Cristoval Silva-Trevino v. Eric Holder, Jr.

Case: 11-60464 Document: 00512526414 Page: 1 Date Filed: 02/07/2014

REVISED FEBRUARY 6, 2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 30, 2014

No. 11-60464

Lyle W. Cayce

Clerk

CRISTOVAL SILVA-TREVINO, also known as Cristobal Silva-Trevinio,

Petitioner

v.

ERIC. H. HOLDER, Jr., UNITED STATES ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

Cristoval Silva-Trevino challenges a new method the Attorney General

and the Board of Immigration Appeals (“the Board”) used to determine that he

had been convicted of a crime involving moral turpitude for the purposes of

admissibility under § 212 of the Immigration and Naturalization Act (“INA”),

8 U.S.C. § 1100, et seq. Because we find the contested method inconsistent

with the unambiguous language of the relevant statutory provision, we vacate

the Board’s determination.

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I.

This case arises out of proceedings to remove Silva-Trevino pursuant to

§ 237 of the INA, which permits the removal of aliens convicted of an

aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). Silva-Trevino concedes

that he has been convicted of an aggravated felony (indecency with a child,

§ 21.11(a)(1) of the Texas Penal Code), but he seeks an adjustment of status

under § 245(a), such that he might avoid removal. See id. § 1255(a). The

immigration judge rejected this request, finding that Silva-Trevino’s offense

qualified as a crime involving moral turpitude, thus rendering him

inadmissible and ineligible for discretionary relief. See id. § 1182(a)(2)(A)(i).

After the Board vacated the decision, the Attorney General certified the

case for review, as permitted by 8 C.F.R § 1003.1. In the resulting opinion, the

Attorney General outlined a new method for determining whether an alien has

been convicted of a crime involving moral turpitude. Matter of Silva-Trevino,

24 I. & N. Dec. 687 (A.G. 2008). This method, contrary to our precedent, allows

a judge to consider “evidence beyond the formal record of conviction” to the

extent the judge deems “necessary and appropriate.” Id. at 699. The Attorney

General also held that where a conviction record indicates “intentional sexual

contact with a minor,” immigration judges should look for evidence that the

alien “knew or should have known” that the victim was, in fact, a minor. Id.

at 705.

On remand from the Attorney General, the Board sent the case back to

the immigration judge, who applied the new rule, using Silva-Trevino’s

stipulations, testimony, and the victim’s birth certificate to conclude that Silva-

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Trevino should have known the victim was a minor. This extrinsic evidence,

combined with the record of conviction, was sufficient for the judge to find that

Silva-Trevino had been convicted of a crime involving moral turpitude. The

Board affirmed.

Silva-Trevino now seeks review of the decision, arguing that the

Attorney General’s method of classification is inconsistent with binding

precedent and contradicts the express language of the INA. In the alternative,

he contends that the method violates due process as applied to his case. Silva-

Trevino also asks us to compel the Attorney General to supplement the record.

However, as Silva-Trevino has not identified any specific omission from the

record, or pointed to any relevant legal authority, he has waived this argument.

FED. R. APP. P. 28(a)(9)(A), (a)(10).

II.

The INA affords this Court jurisdiction to review orders of removal. 8

U.S.C. § 1252(b). We review questions of law de novo. Rodriguez-Castro v.

Gonzales, 427 F.3d 316, 320 (5th Cir. 2005). The instant case requires us to

decide whether the Attorney General’s interpretation of the INA supersedes

this Circuit’s longstanding precedent. Where a statute is ambiguous, and an

implementing agency’s construction is reasonable, “Chevron requires a federal

court to accept the agency’s construction of the statute, even if the agency’s

reading differs from what the court believes is the best statutory

interpretation.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,

545 U.S. 967, 980 (2005) (citing Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984)). Therefore, because Congress has clearly

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delegated to the Attorney General the authority to resolve questions of law

regarding the INA, our precedent will prevail over his interpretation only if

our construction “follows from the unambiguous terms of the statute and thus

leaves no room for agency discretion.” Brand X, 545 U.S. at 982; see also 8

U.S.C. § 1103(a)(1) (delegating interpretive authority to the Attorney General).

