omitted) (citing Apprendi v. New Jersey,
530 U.S. 466 
(2000); In re Winship, 
397 U.S. 358 
(1970)). It
then added the following footnote to its statement of a
“bedrock principle”:




                              19
      The respondent’s “violation” carried a
      maximum penalty of a fine. As such, if it were
      to be regarded as a crime, it would fall, for
      constitutional purposes, into the category of a
      “petty offense,” a species of misdemeanor that
      is punishable by a maximum of 6 months
      imprisonment and a fine of uncertain
      dimension, but probably not extending beyond
      $5,000 for individuals. See 18 U.S.C. § 19
      (2000). The Supreme Court has held that petty
      offenses do not carry the right to jury trial and,
      if no imprisonment will or may be imposed,
      may also dispense with the right to appointed
      counsel. E.g.,, Lewis v. United States, 
518 U.S.
      322 
(1996); Scott v. Illinois, 
440 U.S. 367
      (1979). But we are unaware of any decision of
      that Court or any other holding that the standard
      of proof for conviction of even a petty offense
      may deviate below the level of “beyond a
      reasonable doubt.”

Id. at 688 n.4. 
According to the BIA, “[i]t is beyond debate,
therefore, that the respondent, who was found ‘guilty’ under
the lesser standard of a preponderance of the evidence was
not found guilty of his ‘violation’ in a true criminal
proceeding.” 
Id. at 688.

       The 
BIA went on to explain that there was nothing in
the legislative history “to show that Congress intended
anything by the phrase ‘judgment of guilt’ other than the
normal and traditional meaning of a judgment entered in a


                             20
genuine criminal proceeding.” 
Id. (footnote omitted). On 
the
contrary, Congress was primarily, if not exclusively,
concerned with the effect of post-proceeding rehabilitative
actions. 
Id. at 668 n.5. 
Noting that its decision should not be
read as asserting that a foreign conviction must adhere to all
the constitutional requirements applicable to criminal trials,
including the requisite standard of proof, the BIA summarized
its finding in the following terms: “Rather we find that
Congress intended that the proceeding must, at a minimum,
be criminal in nature under the governing laws of the
prosecuting jurisdiction, whether that may be in this country
or in a foreign one.” 
Id. Finally, the BIA 
indicated that, to
the extent its decision in In re C-R-, 8 I. & N. Dec. 59 (BIA
1958) (holding that police court adjudication of petty theft in
violation of municipal ordinance under preponderance of
evidence standard constituted conviction), may be viewed as
inconsistent, that prior decision was overruled. Eslamizar, 23
I. & N. Dec. at 689.

        In the present case, we are faced with serious
disagreement as to what considerations or factors may be
relevant in deciding whether a finding of guilt constitutes a
conviction under Eslamizar and § 1101(a)(48)(A). Both the
BIA and the government have distinguished Eslamizar on the
grounds that New Jersey law—unlike Oregon law—required
proof beyond a reasonable doubt. In short, the finding of
guilt at issue here purportedly constituted a conviction under
§ 1101(a)(48)(A) because the municipal court entered a
formal judgment of guilt under a “reasonable doubt” standard
of proof and ordered Castillo to pay a fine as a form of
punishment. However, Castillo claims that the BIA violated


                              21
its own precedent in Eslamizar, which “outlined a series of
factors that must be considered in determining whether an
alien’s judgment qualifies as a conviction [under §
1227(a)(2)(A)(ii)], including but not limited to whether the
sanctions resulting from such a conviction are punitive,
whether the alien was provided with the constitutional
safeguards normally attendant to a criminal adjudication, and
whether a conviction for the offense gives rise to any
disability or legal disadvantage based on conviction of a
crime.” (Petitioner’s Brief at 20 (citations omitted).) As we
recognized in our prior opinion in this matter, New Jersey law
provided in 1994 that: (1) disorderly persons offenses, such
as shoplifting, constituted “‘petty offenses,’” as opposed to
“‘crimes within the meaning of the Constitution of this
State;’” (2) “‘[t]here shall be no right to indictment by a grand
jury nor any right to trial by jury on’ disorderly persons
offenses;” and (3) “[c]onviction of such offenses shall not
give rise to any disability or legal disadvantage.’” Castillo,
411 F. App’x at 502 (quoting § 2C:1-4(b)). According to
Castillo, “Defendants charged with disorderly persons
offenses [also] have no blanket right to counsel.” (Id. at 29-
30 (citing § 2C:1-4(b)).

