Cristoval Silva-Trevino v. Eric Holder, Jr.

Filing

REVISED PUBLISHED OPINION FILED. [7556872-2] [11-60464]

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REVISED FEBRUARY 6, 2014
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-60464

January 30, 2014
Lyle W. Cayce
Clerk

CRISTOVAL SILVA-TREVINO, also known as Cristobal Silva-Trevinio,
Petitioner

v.

ERIC. H. HOLDER, Jr., UNITED STATES ATTORNEY GENERAL,
Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
Cristoval Silva-Trevino challenges a new method the Attorney General
and the Board of Immigration Appeals (“the Board”) used to determine that he
had been convicted of a crime involving moral turpitude for the purposes of
admissibility under § 212 of the Immigration and Naturalization Act (“INA”),
8 U.S.C. § 1100, et seq. Because we find the contested method inconsistent
with the unambiguous language of the relevant statutory provision, we vacate
the Board’s determination.

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I.
This case arises out of proceedings to remove Silva-Trevino pursuant to
§ 237 of the INA, which permits the removal of aliens convicted of an
aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). Silva-Trevino concedes
that he has been convicted of an aggravated felony (indecency with a child,
§ 21.11(a)(1) of the Texas Penal Code), but he seeks an adjustment of status
under § 245(a), such that he might avoid removal. See id. § 1255(a). The
immigration judge rejected this request, finding that Silva-Trevino’s offense
qualified as a crime involving moral turpitude, thus rendering him
inadmissible and ineligible for discretionary relief. See id. § 1182(a)(2)(A)(i).
After the Board vacated the decision, the Attorney General certified the
case for review, as permitted by 8 C.F.R § 1003.1. In the resulting opinion, the
Attorney General outlined a new method for determining whether an alien has
been convicted of a crime involving moral turpitude. Matter of Silva-Trevino,
24 I. & N. Dec. 687 (A.G. 2008). This method, contrary to our precedent, allows
a judge to consider “evidence beyond the formal record of conviction” to the
extent the judge deems “necessary and appropriate.” Id. at 699. The Attorney
General also held that where a conviction record indicates “intentional sexual
contact with a minor,” immigration judges should look for evidence that the
alien “knew or should have known” that the victim was, in fact, a minor. Id.
at 705.
On remand from the Attorney General, the Board sent the case back to
the immigration judge, who applied the new rule, using Silva-Trevino’s
stipulations, testimony, and the victim’s birth certificate to conclude that Silva2

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Trevino should have known the victim was a minor. This extrinsic evidence,
combined with the record of conviction, was sufficient for the judge to find that
Silva-Trevino had been convicted of a crime involving moral turpitude. The
Board affirmed.
Silva-Trevino now seeks review of the decision, arguing that the
Attorney General’s method of classification is inconsistent with binding
precedent and contradicts the express language of the INA. In the alternative,
he contends that the method violates due process as applied to his case. SilvaTrevino also asks us to compel the Attorney General to supplement the record.
However, as Silva-Trevino has not identified any specific omission from the
record, or pointed to any relevant legal authority, he has waived this argument.
FED. R. APP. P. 28(a)(9)(A), (a)(10).
II.
The INA affords this Court jurisdiction to review orders of removal. 8
U.S.C. § 1252(b). We review questions of law de novo. Rodriguez-Castro v.
Gonzales, 427 F.3d 316, 320 (5th Cir. 2005). The instant case requires us to
decide whether the Attorney General’s interpretation of the INA supersedes
this Circuit’s longstanding precedent. Where a statute is ambiguous, and an
implementing agency’s construction is reasonable, “Chevron requires a federal
court to accept the agency’s construction of the statute, even if the agency’s
reading differs from what the court believes is the best statutory
interpretation.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 980 (2005) (citing Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984)). Therefore, because Congress has clearly
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delegated to the Attorney General the authority to resolve questions of law
regarding the INA, our precedent will prevail over his interpretation only if
our construction “follows from the unambiguous terms of the statute and thus
leaves no room for agency discretion.” Brand X, 545 U.S. at 982; see also 8
U.S.C. § 1103(a)(1) (delegating interpretive authority to the Attorney General).
III.
In relevant part, § 212(a)(2)(A)(i) of the INA renders inadmissible “any
alien convicted of, or who admits having committed, or who admits committing
acts which constitute the essential elements of a crime involving moral
turpitude.”

