Bernardo Castillo v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-2073

_____________

BERNARDO CASTILLO,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

______________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A090-260-288)

Immigration Judge: Honorable Henry S. Dogin

_______________

Argued May 30, 2013

BEFORE: JORDAN, VANASKIE and COWEN,

Circuit Judges

(Filed: September 03, 2013)

Micaela M. Alvarez, Esq.

Francis X. Geier, Esq. (Argued)

Law Office of Micaela M. Alvarez

416-36th Street, Suite 1

Union City, NJ 07087

Counsel for Petitioner

Eric H. Holder, Jr., Esq.

Thomas W. Hussey, Esq.

Suzanne Nicole Nardone, Esq. (Argued)

Margaret A. O’Donnell, Esq.

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Jamie M. Dowd, Esq.

United States Department of Justice

Office of Immigration Litigation

450 5th Street, N.W., Rm. 5206

Washington, DC 20001

Counsel for Respondent

_______________

OPINION

_______________

2

COWEN, Circuit Judge.

This immigration matter has already been before this

Court once before on a petition for review. Bernardo Castillo

previously petitioned for review of a decision of the Board of

Immigration Appeals (“BIA”), which dismissed his appeal

from an order of the Immigration Judge (“IJ”) denying his

application for cancellation of removal pursuant to 8 U.S.C.

1229b(a). Granting his petition, we remanded this matter to

the BIA for it to determine whether Castillo—who was found

guilty by a municipal court of shoplifting, a disorderly

persons offense under New Jersey law—was thereby

“‘convicted of [a] crime[ ]” within the meaning of 8 U.S.C. §

1227(a)(2)(A)(ii). On remand, the BIA concluded that this

finding of guilt constituted a conviction under 8 U.S.C. §

1101(a)(48)(A) and, therefore, a crime under §

1227(a)(2)(A)(ii). The BIA accordingly dismissed Castillo’s

administrative appeal, and Castillo filed another petition for

review. For the second time in this case, we will grant his

petition for review and remand for further proceedings

consistent with this opinion.

I.

Castillo is a native and citizen of Peru. He entered the

United States without inspection in 1985, became a temporary

resident in 1988, and adjusted his status to lawful permanent

residency in 1990. On September 31, 1994, the East

Brunswick Municipal Court found Castillo guilty of

shoplifting in violation of N.J. Stat. Ann. § 2C:20-11.

Castillo evidently was represented by an attorney and entered

3

a guilty plea to this offense. He was ordered to pay a $200

fine, together with costs in the amount of $55 as well as $81

in various fees. In 1989, Castillo was convicted in a New

Jersey court of receiving stolen property. He was

subsequently convicted, on three separate occasions, on

charges of receiving stolen property and, on one occasion, on

a charge of contempt.

Castillo admitted his criminal history and conceded

removability, while requesting relief from removal on a

number of grounds. Specifically, he claimed that he was

eligible for cancellation of removal pursuant to § 1229b(a).

Section 1229b(a) provides that the Attorney General may

cancel the removal of an alien who, inter alia, has “resided in

the United States continuously for 7 years after having been

admitted in any status.” Continuous residence, however, ends

“when the alien has committed an offense referred to in

section 1182(a)(2) of this title that renders the alien . . .

removable from the United States under section 1227(a)(2) . .

. of this title.” 8 U.S.C. § 1229b(d)(1)(B). “Under 8 U.S.C. §

1227(a)(2)(A)(ii), an alien is removable, inter alia, if he ‘is

convicted of two or more crimes involving moral turpitude,

not arising out of a single scheme of criminal misconduct.’”

Castillo v. Attorney General, 411 F. App’x 500, 501 (3d Cir.

2011).

The IJ denied relief and ordered Castillo’s removal.

According to the IJ, “his criminal history . . . reveals a

conviction for shoplifting” in 1994 as well as a 1989

conviction for receiving stolen property. (A26.) The IJ said

that “a conviction for shoplifting, even if categorized as a

4

disorderly persons offense, can be considered a conviction for

a crime involving moral turpitude,” which, together with the

1989 conviction, rendered Castillo removable and ended his

continuous physical presence short of the requisite 7-year

period. (Id.)

The BIA dismissed Castillo’s appeal in a single-

member decision dated May 6, 2009. The agency concluded

that “the Immigration Judge’s determination that the

respondent’s 1994 conviction constitutes a crime involving

moral turpitude is supported by the record.” (A12.) It

specifically rejected Castillo’s theory that his shoplifting

offense should be considered a disorderly persons offense—

rather than a crime:

Under N.J. Stat. Ann. § 2C:2-11(c), there are 4

gradations of shoplifting offenses. Three are

crimes and one is a disorderly persons offense.

The respondent has the burden of establishing

his eligibility for any requested relief from

removal. See 8 C.F.R. § 1240.8(d). If the

evidence indicates (as is the case here) that one

or more grounds for mandatory denial of the

application for relief may apply, the alien shall

have the burden of proving by a preponderance

of the evidence that such grounds do not apply.

Id. As there is no evidence in this case that the

respondent’s shoplifting offense was prosecuted

as a disorderly persons offense rather than a

crime, the respondent has not met his burden of

5

establishing that he is eligible for cancellation

of removal under [§ 1229b(a)].

(A12-A13.) In a footnote, the BIA acknowledged that

Castillo cited to its prior decision in In re Eslamizar, 23 I. &

N. Dec. 684 (BIA 2004) (en banc), but observed that “there

was evidence in [Eslamizar] establishing that a prosecutor

had elected to treat the offense at issue as something other

than a crime,” and “[s]uch evidence is lacking in this case.”

(A12 n.1.)

Castillo filed a petition for review with this Court. In a

January 11, 2011 order, we granted his petition for review

and remanded this matter to the BIA for further proceedings

consistent with our opinion.

In his previous petition, Castillo asserted that “the BIA

erred in ruling that his shoplifting conviction was for a

‘crime’ because under New Jersey law at the time, shoplifting

was not a ‘crime,’ but rather ‘a disorderly persons offense.’”