III.

In relevant part, § 212(a)(2)(A)(i) of the INA renders inadmissible “any

alien convicted of, or who admits having committed, or who admits committing

acts which constitute the essential elements of a crime involving moral

turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i). As a consequence of this

inadmissibility, the removable alien is ineligible for discretionary relief via an

adjustment of status. 8 U.S.C. § 1255(a). Here, Silva-Trevino was denied relief

because the conviction record, when paired with extrinsic evidence, indicated

that he had been convicted of a crime involving moral turpitude. The Attorney

General does not argue that Silva-Trevino has admitted to any such crime or

act. We therefore limit our analysis to the “convicted of” clause of

§ 212(a)(2)(A)(i).

We should emphasize that the question before this Court is not whether

Silva-Trevino’s offense constitutes a crime involving moral turpitude. Rather,

we consider only the means by which judges may determine whether a given

conviction qualifies. We have long held that, in making this determination,

judges may consider only “the inherent nature of the crime, as defined in the

statute,” or, in the case of divisible statutes, “the alien’s record of conviction.”

Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006) (internal quotation

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marks and citations omitted); U.S. ex rel. McKenzie v. Savoretti, 200 F.2d 546,

548 (1952). We do not permit extrinsic inquiry into the “circumstances

surrounding the particular transgression.” Amouzadeh, 467 F.3d at 455.

In reviewing Silva-Trevino’s case, however, the Attorney General

established a new approach that requires immigration judges and the Board

to:

(1) look to the statute of conviction under the categorical inquiry

and determine whether there is a “realistic probability” that the

State or Federal criminal statute pursuant to which the alien was

convicted would be applied to reach conduct that does not involve

moral turpitude; (2) if the categorical inquiry does not resolve the

question, engage in a modified categorical inquiry and examine the

record of conviction, including documents such as the indictment,

the judgment of conviction, jury instructions, a signed guilty plea,

and the plea transcript; and (3) if the record of conviction is

inconclusive, consider any additional evidence deemed necessary or

appropriate to resolve accurately the moral turpitude question.

24 I. & N. Dec. at 704 (emphasis added). Today we must determine whether

the relevant clause of INA § 212 is sufficiently ambiguous such that our

precedent yields to the third step in this method. We need not address the first

two steps. Although this is a matter of first impression for us, six of our sister

circuits have already reached the issue. Two concluded that the phrase is

ambiguous, while the other four found that it is not. 1 We agree with the

majority of our sister circuits that the phrase is not ambiguous.

1The Third, Fourth, Ninth, and Eleventh Circuits found the language unambiguous

and thus withheld deference. See generally Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir.

2013); Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012); Fajardo v. U.S. Attorney General,

659 F.3d 1303 (11th Cir. 2011); Jean-Louis v. Attorney General of U.S., 582 F.3d 462 (3d Cir.

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Fortunately, we need not speculate as to what is meant by the phrase

“convicted of” a crime of moral turpitude, because Congress had the foresight

to tell us. The statutory definitions indicate that “conviction means, with

respect to an alien, a formal judgment of guilt . . . .” 8 U.S.C. § 1101(48)(A).

The statute then includes a list of the seven official documents that may be

considered as proof of such a conviction. Id. § 1229a(c)(3)(B). There is no

mention of any additional evidence; and the introductory phrasing, “any of the

following documents or records,” gives no indication that extrinsic evidence is

contemplated. Id.

We do not doubt that extrinsic inquiry would be relevant and convenient

when classifying convictions. However, it would be a little odd to read this

provision as allowing additional relevant evidence when, historically, Congress

has simply told us when adjudicators can consider evidence on account of its

relevance. 2 In fact, this very statute stipulates that the immigration judge

“shall consider any credible evidence” relevant to the removal of victims of

2009). The Seventh Circuit, however, has afforded the decision deference under Chevron,

467 U.S. 837 (1984). See Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir. 2008) (“[A]s the board

has done this through formal adjudication[,] the agency is entitled to the respect afforded by

the Chevron doctrine.”). The Eighth Circuit initially rejected the Silva-Trevino approach, but

a later panel held that the opinion warrants deference. Compare Guardado-Garcia v. Holder,

615 F.3d 900, 902 (8th Cir. 2010) (“We are bound by our circuit’s precedent, and to the extent

Silva-Trevino is inconsistent, we adhere to circuit law.”), with Bobadilla v. Holder, 679 F.3d

1052, 1057 (8th Cir. 2012) (“We conclude that the methodology is a reasonable interpretation

of the statute and therefore must be given deference by a reviewing court.”).

