September 14, 2017
Petition for Review of an Order of the Board of Immigration
Appeals (Agency No.: A088-152-814) Immigration Judge: Walter
E. Moseley [Argued] Counsel for Petitioner .
M. Marconda United States Department of Justice, Eric W.
Marsteller, Keith I. McManus [Argued] Chad A. Readler United
States Department of Justice Counsel for Respondent
BEFORE: CHAGARES, JORDAN, and NYGAARD, Circuit Judges
OPINION OF THE COURT
NYGAARD, Circuit Judge.
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.
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). The court
sentenced Wang to three months in prison, with three years
supervised release, and ordered him to pay $2.2 million in
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 237(a)(2)(A)(iii). 8 U.S.C.
§ 1227(a)(2)(A)(iii). 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
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
jurisdiction." Valansi v. Ashcroft, 278 F.3d
203, 207 (3d Cir. 2002).
purposes of section 101(a)(43)(M)(i) of the INA, an
aggravated felony includes crimes " involv[ing] fraud
or deceit  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
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
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
Section 6b(a)(1)(B) requires proof of materiality, for
purposes of the INA, is a matter of first impression for
We use a categorical approach to analyze 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).
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
(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 ...