Castillo, 411 F. App’x at 502 (quoting N.J. Stat. Ann. §

2C:20-11(c) (1994)). He therefore pointed out that under

1994 New Jersey law: (1) disorderly persons offenses were

petty offenses—and not crimes within the meaning of the

New Jersey Constitution; (2) there was no right to a trial by

jury or to an indictment by a grand jury; (3) a conviction did

not give rise to any disability or legal disadvantage; and (4)

“[i]n carrying its burden of proving the element of the

disorderly persons offense of shoplifting that the defendant

intended to deprive the merchant of possession, the state is

aided by a presumption arising from intentional concealed

6

possession of merchandise while on the merchant’s property,”

id. (citing N.J. Stat. Ann. § 2C:20-11(d) (1994)). Castillo

also relied on the BIA’s decision in Eslamizar, “in which the

respondent had been found guilty of a ‘violation’ of an

Oregon statute prohibiting shoplifting.” Id. We provided the

following summary of that agency decision:

Oregon law defined “crimes” and “violations”

in mutually exclusive terms, and conviction of a

“violation” did “not give rise to any disability

or legal disadvantage based on conviction of a

crime.” [Eslamizar, 23 I. & N. Dec. at 687].

Under its law, prosecutions of “violations”

involved proceedings which differed from those

in criminal proceedings in that, among other

things, the state needed only to prove guilt by a

preponderance of the evidence. Id. The IJ

concluded that the “Oregon judgment issued

against the respondent did not qualify as a

‘conviction’ for a ‘crime’ that could give rise to

immigration consequences.” Id. at 685. The

BIA agreed with this conclusion. Id. n. 2. Its

analysis placed primary emphasis on the INA

[Immigration and Nationality Act] definition of

“conviction” found in 8 U.S.C. §

1101(a)(48)(A). While acknowledging that the

respondent had been “convicted” under the

literal reading of that statutory definition, the

BIA ultimately concluded that “by ‘judgment of

guilt’ Congress most likely intended to refer to

a judgment in a criminal proceeding, that is, a

7

trial or other proceeding whose purpose is to

determine whether the accused committed a

crime and which provides the constitutional

safeguards normally attendant upon criminal

adjudication.” Id. at 687 (italics in original).

The judgment against the respondent was found

not to meet this understanding of the phrase

“judgment of guilt.” The BIA did not speak

further on whether the respondent had

committed a “crime” that could give rise to

immigration consequences.

Id. (footnote omitted).

We then pointed out that the BIA in Castillo’s case

failed to reach the issue of whether he “was ‘convicted of [a]

crime[ ]’” under § 1227(a)(2)(A)(ii) because “it applied the

then current version of the New Jersey statute rather than the

version in effect at the time of Castillo’s offense.” Id. at 503.

In 1994, all four gradations of shoplifting were disorderly

persons offenses. We accordingly could not sustain the

BIA’s decision based on its own stated rationale.

In short, “[t]here is no doubt that Castillo was found

guilty of a disorderly persons offense and the issue of whether

that constitutes being ‘convicted of [a] crime[ ]’ within the

meaning of § 1227(a)(2)(A)(ii) cannot be avoided.” Id.

However, this Court declined to address this question in the

first instance because “it is an issue of some substance” and

“we owe Chevron deference to the BIA’s reading of the

statutes whose execution it oversees.” Id. We thus remanded

8

“to secure the benefit of the BIA’s understanding of the

phrase ‘convicted of [a] crime[ ]’ as used in §

1227(a)(2)(A)(ii).” Id.

While indicating that Castillo’s due process theory,

which tracked the foregoing statutory construction argument,

“should await the disposition of that statutory argument,” we

did reject the government’s assertion that the application of

the 2006 version of the state statute constituted harmless

error:

While it is true that 8 U.S.C. § 1101(a)(48)(A)

defines the term “conviction” for purposes of

the INA and that the definition is “not

dependent on the vagaries of state law,”

Appellee’s Br. at 21 n. 7, the issue posed by

Castillo turns on whether he was “convicted of

[a] crime[ ]” within the meaning of 8 U.S.C. §

1227(a)(2)(A)(ii). That is clearly a question of

federal, not state law, but it is not one directly

answered in the INA or the BIA’s opinion in

Eslamizar. While the statutory definition of

“conviction” may be found to assist in the

analysis, even given that definition, one must

still ask “conviction” of what.

Id.

The BIA, in a single-member decision dated March 29,

2012, purportedly responded to this Court’s request that “we

address whether the respondent’s conviction in this case

9

constitutes a ‘crime’ for purposes of [§ 1227(a)(2)(A)(ii)].”

(A5.) The BIA, for a second time, affirmed the IJ’s decision

and dismissed Castillo’s appeal. It did so based on the

following grounds:

In Matter of Eslamizar, 23 I&N Dec. 684

(BIA 2004), we found that the respondent’s

conviction for third-degree theft under Oregon

law did not qualify as a conviction for a crime

under [§ 1227(a)(2)(A)(ii)] because it did not

qualify as a “conviction” under [§

1101(a)(48)(A)]. We determined that, in order

for an offense to qualify as a criminal

conviction pursuant to [§ 1101(a)(48)(A)], the

elements of such offense must be proved

beyond a reasonable doubt. In Matter of

Eslamizar, supra, the theft offense at issue only

required the State to prove the defendant’s

violation by a preponderance of the evidence.

