Argued May 30, 2013
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A090-260-288) Immigration Judge: Honorable Henry S. Dogin
Micaela M. Alvarez, Esq. Francis X. Geier, Esq. (Argued) Law Office of Micaela M. Alvarez 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 Jamie M. Dowd, Esq. United States Department of Justice Office of Immigration LitigationCounsel 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 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.
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 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 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: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 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 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 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 "to secure the benefit of the BIA's ...