasons why the waiver does not
apply to him: (1) because he left and re-entered, and (2)
because he was granted asylum status that displaced his status




                               12
       To understand the scope of the waiver, we interpret the
Form I-94W that Kosh signed in 2001 governing the terms of
his stay in the United States using familiar contract principles.
Although the waiver applies to “any action in deportation,”
App. 778, we do not interpret that phrase “in a vacuum, but
rather must carefully consider the parties’ context.” In re New
Valley Corp., 

, 149 (3d Cir. 1996); see also In re
Stone & Webster, Inc., 

 (3d Cir. 2009) (“It is
a general rule of contract construction to consider the entire
instrument.” (internal quotation omitted)).

        Here, the Form I-94W shows that its terms apply to the
time spent in the U.S. starting with the entry at which the form
was signed and continuing at most until the next departure. But
it does not apply to visits begun by subsequent entries. This is
most obviously demonstrated by the form’s specific caution
that the VWP’s restrictions apply “during your visit under this
program.” App. 773. Also, the form is titled the
“Nonimmigrant Visa Waiver Arrival/Departure Form,”
containing a section on arrival and separate section on
departure. Id. at 772-73 (emphasis added). Finally, the visitor
must “[r]etain this permit in [his] possession” for the duration
of the visit but “must surrender it when [he] leave[s],” meaning
that the visitor no longer has access to the contract or its terms
for reference after departing. Id. at 773. Reading the waiver
provision within its proper context reveals that it could apply
only to any action between when the noncitizen arrives under
the program and when he first departs.



as a VWP entrant. We address the first argument only and
express no opinion on the second.




                               13
        Not surprisingly, DHS’s own practice aligns with this
reading. It requires a VWP entrant to re-sign the I-94W waiver
form every time the noncitizen enters the country. See Form I-
94W Nonimmigrant Visa Waiver Arrival/Departure Record,
U.S.         Customs        and         Border         Protection,
https://www.cbp.gov/sites/default/files/assets/documents/201
8-Mar/700120%20-%20CBP%20Form%20I-
94W%20ENG%20%281216%29%20-
%20FINAL%20%28SAMPLE%29.pdf (last visited Apr. 28,
2023) (“This form must be completed by every nonimmigrant
visitor not in possession of a visitor’s visa who is a national of
one of the countries enumerated in 8 C.F.R. [§] 217.”). This
repetition would be unnecessary if signing the form once
caused the waiver to apply in perpetuity.

        To read the waiver provision otherwise would create
illogical results. Consider a tourist who visits under the VWP
and signs the waiver at age 18. She departs the U.S. and returns
to her home country before the 90 days are up. A few years
later she attends graduate school in the U.S., after properly
obtaining a student visa, and again timely leaves the country
before her visa expires. A decade later her U.S. citizen spouse
files an immediate relative petition on her behalf. DHS
approves the petition, and she is admitted into the U.S. as a
lawful permanent resident. After she has lived in the U.S. for
years as a lawful permanent resident, DHS decides she is
deportable and serves her with a notice referring her to asylum-
only proceedings based on the VWP waiver she signed at age
18. Which rules should govern her removal proceedings: the
terms of the VWP, those governing her student visa, or the
added protections she receives as a lawful permanent resident?
It would be illogical to conclude that removal proceedings
should be governed by her VWP-entry rather than her later




                               14
entry as a lawful permanent resident. See Amici Br. at 13
(highlighting the same absurdity in a similar hypothetical).
Similarly, it would be illogical for Kosh to be bound by a
previous VWP entry if he re-entered in 2005 as an asylee and
did not re-sign the waiver contained in the I-94W Form.

        Thus we hold that Kosh’s waiver to contest the basis of
his removal applied at most for the duration from his entry in
2001 until his departure in 2005. Cf. Freeman v. Gonzales, 

 (9th Cir. 2006) (applying reasonable limits to
the waiver and declining to “read the VWP no-contest
restriction into the adjustment of status procedural regime,
effectively denying VWP applicants the procedural due
process all other applicants enjoy, when Congress has not done
so explicitly”). When Kosh re-entered in 2005, he became
subject to any new agreements he made with DHS at that time.
If the terms of his new agreement do not include a waiver of
all non-asylum claims, then he is entitled to a complete-
jurisdiction proceeding—where he can pursue his adjustment
claim—on remand.

       Kosh submits that he re-entered in 2005 as an asylee
using his refugee travel document and did not re-enter under
the VWP. The INA authorizes DHS to provide these travel
documents to asylees so that they may travel abroad. See 

. When an asylee returns, he must present the
document and “shall be accorded the immigration status
endorsed in his or her refugee travel document.” 

(d)(2)(i). Kosh applied for and received a government-
issued refugee travel document listing his status as an “asylee.”
A.R. 36. And he alleges he used that document, rather than a
fake Portuguese passport, to re-enter the United States in 2005.