In order for the shoplifting offense at

issue in the instant case to constitute a “crime”

under [§ 1227(a)(2)(A)(ii)], the elements of

such offense must be proved beyond a

reasonable doubt and the conviction for such

offense must constitute a “conviction” under [§

1101(a)(48)(A)]. See Matter of Eslamizar,

supra; see also Matter of Rivera-Valencia, 24

I&N Dec. 484 (BIA 2008) (finding an

adjudication of guilt, proved beyond a

reasonable doubt, by a general court-martial

10

qualified as a conviction under [§

1101(a)(48)(A)]); Matter of Calvera, 24 I&N

Dec 459 (BIA 2008) (holding that costs and

surcharges constitute a penalty for purposes of

establishing a conviction). Contrary to the

respondent’s assertions, whether New Jersey

considers his offense to be a “crime” is not

relevant. Matter of G-, 7 I&N Dec. 520 (BIA

1957). The question is whether Congress

would have intended the offense to constitute a

crime under the Act. Unlike the statute in

Matter of Eslamizar, supra, the shoplifting

statue at issue in this case requires the State to

demonstrate the elements of the offense beyond

a reasonable doubt. See N.J. STAT. ANN. §

2c:20-11 (1994); see also State v. Goodmann,

390 N.J.Super. 259 (2007) (holding that the

New Jersey shoplifting statute requires the State

to demonstrate beyond a reasonable doubt the

elements of the offense). Thus, the

respondent’s shoplifting violation constitutes a

conviction under [§ 1101(a)(48)(A)] and

therefore a crime under [§ 1227(a)(2)(A)(ii)].

See Hussein v. U.S. Att’y Gen., 413 Fed. Appx.

431 (3d Cir. 2010) (unpublished) (finding

disorderly persons offense to be “conviction”

due to imposition of “beyond a reasonable

doubt” standard). . . .

(A6.)

11

II.

We have jurisdiction pursuant to 8 U.S.C. § 1252.

This Court reviews the BIA’s legal determinations de novo,

“subject to the principles of deference articulated in” Chevron

U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). Briseno-Flores

v. Attorney General, 492 F.3d 226, 228 (3d Cir. 2007) (citing

Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004)). Under

this doctrine, the Court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress.

See, e.g., Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir.

2003). “On the other hand, ‘if the statute is silent or

ambiguous with respect to the specific issue, the question for

the court is whether the agency’s answer is based on a

permissible construction of the statute.’” Id. (quoting

Chevron, 467 U.S. at 843). “In its interpretation of the INA,

‘the BIA should be afforded Chevron deference as it gives

ambiguous statutory terms “concrete meaning through a

process of case-by-case adjudication.”’” Id. (quoting INS v.

Aguirre-Aguirre, 526 U.S. 415, 425 (1999)). “[W]here an

agency interpretation reflects an impermissible construction

of the statute, we will not defer to the agency’s view.” Jean-

Louis v. Attorney General, 582 F.3d 462, 472 n.12 (3d Cir.

2009) (citations omitted). Moreover, “we owe no deference

to the [administrative] interpretation of a state criminal

statute.” Partyka v. Attorney General, 417 F.3d 408, 411 (3d

Cir. 2005) (citing Knapik v. Ashcroft, 384 F.3d 84, 88 (3d

Cir. 2004)). The reasonableness of an agency’s statutory

interpretation is dependent in part on the consistency with

which the interpretation is advanced. See, e.g., Valdiviezo-

12

Galdamez v. Attorney General, 663 F.3d 582, 604 (3d Cir.

2011).

III.

We remanded this matter specifically “to secure the

benefit of the BIA’s understanding of the phrase ‘convicted of

[a] crime[ ]’ as used in § 1227(a)(2)(A)(ii).” Castillo, 411 F.

App’x at 503. With respect to Eslamizar, we noted that the

BIA focused on the statutory definition of the term

“conviction” found in § 1101(a)(48)(A), id. at 502, and

explained that the question of whether Castillo was

“’convicted of [a] crime[ ]’” pursuant to § 1227(a)(2)(A)(ii)

was not “directly answered in the INA or the BIA’s opinion

in Eslamizar,” id. at 503. We observed that, “[w]hile the

statutory definition of ‘conviction’ may be found to assist in

the analysis, even given that definition, one must still ask

‘conviction’ of what.” Id. However, the BIA on remand

turned to Eslamizar and its reading of § 1101(a)(48)(A) in

order to decide “whether the respondent’s conviction in this

case constitutes a ‘crime’ for purposes of [§

1227(a)(2)(A)(ii)].” (A5.) It then concluded that “the

respondent’s shoplifting violation constitutes a conviction

13

under [§ 1101(a)(48)(A)] and therefore a crime under [§

1227(a)(2)(A)(ii)].”1 (A6 (citation omitted).)

Castillo, for his part, does not take issue with the

BIA’s basic approach to §§ 1101(a)(48)(A) and

1227(a)(2)(A)(ii). On the contrary, he specifically argues that

the BIA committed reversible error—and even “violated its

own precedential decision in [Eslamizar]”—by concluding

that the finding of guilt at issue in this matter was a

conviction under § 1101(a)(48)(A). (Petitioner’s Brief at 19.)

Accordingly, we turn to § 1101(a)(48)(A) and the agency’s

decision in Eslamizar.

1

Having ignored our request that it “still ask

‘conviction’ of what,” Castillo, 411 F. App’x at 503, the BIA

seems to have construed the INA to mean that any offense for

which there is a conviction as defined in the statute must

necessarily be a crime. But the INA itself evidently

distinguishes crimes from non-criminal violations, providing,

for example, that an alien is inadmissible if he or she is

convicted of “a crime involving moral turpitude,” 8 U.S.C. §

1182(a)(2)(A)(i)(I), or of a ““violation . . . relating to a

controlled substance,” id. § 1182(a)(2)(A)(i)(II).

Nevertheless, for purposes of this discussion, we assume that

the same factors that establish whether an alien has suffered a

conviction as defined in § 1101(a)(48)(A) determine whether

the offense of conviction is a crime for purposes of the INA.

As we note hereafter, however, we anticipate that the question

left open from our last remand—“‘conviction’ of what”—will

be answered upon remand this time.

14

Section 1101(a)(48)(A) states that:

The term “conviction” means, with respect to an

alien, a formal judgment of guilt of the alien

entered by a court or, if adjudication of guilt has

been withheld, where—

(i) a judge or jury has found the alien

guilty or the alien has entered a plea of

guilty or nolo contendere or has admitted

sufficient facts to warrant a finding of

guilt, and

(ii) the judge has ordered some form of

punishment, penalty, or restraint on the

alien’s liberty to be imposed.

