2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-3-2013

Bernardo Castillo v. Attorney General United States

Precedential or Non-Precedential: Precedential

Docket No. 12-2073

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-2073

_____________

BERNARDO CASTILLO,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent 

______________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A090-260-288)

Immigration Judge: Honorable Henry S. Dogin

_______________

Argued May 30, 2013

BEFORE: JORDAN, VANASKIE and COWEN,

Circuit Judges

(Filed: September 03, 2013)
2

Micaela M. Alvarez, Esq.

Francis X. Geier, Esq. (Argued)

Law Office of Micaela M. Alvarez

416-36th Street, Suite 1

Union City, NJ 07087

Counsel for Petitioner

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

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Jamie M. Dowd, Esq.

United States Department of Justice

Office of Immigration Litigation

450 5th Street, N.W., Rm. 5206

Washington, DC 20001

Counsel for Respondent

_______________

OPINION

_______________
3

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 8 U.S.C. § 

1227(a)(2)(A)(ii). On remand, the BIA concluded that this 

finding of guilt constituted a conviction under 8 U.S.C. § 

1101(a)(48)(A) and, therefore, a crime under § 

1227(a)(2)(A)(ii). The BIA accordingly dismissed Castillo’s 

administrative appeal, and Castillo filed another petition for 

review. For the second time in this case, we will grant his 

petition for review and remand for further proceedings 

consistent with this opinion.

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 N.J. Stat. Ann. § 2C:20-11. 

Castillo evidently was represented by an attorney and entered 
4

a guilty plea to this offense. He was ordered to pay a $200 

fine, together with costs in the amount of $55 as well as $81 

in various fees. In 1989, Castillo was convicted in a New 

Jersey court of receiving stolen property. He was 

subsequently convicted, on three separate occasions, on 

charges of receiving stolen property and, on one occasion, on 

a charge of contempt.

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 § 1229b(a). 

Section 1229b(a) provides that the Attorney General may 

cancel the removal of an alien who, inter alia, has “resided in 

the United States continuously for 7 years after having been 

admitted in any status.” Continuous residence, however, ends 

“when the alien has committed an offense referred to in 

section 1182(a)(2) of this title that renders the alien . . . 

removable from the United States under section 1227(a)(2) . . 

. of this title.” 8 U.S.C. § 1229b(d)(1)(B). “Under 8 U.S.C. § 

1227(a)(2)(A)(ii), an alien is removable, inter alia, if he ‘is 

convicted of two or more crimes involving moral turpitude, 

not arising out of a single scheme of criminal misconduct.’” 

Castillo v. Attorney General, 411 F. App’x 500, 501 (3d Cir. 

2011).

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 
5

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 singlemember 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:2-11(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. See 8 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 
6

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 F. App’x at 502 (quoting N.J. Stat. Ann. § 

2C:20-11(c) (1994)). He therefore pointed out that under 

1994 New Jersey law: (1) disorderly persons offenses were 

petty offenses—and not crimes within the meaning of the 

New Jersey Constitution; (2) there was no right to a trial by 

jury or to an indictment by a grand jury; (3) a conviction did 

not give rise to any disability or legal disadvantage; and (4) 

“[i]n carrying its burden of proving the element of the 

disorderly persons offense of shoplifting that the defendant 

intended to deprive the merchant of possession, the state is 

aided by a presumption arising from intentional concealed 
7

possession of merchandise while on the merchant’s property,” 

id. (citing N.J. Stat. Ann. § 2C:20-11(d) (1994)). Castillo 

also relied on the BIA’s decision in Eslamizar, “in which the 

respondent had been found guilty of a ‘violation’ of an 

Oregon statute prohibiting shoplifting.” Id. We provided the 

following summary of that agency decision:

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. 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 
8

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 § 1227(a)(2)(A)(ii) because “it applied the 

then current version of the New Jersey statute rather than the 

version in effect at the time of Castillo’s offense.” Id. at 503. 

In 1994, all four gradations of shoplifting were disorderly 

persons offenses. We accordingly could not sustain the 

BIA’s decision based on its own stated rationale. 

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 § 1227(a)(2)(A)(ii) cannot be avoided.” Id. 

