Fan Wang v. Attorney Gen. of U.S.

• Decision Date: 01 August 2018
• Docket Number: No. 16-4316,16-4316
• Citation: 898 F.3d 341
• Parties: FAN WANG, Petitioner v. The ATTORNEY GENERAL OF the UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

898 F.3d 341

FAN WANG, Petitioner

v.The ATTORNEY GENERAL OF the UNITED STATES of America, Respondent

No. 16-4316

United States Court of Appeals, Third Circuit.

Argued September 14, 2017

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

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, 132 S.Ct. 1166, 182 L.Ed.2d 1 (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, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) ; Neder v. United States , 527 U.S. 1, 20, 119 S.Ct. 1827, 144 L.Ed.2d 35 (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 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. UnionPlanters Bank, N.A. , 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (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, 132 S.Ct. 1166. 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 ... have accumulated settled meaning under ... the common law’ and ‘the statute [does not] otherwise dictat[e].’ " Wells , 519 U.S. at 491, 117 S.Ct. 921 (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322, 112 S.Ct. 1344, 117 L.Ed.2d 581 (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, 119 S.Ct. 1827 ; Wells , 519 U.S. at 495, 117 S.Ct. 921. 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 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...