This statutory definition was added to the INA as part of the

Illegal Immigration Reform and Immigrant Responsibility

Act of 1996. In re Rivera-Valencia, 24 I. & N. Dec. 484, 487

(BIA 2008).

Eslamizar was charged with theft in the third degree in

violation of Oregon state law. Eslamizar, 23 I. & N. Dec. at

685. “Although the offense qualified as a misdemeanor and

was initially charged as such, Oregon law allowed the

prosecuting attorney to amend the accusatory pleading so as

to ‘treat’ the offense as a ‘Class A violation’ rather than as a

misdemeanor.” Id. (footnote omitted) (citation omitted).

This election was made, and Eslamizar’s trial was conducted

in accordance with an Oregon statutory provision that

15

“provides for proceedings that differ from conventional

criminal prosecutions in that, among other things, the State

need only prove guilt ‘by a preponderance of the evidence,’

rather than ‘beyond a reasonable doubt.’” Id. He was found

guilty and sentenced to pay a nominal fine as well as various

financial assessments. Id. Given a previous misdemeanor

theft conviction, Eslamizar was charged as removable on the

grounds that he was an alien convicted of two or more crimes

involving moral turpitude pursuant to § 1227(a)(2)(A)(ii). Id.

The IJ “concluded that the September 3, 1999, Oregon

judgment issued against the respondent did not qualify as a

‘conviction’ for a ‘crime’ that could rise to immigration

consequences, because the proceedings in which that

judgment was entered did not afford the respondent many of

the constitutional safeguards generally required for criminal

prosecutions.” Id. at 685-86.

The BIA originally sustained the government’s appeal,

holding that the Oregon judgment was a conviction under the

plain language of § 1101(a)(48)(A). Id. at 686. In doing so,

it cited to an Oregon Supreme Court opinion, which held that

proof beyond a reasonable doubt was always required. Id.

However, that opinion was superseded by a state statute. Id.

“Because of this crucial factual error regarding the

requirements of Oregon law, as applicable to the respondent’s

case, we reconsider our prior decision in full, and as

previously indicated, we arrive at a different legal

conclusion.” Id.

According to the agency, “[t]he issue in [Eslamizar] is

whether a judgment of guilt entered against the respondent in

16

a proceeding conducted pursuant to section 153.076 of the

Oregon Revised Statues constitutes a ‘conviction’ for

immigration purposes.” Id. On reconsideration, the BIA—in

a 9-2 en banc decision—ultimately answered this question in

the negative. Id. at 689.

In doing so, the BIA began with the language of §

1101(a)(48)(A) itself, which defined “the term ‘conviction’ as

‘a formal judgment of guilt of the alien entered by a court.’”

Id. at 686. The Oregon circuit court had issued a formal

judgment finding Eslamizar guilty of the offense of third-

degree theft. Id. The BIA said that, “[a]lthough a literal

reading of the conviction definition persuaded us earlier that

the respondent’s offense was a ‘conviction’ for immigration

purposes, on reconsideration we do not find the definition to

be clear or to dictate such an outcome.” Id. at 686-87. In

particular, the earlier supposed clarity actually rested on the

assumption that, by using “the phrase ‘judgment of guilt,’”

“Congress meant only that the adjudicative finding of a court

must carry the label ‘guilt’ or ‘guilty.’” Id. at 687. Such a

reading represented an unlikely construction given its

consequences. Id. Specifically, “it would mean that if a State

has so denominated, or in the future should so denominate, a

civil judgment, e.g., one for an intentional tort or for conduct

that results in a judgment to pay a civil fine or punitive

damages, such a judgment would evidently qualify as a

‘conviction’ for immigration purposes.” Id. Although some

civil sanctions could be punitive in nature (and even trigger

the Double Jeopardy Clause), the BIA in Eslamizar doubted

that Congress “had so expansive a reach in mind” given the

17

absence of any persuasive evidence to support such a reading.

Id.

The BIA therefore “adopt[ed]” what it called “a far

more sensible reading” of § 1101(A)(48)(A):

Moreover, a far more sensible reading of

the statute exists: namely, that by “judgment of

guilt” Congress most likely intended to refer to

a judgment in a criminal proceeding, that is, a

trial or other proceeding whose purpose is to

determine whether the accused committed a

crime and which provides the constitutional

safeguards normally attendant upon a criminal

adjudication. Such a meaning, which we adopt,

is consistent with the ordinary connotation of

the term “guilt,” especially in the context of a

definition of the term “conviction.”

Id.

The agency then provided a summary of the state law

that applied to Eslamizar’s trial. Id. On the one hand, the

BIA recognized that Oregon law “uses the label ‘criminal’ to

describe the hybrid ‘violation’ adjudication proceedings,”

such trials were subject to the criminal procedure laws of the

Oregon, and the defendant possessed the rights to confront his

or her accusers, file an appeal, and hear the evidence of

witnesses in open court. Id. (citations omitted). On the other

hand:

18

. . . Oregon’s offense classification system

defines “crimes” and “violations” in mutually

exclusive terms, stating that “[a]n offense is

either a crime . . . or a violation.” Oregon law

further provides that “[c]onviction of a violation

does not give rise to any disability or legal

disadvantage based on conviction of a crime.”

Moreover, pursuant to section 153.076 of the

Oregon Revised Statutes, violation proceedings

are tried to the court sitting without a jury, the

defendant need not be provided counsel at

public expense, and the State need only prove

the defendant’s violation by a preponderance of

the evidence. Significantly, the Oregon Court

of Appeals in State v. Rode concluded that the

conduct of a defendant whose misdemeanor

offense was prosecuted as a violation “was not a

crime, and the prosecution of the conduct was

not a criminal prosecution.”

Id. (citations omitted).

The BIA then stated that “[i]t is a bedrock principle of

the Constitution of the United States that each element of an

offense or crime must be proved beyond a reasonable doubt.”