However, this Court declined to address this question in the 

first instance because “it is an issue of some substance” and 

“we owe Chevron deference to the BIA’s reading of the 

statutes whose execution it oversees.” Id. We thus remanded 
9

“to secure the benefit of the BIA’s understanding of the 

phrase ‘convicted of [a] crime[ ]’ as used in § 

1227(a)(2)(A)(ii).” Id.

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 of 8 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 the INA 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.

Id.

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 
10

constitutes a ‘crime’ for purposes of [§ 1227(a)(2)(A)(ii)].” 

(A5.) The BIA, for a second time, affirmed the IJ’s decision 

and dismissed Castillo’s appeal. It did so based on the 

following grounds:

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 
11

qualified as a conviction under [§ 

1101(a)(48)(A)]); Matter of Calvera, 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 

statue at issue in this case requires the State to 

demonstrate the elements of the offense beyond 

a reasonable doubt. See N.J. STAT. ANN. § 

2c:20-11 (1994); see also State v. Goodmann, 

390 N.J.Super. 259 (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.)
12

II.

We have jurisdiction pursuant to 8 U.S.C. § 1252. 

This Court reviews the BIA’s legal determinations de novo, 

“subject to the principles of deference articulated in” Chevron 

U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). Briseno-Flores 

v. Attorney General, 492 F.3d 226, 228 (3d Cir. 2007) (citing 

Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004)). Under 

this doctrine, the Court, as well as the agency, must give 

effect to the unambiguously expressed intent of Congress. 

See, e.g., Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir. 

2003). “On the other hand, ‘if the statute is silent or 

ambiguous with respect to the specific issue, the question for 

the court is whether the agency’s answer is based on a 

permissible construction of the statute.’” Id. (quoting 

Chevron, 467 U.S. at 843). “In its interpretation of the INA, 

‘the BIA should be afforded Chevron deference as it gives 

ambiguous statutory terms “concrete meaning through a 

process of case-by-case adjudication.”’” Id. (quoting INS v. 

Aguirre-Aguirre, 526 U.S. 415, 425 (1999)). “[W]here an 

agency interpretation reflects an impermissible construction 

of the statute, we will not defer to the agency’s view.” JeanLouis v. Attorney General, 582 F.3d 462, 472 n.12 (3d Cir. 

2009) (citations omitted). Moreover, “we owe no deference 

to the [administrative] interpretation of a state criminal 

statute.” Partyka v. Attorney General, 417 F.3d 408, 411 (3d 

Cir. 2005) (citing Knapik v. Ashcroft, 384 F.3d 84, 88 (3d 

Cir. 2004)). The reasonableness of an agency’s statutory 

interpretation is dependent in part on the consistency with 

which the interpretation is advanced. See, e.g., Valdiviezo-
13

Galdamez v. Attorney General, 663 F.3d 582, 604 (3d Cir. 

2011). 

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 § 1227(a)(2)(A)(ii).” Castillo, 411 F. 

App’x at 503. With respect to Eslamizar, we noted that the 

BIA focused on the statutory definition of the term 

“conviction” found in § 1101(a)(48)(A), id. at 502, and 

explained that the question of whether Castillo was 

“’convicted of [a] crime[ ]’” pursuant to § 1227(a)(2)(A)(ii) 

was not “directly answered in the INA or the BIA’s opinion 

in Eslamizar,” id. at 503. We observed that, “[w]hile the 

statutory definition of ‘conviction’ may be found to assist in 

the analysis, even given that definition, one must still ask 

‘conviction’ of what.” Id. However, the BIA on remand 

turned to Eslamizar and its reading of § 1101(a)(48)(A) in 

order to decide “whether the respondent’s conviction in this 

case constitutes a ‘crime’ for purposes of [§ 

1227(a)(2)(A)(ii)].” (A5.) It then concluded that “the 

respondent’s shoplifting violation constitutes a conviction 
14

under [§ 1101(a)(48)(A)] and therefore a crime under [§ 

1227(a)(2)(A)(ii)].”1 (A6 (citation omitted).)

