                                PRECEDENTIAL


UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT

              __________

             No. 16-4316
             __________

             FAN WANG,
                             Petitioner
                   v.

 THE ATTORNEY GENERAL OF THE
   UNITED STATES OF AMERICA,
                      Respondent
           __________

On Petition for Review of an Order of the
    Board of Immigration Appeals
    (Agency No.: A088-152-814)
Immigration Judge: Walter A. Durling
              __________

      Argued September 14, 2017

  BEFORE: CHAGARES, JORDAN,
   and NYGAARD, Circuit Judges


    (Opinion Filed: August 1, 2018)
Thomas E. Moseley         [Argued]
One Gateway Center, Suite 2600
Newark, NJ 07102

      Counsel for Petitioner


Scott M. Marconda
United States Department of Justice
Office of Immigration Litigation
Room 2316
450 5th Street, N.W.
Washington, DC 20001

Eric W. Marsteller
Keith I. McManus           [Argued]
Chad A. Readler
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

      Counsel for Respondent

                        __________

                OPINION OF THE COURT
                      __________

NYGAARD, Circuit Judge.

                               I.




                               2
       Fan Wang, a citizen of the People’s Republic of China,
obtained lawful permanent resident status in the United States
on April 29, 2010, and worked as a trading assistant in a
financial services firm. In 2011, without authorization, he
purchased oil futures contracts using the firm’s trading
account and transferred those contracts between firm
accounts. In company records, Wang marked these contracts
as closed (sold) when they were, in fact, still open.

        After the firm discovered the transactions, the Federal
Bureau of Investigation arrested Wang. The one-count
indictment alleged that, upon discovery of a loss of $2.2
million, the firm sold the contracts. Wang pleaded guilty to
violating the Commodity Exchange Act (CEA) by Making a
False Report in Connection with a Commodities Transaction
in violation of 7 U.S.C. § 6b(a)(1)(B) and § 13(a)(2).1 The
court sentenced Wang to three months in prison, with three
years supervised release, and ordered him to pay $2.2 million
in restitution.

       The Attorney General initiated removal proceedings
on March 19, 2015, charging Wang with removability by
classifying his conviction as an aggravated felony under the
Immigration and Nationality Act (INA) section


1
  7 U.S.C. § 13(a): “It shall be a felony punishable by a fine
of not more than $1,000,000 or imprisonment for not more
than 10 years, or both, together with the costs of prosecution.
. . (2). . . knowingly to violate the provisions of section 6,
section 6b. . . .” The focus of the analysis here will upon
Section 6b(a)(1)(B) (Commodity Exchange Act § 4b).




                              3
237(a)(2)(A)(iii). 8 U.S.C. § 1227(a)(2)(A)(iii).2 The
Immigration Judge ordered Wang removed on June 4, 2015,
and the Board of Immigration Appeals affirmed. Wang now
petitions us to review the Board’s order, challenging its ruling
that the District Court convicted him of an aggravated felony.
For the reasons that follow we will grant his petition and
remand the case to the Board.

                              II.

                              A.

       Although we have jurisdiction to review final orders of
removal under 8 U.S.C. § 1252(a), “no court shall have
jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed a
criminal offense covered in section . . . 1227(a)(2)(A)(iii)
[aggravated felony].” 8 U.S.C. § 1252(a)(2)(C). We do,
however, have jurisdiction to examine “constitutional claims
or questions of law.” Catwell v. Attorney General of the
United States, 623 F.3d 199, 205 (3d Cir. 2010) (quoting
Section 1252(a)(2)(D)). Therefore, we have authority to take
up the issue, using the de novo standard, of whether Wang’s
conviction qualifies as an aggravated felony because it is “a
purely legal question, and one that governs our own




2
   INA § 237(a)(2)(A)(iii) (8 U.S.C. § 1227(a)(2)(A)(iii))
states: “Any alien who is convicted of an aggravated felony
at any time after admission is deportable.”




                               4
jurisdiction.” Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir.
2002).3

                              B.