8 U.S.C. § 1182(a)(2)(A)(i).

As a consequence of this

inadmissibility, the removable alien is ineligible for discretionary relief via an
adjustment of status. 8 U.S.C. § 1255(a). Here, Silva-Trevino was denied relief
because the conviction record, when paired with extrinsic evidence, indicated
that he had been convicted of a crime involving moral turpitude. The Attorney
General does not argue that Silva-Trevino has admitted to any such crime or
act.

We therefore limit our analysis to the “convicted of” clause of

§ 212(a)(2)(A)(i).
We should emphasize that the question before this Court is not whether
Silva-Trevino’s offense constitutes a crime involving moral turpitude. Rather,
we consider only the means by which judges may determine whether a given
conviction qualifies. We have long held that, in making this determination,
judges may consider only “the inherent nature of the crime, as defined in the
statute,” or, in the case of divisible statutes, “the alien’s record of conviction.”
Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006) (internal quotation
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marks and citations omitted); U.S. ex rel. McKenzie v. Savoretti, 200 F.2d 546,
548 (1952).

We do not permit extrinsic inquiry into the “circumstances

surrounding the particular transgression.” Amouzadeh, 467 F.3d at 455.
In reviewing Silva-Trevino’s case, however, the Attorney General
established a new approach that requires immigration judges and the Board
to:
(1) look to the statute of conviction under the categorical inquiry
and determine whether there is a “realistic probability” that the
State or Federal criminal statute pursuant to which the alien was
convicted would be applied to reach conduct that does not involve
moral turpitude; (2) if the categorical inquiry does not resolve the
question, engage in a modified categorical inquiry and examine the
record of conviction, including documents such as the indictment,
the judgment of conviction, jury instructions, a signed guilty plea,
and the plea transcript; and (3) if the record of conviction is
inconclusive, consider any additional evidence deemed necessary or
appropriate to resolve accurately the moral turpitude question.
24 I. & N. Dec. at 704 (emphasis added). Today we must determine whether
the relevant clause of INA § 212 is sufficiently ambiguous such that our
precedent yields to the third step in this method. We need not address the first
two steps. Although this is a matter of first impression for us, six of our sister
circuits have already reached the issue. Two concluded that the phrase is
ambiguous, while the other four found that it is not. 1 We agree with the
majority of our sister circuits that the phrase is not ambiguous.

The Third, Fourth, Ninth, and Eleventh Circuits found the language unambiguous
and thus withheld deference. See generally Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir.
2013); Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012); Fajardo v. U.S. Attorney General,
659 F.3d 1303 (11th Cir. 2011); Jean-Louis v. Attorney General of U.S., 582 F.3d 462 (3d Cir.
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Fortunately, we need not speculate as to what is meant by the phrase
“convicted of” a crime of moral turpitude, because Congress had the foresight
to tell us. The statutory definitions indicate that “conviction means, with
respect to an alien, a formal judgment of guilt . . . .” 8 U.S.C. § 1101(48)(A).
The statute then includes a list of the seven official documents that may be
considered as proof of such a conviction. Id. § 1229a(c)(3)(B). There is no
mention of any additional evidence; and the introductory phrasing, “any of the
following documents or records,” gives no indication that extrinsic evidence is
contemplated. Id.
We do not doubt that extrinsic inquiry would be relevant and convenient
when classifying convictions. However, it would be a little odd to read this
provision as allowing additional relevant evidence when, historically, Congress
has simply told us when adjudicators can consider evidence on account of its
relevance. 2 In fact, this very statute stipulates that the immigration judge
“shall consider any credible evidence” relevant to the removal of victims of