Castillo, for his part, does not take issue with the 

BIA’s basic approach to §§ 1101(a)(48)(A) and 

1227(a)(2)(A)(ii). On the contrary, he specifically argues that 

the BIA committed reversible error—and even “violated its 

own precedential decision in [Eslamizar]”—by concluding 

that the finding of guilt at issue in this matter was a 

conviction under § 1101(a)(48)(A). (Petitioner’s Brief at 19.) 

Accordingly, we turn to § 1101(a)(48)(A) and the agency’s 

decision in Eslamizar.

 

1

 Having ignored our request that it “still ask 

‘conviction’ of what,” Castillo, 411 F. App’x at 503, the BIA 

seems to have construed the INA to mean that any offense for 

which there is a conviction as defined in the statute must 

necessarily be a crime. But the INA itself evidently 

distinguishes crimes from non-criminal violations, providing, 

for example, that an alien is inadmissible if he or she is 

convicted of “a crime involving moral turpitude,” 8 U.S.C. § 

1182(a)(2)(A)(i)(I), or of a ““violation . . . relating to a 

controlled substance,” id. § 1182(a)(2)(A)(i)(II). 

Nevertheless, for purposes of this discussion, we assume that 

the same factors that establish whether an alien has suffered a 

conviction as defined in § 1101(a)(48)(A) determine whether 

the offense of conviction is a crime for purposes of the INA. 

As we note hereafter, however, we anticipate that the question 

left open from our last remand—“‘conviction’ of what”—will 

be answered upon remand this time.
15

Section 1101(a)(48)(A) states that:

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—

(i) 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

(ii) 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 
16

“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 § 1227(a)(2)(A)(ii). Id. 

The IJ “concluded that the September 3, 1999, Oregon 

judgment issued against the respondent did not qualify as a 

‘conviction’ for a ‘crime’ that could rise to immigration 

consequences, because the proceedings in which that 

judgment was entered did not afford the respondent many of 

the constitutional safeguards generally required for criminal 

prosecutions.” Id. at 685-86.

The BIA originally sustained the government’s appeal, 

holding that the Oregon judgment was a conviction under the 

plain language of § 1101(a)(48)(A). Id. at 686. In doing so, 

it cited to an Oregon Supreme Court opinion, which held that 

proof beyond a reasonable doubt was always required. Id. 

However, that opinion was superseded by a state statute. Id. 

“Because of this crucial factual error regarding the 

requirements of Oregon law, as applicable to the respondent’s 

case, we reconsider our prior decision in full, and as 

previously indicated, we arrive at a different legal 

conclusion.” Id.

According to the agency, “[t]he issue in [Eslamizar] is 

whether a judgment of guilt entered against the respondent in 
17

a proceeding conducted pursuant to section 153.076 of the 

Oregon Revised Statues 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 § 

1101(a)(48)(A) itself, which defined “the term ‘conviction’ as 

‘a formal judgment of guilt of the alien entered by a court.’” 

Id. at 686. The Oregon circuit court had issued a formal 

judgment finding Eslamizar guilty of the offense of thirddegree theft. Id. The BIA said that, “[a]lthough a literal 

reading of the conviction definition persuaded us earlier that 

the respondent’s offense was a ‘conviction’ for immigration 

purposes, on reconsideration we do not find the definition to 

be clear or to dictate such an outcome.” Id. at 686-87. In 

particular, the earlier supposed clarity actually rested on the 

assumption that, by using “the phrase ‘judgment of guilt,’” 

“Congress meant only that the adjudicative finding of a court 

must carry the label ‘guilt’ or ‘guilty.’” Id. at 687. Such a 

reading represented an unlikely construction given its 

consequences. Id. Specifically, “it would mean that if a State 

has so denominated, or in the future should so denominate, a 

civil judgment, e.g., one for an intentional tort or for conduct 

that results in a judgment to pay a civil fine or punitive 

damages, such a judgment would evidently qualify as a 

‘conviction’ for immigration purposes.” Id. Although some 

civil sanctions could be punitive in nature (and even trigger 

the Double Jeopardy Clause), the BIA in Eslamizar doubted 

that Congress “had so expansive a reach in mind” given the 
18

absence of any persuasive evidence to support such a reading. 