       For purposes of section 101(a)(43)(M)(i) of the INA,
an aggravated felony includes crimes “[1] involv[ing] fraud
or deceit [2] in which the loss to the victim or victims exceeds
$10,000.” 8 U.S.C. §1101(a)(43)(M)(i). Wang disputes the
Board’s ruling on both prongs. His first challenge focuses on
the language of the statute of conviction which reads: “It
shall be unlawful . . . (B) willfully to make or cause to be
made to the other person any false report or statement or
willfully to enter or cause to be entered for the other person
any false record.” Section 6b(a)(1)(B). He is not properly
categorized as an aggravated felon, he contends, because
crimes “involv[ing] fraud or deceit” require materiality as an
element of proof and Section 6b(a)(1)(B) lacks this element.

        The Immigration Judge brushed aside Wang’s
materiality argument. He reasoned that Wang was properly
classified as an aggravated felon because, under Section
101(a)(43)(M)(i) of the INA, “deceit” was understood to
include crimes of falsification—like Section 6b(a)(1)(B)—
without regard to materiality.

3
  We have jurisdiction to determine our jurisdiction, giving us
the authority to analyze “whether an alien was convicted of a
non-reviewable aggravated felony.” Stubbs v. Attorney
General of the United States, 452 F.3d 251, 253 n. 4 (3d Cir.
2006) (citing Singh v. Ashcroft, 383 F.3d 144, 150 (3d Cir.
2004)).




                               5
       On appeal, the Board affirmed the Immigration
Judge’s removal order, but it moved the focus of its decision
away from interpreting the INA and towards an analysis of
the criminal statute. The Board concluded that it was
“unnecessary” in this case to decide if the INA required
materiality because “all relevant portions [of Section
6b(a)(1)] require materiality.” Fan Wang, A088 152 814, 1, 3
(BIA 2016). Wang challenges both the Immigration Judge’s
interpretation of the INA and the Board’s conclusions about
Section 6b(a)(1)(B), but our review encompasses only the
Board’s interpretation of the criminal statute.4

      Whether Section 6b(a)(1)(B) requires proof of
materiality, for purposes of the INA, is a matter of first
impression for us.5 We use a categorical approach to analyze

4
  Since the Board rendered its own reasoned decision and did
not comment on the Immigration Judge’s analysis, we review
only the Board’s opinion. Kaplun v. Attorney General of the
United States, 602 F.3d 260, 265 (3d Cir. 2010). We look to
the decision of the Immigration Judge only to the extent that
the Board adopted or relied upon it. Zhang v. Gonzales, 405
F.3d 150, 155 (3d Cir. 2005).
5
  Wang maintained that the Government waived this issue,
but we are convinced that it is properly before us. Wang also
claimed that, since he was convicted in the District Court of
the Southern District of New York, precedent of the Court of
Appeals for the Second Circuit controls our interpretation of
the criminal statute. However, even if we agreed with this
premise, there is a dearth of decisional law that is directly on
point.




                               6
the statute of conviction, examining only the elements of the
offense to establish whether the petitioner committed a crime
involving fraud or deceit. Kawashima v. Holder, 565 U.S.
478, 483 (2012). We do not look at the facts underlying the
crime committed by the petitioner. Singh v. Attorney General
of the United States, 677 F.3d 503, 508 (3d Cir. 2012).

       We look first at the words of the statute (United States
v. Wells, 519 U.S. 482, 483 (1997); Neder v. United States,
527 U.S. 1, 20 (1999)), which are as follows:

             It shall be unlawful—

             2)     for any person, in or in
             connection with any order to
             make, or the making of, any
             contract of sale of any commodity
             in interstate commerce or for
             future delivery that is made, or to
             be made, on or subject to the
             rules of a designated contract
             market, for or on     behalf of any
             other person; . . .

                    (A) to cheat or defraud or
             attempt to cheat or defraud the
             other person;

                   (B) willfully to make or
             cause to be made to the other
             person any false report or
             statement or willfully to enter




                              7
             or cause to be entered for the
             other person any false record;

                    (C) willfully to deceive or
             attempt to deceive the other
             person by any means whatsoever
             in regard to any order or contract
             or the disposition or execution of
             any order     or contract, or in
             regard to any act of agency
             performed, with respect to any
             order or contract for or, in the
             case of paragraph (2), with the
             other person. . .

