                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 13-1604
                                     ___________

                              KEVIN CLAUDE HAWSE,

                                                  Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                       Respondents

                      ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A042-469-497)
                Immigration Judge: Honorable Margaret R. Reichenberg
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 22, 2013

              Before: AMBRO, SHWARTZ and SCIRICA, Circuit Judges

                           (Opinion filed: October 24, 2013)
                                 _________________

                                      OPINION
                                  _________________
PER CURIAM

      Kevin Claude Hawse, a native and citizen of Jamaica, was admitted to the United

States as a lawful permanent resident in 1992. Over the course of the next two decades,

he was adjudicated guilty of numerous New Jersey offenses, including shoplifting (first
in 1994, and again in 1995), see N.J. Stat. Ann. § 2C:20-11(b)(1), and possessing a

defaced firearm in 2010, see N.J. Stat. Ann. § 2C:39-3(d). As a result of the firearms

offense, the Government charged him with removability under 8 U.S.C. § 1227(a)(2)(C).

       Hawse conceded removability, but sought cancellation of removal under 8 U.S.C.

§ 1229b. Following a hearing, the Immigration Judge (“IJ”) concluded that Hawse

warranted a favorable exercise of discretion on his cancellation application, but

determined that he was statutorily ineligible for such relief. 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 [seven] years after having been admitted in any

status[.]” 8 U.S.C. § 1229b(a). Continuous residence ends, however, when the alien

commits an offense that renders him removable under 8 U.S.C. § 1227(a)(2). Id.

§ 1229b(d)(1)(B). Section 1227(a)(2)(A)(ii), in turn, provides that an alien is removable

if, inter alia, he has been “convicted of two or more crimes involving moral turpitude, not

arising out of a single scheme of criminal misconduct.” The IJ found that Hawse’s 1994

and 1995 shoplifting convictions constituted crimes involving moral turpitude that

rendered him removable. Therefore, the IJ concluded, Hawse’s period of continuous

residence ended when he committed the second shoplifting offense in 1995, four years

short of the requisite seven years of continuous residence.

       Hawse filed an administrative appeal challenging the IJ’s determination that his

shoplifting offenses cut off his period of continuous residence. In particular, Hawse

argued that he was not “convicted of . . . crimes” within the meaning of
                                             2
§ 1227(a)(2)(A)(ii) because his shoplifting violations were not “crimes” under New

Jersey law, but rather “disorderly persons offenses.” See N.J. Stat. Ann. § 2C:20-11(c)

(1994) (amended 2000) (“Any person found guilty of [shoplifting] under subsection b. is

a disorderly person . . . .”); N.J. Stat. Ann. § 2C:1-4(b) (“Disorderly persons offenses . . .

are not crimes within the meaning of the Constitution of [New Jersey].”). The Board of

Immigration Appeals (“BIA” or “Board”) rejected that argument, holding that Hawse’s

“shoplifting violations constitute convictions under [§ 1101(a)(48) (defining “conviction”

for immigration purposes)] and therefore crimes under [§ 1227(a)(2)(A)(ii)].” This

conclusion rested on the fact that the “shoplifting statute at issue . . . requires the State to

demonstrate the elements of the offense beyond a reasonable doubt.” Accordingly, the

BIA held that Hawse was statutorily ineligible for cancellation, and dismissed the appeal.

Hawse filed a timely petition for review.

       We have jurisdiction over the petition pursuant to 8 U.S.C. § 1252(a). “Because

the BIA issued its own decision, we review that decision, and not that of the IJ.” Sheriff

v. Att’y Gen., 587 F.3d 584, 588 (3d Cir. 2009) (citing Ezeagwuna v. Ashcroft, 301 F.3d

116, 126 (3d Cir. 2002)). “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, 844 (1984).” Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir. 2007)

(parallel citations omitted) (citing Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004).

       Here, the BIA held that “in order for the shoplifting offense at issue . . . to

constitute a ‘crime’ under [§ 1227(a)(2)(A)(ii)], the elements of such offense must be
                                                3
proved beyond a reasonable doubt and the conviction for such offense must constitute a

‘conviction’ under [§ 1101(a)(48)(A)].” We recently reviewed identical reasoning in

Castillo v. Attorney General, -- F.3d --, 2013 WL 4712753 (3d Cir. Sept. 3, 2013).

Castillo, like Hawse, pleaded guilty to shoplifting under N.J. Stat. Ann § 2C:20-11(b)(1)

in municipal court in the mid-1990s. Id. at *1. In both Castillo and this case, the Board

relied on the definition of “conviction” in § 1101(a)(48)(A), and the interpretation of that

term in In re Eslamizar, 23 I. & N. Dec. 684 (BIA 2004), to conclude that a finding of

guilt constitutes a “conviction” as long as it is made beyond a reasonable doubt. Castillo,

2013 WL 4712753, at *4.

       We held in Castillo, however, that while it is a necessary condition that the finding

of guilt be beyond a reasonable doubt, the better reading of Eslamizar requires a more

“open-ended” inquiry into whether the proceeding was criminal in nature under the

governing law.1 Id. at *10. The factors relevant to that inquiry include “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.” Id. Given that the Board did not employ this “general ‘criminal

proceeding’ approach to § 1101(a)(48)(A),” and because its reading of Eslamizar was not

entitled to Chevron deference, see footnote 1, supra, we remanded for the BIA to clarify

1
 In reaching this conclusion, we noted that Eslamizar was “difficult to understand” and
had not been consistently applied by the BIA. Castillo, 2013 WL 4712753, at *9, 11-13.
Therefore, we determined that the decision was not entitled to Chevron deference. Id. at
12-13.

                                              4
or reconsider Eslamizar and address whether Castillo was “convicted of a crime” under

§ 1227(a)(2)(A)(ii). Id. at *10, 13-14. Given the similarities between Castillo and this

case, we believe that a remand is appropriate here as well.

       For the foregoing reasons, we will grant the petition for review, vacate the order of

the Board, and remand for further proceedings in accordance with this opinion.2




2
  Hawse’s “Motion to Amend to Introduce New Evidence” is denied. See 8 U.S.C.
§ 1252(b)(4)(A); Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 340 (3d Cir. 2008) (“Our
review is confined solely to the administrative record . . . .”).
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