Id.

The BIA therefore “adopt[ed]” what it called “a far 

more sensible reading” of § 1101(A)(48)(A):

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.”

Id.

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:
19

. . . 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 (2000); In re Winship, 397 U.S. 358 (1970)). It 

then added the following footnote to its statement of a 

“bedrock principle”:
20

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 (1996); Scott v. Illinois, 440 U.S. 367 

(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 
21

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 § 1101(a)(48)(A). Both the 

BIA and the government have distinguished Eslamizar on the 

grounds that New Jersey law—unlike Oregon law—required 

proof beyond a reasonable doubt. In short, the finding of 

guilt at issue here purportedly constituted a conviction under 

§ 1101(a)(48)(A) because the municipal court entered a 

formal judgment of guilt under a “reasonable doubt” standard 

of proof and ordered Castillo to pay a fine as a form of 

punishment. However, Castillo claims that the BIA violated 
22

its own precedent in Eslamizar, which “outlined a series of 

factors that must be considered in determining whether an 

alien’s judgment qualifies as a conviction [under § 

1227(a)(2)(A)(ii)], including but not limited to whether the 

sanctions resulting from such a conviction are punitive, 

whether the alien was provided with the constitutional 

safeguards normally attendant to a criminal adjudication, and 

whether a conviction for the offense gives rise to any 

disability or legal disadvantage based on conviction of a 

crime.” (Petitioner’s Brief at 20 (citations omitted).) As we 

recognized in our prior opinion in this matter, New Jersey law 

provided in 1994 that: (1) disorderly persons offenses, such 

as shoplifting, constituted “‘petty offenses,’” as opposed to 

“‘crimes within the meaning of the Constitution of this 

State;’” (2) “‘[t]here shall be no right to indictment by a grand 

jury nor any right to trial by jury on’ disorderly persons 

offenses;” and (3) “[c]onviction of such offenses shall not 

give rise to any disability or legal disadvantage.’” Castillo, 

411 F. App’x at 502 (quoting § 2C:1-4(b)). According to 

Castillo, “Defendants charged with disorderly persons 

offenses [also] have no blanket right to counsel.” (Id. at 29-

30 (citing § 2C:1-4(b)).

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 
23

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 § 

1101(a)(48)(A) proffered by the government does seem 

relatively simple to apply, i.e., instead of conducting an openended multi-factor analysis, the decision maker simply 

considers whether a court entered a formal judgment of guilt 

under the “reasonable doubt” standard of proof and imposed 

some form of punishment. More broadly, it is uncontested 

that “the INA’s definition of a ‘crime’ and a ‘conviction’ 

controls the determination of whether a finding of guilt for an 

offense is considered a ‘conviction for a crime.’” 

(Petitioner’s Brief at 30.) 

Nevertheless, we believe that Castillo generally offers 

the more persuasive interpretation of Eslamizar and § 

1101(a)(48)(A). We reach this conclusion based on the 

language and reasoning of this difficult decision. We also 

look to subsequent precedential and non-precedential BIA 

decisions purportedly applying Eslamizar. Some of these 

decisions actually appear to weigh in favor of Castillo’s 

interpretation. At the very least, it is clear that, far from 

clarifying a problematic en banc decision, the agency has 

approached its own decision in an inconsistent fashion.

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 proceeding whose purpose is to determine 
24

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 statutory section 

providing that violation proceedings are tried by a court 

sitting without a jury and without counsel being provided at 

public expense.

2

 Id. at 687.

 

2 We likewise did not really emphasize the applicable 

standard of proof in our prior opinion in this matter. In 

summarizing Eslamizar, we instead pointed to other aspects 

of Oregon state law (i.e., its mutually exclusive definitions 

and the absence of any disability or legal disadvantage) and 

highlighted the BIA’s “understanding of the phrase ‘judgment 

of guilt’” as 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.’” Castillo, 411 F. App’x at 502 
25

Accordingly, we generally view Eslamizar as setting 

forth a general “criminal proceeding” approach to § 

1101(a)(48)(A). Because it is a “bedrock principle” that each 

element of a crime must be proven beyond a reasonable 

doubt, a finding of guilt under a lesser standard could never 

be considered as a judgment in “a true criminal proceeding.” 