       Simply put, we find the Eslamizar decision itself to be
difficult to understand. We acknowledge, for example, that
the BIA emphasized what it called a “bedrock principle” of
constitutional law—the requirement that each and every
element of an offense must be proved beyond a reasonable
doubt. See Eslamizar, 23 I. & N. Dec. at 688 (footnote
omitted) (citations omitted). In turn, it arguably drew a
distinction between this applicable standard of proof and


                               22
other procedural considerations, such as the right to a jury
trial or the right to appointed counsel. 
Id. at 688 n.4. 
We
further note that the interpretation of Eslamizar and §
1101(a)(48)(A) proffered by the government does seem
relatively simple to apply, i.e., instead of conducting an open-
ended multi-factor analysis, the decision maker simply
considers whether a court entered a formal judgment of guilt
under the “reasonable doubt” standard of proof and imposed
some form of punishment. More broadly, it is uncontested
that “the INA’s definition of a ‘crime’ and a ‘conviction’
controls the determination of whether a finding of guilt for an
offense is considered a ‘conviction for a crime.’”
(Petitioner’s Brief at 30.)

        Nevertheless, we believe that Castillo generally offers
the more persuasive interpretation of Eslamizar and §
1101(a)(48)(A). We reach this conclusion based on the
language and reasoning of this difficult decision. We also
look to subsequent precedential and non-precedential BIA
decisions purportedly applying Eslamizar. Some of these
decisions actually appear to weigh in favor of Castillo’s
interpretation. At the very least, it is clear that, far from
clarifying a problematic en banc decision, the agency has
approached its own decision in an inconsistent fashion.

        In Eslamizar, the BIA expressly rejected a literal
reading of the term “conviction.” 
Id. at 687. On 
the contrary,
it stated that “a far more sensible reading of the statute exists,
namely, that by ‘judgment of guilt’ Congress most likely
intended to refer to a judgment in a criminal proceeding, that
is, a trial or proceeding whose purpose is to determine


                               23
whether the accused committed a crime and which provides
the constitutional safeguards normally attendant upon a
criminal adjudication.” 
Id. This reading, “which 
we adopt,”
did not expressly reference the applicable standard of proof.
Id. In turn, the 
BIA generally referred to “a true criminal
proceeding,” “the normal and traditional meaning of a
judgment entered in a genuine criminal proceeding,” and a
proceeding that, at a minimum, is “criminal in nature under
the governing laws of the prosecuting jurisdiction, whether
that may be in this country or in a foreign one.” 

s omitted). The agency also provided a full
summary of Oregon law, including the state’s definition of
crimes and violations in mutually exclusive terms, a statutory
provision stating that a conviction of a violation does not give
rise to any disability or legal disadvantage based on
conviction of a crime, and another state statutory section
providing that violation proceedings are tried by a court
sitting without a jury and without counsel being provided at
public expense.2 
Id. at 687.

       2
         We likewise did not really emphasize the applicable
standard of proof in our prior opinion in this matter. In
summarizing Eslamizar, we instead pointed to other aspects
of Oregon state law (i.e., its mutually exclusive definitions
and the absence of any disability or legal disadvantage) and
highlighted the BIA’s “understanding of the phrase ‘judgment
of guilt’” as a “‘judgment in a criminal proceeding, that is, a
trial or other proceeding whose purpose is to determine
whether the accused committed a crime and which provides
the constitutional safeguards normally attendant upon
criminal adjudication.’” Castillo, 411 F. App’x at 502

                              24
       Accordingly, we generally view Eslamizar as setting
forth a general “criminal proceeding” approach to §
1101(a)(48)(A). Because it is a “bedrock principle” that each
element of a crime must be proven beyond a reasonable
doubt, a finding of guilt under a lesser standard could never
be considered as a judgment in “a true criminal proceeding.”

omitted) (citation omitted).           The
“reasonable doubt” standard of proof thereby represents a
necessary condition for satisfying the BIA’s “criminal
proceeding” reading. However, this does not mean that a
judgment was entered in a true or genuine criminal
proceeding—and therefore constituted a conviction pursuant
to § 1101(a)(48)(A)—merely because a court entered a
formal judgment of guilt under the requisite “reasonable
doubt” standard of proof and imposed a form of punishment.
The “criminal proceeding” approach appears to contemplate a
more “open-ended” inquiry before a decision maker can
conclude that § 1101(a)(48)(A) has been satisfied. The BIA
accordingly indicated that there are several other factors that
may be relevant in deciding if the judgment was entered in a
true or genuine criminal proceeding, including 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. At the very least, such factors appear to be


(quoting Eslamizar, 23 I. & N. Dec. at 687)). With respect to
the standard of proof, we stated that Oregon’s violation
proceedings differed from criminal proceedings because,
“among other things,” the state was required only to prove
guilt by a preponderance of the evidence. 
Id.