                    (D)(i) to bucket an order if
             the order is either represented
             by the person as an order to be
             executed, or is required to be
             executed, on or subject to the
             rules of a designated contract
             market.

Section 6b(a)(1). Obviously, Section 6b(a)(1)(B) does not
contain the word “material,” nor does it include the words
“fraud” or “deceit,” but these last two terms are found in
subsections (A) and (C), respectively. ‘“When the statute's
language is plain, the sole function of the courts—at least
where the disposition required by the text is not absurd—is to
enforce it according to its terms.’” Official Committee of
Unsecured Creditors of Cybergenics Corp. ex rel.
Cybergenics Corp. v. Chinery, 330 F.3d 548, 559 (3d Cir.
2003) (quoting Hartford Underwriters Ins. Co. v. Union




                              8
Planters Bank, N.A., 530 U.S. 1, 6 (2000)). But the Board
concluded it was necessary to refer to the common law to
understand this subsection. The Government supplements the
Board’s reasoning by urging us to read Section 6b(a)(1)(B) as
inextricably intertwined with the provisions that surround it.
We see flaws in both analyses.

       Picking up, in part, on the Immigration Judge’s
reasoning, the Board emphasized the conclusion in
Kawashima that Section 101(a)(43)(M)(i) of the INA “refers
more broadly to offenses that ‘involv[e]’ fraud or deceit—
meaning offenses with elements that necessarily entail
fraudulent or deceitful conduct.” Kawashima, 565 U.S. at
484. Relying then on the common law of deceit, the Board
concluded that Section 6b(a)(1)(B) is an aggravated felony
because:

             [A]s understood at common law,
             ‘deceit’ required that any false
             statement made be material.
             Thus, because the common law
             concepts of fraud and deceit
             required      materiality,    the
             materiality   requirement     was
             carried forward when concepts
             were codified in 7 U.S.C. § 6b(a),
             prohibiting contracts designed to
             defraud or mislead.

Fan Wang, A088 152 814, 5 (BIA 2016).

     “We . . . presume that Congress incorporates the
common-law meaning of the terms it uses if those ‘terms . . .




                              9
have accumulated settled meaning under . . . the common
law’ and ‘the statute [does not] otherwise dictat[e].’” Wells,
519 U.S. at 491 (quoting Nationwide Mut. Ins. Co. v. Darden,
503 U.S. 318, 322 (1992) (additional citations omitted)). But
here, in order to incorporate the common law, the Board
subsumes offenses of falsehood into crimes of deceit.6 Our
precedent, however, grounded in Supreme Court decisions,
acknowledges that the term “false statement” does not have a
settled common law meaning and “does not imply a
materiality requirement.” United States v. Saybolt, 577 F.3d
195, 199 (3d Cir. 2009); Neder, 527 U.S. at 23 n.7; Wells, 519
U.S. at 495. Because of this, we ruled (in a circumstance in
which the statute separated the terms “fraud” and “false
statement” with a disjunctive) that it was not possible to
conclude that violations of that statute always required proof
of materiality. Id.

      The Government responds by pointing to the
surrounding provisions of the CEA, encouraging us to
understand Section 6b(a)(1)(B) as part of a package of




6
  In its examination of Section 101(a)(43)(M)(i) of the INA,
the Supreme Court noted in dicta that, at the time this section
was enacted, “the term ‘deceit’ meant a [sic] ‘the act or
process of deceiving (as by falsification, concealment, or
cheating).’” Kawashima, 565 U.S. at 484 (quoting Webster's
Third New International Dictionary 584 (1993)). However, it
did not reconcile this statement with Neder (527 U.S. at 23
n.7) and Wells (519 U.S. at 495). Moreover, this analysis is
focused on the criminal statute, not the INA.