Id. at 688 (footnote omitted) (citation omitted). The 

“reasonable doubt” standard of proof thereby represents a 

necessary condition for satisfying the BIA’s “criminal 

proceeding” reading. However, this does not mean that a 

judgment was entered in a true or genuine criminal 

proceeding—and therefore constituted a conviction pursuant 

to § 1101(a)(48)(A)—merely because a court entered a 

formal judgment of guilt under the requisite “reasonable 

doubt” standard of proof and imposed a form of punishment. 

The “criminal proceeding” approach appears to contemplate a 

more “open-ended” inquiry before a decision maker can 

conclude that § 1101(a)(48)(A) has been satisfied. The BIA 

accordingly indicated that there are several other factors that 

may be relevant in deciding if the judgment was entered in a 

true or genuine criminal proceeding, including how the 

prosecuting jurisdiction characterized the offense at issue, the 

consequences of a finding of guilt, and the rights available to 

the accused as well as any other characteristics of the 

proceeding itself. At the very least, such factors appear to be 

 

(quoting Eslamizar, 23 I. & N. Dec. at 687)). With respect to 

the standard of proof, we stated that Oregon’s violation 

proceedings differed from criminal proceedings because, 

“among other things,” the state was required only to prove 

guilt by a preponderance of the evidence. Id.
26

relevant to the determination of whether the proceeding’s 

“purpose is to determine whether the accused committed a 

crime” and if it “provides the constitutional safeguards 

normally attendant upon a criminal adjudication.” Id. at 687.

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 § 1101(a)(48)(A), the BIA 

turned to Eslamizar. Id. While emphasizing the standard of 

proof and noting that certain constitutional protections, such 

as the right to a jury trial, need not be afforded in petty 

offense cases, the BIA “also recognized several other factors 

to be considered in determining whether a judgment would 

qualify as a “conviction” for immigration purposes.” Id. 

“These include, but are not limited to, whether the sanctions 

resulting from such a conviction are punitive, whether there 

are constitutional safeguards normally attendant to a criminal 

adjudication, and whether a conviction for a municipal 

violation gives rise to any disability or legal disadvantage 

based on conviction of a crime.” Id. The BIA explained that, 

“[a]lthough the respondent’s 2008 municipal violation was 
27

quasi-criminal in that each element had to be proven beyond a 

reasonable doubt, his municipal violation clearly remained 

civil in nature in that it did not bar a prosecution for the same 

offense by the state, and his conviction for a violation of a 

municipal ordinance, unlike those for misdemeanors and 

felonies, is not admissible for impeachment purposes.” Id. 

Because this municipal violation did not appear to meet the 

statutory definition under § 1101(a)(48)(A), the BIA believed 

that it was substantially unlikely that the government could 

establish that the alien was subject to mandatory detention on 

account of his conviction for two or more crimes involving 

moral turpitude. Id.

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 [§ 

1101(a)(48)(A)].” (A6.) In this published 3-member 

decision, the BIA turned to Eslamizar and explained that a 

court’s formal judgment of guilt falls within the language of 

§1101(a)(48)(A) if it was entered in a “‘genuine criminal 

proceeding,’” i.e., “a proceeding that is ‘criminal in nature 

under the governing laws of the prosecuting jurisdiction.’” 

Id. at 486-87 (quoting Eslamizar, 23 I. & N. Dec. at 688). 

According to the agency, the alien’s guilt was determined in a 

genuine criminal proceeding because the proceeding at issue 

was criminal in nature under the laws of the prosecuting 

jurisdiction, the United States Armed Forces. Id. at 487. 

Specifically, “there is no dispute that a general court-martial 

is a ‘criminal proceeding under the governing laws of the 
28

United States Armed Forces, and the respondent’s general 

court-martial unquestionably resulted in the entry of a formal 

judgment of his ‘guilt’ beyond a reasonable doubt.” Id.

