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15-1068-ag 

Lauria v. Sessions 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A 

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held 

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 24th day of February, two thousand seventeen. 

 

PRESENT: REENA RAGGI, 

RAYMOND J. LOHIER, JR., 

CHRISTOPHER F. DRONEY, 

Circuit Judges. 

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SALVATORE LAURIA, 

Petitioner, 

v. No. 15-1068-ag 

JEFF SESSIONS, UNITED STATES ATTORNEY 

GENERAL,

Respondent.

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APPEARING FOR PETITIONER: THOMAS E. MOSELEY, Law Offices of 

Thomas E. Moseley, Newark, New Jersey. 

APPEARING FOR RESPONDENT: SONG E. PARK, Senior Litigation Counsel 

(Benjamin C. Mizer, Principal Deputy Assistant 

Attorney General; Cindy S. Ferrier, Assistant 

Director, on the brief), Office of Immigration 

 



 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jeff 

Sessions is automatically substituted for former Attorney General Loretta E. Lynch as 

Respondent. 
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Litigation, Civil Division, United States 

Department of Justice, Washington, D.C. 

UPON DUE CONSIDERATION of this petition for review of a Board of 

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

DECREED that the petition for review is GRANTED, the BIA’s order is VACATED, 

and the case is REMANDED to the agency for further proceedings. 

Petitioner Salvatore Lauria, a native and citizen of Italy, seeks review of a March 

30, 2015 decision of the BIA affirming an August 28, 2013 decision of an Immigration 

Judge (“IJ”) denying Lauria’s application for relief under the Convention Against Torture 

(“CAT”). In re Salvatore Lauria, No. A030 990 439 (B.I.A. Mar. 30, 2015), aff’g No. 

A030-990-439 (Immig. Ct. N.Y.C. Aug. 28, 2013). A lawful permanent resident, 

Lauria was deemed an applicant for admission pursuant to 8 U.S.C. § 1101(a)(13)(C)(v) 

upon his return in 2007 from a trip abroad based on a 2004 conviction for violating the 

Racketeer Influenced and Corrupt Organizations (“RICO”) statute. He argues that 

§ 1101(a)(13)(C)(v), a provision of the Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996 (“IIRIRA”), was applied to him in an impermissibly 

retroactive manner because IIRIRA became effective on April 1, 1997, and his RICO 

crime was committed prior to that date. The BIA rejected this argument, reading 

Vartelas v. Holder, 566 U.S. 257 (2012), to approve the application of 

§ 1101(a)(13)(C)(v) to Lauria because his RICO conviction occurred after the statute’s 

effective date. In its brief and more emphatically at oral argument, respondent argued 

that this court did not need to decide whether Vartelas required that an alien have 
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committed as well as been convicted of a crime identified in 8 U.S.C. § 1182(a)(2) after 

IIRIRA’s effective date to avoid retroactivity because Lauria’s money-laundering 

predicate act had continued after the statute’s effective date. That question, however, 

cannot be decided on the present record. We assume the parties’ familiarity with the 

facts and record of prior proceedings, which we reference only as necessary to explain 

our decision to grant the petition, vacate the BIA’s judgment, and remand to the agency. 

Under the circumstances of this case, we review both the IJ and BIA opinions, see 

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), applying well 

established standards of review, see 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 

534 F.3d 162, 165–66 (2d Cir. 2008). Although we generally lack jurisdiction to review 

a final order of removal against an alien who is removable by reason of having 

committed a criminal offense identified in 8 U.S.C. § 1182(a)(2), we retain jurisdiction to 

review questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D). 

Lauria has raised a question of law as to whether the BIA engaged in improper 

fact-finding regarding the commission of his crime. He contends that his racketeering 

offenses were “committed no later than 1996, when [he] ceased involvement” with the 

company through which he had engaged in the predicate acts of securities fraud. Pet’r’s 

Br. 16. The record offers some support for this claim insofar as Lauria, in a March 1, 

2013 hearing before the IJ, testified that he had committed the predicate act of money 

laundering “from ’93 to ’96.” C.A.R. 164. Respondent, nevertheless, relies on the 

criminal information in the record to which Lauria pleaded guilty to argue that 
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commission of the crime continued through September 1998, the end date of one RICO 

predicate act of money laundering, i.e., after the effective date of § 1101(a)(13)(C)(v). 

The IJ never made a finding as to the date Lauria committed the RICO crime of 

conviction because Lauria conceded inadmissibility at that point in the removal 

proceedings. When on appeal, Lauria first argued retroactivity, the BIA stated that 

Lauria had committed the RICO crime of conviction “between March 1993 and 

September 1996.” C.A.R. 3. Respondent suggests this reflects a scrivener’s error and 

that the crime’s concluding date was September 1998. No matter. The existing 

administrative record, which does not include the record of Lauria’s plea allocution or 

any related plea agreement, does not admit a legal determination as to the concluding 

date of the RICO crime’s commission. To the extent the question required further 

factual inquiry, any finding had to be made by the IJ. See 8 C.F.R. § 1003.1(d)(3)(iv) 

(prohibiting BIA from engaging in factfinding other than “taking administrative notice of 

commonly known facts such as current events or the contents of official documents”); 

Padmore v. Holder, 609 F.3d 62, 68 (2d Cir. 2010) (stating that, in conducting 

independent factfinding, BIA “exceeded its authority,” and thus raised reviewable error 

of law). 

Accordingly, without now deciding whether Vartelas identifies commission or 

conviction as the relevant date, but relying on the parties’ view that the matter may be 

decided by reference to commission, we remand for the agency to develop the record as 

to the date of commission of Lauria’s RICO crime of conviction. See Padmore v. 

Holder, 609 F.3d at 70. Such remand is not futile, see Lianping Li v. Lynch, 839 F.3d 
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144, 149 (2d Cir. 2016), because the concluding date of the crime is potentially 

dispositive; if the crime continued after the effective date of § 1101(a)(13)(C)(v) as the 

government urges, that provision’s application to Lauria could not be impermissibly 

retroactive, even under Lauria’s urged reading of Vartelas v. Holder, 566 U.S. at 272. 

We do not here decide how we would construe Vartelas if Lauria’s RICO crime was 

committed before the effective date of § 1101(a)(13)(C)(v) and only his conviction 

post-dated the statute. 

In sum, we GRANT the petition, VACATE the BIA’s judgment, and REMAND 

for further proceedings. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court