2009). The Seventh Circuit, however, has afforded the decision deference under Chevron,
467 U.S. 837 (1984). See Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir. 2008) (“[A]s the board
has done this through formal adjudication[,] the agency is entitled to the respect afforded by
the Chevron doctrine.”). The Eighth Circuit initially rejected the Silva-Trevino approach, but
a later panel held that the opinion warrants deference. Compare Guardado-Garcia v. Holder,
615 F.3d 900, 902 (8th Cir. 2010) (“We are bound by our circuit’s precedent, and to the extent
Silva-Trevino is inconsistent, we adhere to circuit law.”), with Bobadilla v. Holder, 679 F.3d
1052, 1057 (8th Cir. 2012) (“We conclude that the methodology is a reasonable interpretation
of the statute and therefore must be given deference by a reviewing court.”).
2 E.g., 28 U.S.C. § 1867(d) (Moving party “shall be entitled to present . . . any other
relevant evidence.”); 30 U.S.C. § 923(b) (“[A]ll relevant evidence shall be considered.”); 42
U.S.C. § 610(b)(2) (“[T]he Board shall conduct a thorough review of the issues and take into
account all relevant evidence.”); 15 U.S.C. § 6603(g)(3) (allowing courts and administrative
officials to consider “other relevant evidence”).

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family violence. 8 U.S.C. § 1227(a)(7)(B). Yet with respect to the convictions
at issue here, there is no such authorization.

“Where Congress includes

particular language in one section of a statute but omits it in another section
of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Russello v. United States,
464 U.S. 16, 23 (1983).

Consequently, we assume that if Congress had

intended for immigration judges to consider relevant extrinsic evidence in
order to classify a conviction as a crime of moral turpitude, the legislators
would have included language to that effect.
Moreover, the Supreme Court has already explained that, where
Congress directs courts to determine whether a prior conviction qualifies as a
certain type of crime, the use of a categorical approach is intended. Taylor v.
United States, 495 U.S. 575 (1990). In Taylor, the Court considered whether,
when determining if prior offenses constitute previous convictions for the
purposes of 18 U.S.C. § 924(e), adjudicators may consider “the particular facts
underlying those convictions.” Id. at 600. The Court held that adjudicators
may not look beyond the record and associated statutory elements, reasoning
that:
[T]he language of 924(e) generally supports the inference that
Congress intended the sentencing court to look only to the fact that
the defendant had been convicted of crimes falling within certain
categories, and not to the facts underlying the prior convictions.
Section 924(e)(1) refers to “a person who . . . has three previous
convictions” for - not a person who has committed - three previous
violent felonies or drug offenses.

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Id. In the case before the panel, the relevant statutory language directs us to
look for a conviction, rather than an act committed, so use of a categorical
approach is implied.
In interpreting the language at issue in Taylor, that Court also looked to
the traditional judicial construction of the phrase, and to recent amendments
to the statute. Id. at 600–01. Here, legislative ratification of the longstanding,
nearly universal use of the categorical inquiry confirms that Congress has
unambiguously spoken to this issue. The categorical approach has been used
in the immigration context for at least a century. 3 By 1954 its use was so
widespread that the Board clarified and endorsed the method. 4 Since then, the
Board and all of the federal courts have used some version of the categorical or
modified categorical inquiry. 5 This widespread continuous use is significant
for our purposes because, where there exists a longstanding judicial
construction, “Congress is presumed to be aware of the interpretation . . . and
to adopt that interpretation [if] it re-enacts that statute without change.”
Lorillard v. Pons, 434 U.S. 575, 580 (1978). It hardly seems unreasonable to

