Bernardo CASTILLO, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent.
No. 12-2073.
United States Court of Appeals, Third Circuit.
Argued May 30, 2013. Filed: Sept. 3, 2013.
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, Washington, DC, Jamie M. Dowd, Esq., United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Before: JORDAN, VANASKIE and COWEN, Circuit Judges.
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
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
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
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 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:20-11(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. See8 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 [§ 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 Fed.Appx. at 502 (quoting
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. at 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 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
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
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 of8 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 theINA 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.
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 constitutes a crime for purposes of [
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 qualified as a conviction under [§ 1101(a)(48)(A) ]); Matter of Calvera [Cabrera], 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 statute at issue in this case requires the State to demonstrate the elements of the offense beyond a reasonable doubt. SeeN.J. STAT. ANN. § 2c:20-11 (1994); see also State v. Goodmann, 390 N.J.Super. 259 [915 A.2d 79] (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.)
II.
We have jurisdiction pursuant to
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
Castillo, for his part, does not take issue with the BIA‘s basic approach to
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—
- 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
- 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 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
The BIA originally sustained the government‘s appeal, holding that the Oregon judgment was a conviction under the plain language of
According to the agency, [t]he issue in [Eslamizar] is whether a judgment of guilt entered against the respondent in a proceeding conducted pursuant to section 153.076 of the Oregon Revised Statutes 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
The BIA therefore adopt[ed] what it called a far more sensible reading of
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.
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:
... 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). It then added the following footnote to its statement of a bedrock principle :
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 [116 S.Ct. 2163, 135 L.Ed.2d 590] (1996); Scott v. Illinois, 440 U.S. 367 [99 S.Ct. 1158, 59 L.Ed.2d 383] (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 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
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 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
Nevertheless, we believe that Castillo generally offers the more persuasive interpretation of Eslamizar and
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 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. 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
Accordingly, we generally view Eslamizar as setting forth a general criminal proceeding approach to
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
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 [
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
Agencies are not free, under Chevron, to generate erratic, irreconcilable interpretations of their governing statutes. Valdiviezo-Galdamez, 663 F.3d 582 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
The BIA and the government have also turned for support to non-precedential case law from this Court. In Hussein v. Attorney General, 413 Fed.Appx. 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
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 Fed.Appx. 805 (3d Cir.2009) (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 [
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
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
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
IV.
For the foregoing reasons, we will grant the petition for review and remand for further proceedings consistent with this opinion.