                              25
relevant to 
the determination of whether the proceeding’s
“purpose is to determine whether the accused committed a
crime” and if it “provides the constitutional safeguards
normally attendant upon a criminal adjudication.” 
Id. at 687.

      Furthermore, 
this interpretation of Eslamizar has some
support in subsequent decisions by the BIA. We begin with
an unpublished single-member decision indicating that a
judgment did not constitute a conviction, despite the fact that
the prosecution had to prove the elements of the offense
beyond a reasonable doubt.

        In In re Bajric, A077 686 506, 
2010 WL 5173974
(BIA Nov. 30, 2010) (unpublished decision), the agency
sustained an appeal from a bond decision filed by an alien
who was convicted in a Missouri municipal court of stealing
in violation of a municipal ordinance. 
Id. In deciding if 
this
judgment was a conviction under § 1101(a)(48)(A), the BIA
turned to Eslamizar. 
Id. While emphasizing the 
standard of
proof and noting that certain constitutional protections, such
as the right to a jury trial, need not be afforded in petty
offense cases, the BIA “also recognized several other factors
to be considered in determining whether a judgment would
qualify as a “conviction” for immigration purposes.” 
Id.
“These include, but 
are not limited to, whether the sanctions
resulting from such a conviction are punitive, whether there
are constitutional safeguards normally attendant to a criminal
adjudication, and whether a conviction for a municipal
violation gives rise to any disability or legal disadvantage
based on conviction of a crime.” 
Id. The BIA explained 
that,
“[a]lthough the respondent’s 2008 municipal violation was


                              26
quasi-criminal in that each element had to be proven beyond a
reasonable doubt, his municipal violation clearly remained
civil in nature in that it did not bar a prosecution for the same
offense by the state, and his conviction for a violation of a
municipal ordinance, unlike those for misdemeanors and
felonies, is not admissible for impeachment purposes.” 
Id.
Because this municipal 
violation did not appear to meet the
statutory definition under § 1101(a)(48)(A), the BIA believed
that it was substantially unlikely that the government could
establish that the alien was subject to mandatory detention on
account of his conviction for two or more crimes involving
moral turpitude. 
Id.

        In the decision 
now under review, the BIA cited to In
re Rivera-Valencia, 24 I. & N. Dec. 484 (BIA 2008), which
determined that “an adjudication of guilt [of the offense of
carnal knowledge], proved beyond a reasonable doubt, by a
general court-martial qualified as a conviction under [§
1101(a)(48)(A)].”      (A6.)   In this published 3-member
decision, the BIA turned to Eslamizar and explained that a
court’s formal judgment of guilt falls within the language of
§1101(a)(48)(A) if it was entered in a “‘genuine criminal
proceeding,’” i.e., “a proceeding that is ‘criminal in nature
under the governing laws of the prosecuting jurisdiction.’”
Id. at 486-87 (quoting 
Eslamizar, 23 I. & N. Dec. at 688).
According to the agency, the alien’s guilt was determined in a
genuine criminal proceeding because the proceeding at issue
was criminal in nature under the laws of the prosecuting
jurisdiction, the United States Armed Forces. 
Id. at 487.
Specifically, 
“there is no dispute that a general court-martial
is a ‘criminal proceeding under the governing laws of the


                               27
United States Armed Forces, and the respondent’s general
court-martial unquestionably resulted in the entry of a formal
judgment of his ‘guilt’ beyond a reasonable doubt.” 
Id.
(citations omitted). Likewise, 
“a trial by court-martial does
not infringe on the constitutional rights of an accused who is
properly subject to military jurisdiction, despite the absence
of some protections afforded civilian defendants, such as the
right to a trial by jury.” 
Id. (citations omitted) (footnote
omitted). The BIA emphasized that the protections of the Bill
of Rights were available to members of the Armed Forces
(except for those protections that were expressly or by
implication inapplicable in this context), and service members
thereby were accorded many of the same procedural rights as
their civilian counterparts (e.g., the privilege against
compulsory self-incrimination, the right to representation by
counsel at public expense, and the right to call witnesses and
present evidence). 
Id. at 487 n.2. 
As part of its “genuine
criminal proceeding” analysis in Rivera-Valencia, the BIA
thereby considered whether the proceeding at issue was a
criminal proceeding under the laws of the prosecuting
jurisdiction itself and specifically relied on considerations
other than the applicable standard of proof.