2 E.g., 28 U.S.C. § 1867(d) (Moving party “shall be entitled to present . . . any other

relevant evidence.”); 30 U.S.C. § 923(b) (“[A]ll relevant evidence shall be considered.”); 42

U.S.C. § 610(b)(2) (“[T]he Board shall conduct a thorough review of the issues and take into

account all relevant evidence.”); 15 U.S.C. § 6603(g)(3) (allowing courts and administrative

officials to consider “other relevant evidence”).

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family violence. 8 U.S.C. § 1227(a)(7)(B). Yet with respect to the convictions

at issue here, there is no such authorization. “Where Congress includes

particular language in one section of a statute but omits it in another section

of the same Act, it is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” Russello v. United States,

464 U.S. 16, 23 (1983). Consequently, we assume that if Congress had

intended for immigration judges to consider relevant extrinsic evidence in

order to classify a conviction as a crime of moral turpitude, the legislators

would have included language to that effect.

Moreover, the Supreme Court has already explained that, where

Congress directs courts to determine whether a prior conviction qualifies as a

certain type of crime, the use of a categorical approach is intended. Taylor v.

United States, 495 U.S. 575 (1990). In Taylor, the Court considered whether,

when determining if prior offenses constitute previous convictions for the

purposes of 18 U.S.C. § 924(e), adjudicators may consider “the particular facts

underlying those convictions.” Id. at 600. The Court held that adjudicators

may not look beyond the record and associated statutory elements, reasoning

that:

[T]he language of 924(e) generally supports the inference that

Congress intended the sentencing court to look only to the fact that

the defendant had been convicted of crimes falling within certain

categories, and not to the facts underlying the prior convictions.

Section 924(e)(1) refers to “a person who . . . has three previous

convictions” for - not a person who has committed - three previous

violent felonies or drug offenses.

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Id. In the case before the panel, the relevant statutory language directs us to

look for a conviction, rather than an act committed, so use of a categorical

approach is implied.

In interpreting the language at issue in Taylor, that Court also looked to

the traditional judicial construction of the phrase, and to recent amendments

to the statute. Id. at 600–01. Here, legislative ratification of the longstanding,

nearly universal use of the categorical inquiry confirms that Congress has

unambiguously spoken to this issue. The categorical approach has been used

in the immigration context for at least a century. 3 By 1954 its use was so

widespread that the Board clarified and endorsed the method. 4 Since then, the

Board and all of the federal courts have used some version of the categorical or

modified categorical inquiry. 5 This widespread continuous use is significant

for our purposes because, where there exists a longstanding judicial

construction, “Congress is presumed to be aware of the interpretation . . . and

to adopt that interpretation [if] it re-enacts that statute without change.”

Lorillard v. Pons, 434 U.S. 575, 580 (1978). It hardly seems unreasonable to

3 Moncrieffe v. Holder, --- U.S. ----, 133 S. Ct. 1678, 1685 (2013) (referring to the history

as compiled by Alina Das in The Immigration Penalties of Criminal Convictions: Resurrecting

Categorical Analysis in Immigration Law, 86 N.Y.U. L. REV. 1669 (2011)).

4 Matter of R-----, 6 I. & N. Dec. 444, 448 (B.I.A. 1954).

5 See Matter of Velazquez-Herrera, 24 I. &. N. Dec. 503, 513 (B.I.A. 2008) (“For nearly

a century, the Federal circuit courts of appeals have held that where a ground of deportability

is premised on the existence of a ‘conviction’ for a particular type of crime, the focus of the

immigration authorities must be on the crime of which the alien was convicted, to the

exclusion of any other criminal or morally reprehensible acts he may have committed.”). For

the purpose of resolving the present issue, it is not necessary to consider the minor variations

in the way that various federal courts have articulated and employed the categorical

approach. See Jean-Louis, 582 F.3d at 474 n.16 (collecting cases and describing similarities).

