The opinion
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________________
NO. 09-2594
______________________
BERNARDO CASTILLO
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
________________________
On Petition for Review of an Order of the Board of Immigration Appeals
No. A090-260-288
Immigration Judge: Hon. Henry S. Dogin
_________________________
Argued December 14, 2010
BEFORE: SLOVITER, GREENAWAY, JR., and
STAPLETON, Circuit Judges
__________________________
(Opinion Filed January 11, 2011)
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Micaela M. Alvarez, Esq.
Francis X. Geier, Esq. (Argued)
416 36th Street – Suite 1
Union City, NJ 07087
Attorneys for Petitioner
A. Marisa Chun, Esq. (Argued)
U.S. Department of Justice
950 Pennsylvania Avenue, N.W. – Room 5706
Washington, DC 20530
and
Cindy S. Ferrier, Esq.
R. Alexander Goring, Esq.
Eric H. Holder, Jr., Esq.
Thomas W. Hussey, Esq.
Justin R. Markel, Esq.
Keith I. McManus, Esq.
Phillip M. Truman, Esq.
U.S. Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
_____________________
OPINION OF THE COURT
_____________________
STAPLETON, Circuit Judge:
Bernardo Castillo, a native and citizen of Peru, has filed a petition for review of a
decision of the Board of Immigration Appeals (―BIA‖). We will grant the petition.
I.
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Castillo entered the United States in 1985 without inspection, became a temporary
resident in 1988, and adjusted to lawful permanent resident status in December 1990.
Prior to that adjustment, however, in 1989, he was convicted in state court in New Jersey
of receiving stolen property. In January, 1994, a New Jersey court convicted him of
having committed a violation of New Jersey‘s shoplifting statute on July 30, 1993. He
was thereafter convicted of receiving stolen property three more times and of contempt
on another occasion. In light of these convictions, the Department of Homeland Security
placed Castillo in removal proceedings.
Before the Immigration Judge (―IJ‖), Castillo admitted his criminal history and
conceded removability, but argued eligibility for, inter alia, cancellation of removal
pursuant to Section 240A(a) of the Immigration and Nationality Act (―INA‖), 8 U.S.C. §
1229b(a). The IJ denied relief and ordered Castillo removed from the United States.
Castillo appealed, and the BIA dismissed his appeal.
II.
We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252(a).
―Because the BIA issued its own decision, we review that decision, and not that of the
IJ.‖ Sheriff v. Attorney Gen., 587 F.3d 584, 588 (3d Cir. 2009) (citing Ezeagwuna v.
Ashcroft, 301 F.3d 116, 126 (3d Cir. 2002)). ―The BIA‘s factual findings are reviewed
for substantial evidence.‖ Briseno-Flores v. Attorney Gen., 492 F.3d 226, 228 (3d Cir.
2007).
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―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, 844,
104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).‖ Id. (citing Wang v. Ashcroft, 368 F.3d 347,
349 (3d Cir. 2004)). ―Accordingly, ‗if the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress.‘‖ Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir. 2003)
(quoting Chevron, 467 U.S. at 842-43). ―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. (internal
quotation and citation omitted). ―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. (internal quotations and citations
omitted).
III.
Castillo challenges the BIA‘s ruling on his eligibility for cancellation of removal
pursuant to 8 U.S.C. § 1229b(a). That section provides that the Attorney General may
cancel the removal of an alien who (1) has been a lawful permanent resident for not less
than five years, (2) ―has resided in the United States continuously for 7 years after having
been admitted in any status,‖ and (3) has not been convicted of an aggravated felony. 8
U.S.C. § 1229b(a). Continuous residence, however, ends ―when the alien has committed
an offense . . . that renders the alien . . . removable from the United States under section
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237(a)(2)‖ of the INA, 8 U.S.C. § 1227(a)(2). 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.‖ The BIA determined that the shoplifting offense committed by Castillo on
July 30, 1993, was his second ―crime involving moral turpitude,‖ his first being his
conviction for receipt of stolen property. Thus, ruled the BIA, Castillo was rendered
removable under 8 U.S.C. § 1227(a)(2)(A)(ii), and his period of continuous residence
ended on July 30, 1993, short of the requisite seven years, given that he was admitted as a
temporary resident in 1988.