Id. at 688 (footnote omitted) (citing Apprendi v. New Jersey,

530 U.S. 466 (2000); In re Winship, 397 U.S. 358 (1970)). It

then added the following footnote to its statement of a

“bedrock principle”:

19

The respondent’s “violation” carried a

maximum penalty of a fine. As such, if it were

to be regarded as a crime, it would fall, for

constitutional purposes, into the category of a

“petty offense,” a species of misdemeanor that

is punishable by a maximum of 6 months

imprisonment and a fine of uncertain

dimension, but probably not extending beyond

$5,000 for individuals. See 18 U.S.C. § 19

(2000). The Supreme Court has held that petty

offenses do not carry the right to jury trial and,

if no imprisonment will or may be imposed,

may also dispense with the right to appointed

counsel. E.g.,, Lewis v. United States, 518 U.S.

322 (1996); Scott v. Illinois, 440 U.S. 367

(1979). But we are unaware of any decision of

that Court or any other holding that the standard

of proof for conviction of even a petty offense

may deviate below the level of “beyond a

reasonable doubt.”

Id. at 688 n.4. According to the BIA, “[i]t is beyond debate,

therefore, that the respondent, who was found ‘guilty’ under

the lesser standard of a preponderance of the evidence was

not found guilty of his ‘violation’ in a true criminal

proceeding.” Id. at 688.

The BIA went on to explain that there was nothing in

the legislative history “to show that Congress intended

anything by the phrase ‘judgment of guilt’ other than the

normal and traditional meaning of a judgment entered in a

20

genuine criminal proceeding.” Id. (footnote omitted). On the

contrary, Congress was primarily, if not exclusively,

concerned with the effect of post-proceeding rehabilitative

actions. Id. at 668 n.5. Noting that its decision should not be

read as asserting that a foreign conviction must adhere to all

the constitutional requirements applicable to criminal trials,

including the requisite standard of proof, the BIA summarized

its finding in the following terms: “Rather we find that

Congress intended that the proceeding must, at a minimum,

be criminal in nature under the governing laws of the

prosecuting jurisdiction, whether that may be in this country

or in a foreign one.” Id. Finally, the BIA indicated that, to

the extent its decision in In re C-R-, 8 I. & N. Dec. 59 (BIA

1958) (holding that police court adjudication of petty theft in

violation of municipal ordinance under preponderance of

evidence standard constituted conviction), may be viewed as

inconsistent, that prior decision was overruled. Eslamizar, 23

I. & N. Dec. at 689.

In the present case, we are faced with serious

disagreement as to what considerations or factors may be

relevant in deciding whether a finding of guilt constitutes a

conviction under Eslamizar and § 1101(a)(48)(A). Both the

BIA and the government have distinguished Eslamizar on the

grounds that New Jersey law—unlike Oregon law—required

proof beyond a reasonable doubt. In short, the finding of

guilt at issue here purportedly constituted a conviction under

§ 1101(a)(48)(A) because the municipal court entered a

formal judgment of guilt under a “reasonable doubt” standard

of proof and ordered Castillo to pay a fine as a form of

punishment. However, Castillo claims that the BIA violated

21

its own precedent in Eslamizar, which “outlined a series of

factors that must be considered in determining whether an

alien’s judgment qualifies as a conviction [under §

1227(a)(2)(A)(ii)], including but not limited to whether the

sanctions resulting from such a conviction are punitive,

whether the alien was provided with the constitutional

safeguards normally attendant to a criminal adjudication, and

whether a conviction for the offense gives rise to any

disability or legal disadvantage based on conviction of a

crime.” (Petitioner’s Brief at 20 (citations omitted).) As we

recognized in our prior opinion in this matter, New Jersey law

provided in 1994 that: (1) disorderly persons offenses, such

as shoplifting, constituted “‘petty offenses,’” as opposed to

“‘crimes within the meaning of the Constitution of this

State;’” (2) “‘[t]here shall be no right to indictment by a grand

jury nor any right to trial by jury on’ disorderly persons

offenses;” and (3) “[c]onviction of such offenses shall not

give rise to any disability or legal disadvantage.’” Castillo,

411 F. App’x at 502 (quoting § 2C:1-4(b)). According to

Castillo, “Defendants charged with disorderly persons

offenses [also] have no blanket right to counsel.” (Id. at 29-

30 (citing § 2C:1-4(b)).

Simply put, we find the Eslamizar decision itself to be

difficult to understand. We acknowledge, for example, that

the BIA emphasized what it called a “bedrock principle” of

constitutional law—the requirement that each and every

element of an offense must be proved beyond a reasonable

doubt. See Eslamizar, 23 I. & N. Dec. at 688 (footnote

omitted) (citations omitted). In turn, it arguably drew a

distinction between this applicable standard of proof and

22

other procedural considerations, such as the right to a jury

trial or the right to appointed counsel. Id. at 688 n.4. We

further note that the interpretation of Eslamizar and §

1101(a)(48)(A) proffered by the government does seem

relatively simple to apply, i.e., instead of conducting an open-

ended multi-factor analysis, the decision maker simply

considers whether a court entered a formal judgment of guilt

under the “reasonable doubt” standard of proof and imposed

some form of punishment. More broadly, it is uncontested

that “the INA’s definition of a ‘crime’ and a ‘conviction’

controls the determination of whether a finding of guilt for an

offense is considered a ‘conviction for a crime.’”

(Petitioner’s Brief at 30.)

Nevertheless, we believe that Castillo generally offers

the more persuasive interpretation of Eslamizar and §

1101(a)(48)(A). We reach this conclusion based on the

language and reasoning of this difficult decision. We also

look to subsequent precedential and non-precedential BIA

decisions purportedly applying Eslamizar. Some of these

decisions actually appear to weigh in favor of Castillo’s

interpretation. At the very least, it is clear that, far from

clarifying a problematic en banc decision, the agency has

approached its own decision in an inconsistent fashion.

In Eslamizar, the BIA expressly rejected a literal

reading of the term “conviction.” Id. at 687. On the contrary,

it stated that “a far more sensible reading of the statute exists,

namely, that by ‘judgment of guilt’ Congress most likely

intended to refer to a judgment in a criminal proceeding, that

is, a trial or proceeding whose purpose is to determine

23

whether the accused committed a crime and which provides

the constitutional safeguards normally attendant upon a

criminal adjudication.” Id. This reading, “which we adopt,”

did not expressly reference the applicable standard of proof.