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abide by this assumption here, as Congress has had numerous opportunities

to make any desired changes. 6 In fact, in the wake of the Oklahoma City

bombing, and again after 9/11, Congress amended § 212 to ensure its efficacy. 7

In 1996, Congress expanded the agency’s power to remove aliens convicted of

crimes involving moral turpitude. 8 In addition, lawmakers expedited certain

deportation proceedings and later increased the number of grounds for

inadmissibility. 9 In light of such extensive attention to the statute, it seems

that Congress would have given some indication if it wanted adjudicators to

“abandon” the longstanding categorical approach in favor of an “elaborate

factfinding process.” Taylor, 495 U.S. at 601. And yet the relevant language

remained unchanged. 10 As a consequence, and because the lawmakers have

6 See 8 U.S.C.A. § 1182 Historical and Statutory Notes (West 2005) (listing dozens of

amendments to § 212 of the INA).

7 Section 212 of the INA was substantively amended by The Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996)

(codified as amended in scattered sections of the U.S. Code); The Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-

546 (1996) (codified as amended in scattered sections of the U.S. Code); and USA PATRIOT

Act, Pub. L. No. 107-56, 115 Stat. 272 (2001) (codifed as amended in scattered sections of the

U.S. Code). As the threat of terrorism increased, so did legislative attention to deportation

proceedings. See President’s Statement on Signing the Antiterrorism and Effective Death

Penalty Act of 1996, 32 Weekly Comp. of Pres. Doc. 719, 721 (Apr. 29, 1996) (discussing

threats of terrorism, encouraging additional immigration reform, and anticipating IIRIRA);

Administration’s Draft Anti-Terrorism Act of 2001: Hearing before the H. Comm. on the

Judiciary, 107th Cong. 3–12 (2001) (statement of John Ashcroft, Att’y Gen. of the United

States) (explaining the (then unnamed) USA PATRIOT Act, and the need for changes to

deportation and inadmissibility proceedings).

8 AEDPA § 435, 110 Stat. 1274.

9 IIRIRA §§ 301–08, 110 Stat. 3009-575 et seq.; USA PATRIOT Act § 411, 115 Stat.

345.

10 In fact, the only recent bill attempting to supersede categorical inquiry was

abandoned in the Senate Judiciary Committee. See Armed Career Criminal Sentencing Act

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revisited the section so often, we are confident that Congress is aware of the

universal judicial interpretation of the “convicted of” clause of § 212, and we

can assume that Congress expects us to abide by that construction. Lorillard,

434 U.S. at 583. Where, as here, Congress has spoken directly to the statutory

question at hand, our precedent need not yield to an agency’s contrary

interpretation. Burks v. U.S., 633 F.3d 347, 360 (5th Cir. 2011).

IV.

Nonetheless, the Attorney General urges this Court to defer to his

interpretation of § 212(a)(2)(A)(i). First, he argues that the statutory language

is ambiguous. Second, he contends that the Supreme Court and our precedent

already authorize immigration judges to look beyond the conviction record

when making similar determinations. Finally, he insists that various practical

considerations weigh in favor of his method. We find the arguments

unpersuasive.

In arguing that “convicted of a crime involving moral turpitude” is

ambiguous, the Attorney General focuses on the inherent lack of clarity in the

concept of moral turpitude. He observes, for example, that “[t]he statute does

not define the term ‘crime involving moral turpitude.’” 24 I. & N. Dec. at 693.

Indeed, no one suggests otherwise. This Court, in fact, has always recognized

the agency’s authority to define the phrase. See Hyder v. Keisler, 506 F.3d 388,

390 (5th Cir. 2007) (affording “substantial deference”). Yet the lack of a precise

definition of moral turpitude does not infuse ambiguity into the word

of 2010, S. 4045, 111st Cong. (2010) (proposing to supersede its use in the context of the

Armed Career Criminal Act, 18 U.S.C. 924(e)).