Moncrieffe v. Holder, --- U.S. ----, 133 S. Ct. 1678, 1685 (2013) (referring to the history
as compiled by Alina Das in The Immigration Penalties of Criminal Convictions: Resurrecting
Categorical Analysis in Immigration Law, 86 N.Y.U. L. REV. 1669 (2011)).
4 Matter of R-----, 6 I. & N. Dec. 444, 448 (B.I.A. 1954).
5 See Matter of Velazquez-Herrera, 24 I. &. N. Dec. 503, 513 (B.I.A. 2008) (“For nearly
a century, the Federal circuit courts of appeals have held that where a ground of deportability
is premised on the existence of a ‘conviction’ for a particular type of crime, the focus of the
immigration authorities must be on the crime of which the alien was convicted, to the
exclusion of any other criminal or morally reprehensible acts he may have committed.”). For
the purpose of resolving the present issue, it is not necessary to consider the minor variations
in the way that various federal courts have articulated and employed the categorical
approach. See Jean-Louis, 582 F.3d at 474 n.16 (collecting cases and describing similarities).
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abide by this assumption here, as Congress has had numerous opportunities
to make any desired changes. 6 In fact, in the wake of the Oklahoma City
bombing, and again after 9/11, Congress amended § 212 to ensure its efficacy. 7
In 1996, Congress expanded the agency’s power to remove aliens convicted of
crimes involving moral turpitude. 8 In addition, lawmakers expedited certain
deportation proceedings and later increased the number of grounds for
inadmissibility. 9 In light of such extensive attention to the statute, it seems
that Congress would have given some indication if it wanted adjudicators to
“abandon” the longstanding categorical approach in favor of an “elaborate
factfinding process.” Taylor, 495 U.S. at 601. And yet the relevant language
remained unchanged. 10 As a consequence, and because the lawmakers have

See 8 U.S.C.A. § 1182 Historical and Statutory Notes (West 2005) (listing dozens of
amendments to § 212 of the INA).
7 Section 212 of the INA was substantively amended by The Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996)
(codified as amended in scattered sections of the U.S. Code); The Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009546 (1996) (codified as amended in scattered sections of the U.S. Code); and USA PATRIOT
Act, Pub. L. No. 107-56, 115 Stat. 272 (2001) (codifed as amended in scattered sections of the
U.S. Code). As the threat of terrorism increased, so did legislative attention to deportation
proceedings. See President’s Statement on Signing the Antiterrorism and Effective Death
Penalty Act of 1996, 32 Weekly Comp. of Pres. Doc. 719, 721 (Apr. 29, 1996) (discussing
threats of terrorism, encouraging additional immigration reform, and anticipating IIRIRA);
Administration’s Draft Anti-Terrorism Act of 2001: Hearing before the H. Comm. on the
Judiciary, 107th Cong. 3–12 (2001) (statement of John Ashcroft, Att’y Gen. of the United
States) (explaining the (then unnamed) USA PATRIOT Act, and the need for changes to
deportation and inadmissibility proceedings).
8 AEDPA § 435, 110 Stat. 1274.
9 IIRIRA §§ 301–08, 110 Stat. 3009-575 et seq.; USA PATRIOT Act § 411, 115 Stat.
345.
10 In fact, the only recent bill attempting to supersede categorical inquiry was
abandoned in the Senate Judiciary Committee. See Armed Career Criminal Sentencing Act
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revisited the section so often, we are confident that Congress is aware of the
universal judicial interpretation of the “convicted of” clause of § 212, and we
can assume that Congress expects us to abide by that construction. Lorillard,
434 U.S. at 583. Where, as here, Congress has spoken directly to the statutory
question at hand, our precedent need not yield to an agency’s contrary
interpretation. Burks v. U.S., 633 F.3d 347, 360 (5th Cir. 2011).
IV.
Nonetheless, the Attorney General urges this Court to defer to his
interpretation of § 212(a)(2)(A)(i). First, he argues that the statutory language
is ambiguous. Second, he contends that the Supreme Court and our precedent
already authorize immigration judges to look beyond the conviction record
when making similar determinations. Finally, he insists that various practical
considerations weigh in favor of his method. We find the arguments
unpersuasive.
In arguing that “convicted of a crime involving moral turpitude” is
ambiguous, the Attorney General focuses on the inherent lack of clarity in the
concept of moral turpitude. He observes, for example, that “[t]he statute does
not define the term ‘crime involving moral turpitude.’” 24 I. & N. Dec. at 693.
Indeed, no one suggests otherwise. This Court, in fact, has always recognized
the agency’s authority to define the phrase. See Hyder v. Keisler, 506 F.3d 388,
390 (5th Cir. 2007) (affording “substantial deference”). Yet the lack of a precise
definition of moral turpitude does not infuse ambiguity into the word

of 2010, S. 4045, 111st Cong. (2010) (proposing to supersede its use in the context of the
Armed Career Criminal Act, 18 U.S.C. 924(e)).