Id. In turn, the BIA generally referred to “a true criminal

proceeding,” “the normal and traditional meaning of a

judgment entered in a genuine criminal proceeding,” and a

proceeding that, at a minimum, is “criminal in nature under

the governing laws of the prosecuting jurisdiction, whether

that may be in this country or in a foreign one.” Id. at 688

(footnotes omitted). The agency also provided a full

summary of Oregon law, including the state’s definition of

crimes and violations in mutually exclusive terms, a statutory

provision stating that a conviction of a violation does not give

rise to any disability or legal disadvantage based on

conviction of a crime, and another state statutory section

providing that violation proceedings are tried by a court

sitting without a jury and without counsel being provided at

public expense.2 Id. at 687.

2

We likewise did not really emphasize the applicable

standard of proof in our prior opinion in this matter. In

summarizing Eslamizar, we instead pointed to other aspects

of Oregon state law (i.e., its mutually exclusive definitions

and the absence of any disability or legal disadvantage) and

highlighted the BIA’s “understanding of the phrase ‘judgment

of guilt’” as a “‘judgment in a criminal proceeding, that is, a

trial or other proceeding whose purpose is to determine

whether the accused committed a crime and which provides

the constitutional safeguards normally attendant upon

criminal adjudication.’” Castillo, 411 F. App’x at 502

24

Accordingly, we generally view Eslamizar as setting

forth a general “criminal proceeding” approach to §

1101(a)(48)(A). Because it is a “bedrock principle” that each

element of a crime must be proven beyond a reasonable

doubt, a finding of guilt under a lesser standard could never

be considered as a judgment in “a true criminal proceeding.”

Id. at 688 (footnote omitted) (citation omitted). The

“reasonable doubt” standard of proof thereby represents a

necessary condition for satisfying the BIA’s “criminal

proceeding” reading. However, this does not mean that a

judgment was entered in a true or genuine criminal

proceeding—and therefore constituted a conviction pursuant

to § 1101(a)(48)(A)—merely because a court entered a

formal judgment of guilt under the requisite “reasonable

doubt” standard of proof and imposed a form of punishment.

The “criminal proceeding” approach appears to contemplate a

more “open-ended” inquiry before a decision maker can

conclude that § 1101(a)(48)(A) has been satisfied. The BIA

accordingly indicated that there are several other factors that

may be relevant in deciding if the judgment was entered in a

true or genuine criminal proceeding, including how the

prosecuting jurisdiction characterized the offense at issue, the

consequences of a finding of guilt, and the rights available to

the accused as well as any other characteristics of the

proceeding itself. At the very least, such factors appear to be

(quoting Eslamizar, 23 I. & N. Dec. at 687)). With respect to

the standard of proof, we stated that Oregon’s violation

proceedings differed from criminal proceedings because,

“among other things,” the state was required only to prove

guilt by a preponderance of the evidence. Id.

25

relevant to the determination of whether the proceeding’s

“purpose is to determine whether the accused committed a

crime” and if it “provides the constitutional safeguards

normally attendant upon a criminal adjudication.” Id. at 687.

Furthermore, this interpretation of Eslamizar has some

support in subsequent decisions by the BIA. We begin with

an unpublished single-member decision indicating that a

judgment did not constitute a conviction, despite the fact that

the prosecution had to prove the elements of the offense

beyond a reasonable doubt.

In In re Bajric, A077 686 506, 2010 WL 5173974

(BIA Nov. 30, 2010) (unpublished decision), the agency

sustained an appeal from a bond decision filed by an alien

who was convicted in a Missouri municipal court of stealing

in violation of a municipal ordinance. Id. In deciding if this

judgment was a conviction under § 1101(a)(48)(A), the BIA

turned to Eslamizar. Id. While emphasizing the standard of

proof and noting that certain constitutional protections, such

as the right to a jury trial, need not be afforded in petty

offense cases, the BIA “also recognized several other factors

to be considered in determining whether a judgment would

qualify as a “conviction” for immigration purposes.” Id.

“These include, but are not limited to, whether the sanctions

resulting from such a conviction are punitive, whether there

are constitutional safeguards normally attendant to a criminal

adjudication, and whether a conviction for a municipal

violation gives rise to any disability or legal disadvantage

based on conviction of a crime.” Id. The BIA explained that,

“[a]lthough the respondent’s 2008 municipal violation was

26

quasi-criminal in that each element had to be proven beyond a

reasonable doubt, his municipal violation clearly remained

civil in nature in that it did not bar a prosecution for the same

offense by the state, and his conviction for a violation of a

municipal ordinance, unlike those for misdemeanors and

felonies, is not admissible for impeachment purposes.” Id.

Because this municipal violation did not appear to meet the

statutory definition under § 1101(a)(48)(A), the BIA believed

that it was substantially unlikely that the government could

establish that the alien was subject to mandatory detention on

account of his conviction for two or more crimes involving

moral turpitude. Id.

In the decision now under review, the BIA cited to In

re Rivera-Valencia, 24 I. & N. Dec. 484 (BIA 2008), which

determined that “an adjudication of guilt [of the offense of

carnal knowledge], proved beyond a reasonable doubt, by a

general court-martial qualified as a conviction under [§

1101(a)(48)(A)].” (A6.) In this published 3-member

decision, the BIA turned to Eslamizar and explained that a

court’s formal judgment of guilt falls within the language of

§1101(a)(48)(A) if it was entered in a “‘genuine criminal

proceeding,’” i.e., “a proceeding that is ‘criminal in nature

under the governing laws of the prosecuting jurisdiction.’”

Id. at 486-87 (quoting Eslamizar, 23 I. & N. Dec. at 688).

According to the agency, the alien’s guilt was determined in a

genuine criminal proceeding because the proceeding at issue

was criminal in nature under the laws of the prosecuting

jurisdiction, the United States Armed Forces. Id. at 487.