(citations omitted). Likewise, “a trial by court-martial does 

not infringe on the constitutional rights of an accused who is 

properly subject to military jurisdiction, despite the absence 

of some protections afforded civilian defendants, such as the 

right to a trial by jury.” Id. (citations omitted) (footnote 

omitted). The BIA emphasized that the protections of the Bill 

of Rights were available to members of the Armed Forces 

(except for those protections that were expressly or by 

implication inapplicable in this context), and service members 

thereby were accorded many of the same procedural rights as 

their civilian counterparts (e.g., the privilege against 

compulsory self-incrimination, the right to representation by 

counsel at public expense, and the right to call witnesses and 

present evidence). Id. at 487 n.2. As part of its “genuine 

criminal proceeding” analysis in Rivera-Valencia, the BIA 

thereby considered whether the proceeding at issue was a 

criminal proceeding under the laws of the prosecuting 

jurisdiction itself and specifically relied on considerations 

other than the applicable standard of proof.

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 conviction under [§ 1101(a)(48)(A)] so 

long as it was entered in a ‘genuine criminal proceeding,’ that 
29

is, a proceeding that was criminal in nature under the 

governing laws of the prosecuting jurisdiction.’” Id. at 852-

53 (quoting Rivera-Valencia, 24 I. & N. Dec. at 486-87. 

According to the BIA, the judgment at issue was entered in a 

genuine criminal proceeding under the laws of Kansas 

because municipal court judges possessed the power to enter 

judgments of guilt and impose fines or incarceration in 

marijuana possession cases, the prosecution was required to 

prove the charge beyond a reasonable doubt, and the 

judgment of guilt represented a conviction for purposes of 

calculating a defendant’s criminal history. Id. The agency 

further rejected the alien’s specific contentions regarding the 

absence of an absolute right to be represented by appointed 

counsel (purportedly unlike the approach to appointment of 

counsel used in the state’s district courts) as well as the lack 

of a right to a jury trial. Id. at 853-54. Specifically, the BIA 

concluded that the municipal court trial qualified as a genuine 

criminal proceeding because, “[i]f the municipal court finds 

the defendant guilty, the defendant then has a constitutional 

and statutory right to appeal to a State district court for a trial 

de novo before a jury.” Id. at 854 (citations omitted). In any 

case, the BIA looked to Kansas state law in order to 

determine whether the judgment was entered in a genuine 

criminal proceeding under the laws of the prosecuting 

jurisdiction and, in turn, considered more than the applicable 

standard of proof. The agency also noted that it did “not 

purport to address municipal or local judgments other than the 

particular Wichita judgment before us.” Id. at 855 n.3. 

“Because such judgments vary widely across jurisdictions, 

each must be examined on its own merits.” Id.
30

“‘Agencies are not free, under Chevron, to generate 

erratic, irreconcilable interpretations of their governing 

statutes.’” Valdiviezo-Galdamez, 663 F.3d 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 MarmolejoCampos, 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 § 1101(a)(48)(A). We do 

acknowledge that, in two unpublished single-member 

 

3 We therefore need not—and do not—reach the 

question of whether we could accord Chevron deference to an 

unpublished decision by a single member of the BIA, see, 

e.g., De Leon v. Attorney General, 622 F.3d 341, 348-51 (3d 

Cir. 2010) (refusing to decide whether such decisions are 

entitled to deference under Chevron). 
31

decisions addressing shoplifting offenses under New Jersey 

law, the BIA apparently concluded that such offenses were 

convictions under § 1101(a)(48)(1) and Eslamizar merely 

because the respective aliens were found guilty under a 

“reasonable doubt” standard of proof (and were ordered to 

pay fines). See In re Delgado, A13 924 138, 2008 WL 

762624 (BIA Mar. 11, 2008) (unpublished decision), petition 

for review denied sub nom. Delgado v. Attorney General, 349 

F. App’x 809 (3d Cir. 2009) (per curiam); In re Dilone, A44 

476 837, 2007 WL 2463936 (BIA Aug. 6, 2007) (unpublished 

decision). The BIA, to date, has offered no attempt to 

reconcile, reject, or otherwise explain its inconsistent 

decisions. In fact, it has not even recognized that there may 

be a problem with its own decisions in the present context. 