                              10
intertwined provisions that must be read together.7 The
Government also contends that the CEA provides an inherent
point of reference for each subsection, which imputes
materiality by prohibiting any fraud, false statements, or
deceit that relates to a futures contract. It points to a number
of decisions from other Courts of Appeals that—they say—
have interpreted the statute this way.
        The Court of Appeals for the First Circuit said that
“[l]iability attaches under 7 U.S.C. § 6b(a) when there is ‘(1)
the making of a misrepresentation, misleading statement, or a
deceptive omission; (2) scienter; and (3) materiality.’”
United States Commodity Futures Trading Comm'n v. JBW
Capital, 812 F.3d 98, 106 (1st Cir. 2016) (quoting United
States Commodity Futures Trading Comm’n v. Hunter Wise
Commodities, LLC, 749 F.3d 967, 981 (11th Cir. 2014)
[additional citation omitted]). Similarly, the Court of Appeals

7
  The Government asserted that since Section 6b(a)(1)(B) is
part of the CEA, not the criminal code, Wells and its progeny
(that prioritize examination of the statutory text) do not apply.
The Government suggests that, in its place, we give greater
weight to the broader statutory context of the provision and
its legislative history. As we noted above, we have
consistently applied the principle that “where the disposition
required by the text is not absurd” the statute should be
enforced “according to its terms.’” Official Committee of
Unsecured Creditors of Cybergenics Corp., 330 F.3d at 559
(emphasis added). We are by no means suggesting that
statutory context and legislative history are irrelevant to the
analysis, but—as we explain infra—we see no reason, in this
case, to diverge from the framework established in Wells that
gives the greatest weight to the plain meaning of the words
that Congress chose to write into law.




                               11
for the Tenth Circuit upheld a civil jury verdict of liability
under Section 6b(a)(1), where the record established that, “‘in
connection with’ an order of the sale of a futures contract,
[the defendant] misrepresented material facts and executed
unauthorized trades and that [a third party] relied upon
[defendant’s] misrepresentations.”         Federal Deposit
Insurance Corporation v. UMIC, Inc., 136 F.3d 1375, 1384
(10th Cir. 1998).8 Finally, the Court of Appeals for the Fifth
Circuit said: “The elements of a fraud action under § 4b are
derived from the common law action for fraud.” Puckett v.
Rufenacht, Bromagen & Hertz, Inc., 903 F.2d 1014, 1018 (5th
Cir. 1990) (emphasis added).

        These opinions do support the notion that materiality is
an element of proof in some cases brought under Section
6b(a).9 But they do not ground a conclusion that this is true
in all cases brought under this section. Wang’s indictment—
which the Government characterizes as rare—is, nonetheless,

8
  In support of this point, the Government also cited United
States v. Arrington, 998 F. Supp.2d 847, 865-66 (D. Neb.
2014); aff’d sub nom. United States Commodity Futures
Trading Comm’n v. Kratville, 796 F.3d 873 (8th Cir. 2015).
We note a similar ruling by the Court of Appeals for the
Second Circuit. Saxe v. E.F. Hutton & Co., 789 F.2d 105,
111 (2d Cir. 1986).
9
 As noted by the Court of Appeals for the Eleventh Circuit,
“[t]he subsections are not entirely separate; a single action
may violate more than one.” United States Commodity
Futures Trading Comm’n v. Savage, 611 F.2d 270, 283 (11th
Cir. 1979).




                              12
evidence that each subsection can be charged separately.
Therefore, the analysis in cases like UMIC and JBW might be
persuasive in a case in which the crime involved false reports
in combination with either fraud (Section 6b(a)(1)(A)), deceit
(Section 6b(a)(1)(C)), or both. But, none of these cases arise
solely from a violation of Section 6b(a)(1)(B).          This
                                       10
undermines their persuasiveness here.