Specifically, “there is no dispute that a general court-martial

is a ‘criminal proceeding under the governing laws of the

27

United States Armed Forces, and the respondent’s general

court-martial unquestionably resulted in the entry of a formal

judgment of his ‘guilt’ beyond a reasonable doubt.” Id.

(citations omitted). Likewise, “a trial by court-martial does

not infringe on the constitutional rights of an accused who is

properly subject to military jurisdiction, despite the absence

of some protections afforded civilian defendants, such as the

right to a trial by jury.” Id. (citations omitted) (footnote

omitted). The BIA emphasized that the protections of the Bill

of Rights were available to members of the Armed Forces

(except for those protections that were expressly or by

implication inapplicable in this context), and service members

thereby were accorded many of the same procedural rights as

their civilian counterparts (e.g., the privilege against

compulsory self-incrimination, the right to representation by

counsel at public expense, and the right to call witnesses and

present evidence). Id. at 487 n.2. As part of its “genuine

criminal proceeding” analysis in Rivera-Valencia, the BIA

thereby considered whether the proceeding at issue was a

criminal proceeding under the laws of the prosecuting

jurisdiction itself and specifically relied on considerations

other than the applicable standard of proof.

In In re Cuellar-Gomez, 25 I. & N. Dec. 850 (BIA

2012), a 3-member panel then applied Rivera-Valencia—and

Eslamizar—to a judgment entered by a Kansas municipal

court finding the alien guilty of violating a city ordinance

prohibiting the possession of marijuana, id. at 852-55.

“Under our precedents, a formal judgment of guilt entered by

a court qualifies as a conviction under [§ 1101(a)(48)(A)] so

long as it was entered in a ‘genuine criminal proceeding,’ that

28

is, a proceeding that was criminal in nature under the

governing laws of the prosecuting jurisdiction.’” Id. at 852-

53 (quoting Rivera-Valencia, 24 I. & N. Dec. at 486-87.

According to the BIA, the judgment at issue was entered in a

genuine criminal proceeding under the laws of Kansas

because municipal court judges possessed the power to enter

judgments of guilt and impose fines or incarceration in

marijuana possession cases, the prosecution was required to

prove the charge beyond a reasonable doubt, and the

judgment of guilt represented a conviction for purposes of

calculating a defendant’s criminal history. Id. The agency

further rejected the alien’s specific contentions regarding the

absence of an absolute right to be represented by appointed

counsel (purportedly unlike the approach to appointment of

counsel used in the state’s district courts) as well as the lack

of a right to a jury trial. Id. at 853-54. Specifically, the BIA

concluded that the municipal court trial qualified as a genuine

criminal proceeding because, “[i]f the municipal court finds

the defendant guilty, the defendant then has a constitutional

and statutory right to appeal to a State district court for a trial

de novo before a jury.” Id. at 854 (citations omitted). In any

case, the BIA looked to Kansas state law in order to

determine whether the judgment was entered in a genuine

criminal proceeding under the laws of the prosecuting

jurisdiction and, in turn, considered more than the applicable

standard of proof. The agency also noted that it did “not

purport to address municipal or local judgments other than the

particular Wichita judgment before us.” Id. at 855 n.3.

“Because such judgments vary widely across jurisdictions,

each must be examined on its own merits.” Id.

29

“‘Agencies are not free, under Chevron, to generate

erratic, irreconcilable interpretations of their governing

statutes.’” Valdiviezo-Galdamez, 663 F.3d at 604 (quoting

Marmolejo-Campos v. Holder, 558 F.3d 903, 920 (9th Cir.

2009) (Berzon, J., dissenting)). Accordingly, “‘[c]onsistency

over time and across subjects is a relevant factor [under

Chevron] when deciding whether the agency’s current

interpretation is ‘reasonable.’” Id. (quoting Marmolejo-

Campos, 558 F.3d at 920 (Berzon, J., dissenting)). While it

can change its own policies, the BIA acts arbitrarily if it does

so without proffering a principled reason or explanation. See,

e.g. id. at 608.

According to the government, the BIA’s interpretation

of what constitutes a crime under the INA is entitled to

deference, and we should defer to its legal conclusion in this

matter. However, we do not believe that Chevron deference

would be appropriate in light of our discussion of Eslamizar

as well as subsequent BIA case law.3 At the very least, the

non-precedential decision in Bajric and the precedential

decisions in Rivera-Valencia and Cuellar-Gomez weigh in

favor of our interpretation of Eslamizar and a general

“criminal proceeding” approach to § 1101(a)(48)(A). We do

acknowledge that, in two unpublished single-member

3

We therefore need not—and do not—reach the

question of whether we could accord Chevron deference to an

unpublished decision by a single member of the BIA, see,

e.g., De Leon v. Attorney General, 622 F.3d 341, 348-51 (3d

Cir. 2010) (refusing to decide whether such decisions are

entitled to deference under Chevron).

30

decisions addressing shoplifting offenses under New Jersey

law, the BIA apparently concluded that such offenses were

convictions under § 1101(a)(48)(1) and Eslamizar merely

because the respective aliens were found guilty under a

“reasonable doubt” standard of proof (and were ordered to

pay fines). See In re Delgado, A13 924 138, 2008 WL

762624 (BIA Mar. 11, 2008) (unpublished decision), petition

for review denied sub nom. Delgado v. Attorney General, 349

F. App’x 809 (3d Cir. 2009) (per curiam); In re Dilone, A44

476 837, 2007 WL 2463936 (BIA Aug. 6, 2007) (unpublished

decision). The BIA, to date, has offered no attempt to

reconcile, reject, or otherwise explain its inconsistent

decisions. In fact, it has not even recognized that there may

be a problem with its own decisions in the present context.

We therefore are confronted here with a clear case of “erratic,

irreconcilable interpretations.’”4 Valdiviezo-Galdamez, 663

F.3d at 604 (citation omitted).

4

The BIA and the government have also turned for

support to non-precedential case law from this Court. In

Hussein v. Attorney General, 413 F. App’x 431 (3d Cir.