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conviction. As our sister circuits have observed, “At issue . . . is not what

conduct or statutory offense qualifies as a crime involving moral turpitude, but

rather what language in the moral turpitude statute informs an adjudicator of

the procedure for determining whether a particular conviction qualifies . . . .”

Olivas-Motta, 716 F.3d at 1204 (quoting Prudencio, 669 F.3d at 480). And even

in the Eighth Circuit case the Attorney General points to as support for the

purported ambiguity, the majority of the panel concluded that moral turpitude

is not so undefined as to preclude a categorical inquiry. Marciano v. I.N.S.,

450 F.2d 1022, 1025 (8th Cir. 1971).

The Attorney General also asserts that section 212’s juxtaposition of the

phrase “who is convicted of” with the phrases “who admits having committed”

and “who admits committing” suggests that Congress wants adjudicators to

focus on the facts and circumstances of the underlying crime. 8 U.S.C.

§ 1182(a)(2)(a)(i). The three phrases taken together, he contends, “contemplate

a finding that the particular alien did or did not commit a crime.” 24 I. & N.

Dec. at 699. The argument is, apparently, that because the latter two phrases

anticipate an examination of facts and circumstances, Congress must have

intended such an inquiry with respect to convictions, too. We respectfully

disagree. It is an elementary canon of construction that when Congress uses

different terms, “each term [is] to have a particular, nonsuperfluous meaning.”

Bailey v. United States, 516 U.S. 137, 146 (1995) (superseded by statutory

amendment on other grounds, as described in United States v. O’Brien, 560

U.S. 218 (2010)). For example, where a statute refers to firearms “used” and

those “intended to be used,” the latter phrase does not anticipate active

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engagement in the way the former term does, because to interpret otherwise

would create redundancy. Id. Similarly, in this context, to assume that

“convicted” connotes the same procedure as “committed” is to strip the word of

its statutory definition and render it superfluous. We cannot accept such an

interpretation. The juxtaposition does not infuse any ambiguity into the

“convicted of” clause, but only serves to underscore the distinct meaning of that

phrase.

We are aware that two binding cases permit the adjudicator to look

beyond the conviction record in ostensibly analogous proceedings. See

Nijhawan v. Holder, 557 U.S. 29 (2009); Bianco v. Holder, 624 F.3d 265 (5th

Cir. 2010). In Nijhawan, the Supreme Court allowed evidence beyond the

record in determining whether an alien had been convicted of an “offense that

involves fraud or deceit in which the loss to the victim or victims exceeds

$10,000.” 557 U.S. at 32 (interpreting 8 U.S.C. § 1101(a)(43)(M)(i)). In Bianco,

this Court permitted an examination of extrinsic evidence in order to

determine whether an alien had been convicted of a “crime of domestic

violence.” 624 F.3d at 267 (interpreting 8 U.S.C. § 1227(a)(2)(E)(i)). The

Attorney General believes that Nijhawan and Bianco bear on the analysis of

this case because each of the three cases requires courts to determine whether

a given conviction falls into a statutorily defined category of convictions.

We find the statutory language before us readily distinguishable from

the language at issue in Nijhawan and Bianco. Note that the language in each

of the earlier two cases describes a subset of a category of convictions, rather

than an entire category. As a consequence, relevant convictions can only be

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identified by looking to the circumstances that define the subset. Consider

that in Nijhawan, the category is crimes of fraud and deceit, and the subset is

those resulting in a loss of at least $10,000 to the victim. Likewise, in Bianco,

the category is crimes of violence as defined by 18 U.S.C. § 16, and the subset

is crimes of violence in which the victim is a covered relative. By creating these

factually defined subsets, Congress necessarily authorizes adjudicators to look

beyond a conviction record to the circumstances of an underlying offense.