We therefore are confronted here with a clear case of “erratic, 

irreconcilable interpretations.’”4 Valdiviezo-Galdamez, 663 

F.3d at 604 (citation omitted).

 

4

The BIA and the government have also turned for 

support to non-precedential case law from this Court. In 

Hussein v. Attorney General, 413 F. App’x 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 § 1101(a)(48)(A) because the 

government had the burden of proving every element beyond 

a reasonable doubt, the alien willingly pled guilty, and the 

judge sentenced him to serve forty-two days in jail. Id. at 

434. In response to the alien’s attempt to compare his offense 

to the offense at issue in Eslamizar, we offered the following 
32

 

interpretation of the BIA’s holding:

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 F. App’x 

805 (3d Cir. 2005) (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 [§ 

1101(a)(48)(A)].” Id. The alien’s convictions for unlawful 

taking of the means of conveyance, receipt of stolen property, 

and shoplifting all constituted formal judgments of guilt. Id.
33

 

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 § 1101(a)(48)(A), 

Eslamizar, or the subsequent BIA decisions. In fact, the 

Court in Burrell did not even cite to Eslamizar itself. 

Furthermore, we believe that the statement in Hussein that the 

“inadequate burden of proof . . . alone formed the basis” of 

the holding in Eslamizar, 413 F. App’x at 434, is best read as 

a statement that, given the arguments made by the parties, the 

burden of proof appeared to be the determinative factor (and 

not as a general observation about the relative importance of 

the various factors in Eslamizar or as a definitive holding 

about the BIA’s interpretation of § 1101(a)(48)(A)).
34

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 § 1227(a)(2)(A)(ii).” Castillo, 411 F. 

App’x at 503; see also, e.g., id. (“While the statutory 

 

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 § 1101(a)(48)(a) when it was 

adjudicated using a preponderance-of-the-evidence standard 

rather than the standard of proof beyond a reasonable doubt,” 

id. at 1208. According to the Tenth Circuit, “Eslamizar does 

nothing more than reaffirm our traditional standard that 

findings of guilt must be beyond a reasonable doubt.” Id. 

However, the Gradiz court made these statements in the 

specific context of deciding that a no contest plea, probation, 

and deferred sentence qualified as a conviction under § 

1101(a)(48)(A), id. at 1207-08. 
35

definition of ‘conviction’ may be found to assist in the 

analysis, even given that definition, one must still ask 

‘conviction’ of what.”). In doing so, it should endeavor to 

provide an explicit justification for its answer to our question. 

In turn, the BIA should attempt to clarify Eslamizar and the 

agency’s reading of § 1101(a)(48)(A). The agency is free to 

reconsider that problematic opinion, provided that it states a 

reasoned explanation for doing so and any announced 

changes are based on a permissible construction of the federal 

immigration statute. Otherwise, the BIA should then 

determine whether—given New Jersey’s then-operative 

characterization of the shoplifting offense, the consequences 

of any finding of guilt under New Jersey state law, and the 

rights available to the accused as well as the other 

characteristics of the proceeding before the East Brunswick 

Municipal Court—the finding that Castillo was guilty of 

shoplifting was entered in a “criminal proceeding, that is, a 

trial or proceeding whose purpose is to determine whether the 

accused committed a crime and which provides the 

constitutional safeguards normally attendant upon a criminal 

adjudication,” Eslamizar, 23 I. & N. Dec. at 687.5

 

5

 We have also considered Castillo’s due process 

argument and find it to be without merit. See, e.g., Castro v. 

Attorney General, 671 F.3d 356, 365 (3d Cir. 2012) (“In the 

removal context, due process requires that ‘an alien be 

provided with a full and fair hearing and a reasonable 

opportunity to present evidence.’” (quoting Romanishyn v. 

Attorney General, 455 F.3d 175, 185 (3d Cir. 2006))); JeanLouis, 582 F.3d at 466 n.4 (concluding that alien seeking 

discretionary relief from removal has no cognizable liberty or 
36

IV.

For the foregoing reasons, we will grant the petition 

for review and remand for further proceedings consistent with 

this opinion.

 

property interest subject to protection of Due Process Clause).