1 15-1068-ag Lauria v. Sessions UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (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 Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 24 th 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.

---------------------------- ---------------------------- -------------- 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 form er Attorney General Loretta E. Lynch as Respondent.2 Litigation, Civil Division, United States Department of Justice, Washington, D.C. UPON DUE CONSIDERATION of this pe tition 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 citi zen of Italy, seeks review of a March 30, 2015 decision of the BIA affirming an Au gust 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 admissi on pursuant to 8 U.S. C. § 1101(a)(13)(C)(v) upon his return in 2007 fro m a trip abroad based on a 200 4 conviction for violating the Racketeer Influenced and Corrupt Organizati ons (“RICO”) statute. He argues that § 1101(a)(13)(C)(v), a provision of the Ille gal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), was applied to him in an impermissibly retroactive manner because IIRIRA became e ffective 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 emph atically at oral argum ent, respondent argued that this court did not need to decide whether Vartelas required that an alien have3 committed as well as been conv icted of a crime identified in 8 U.S.C. § 1182(a)(2) after IIRIRA’s effective date to avoid retroac tivity because Lauria’s money-laundering predicate act had continued afte r 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 pr oceedings, which we reference only as necessary to explain our decision to grant the petition, vacate th e 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. 20 08). Although we generally lack jurisdiction to review a final order of removal against an alie n who is removable by reason of having committed a criminal offense iden tified 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 cr ime. He contends that his racketeering offenses were “committed no later than 1996, when [he] ceased in volvement” with the company through which he had en gaged in the predicate acts of securities fraud. Pet’r’s Br. 16. The record offers so me support for this claim insofar as Lauria, in a March 1, 2013 hearing before the IJ, testified that he had committe d 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 pl eaded guilty to argue that4 commission of the crime contin ued 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 co nceded inadmissibility at th at 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 su ggests this reflects a scrivener’s error and that the crime’s concludi ng date was September 199 8 . 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 ha d 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 auth ority,” 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.3d5 144, 149 (2d Cir. 2016), because the conclu ding 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 applica tion to Lauria could not be impermissibly retroactive, even under La uria’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, VAC ATE the BIA’s judgment, and REMAND for further proceedings. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court