10
    Our review of legislative history did not produce any
explicit support for the Government’s position. The Grain
Futures Act of 1922, Section 5(c) (the forerunner to the
provision in question in the Commodity Exchange Act)
prevented only the “dissemination . . . of false or misleading
or knowingly inaccurate reports.” Grain Futures Act, ch. 369
42 Stat. 998 (1922), codified at 7 U.S.C. § 1. The only hint to
the scope of this provision is discerned from the objections of
some legislators to the inclusion of the term “inaccurate”
(originally not qualified as “knowingly inaccurate”) because
it would criminalize inadvertent mistakes.                House
Consideration, Amendment and Passage of H.R. 11843, 62
Cong. Rec. 9447 (June 26, 1922). Debate on the Commodity
Exchange Act of 1936 generally made it clear that Congress
intended to expand the scope of measures in the Grain
Futures Act that sought to protect the integrity of transactions
in the futures market. Hearings Before the Senate Committee
on Agriculture and Forestry, United States Senate on H.R.
6772, 74th Cong. 2d Sess., (April 21-23, 1936) pp. 21-27.
However, there is nothing in these materials to support the
Government’s contention that the false report provision—that
essentially replaced Section 5(c)—was imbued with the
common law meaning of fraud or deceit. The language and
the structure of this set of provisions has remained largely




                              13
        Moreover, Wang draws our attention to a case in
which the Government argued against a materiality
requirement in Section 6b(a)(1)(B). United States v. Ashman,
979 F.2d 469 (7th Cir. 1992), cert. denied, 510 U.S. 814
(1993). In Ashman, the defendant asserted on appeal that the
District Court erred by leaving out a jury instruction on
materiality, which he contended was an element of Section
6b(a)(1)(B). 11 The Court of Appeals upheld the conviction,
agreeing with the Government that it should affirm the
District Court’s ruling that materiality is not an element of
this crime. Id. at 488.12 The Government now distances itself


unchanged since first codified. See Commodity Exchange
Act, ch. 545, 49 stat. 1491 (1936), codified at 7 U.S.C. § 1.
11
    The Court of Appeals focused on the following excerpt of
the District Court’s opinion. “When you're talking about
Section (B), to me, ... I don't know what is plainer than to say
it is unlawful ... to, quote, ‘willfully make or cause to be made
a false report.’ What that means to me is a simple thing. If
you're making a report and you know that it is false, you are
willfully making a false report, and it doesn't make any
difference whether you are intending to cheat or defraud
anybody or not.” Ashman, 979 F.2d 487–88.
12
   The Board distinguished Ashman by noting that the issue
considered there was whether the District Court properly
instructed the jury. We review jury instructions to “determine
whether, ‘taken as a whole, they properly apprized the jury of
the issues and the applicable law.’” United States v. Yeaman,
194 F.3d 442, 452 (3d Cir. 1999)(quoting Dressler v. Busch
Entertainment Corp., 143 F.3d 778, 780 (3d Cir.
1998))(emphasis added). Therefore, we understand the Board




                               14
from this position, characterizing it as the product of
insufficient legal analysis. 13 But at the very least, this case—


to be saying that Ashman is not persuasive as to the
materiality issue because the ruling concerned the whole jury
instruction, not just the elements of the crime. But, the court
in Ashman explicitly focused on the elements of Section
6b(a)(1)(B) and so we do not share the Board’s concerns.
The Board also attributed great significance to a reference
made in Ashman to another case from the Court of Appeals
for the Seventh Circuit, (United States v. Jackson, 836 F.2d
324, 329 (7th Cir. 1987)), regarding it as evidence that
Ashman actually ruled that materiality is an element of
6b(a)(1)(B). However, Jackson arose in the context of a
violation of 8 U.S.C. § 152 (giving false oaths in a
bankruptcy proceeding) and is, therefore, distinguishable. As
a result, this mere reference to Jackson in Ashman—which,
on its face, seems to have been inserted merely to support its
handling of the District Court’s holding—is wholly
unpersuasive as a basis to interpret the holding in Ashman.
13
   This argument is unpersuasive in light of our own review
(see supra n. 10), and is further weakened by a recent
Supreme Court decision in which the Government argued
against the linkage between false statements and materiality.
Maslenjak v. United States, 137 S.Ct. 1918, 1920–21 (2017).
There, the District Court convicted the defendant with
knowingly “procur[ing], contrary to law, [her] naturalization”
(18 U.S.C. § 1425(a)) because she violated the law by
“knowingly mak[ing] any false statement under oath.” 18
U.S.C. § 1015(a). Id. The Government argued that the
district court properly instructed a jury that materiality was
not required to convict for making false statements in the




                               15
which focused directly on Section 6b(a)(1)(B)—undermines
the Government’s efforts to persuade us that materiality has
always been a presumptive element in false statement crimes
under the CEA.

