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Wang v. Attorney General of United States of America

United States Court of Appeals, Third Circuit

August 1, 2018

FAN WANG, Petitioner
v.
THE ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent

          Argued September 14, 2017

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

          Thomas E. Moseley [Argued] Counsel for Petitioner .

          Scott 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.

         I.

         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 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 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.

         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 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 or cause to be entered ...


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