Castillo does not maintain that the conduct proscribed by New Jersey‘s shoplifting
statute fails to involve ―moral turpitude‖ within the meaning of § 1227(a)(2). Rather, he
contends 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.‖ See N.J. Stat. Ann. § 2C:20-11(c) (1994) (―Any person
found guilty of [shoplifting] under subsection b. is a disorderly person . . . .‖). In support
of this contention, Castillo points out that under New Jersey law in 1994:
(1) ―Disorderly persons offenses . . . are petty offenses and
are not crimes within the meaning of the Constitution of this
State.‖ N.J. Stat. Ann. § 2C1-4(b) (1994).
(2) ―There shall be no right to indictment by a grand jury nor
any right to trial by jury on‖ disorderly persons offenses. Id.
(3) ―Conviction of such offenses shall not give rise to any
disability or legal disadvantage.‖ Id.
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(4) In 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
possession of merchandise while on the merchant‘s property.
N.J. Stat. Ann. § 2C:20-11(d) (1994).
In further support of his contention, Castillo relies upon the BIA‘s decision in In
re Eslamizar, 23 I. & N. Dec. 684 (2004), in which the respondent had been found guilty
of a ―violation‖ of an Oregon statute prohibiting shoplifting. 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.‖
Id. 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 its primary emphasis on the INA
definition of ―conviction‖ found in 8 U.S.C. § 1101(a)(48)(A). 1 While acknowledging
1
8 U.S.C. § 1101(a)(48)(A) provides:
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
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that the respondent had been ―convicted‖ under a 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 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.
While the BIA‘s opinion in Castillo‘s case makes clear that it regards the conduct
prohibited by New Jersey‘s shoplifting statute as involving moral turpitude within the
meaning of 8 U.S.C. § 1227(a)(2)(A)(ii), it does not reach the issue of whether Castillo
was ―convicted of [a] crime[]‖ within the meaning of that statute. The BIA did not reach
that issue 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. As a result, its ruling on the issue
tendered to us by Castillo was as follows:
The respondent argues 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
(ii) the judge has ordered some form of
punishment, penalty, or restraint on the alien‘s
liberty to be imposed.
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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
establishing that he is eligible for cancellation of removal
under section 240A(a) of the Act.
App. at v-vi (footnote omitted).
Under § 2C:2-11(c) as it existed at the time of Castillo‘s shoplifting offense, all
four gradations of the offense were disorderly persons offenses and, accordingly, we
cannot sustain the BIA‘s ruling based on its supporting rationale. There 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. We decline to address it in the first instance because it is an issue of
some substance and because we owe Chevron deference to the BIA‘s reading of the
statutes whose execution it oversees. We will remand to secure the benefit of the BIA‘s
understanding of the phrase ―convicted of [a] crime[]‖ as used in § 1227(a)(2)(A)(ii).
The BIA‘s application of the 2006 version of the statute rather than the 1994
version is not harmless error as the government suggests. While it is true that 8 U.S.C. §
1101(a)(48)(A) defines the term ―conviction‖ for purposes of the INA and that that
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
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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.
IV.
Castillo advances a ―due process‖ argument that closely tracks the foregoing
argument regarding statutory construction. Disposition of it should await the disposition
of that statutory argument.
Castillo also argues that his lawful permanent resident status was erroneously
rescinded in violation of the teachings of Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996),
and Garcia v. Attorney Gen., 553 F.3d 724 (3d Cir. 2009). We are unpersuaded. In
Bamidele and Garcia, the deportation orders of the INS rested solely on the ground that
the respondents were found to have secured adjustment of status through fraud, and a
five-year statute of limitations barred any attack on the alleged frauds. Here, Castillo‘s
removal order is based on his substantial criminal record, which he acknowledged from
the outset, and he points to no applicable statute of limitations that has been violated.
V.
The petition for review will be granted, and this matter will be remanded to the
BIA for further proceedings consistent with this opinion.
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