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conviction. As our sister circuits have observed, “At issue . . . is not what
conduct or statutory offense qualifies as a crime involving moral turpitude, but
rather what language in the moral turpitude statute informs an adjudicator of
the procedure for determining whether a particular conviction qualifies . . . .”
Olivas-Motta, 716 F.3d at 1204 (quoting Prudencio, 669 F.3d at 480). And even
in the Eighth Circuit case the Attorney General points to as support for the
purported ambiguity, the majority of the panel concluded that moral turpitude
is not so undefined as to preclude a categorical inquiry. Marciano v. I.N.S.,
450 F.2d 1022, 1025 (8th Cir. 1971).
The Attorney General also asserts that section 212’s juxtaposition of the
phrase “who is convicted of” with the phrases “who admits having committed”
and “who admits committing” suggests that Congress wants adjudicators to
focus on the facts and circumstances of the underlying crime.

8 U.S.C.

§ 1182(a)(2)(a)(i). The three phrases taken together, he contends, “contemplate
a finding that the particular alien did or did not commit a crime.” 24 I. & N.
Dec. at 699. The argument is, apparently, that because the latter two phrases
anticipate an examination of facts and circumstances, Congress must have
intended such an inquiry with respect to convictions, too. We respectfully
disagree. It is an elementary canon of construction that when Congress uses
different terms, “each term [is] to have a particular, nonsuperfluous meaning.”
Bailey v. United States, 516 U.S. 137, 146 (1995) (superseded by statutory
amendment on other grounds, as described in United States v. O’Brien, 560
U.S. 218 (2010)). For example, where a statute refers to firearms “used” and
those “intended to be used,” the latter phrase does not anticipate active
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engagement in the way the former term does, because to interpret otherwise
would create redundancy.

Id.

Similarly, in this context, to assume that

“convicted” connotes the same procedure as “committed” is to strip the word of
its statutory definition and render it superfluous. We cannot accept such an
interpretation.

The juxtaposition does not infuse any ambiguity into the

“convicted of” clause, but only serves to underscore the distinct meaning of that
phrase.
We are aware that two binding cases permit the adjudicator to look
beyond the conviction record in ostensibly analogous proceedings.

See

Nijhawan v. Holder, 557 U.S. 29 (2009); Bianco v. Holder, 624 F.3d 265 (5th
Cir. 2010). In Nijhawan, the Supreme Court allowed evidence beyond the
record in determining whether an alien had been convicted of an “offense that
involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000.” 557 U.S. at 32 (interpreting 8 U.S.C. § 1101(a)(43)(M)(i)). In Bianco,
this Court permitted an examination of extrinsic evidence in order to
determine whether an alien had been convicted of a “crime of domestic
violence.” 624 F.3d at 267 (interpreting 8 U.S.C. § 1227(a)(2)(E)(i)). The
Attorney General believes that Nijhawan and Bianco bear on the analysis of
this case because each of the three cases requires courts to determine whether
a given conviction falls into a statutorily defined category of convictions.
We find the statutory language before us readily distinguishable from
the language at issue in Nijhawan and Bianco. Note that the language in each
of the earlier two cases describes a subset of a category of convictions, rather
than an entire category. As a consequence, relevant convictions can only be
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identified by looking to the circumstances that define the subset. Consider
that in Nijhawan, the category is crimes of fraud and deceit, and the subset is
those resulting in a loss of at least $10,000 to the victim. Likewise, in Bianco,
the category is crimes of violence as defined by 18 U.S.C. § 16, and the subset
is crimes of violence in which the victim is a covered relative. By creating these
factually defined subsets, Congress necessarily authorizes adjudicators to look
beyond a conviction record to the circumstances of an underlying offense.
Nijhawan, 557 U.S. at 30. Yet the statute at issue here defines no such subset:
qualifying offenses are all crimes involving moral turpitude, as that generic
crime has been defined by federal authorities and common law. Consequently,
we find no analogous permission to abandon the categorical approach and look
beyond the conviction record. See Moncrieffe, 133 S. Ct. at 1691 (explaining
that “circumstance-specific examination” of conduct is not permitted in
determining whether an immigrant was convicted of a generic crime).
It is, of course, possible to argue that that moral turpitude is simply
another factual circumstance that defines a subset.