                               15
       The evidence in the record is short of complete but
supports Kosh’s description of events. In his application and
at the hearing before the IJ, Kosh said he had most recently
entered the United States through New York in 2005 as an
asylee. He supported his testimony with the record of his
departure on May 16, 2005 and a copy of his refugee travel
document that lists his “class” as “asylee.” A.R. 36. He must
have re-entered at some time thereafter because he is currently
in the United States, but the record does not include documents
showing proof of his re-entry.6 On remand, the IJ and BIA
should consider evidence regarding Kosh’s 2005 re-entry and
determine whether he was admitted as an asylee or as a VWP
entrant. If he was admitted as the former, then his 2001 waiver
cannot apply to the subsequent asylee entry, and he is entitled
to a complete-jurisdiction removal proceeding.
                         *       *     *

       For these reasons, we grant Kosh’s petition for review,
vacate the BIA’s decision, and remand for further proceedings
consistent with this opinion.




6
  DHS provided records as of 2020 that list Kosh’s most recent
entry date as January 22, 2001. This record cannot be correct
because there is evidence Kosh left the country in 2005. The
IJ and BIA should require DHS to clarify the record on remand.




                              16
PORTER, Circuit Judge, concurring in part and dissenting in
part.

      I concur with the majority opinion except for its
conclusion in Section III.c that Kosh is entitled to anything
more than an asylum-only proceeding.

       Kosh argues that although he fraudulently entered the
United States under the Visa Waiver Program, he is no longer
bound by his VWP waiver because he subsequently left and
then re-entered the United States. The majority accepts Kosh’s
reentry argument, but neither he nor the majority have adduced
any authority supporting it. The majority simply asserts that it
would be “illogical” to hold Kosh to his VWP waiver. Maj. Op.
at 10-13. Under the majority’s theory, the mere act of leaving
and reentering somehow erased Kosh’s fraudulent history and
VWP waiver, so he should now be considered an asylee
afforded more rights. But no law supports the notion that
departure and reentry changed Kosh’s status in any way.

       Our precedent is not so cavalier about fraudulent VWP
entrants. Just last year, we held that:

       [A]n alien’s attempt to enter the United States
       under the VWP by presenting fraudulent travel
       documents subjects that alien to the terms of the
       VWP. Those terms limit the alien to asylum-only
       proceedings. It makes no difference if the alien
       violated the VWP by overstaying after lawful
       entry . . . or by using fraudulent documents to
       enter or to attempt to enter the United States
       under the VWP. Once the alien has attempted to
       benefit from the VWP, he or she is bound by its
       terms.




                               1
Shkembi v. Att’y Gen., 

 (3d Cir. 2022).
Lacking any textual justification to ignore Shkembi’s clear rule
statement, I would hold Kosh to the terms of his VWP waiver.

       Kosh also argues that the grant of asylum status in 2001
replaced his VWP status entirely, again requiring DHS to place
him in removal proceedings. But the “grant” of asylum status
no more erased Kosh’s prior status as a fraudulent VWP
entrant than did his subsequent departure and reentry; it merely
added to it. A VWP entrant granted asylum is still a VWP
entrant, so if his asylum status is removed, he remains subject
to the VWP conditions.

        The INA refers to “adjustment” of status when it means
to displace one status with another, such as an “adjust[ment] to
the status of an alien lawfully admitted for permanent
residence.” 

(b). To “grant” is to give or confer.
Black’s Law Dictionary (11th ed. 2019). By contrast, to
“adjust” an alien’s status is to adapt or conform it to a particular
use. 

 Applying the canon of meaningful variation, we should
recognize the distinction between “granting” and “adjusting”
an alien’s status, as the Ninth Circuit did in Bare v. Barr, 

 (9th Cir. 2020). See also, A. Scalia & B. Garner,
Reading Law 170 (2012) (“[W]here [a] document has used one
term in one place, and a materially different term in another,
the presumption is that the different term denotes a different
idea.”).

        In Bare, the court considered whether the grant of asylee
status replaced or merely added to the petitioner’s status as a
stowaway. Because “grant” and “adjust” mean different things,
the court held that a grant of asylum does not terminate an




                                 2
alien’s status as a stowaway. 

. The same
definitions and logic apply to VWP entrants such as Kosh. The
majority does not address the difference between “granting”
and “adjusting” immigration status, but the distinction is valid,
and we should honor it.

        “Entering or attempting to enter the United States under
the VWP by using fraudulent documents from a VWP-
participating country violates the VWP and subjects that alien
to the terms of the VWP, which includes the restriction to
asylum-only proceedings.” Shkembi, 

. Because
the majority creates an atextual exception to that rule, I
respectfully dissent.




                               3