Fan Wang v. Attorney General United States
898 F.3d 341
3rd Cir.2018Background
- Fan Wang, a Chinese national and U.S. lawful permanent resident, pleaded guilty in SDNY to violating the Commodity Exchange Act, 7 U.S.C. § 6b(a)(1)(B), for willfully making false reports/records about futures trades; sentenced to 3 months and ordered to pay $2.2 million restitution.
- After conviction, the Government commenced removal proceedings, asserting Wang’s conviction is an aggravated felony under INA § 101(a)(43)(M)(i) (offenses involving fraud or deceit with loss > $10,000).
- The Immigration Judge ordered removal; the BIA affirmed, concluding either that the INA’s “deceit” prong covers falsification without materiality or that § 6b(a)(1)(B) itself requires materiality.
- Wang challenged the BIA’s determination on two fronts: (1) whether § 6b(a)(1)(B) is a crime “involving fraud or deceit” (i.e., whether materiality is an element), and (2) whether the $2.2 million loss was sufficiently tied to the offense.
- The Third Circuit exercised jurisdiction over the pure legal question of whether the conviction is an aggravated felony, applied the categorical approach for the fraud/deceit element question, and a circumstance‑specific (Nijhawan) inquiry for the loss issue.
Issues
| Issue | Plaintiff's Argument (Wang) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Whether § 6b(a)(1)(B) requires proof of materiality (so qualifies as "fraud or deceit") | §6b(a)(1)(B) lacks a materiality element; false statements alone do not necessarily constitute fraud/deceit | §6b(a)(1)(B) must be read with surrounding CEA provisions and common‑law fraud/deceit, so materiality is required | Court: §6b(a)(1)(B) does not require materiality; BIA erred treating §6b(b) as necessarily involving fraud/deceit |
| Whether the statutory term "deceit" in INA §101(a)(43)(M)(i) independently imports materiality into §6b(a)(1)(B) | "Deceit" in the INA should not be read to subsume false‑statement provisions lacking materiality | Gov't: INA’s reference to fraud/deceit covers offenses like §6b(b) when read in context | Court: Analysis limited to criminal statute; BIA erred in incorporating common‑law materiality into §6b(a)(1)(B) here |
| Whether the Government proved loss > $10,000 "tied to" the offense under Nijhawan | The $2.2M loss was caused by unauthorized purchases, not by the false‑report charge; loss allegation was surplusage used only for sentencing | The false reports concealed the unauthorized trades and thus are causally linked to the $2.2M loss; sentencing materials may be considered | Court: $2.2M loss was properly considered under Nijhawan and is sufficiently tethered to the conduct underlying the conviction |
| Remedy / disposition | Vacate removal order as to fraud/deceit prong; remand for further proceedings | Seek affirmance of removal | Court: Grants review, holds §6b(a)(1)(B) lacks materiality element and remands case to BIA for proceedings consistent with opinion |
Key Cases Cited
- Kawashima v. Holder, 565 U.S. 478 (treats scope of "fraud or deceit" in aggravated‑felony context)
- United States v. Wells, 519 U.S. 482 (textualist approach; no materiality implied for "false statement")
- Neder v. United States, 527 U.S. 1 (distinguishing materiality requirements and discussing false‑statement common law)
- Nijhawan v. Holder, 557 U.S. 29 (circumstance‑specific inquiry for loss element in INA §101(a)(43)(M)(i))
- Maslenjak v. United States, 137 S. Ct. 1918 (Government argued materiality not required for certain false‑statement offenses)
- United States v. Saybolt, 577 F.3d 195 (3d Cir.) (false statement does not imply materiality)
- Valansi v. Ashcroft, 278 F.3d 203 (3d Cir.) (plea admission limits in removal review)
- Singh v. Attorney General, 677 F.3d 503 (3d Cir.) (use of sentencing materials and burden for proving loss)