       Moreover, under the rules of statutory construction, the
presence of the term “defraud” in Section 6b(a)(1)(A) and
“deceive” in Section 6b(a)(1)(C) suggests that Congress’
omission of these terms (or any such terms with an accepted
common law meaning) in Section (B) was purposeful. See
Rea v. Federated Investors, 627 F.3d 937, 939 (3d Cir. 2010).
Finally, we note that Congress used the word “material” in
Section 6b(e)(2), setting forth crimes in the context of
contracts of sale on group or index of securities. Again, at the
very least, it reminds us that Congress knew when and how to
use this term when it was drafting the CEA.

       All of this persuades us to give a natural reading to the
words “false report or statement” in Section 6b(a)(1)(B),
without importing the common law of deceit or fraud into our
analysis, and without relying on the cases cited by the
Government. The words of the statute do not give us any
basis to conclude that materiality is a required element of the
offense. Accordingly, for all of these reasons, we will hold


course of applying for citizenship because no mention of
materiality is made in the statutes. Id. The Court commented
that a linkage of the false statement violation to the actual
procurement of citizenship was necessary to avoid the absurd
result where “some legal violations that do not justify denying
citizenship under that definition would nonetheless justify
revoking it later.” Id. at 1926-27.




                              16
that the Board erred by concluding Section 6b(a)(1)(B)
requires evidence of materiality.14

                              B.

       Wang next maintains that the crime for which he was
convicted does not meet the second requirement for an
aggravated felony under the INA because it did not result in
any loss. INA § 101(a)(43)(M)(i) (“an offense . . . in which
the loss to the victim or victims exceeds $10,000”). In
contrast to our categorical analysis of the first requirement,
we take a circumstance-specific approach here. Nijhawan v.
Holder, 557 U.S. 29, 38-39 (2009). The Supreme Court
characterized the review as examining “the specific way in
which an offender committed the crime on a specific
occasion.” Id. at 34. Our review includes not only those
documents that may be considered in a modified categorical
approach (the indictment, plea agreement, and judgment), but
may also include the presentence investigation report (Kaplun
v. Attorney General of the United States, 602 F.3d 260, 266
(3d Cir. 2010)) and any “sentencing-related material”
(Nijhawan, 557 U.S. at 42) to enable us “to determine if the
government has proved by ‘clear and convincing’ evidence
that his offense involved an actual loss to a victim . . . that
exceeds $10,000.” Singh, 677 F.3d at 512. Consideration of

14
   Our opinion today establishes that Wang’s statute of
conviction under the CEA, 7 U.S.C. § 6b(a)(1)(B), does not
require proof of “materiality.” To be clear, any opinion the
BIA may issue addressing whether materiality is imbedded in
the term “fraud” or “deceit” in the INA does not and should
not be viewed as extending to the CEA or the securities laws,
generally.




                              17
these materials is appropriate so long as the petitioner has
been given “a fair opportunity” to challenge the
Government’s claim. Nijhawan, 557 U.S. at 41.

       The Government produced a record that included the
following evidence. A one-count superseding information
alleged that after “Company 1” (Wang’s employer)
discovered Wang had falsely recorded open futures contracts
as closed, it liquidated them at a loss of $2.2 million. Next,
the District Court judge raised this allegation to Wang at the
July 16, 2014, plea colloquy.

                     Court: Do you have any
                     understanding as to the loss
                     that was realized as a
                     consequence of your false
                     entries?

                     Defendant:    I don’t know.

                     Court: Do you understand
                     that the government
                     contends that the loss was
                     more than $1 million and
                     less than $2.5 million?

                     Defendant:    Yes.

