                                      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)
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
                     _______________




                               2
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


                              3
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


                              4
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



                              5
       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


                               6
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


                              7
       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


                               8
“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


                              9
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


                             10
        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.)



                               11
                              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.” Jean-
Louis 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-



                              12
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




                              13
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.

                              14
       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


                               15
“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


                             16
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 third-
degree 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



                              17
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:



                             18
       . . . 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”:




                              19
      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


                             20
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


                              21
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


                               22
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 open-
ended 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


                               23
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

                              24
       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.

                              25
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


                              26
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


                               27
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


                              28
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.



                                29
        “‘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 Marmolejo-
Campos, 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).

                              30
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

                              31
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.


                              32
       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)).


                               33
        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.

                               34
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))); Jean-
Louis, 582 F.3d at 466 n.4 (concluding that alien seeking
discretionary relief from removal has no cognizable liberty or

                               35
                             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).

                              36