Nijhawan, 557 U.S. at 30. Yet the statute at issue here defines no such subset:

qualifying offenses are all crimes involving moral turpitude, as that generic

crime has been defined by federal authorities and common law. Consequently,

we find no analogous permission to abandon the categorical approach and look

beyond the conviction record. See Moncrieffe, 133 S. Ct. at 1691 (explaining

that “circumstance-specific examination” of conduct is not permitted in

determining whether an immigrant was convicted of a generic crime).

It is, of course, possible to argue that that moral turpitude is simply

another factual circumstance that defines a subset. See Ali, 521 F.3d at

741. Yet to conceive of moral turpitude in this way is to disregard a century of

jurisprudence, despite the fact that courts generally interpret terms of art in

keeping with “the legal tradition and meaning” and “cluster of ideas . . .

attached” to the phrase. Morissette v. United States, 342 U.S. 246, 263 (1952);

see also Olivas-Motta, 716 F.3d at 1205–08 (finding Nijhawan inapplicable to

INA § 212); Jean-Louis, 582 F.3d at 477–78 (explaining that it is historically,

linguistically, and legally erroneous to think of moral turpitude as a factual

circumstance). Consequently, and because the statutory language in

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Nijhawan and Bianco is distinguishable from the relevant clause in § 212, we

decline the invitation to apply the reasoning in those cases to the case at bar.

The Attorney General also offers various policy justifications for his

proposed method of classifying convictions. He first asserts that additional

evidence must be made available because moral turpitude is not an element of

any crime, and thus its presence or absence may not be clear from the face of

charging documents. We do not find this argument convincing. The fact that

moral turpitude is not an element of any crime need not—and in fact does not—

imply that the characteristics of a crime involving moral turpitude are not

present on the conviction record made available by Congress. Consider, for

example, that larceny may not be an “element” of any crime in Texas; yet the

elements of common law larceny (the taking and carrying away of another’s

property without consent and with intent to steal) are elements of several

offenses defined by chapters 29 and 31 of the Texas Penal Code. So just as the

characteristics of larceny are evinced by an examination of a charge of

aggravated robbery under § 29.03 of the Texas Penal Code; so, too, are the

hallmarks of a crime involving moral turpitude often present on the face of a

conviction record. In fact, the Attorney General himself concedes that “in

many, if not most, cases . . . examination of the alien’s record of conviction may

establish that the alien was in fact convicted of a crime involving moral

turpitude.” Silva-Trevino, 24 I. & N. Dec. at 699. We have no reason to doubt

his observation, and we conclude that any exceptions are not sufficient cause

for us to depart from the procedure authorized by the statutory language. See

MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 233–34 (1994) (rejecting an

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agency interpretation inconsistent with unambiguous statute, though the

agency’s interpretation might have better facilitated legislative intent).

The Attorney General further contends that we should defer to his

interpretation of § 212(a)(2)(A)(i) because he is charged with ensuring uniform

application of the law. This argument is, if anything, a little ironic. Until he

intervened in Silva-Trevino, there was broad consensus among the federal

courts that the “convicted of” language precludes consideration of evidence

beyond the conviction record. See supra, note 5. So at least with respect to the

admissibility of evidence, there was uniform application of the law. Yet now

the circuits have split, with some Courts of Appeals using the new method, and

others abiding by longstanding precedent. So it seems that his interpretation

has been counterproductive toward his own stated objective, in that the prior

jurisprudential accord has been replaced by competing interpretations.

Regardless, these kinds of arguments—i.e., those rooted in policy and

pragmatism—are only viable where Congress has not spoken directly to the

statutory question before the court. Here, as already explained, Congress has

spoken directly to the issue, so our inquiry has reached its end. FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 132 (2000).

V.

Returning to the case before us, we find that the Board of Immigration

Appeals looked beyond the conviction record to conclude that Silva-Trevino had

been convicted of a crime involving moral turpitude. Our precedent does not

permit such an inquiry. Amouzadeh, 467 F.3d at 455. We therefore vacate the

decision of the Board and remand for further proceedings consistent with the

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standards stated herein. As a consequence, we need not reach petitioner’s

argument that the earlier proceedings violated due process.

Petition GRANTED, decision VACATED, and case REMANDED.

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