See Ali, 521 F.3d at

741. Yet to conceive of moral turpitude in this way is to disregard a century of
jurisprudence, despite the fact that courts generally interpret terms of art in
keeping with “the legal tradition and meaning” and “cluster of ideas . . .
attached” to the phrase. Morissette v. United States, 342 U.S. 246, 263 (1952);
see also Olivas-Motta, 716 F.3d at 1205–08 (finding Nijhawan inapplicable to
INA § 212); Jean-Louis, 582 F.3d at 477–78 (explaining that it is historically,
linguistically, and legally erroneous to think of moral turpitude as a factual
circumstance).

Consequently, and because the statutory language in
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Nijhawan and Bianco is distinguishable from the relevant clause in § 212, we
decline the invitation to apply the reasoning in those cases to the case at bar.
The Attorney General also offers various policy justifications for his
proposed method of classifying convictions. He first asserts that additional
evidence must be made available because moral turpitude is not an element of
any crime, and thus its presence or absence may not be clear from the face of
charging documents. We do not find this argument convincing. The fact that
moral turpitude is not an element of any crime need not—and in fact does not—
imply that the characteristics of a crime involving moral turpitude are not
present on the conviction record made available by Congress. Consider, for
example, that larceny may not be an “element” of any crime in Texas; yet the
elements of common law larceny (the taking and carrying away of another’s
property without consent and with intent to steal) are elements of several
offenses defined by chapters 29 and 31 of the Texas Penal Code. So just as the
characteristics of larceny are evinced by an examination of a charge of
aggravated robbery under § 29.03 of the Texas Penal Code; so, too, are the
hallmarks of a crime involving moral turpitude often present on the face of a
conviction record. In fact, the Attorney General himself concedes that “in
many, if not most, cases . . . examination of the alien’s record of conviction may
establish that the alien was in fact convicted of a crime involving moral
turpitude.” Silva-Trevino, 24 I. & N. Dec. at 699. We have no reason to doubt
his observation, and we conclude that any exceptions are not sufficient cause
for us to depart from the procedure authorized by the statutory language. See
MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 233–34 (1994) (rejecting an
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agency interpretation inconsistent with unambiguous statute, though the
agency’s interpretation might have better facilitated legislative intent).
The Attorney General further contends that we should defer to his
interpretation of § 212(a)(2)(A)(i) because he is charged with ensuring uniform
application of the law. This argument is, if anything, a little ironic. Until he
intervened in Silva-Trevino, there was broad consensus among the federal
courts that the “convicted of” language precludes consideration of evidence
beyond the conviction record. See supra, note 5. So at least with respect to the
admissibility of evidence, there was uniform application of the law. Yet now
the circuits have split, with some Courts of Appeals using the new method, and
others abiding by longstanding precedent. So it seems that his interpretation
has been counterproductive toward his own stated objective, in that the prior
jurisprudential accord has been replaced by competing interpretations.
Regardless, these kinds of arguments—i.e., those rooted in policy and
pragmatism—are only viable where Congress has not spoken directly to the
statutory question before the court. Here, as already explained, Congress has
spoken directly to the issue, so our inquiry has reached its end. FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 132 (2000).
V.
Returning to the case before us, we find that the Board of Immigration
Appeals looked beyond the conviction record to conclude that Silva-Trevino had
been convicted of a crime involving moral turpitude. Our precedent does not
permit such an inquiry. Amouzadeh, 467 F.3d at 455. We therefore vacate the
decision of the Board and remand for further proceedings consistent with the
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standards stated herein. As a consequence, we need not reach petitioner’s
argument that the earlier proceedings violated due process.
Petition GRANTED, decision VACATED, and case REMANDED.

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