Hearing Transcript, 7/16/14, at 20, United States v. Fan Wang

(14 Cr. 114) (S.D.N.Y. 2014), ECF No. 21. The presentence

investigation report detailed the following:




                              18
Based on the FBI’s discussions
with the Managing Partner, the
FBI learned that on the morning
of November 18, 2011, the
Managing Partner learned that
Company-1 had received a margin
call from the Brokerage Firm for
$1.2 million dollars related to
Account-1. . . . . The clerk’s
review of Company 1’s records
uncovered false entries that Wang
had made on Company-1’s
computerized records.         These
entries        concealed          the
unauthorized        purchase       on
November 16, 2011, of 587 light
crude oil futures contracts on
Account-1. Specifically, Wang
made manual entries in Company-
1’s records that purported to show
that the 587 positions were closed
(i.e. sold), when in fact they were
still open.      Reports reflecting
these manual entries were
transmitted        in      interstate
commerce        to    Company-1’s
accounting department located in
Chicago, Illinois. . . . . Based on
the FBI’s review of Company 1’s
trading records, the FBI learned
that Company-1 ultimately sold
the     587     futures    contracts




                 19
              purchased by Wang for a loss of
              $2.2 million.

Presentence Investigation Report, Rev. 9/9/14, at 7, United
States v. Fan Wang (S.D.N.Y. 2014) (No. 14 Cr. 411).
Finally, the November 19, 2014 judgment specified a “total
loss” of $2.2 million. Judgement, 11/17/14, at 5, United
States v. Fan Wang (S.D.N.Y. 2014) (No. 14 Cr. 411). The
District Court ordered Wang to pay restitution in this amount.

        Wang is convinced that the Government never proved
that his crime (making false reports) caused the $2.2 million
loss. He makes a number of arguments to support this
conclusion.

       He first maintains that the Immigration Judge and the
Board improperly treated the allegation on loss in the
indictment as part of his admission of guilt at the time of his
plea. He says that he never admitted this,15 and declares that




15
  Wang characterizes the allegation of loss as “surplusage”
because it was not necessary to prove the crime. Relying on
Valansi, he contends that, since this allegation was not
necessary to the proof of his crime, his guilty plea alone is not
enough to demonstrate that he admitted to every allegation in
the indictment. Valansi, 278 F.3d at 215-16. We note that
we conducted a modified categorical review in Valansi, not a
circumstance-specific review. But we appreciate Wang’s
argument that the legitimacy of this general principle is not
impacted by this contextual distinction.




                               20
he actually disputed it.16 Regardless of whether he admitted
it, we disagree that the Board based its decision on a
conclusion that Wang admitted to the loss. There is nothing
in the record to support this, and the Board specifically
affirmed the Immigration Judge’s reliance on the District
Court’s judgment specifying a total loss amount.

       Next, Wang stresses that the “loss must be tied to the
specific counts covered by the conviction.” Nijhawan, 557
U.S. at 42 (internal quotation marks omitted).17
He then attacks the Board’s use of the District Court’s
reference to a total loss of $2.2 million in its judgment. Wang
says the loss was “surplusage” evidence (not necessary to
prove the elements of his crime) and was, therefore, out of
bounds.

       He supports his characterization of the evidence on
loss by pointing to the fact that the District Court considered
it during sentencing while it was reviewing “relevant

16
   As for Wang’s assertion that he actually disputed the loss
we note a subtle but significant distinction. He argued during
the sentencing hearing that the loss was not an actual loss
because it was incurred by the company’s liquidation of the
unauthorized contracts. However, it is notable that he never
challenged the truthfulness of the Government’s allegation
that “Company 1” sold the futures contracts at a $2.2 million
loss after discovering his false reporting.
17
  The Court also favorably cited Alaka that said the loss must
be “tethered” to the offense. Nijhawan¸557 U.S. at 42 (citing
Alaka v. Attorney General of the United States, 456 F.3d 88,
107 (3d Cir. 2006)).