2010), the alien pled guilty before a New Jersey court of

possession of drug paraphernalia, a disorderly persons offense

under New Jersey law, id. at 432. We concluded that it was

not unreasonable for the BIA to determine that this offense

qualified as a conviction under § 1101(a)(48)(A) because the

government had the burden of proving every element beyond

a reasonable doubt, the alien willingly pled guilty, and the

judge sentenced him to serve forty-two days in jail. Id. at

434. In response to the alien’s attempt to compare his offense

to the offense at issue in Eslamizar, we offered the following

31

interpretation of the BIA’s holding:

Unlike the right to have each element of

a crime proven “beyond a reasonable doubt,”

the Constitution does not entitle a person facing

up to six months in jail the rights to indictment

by a grand jury or to a trial by jury. Blanton v.

N. Las Vegas, [489 U.S. 538 (1989)]; Hurtado

v. California, [110 U.S. 516 (1884)]. Thus,

while the BIA referred to a number of

procedural deficiencies in Eslamizar, it was the

inadequate burden of proof that alone formed

the basis for its holding.

Id. This Court in Burrell v. Attorney General, 347 F. App’x

805 (3d Cir. 2005) (per curiam), likewise rejected the alien’s

contention that his convictions could not be crimes involving

moral turpitude because they were all disorderly persons

offenses under New Jersey law, id. at 807. Noting the

irrelevance of New Jersey’s own characterizations, we stated

that the “proper inquiry is whether the offense was ‘a formal

judgment of guilty of the alien entered by a court,’ and

whether it therefore constitutes a conviction pursuant to [§

1101(a)(48)(A)].” Id. The alien’s convictions for unlawful

taking of the means of conveyance, receipt of stolen property,

and shoplifting all constituted formal judgments of guilt. Id.

32

It is well established that we are not bound by our own

non-precedential opinions. See, e.g., 3d Cir. I.O.P. 5.7 (“The

court by tradition does not cite to its not precedential opinions

as authority. Such opinions are not regarded as precedents

that bind the court because they do not circulate to the full

court before filing.”). We further note that the decisions did

not include a full analysis of either § 1101(a)(48)(A),

Eslamizar, or the subsequent BIA decisions. In fact, the

Court in Burrell did not even cite to Eslamizar itself.

Furthermore, we believe that the statement in Hussein that the

“inadequate burden of proof . . . alone formed the basis” of

the holding in Eslamizar, 413 F. App’x at 434, is best read as

a statement that, given the arguments made by the parties, the

burden of proof appeared to be the determinative factor (and

not as a general observation about the relative importance of

the various factors in Eslamizar or as a definitive holding

about the BIA’s interpretation of § 1101(a)(48)(A)).

33

We will grant Castillo’s petition for review and

remand for further proceedings consistent with this opinion.

As we have noted, “‘an agency can change or adopt its

policies.’” Id. at 608 (quoting Johnson v. Ashcroft, 286 F.3d

696, 700 (3d Cir. 2002)). “However, an agency ‘acts

arbitrarily if it departs from its established precedents without

announcing a principled reason for its decision,’” id. (quoting

Johnson, 286 F.3d at 700), and, in any case, “any announced

changes must be based on a permissible construction of the

statute,’” id. at 608 n.19. On remand, the BIA should

consider the broader question we initially asked it to address

in our prior opinion, i.e., whether Castillo was “‘convicted of

[a] crime [ ]’” under § 1227(a)(2)(A)(ii).” Castillo, 411 F.

App’x at 503; see also, e.g., id. (“While the statutory

We reach a somewhat similar conclusion with respect

to a Tenth Circuit opinion that briefly addressed Eslamizar

(and actually represents the only precedential circuit court

decision to have done so before our opinion). In Gradiz v.

Gonzales, 490 F.3d 1206 (10th Cir. 2007), the court observed

that the BIA “found that a state-labeled ‘violation’ was not a

conviction for purposes of § 1101(a)(48)(a) when it was

adjudicated using a preponderance-of-the-evidence standard

rather than the standard of proof beyond a reasonable doubt,”

id. at 1208. According to the Tenth Circuit, “Eslamizar does

nothing more than reaffirm our traditional standard that

findings of guilt must be beyond a reasonable doubt.” Id.

However, the Gradiz court made these statements in the

specific context of deciding that a no contest plea, probation,

and deferred sentence qualified as a conviction under §

1101(a)(48)(A), id. at 1207-08.

34

definition of ‘conviction’ may be found to assist in the

analysis, even given that definition, one must still ask

‘conviction’ of what.”). In doing so, it should endeavor to

provide an explicit justification for its answer to our question.

In turn, the BIA should attempt to clarify Eslamizar and the

agency’s reading of § 1101(a)(48)(A). The agency is free to

reconsider that problematic opinion, provided that it states a

reasoned explanation for doing so and any announced

changes are based on a permissible construction of the federal

immigration statute. Otherwise, the BIA should then

determine whether—given New Jersey’s then-operative

characterization of the shoplifting offense, the consequences

of any finding of guilt under New Jersey state law, and the

rights available to the accused as well as the other

characteristics of the proceeding before the East Brunswick

Municipal Court—the finding that Castillo was guilty of

shoplifting was entered in a “criminal proceeding, that is, a

trial or proceeding whose purpose is to determine whether the

accused committed a crime and which provides the

constitutional safeguards normally attendant upon a criminal

adjudication,” Eslamizar, 23 I. & N. Dec. at 687.5

5

We have also considered Castillo’s due process

argument and find it to be without merit. See, e.g., Castro v.

Attorney General, 671 F.3d 356, 365 (3d Cir. 2012) (“In the

removal context, due process requires that ‘an alien be

provided with a full and fair hearing and a reasonable

opportunity to present evidence.’” (quoting Romanishyn v.

Attorney General, 455 F.3d 175, 185 (3d Cir. 2006))); Jean-

Louis, 582 F.3d at 466 n.4 (concluding that alien seeking

discretionary relief from removal has no cognizable liberty or

35

IV.

For the foregoing reasons, we will grant the petition

for review and remand for further proceedings consistent with

this opinion.

property interest subject to protection of Due Process Clause).

36