                              21
conduct” under United States Sentencing Guideline Manual
§1B1.3. See United States v. Pollard, 986 F.3d 44 (3d Cir.
1993) (“Relevant conduct” includes uncharged conduct,
beyond the offense of conviction.). He is convinced that a
“surplus” allegation in an indictment, presented only as
evidence of “relevant conduct” at sentencing, is plainly not
tied to his convicted offense. Therefore, according to Wang’s
understanding of Nijhawan¸ it cannot be used as proof of loss
for purpose of Section 101(a)(43)(M)(i) of the INA.
Although he is right that evidence of loss was not needed for
his conviction, we disagree with the conclusions he draws
from this.

        First, the Supreme Court made clear that when the
Board considers loss under Section 101(a)(43)(M)(i) of the
INA, it may go beyond evidence that is necessary to prove the
elements of the crime and look at “the specific way in which
an offender committed the crime on a specific occasion.”
Nijhawan, 557 U.S. at 34. It reasoned that, if the INA was
interpreted as limiting the review of loss only to the evidence
required for conviction in fraud crimes, it would effectively
require “obtaining from a jury a special verdict on a fact that .
. . is not an element of the offense.” Id. at 42. In practical
terms, exclusion of sentencing-related materials would render
Section 101(a)(43)(M)(i) virtually inapplicable to fraud
crimes committed in jurisdictions that did not specify the
$10,000 threshold as an element of the crime. Id. at 40.

       Moreover, in this case, Wang had ample opportunity to
challenge this evidence. Id. at 41. For these reasons, it is
clear that even though evidence of loss was not required for
conviction, it was not beyond the limits of the Board’s review




                               22
as it deliberated on whether a crime is an aggravated felony
under the INA.

       But Wang’s argument goes further, demanding that we
scrutinize whether the Government’s reliance on this
particular District Court judgment to meet its burden of proof
is consistent with the INA’s definition of loss. See, e.g.,
Singh, 677 F.3d at 511.18 To justify the inquiry Wang
segregates his unauthorized purchases of futures contracts
(uncharged conduct) from his false reports on those purchases
(conduct grounding his conviction) and argues that his
employer’s loss resulted only from his purchases, not his
reports. The point of Wang’s facile distinction is to tie the
loss exclusively to uncharged conduct in the hope that, in this
case, it will place it outside the definition of loss under the
INA, even if it was relevant conduct for purposes of
sentencing. Among the difficulties for Wang is that the
Government presented this same evidence differently and
more compellingly.




18
  In Singh, we said: “The statutory language of subparagraph
(M)(i) provides no indication that Congress wanted loss to be
defined in accordance with the Sentencing Guidelines. As the
Kharana concurrence observed, the Guidelines and the INA
are like “apples and oranges.” See Kharana, 487 F.3d [1280,
1287 (9th Cir. 2008)] (Wallace, J., concurring). Not only are
they written by different bodies (one by a non-legislative
commission, one by Congress), but they serve distinctly
different purposes (one penological, one civil).” Singh, 677
F.3d at 511.




                              23
       The Government asserts that there is a direct link
between Wang’s crime and the loss because his false reports
covered up his unauthorized purchases. By asserting this
connection the Government is not denying that Wang’s
purchases were part of a causal chain that resulted in a loss.
Rather, it is simply stating that the $2.2 million loss is
undeniably tethered to the conduct for which Wang was
convicted.19 This is a convincing argument primarily because
it avoids strained distinctions, and it plainly describes “the
specific way in which [the] offender committed the crime on
[this] specific occasion.” Nijhawan, 557 U.S. at 34. For
these reasons, we are confident that the Board properly
considered evidence of the $2.2 million loss, and that the
Government met its burden of providing clear and convincing
evidence that this loss is tied to the crime for which Wang
was convicted.

                             IV.

      For all of these reasons, we will grant Wang’s Petition
for Review as to the Board’s determination that he committed
a crime involving fraud or deceit. We will remand this case
to the Board for further proceedings consistent with this
opinion.




19
   The presentence investigation report substantiates this.
Moreover, as we observed supra, n. 14, Wang has never
challenged the fact that his former employer incurred a $2.2
million loss from liquidating the contracts he purchased. He
only has disputed that the loss is tied to his false report
conduct.




                             24