       In In re Cuellar-Gomez, 25 I. & N. Dec. 850 (BIA
2012), a 3-member panel then applied Rivera-Valencia—and
Eslamizar—to a judgment entered by a Kansas municipal
court finding the alien guilty of violating a city ordinance
prohibiting the possession of marijuana, 
id. at 852-55.
“Under 
our precedents, a formal judgment of guilt entered by
a court qualifies as a conviction under [§ 1101(a)(48)(A)] so
long as it was entered in a ‘genuine criminal proceeding,’ that


                              28
is, a proceeding that was criminal in nature under the
governing laws of the prosecuting jurisdiction.’” 
Id. at 852-
53 
(quoting Rivera-Valencia, 24 I. & N. Dec. at 486-87.
According to the BIA, the judgment at issue was entered in a
genuine criminal proceeding under the laws of Kansas
because municipal court judges possessed the power to enter
judgments of guilt and impose fines or incarceration in
marijuana possession cases, the prosecution was required to
prove the charge beyond a reasonable doubt, and the
judgment of guilt represented a conviction for purposes of
calculating a defendant’s criminal history. 
Id. The agency
further 
rejected the alien’s specific contentions regarding the
absence of an absolute right to be represented by appointed
counsel (purportedly unlike the approach to appointment of
counsel used in the state’s district courts) as well as the lack
of a right to a jury trial. 
Id. at 853-54. Specifically, 
the BIA
concluded that the municipal court trial qualified as a genuine
criminal proceeding because, “[i]f the municipal court finds
the defendant guilty, the defendant then has a constitutional
and statutory right to appeal to a State district court for a trial
de novo before a jury.” 
Id. at 854 (citations 
omitted). In any
case, the BIA looked to Kansas state law in order to
determine whether the judgment was entered in a genuine
criminal proceeding under the laws of the prosecuting
jurisdiction and, in turn, considered more than the applicable
standard of proof. The agency also noted that it did “not
purport to address municipal or local judgments other than the
particular Wichita judgment before us.” 
Id. at 855 n.3.
“Because such judgments vary widely across jurisdictions,
each must be examined on its own merits.” 
Id.



                                29
        “‘Agencies are 
not free, under Chevron, to generate
erratic, irreconcilable interpretations of their governing
statutes.’” 
Valdiviezo-Galdamez, 663 F.3d at 604 
(quoting
Marmolejo-Campos v. Holder, 
558 F.3d 903
, 920 (9th Cir.
2009) (Berzon, J., dissenting)). Accordingly, “‘[c]onsistency
over time and across subjects is a relevant factor [under
Chevron] when deciding whether the agency’s current
interpretation is ‘reasonable.’” 
Id. (quoting Marmolejo-
Campos, 
558 F.3d at 920 (Berzon, J., dissenting)). While it
can change its own policies, the BIA acts arbitrarily if it does
so without proffering a principled reason or explanation. See,
e.g. 
id. at 608.

       According 
to the government, the BIA’s interpretation
of what constitutes a crime under the INA is entitled to
deference, and we should defer to its legal conclusion in this
matter. However, we do not believe that Chevron deference
would be appropriate in light of our discussion of Eslamizar
as well as subsequent BIA case law.3 At the very least, the
non-precedential decision in Bajric and the precedential
decisions in Rivera-Valencia and Cuellar-Gomez weigh in
favor of our interpretation of Eslamizar and a general
“criminal proceeding” approach to § 1101(a)(48)(A). We do
acknowledge that, in two unpublished single-member

       3
            We therefore need not—and do not—reach the
question of whether we could accord Chevron deference to an
unpublished decision by a single member of the BIA, see,
e.g., De Leon v. Attorney General, 
622 F.3d 341
, 348-51 (3d
Cir. 2010) (refusing to decide whether such decisions are
entitled to deference under Chevron).

                              30
decisions addressing shoplifting offenses under New Jersey
law, the BIA apparently concluded that such offenses were
convictions under § 1101(a)(48)(1) and Eslamizar merely
because the respective aliens were found guilty under a
“reasonable doubt” standard of proof (and were ordered to
pay fines). See In re Delgado, A13 924 138, 
2008 WL
762624 
(BIA Mar. 11, 2008) (unpublished decision), petition
for review denied sub nom. Delgado v. Attorney General, 349
F. App’x 809 (3d Cir. 2009) (per curiam); In re Dilone, A44
476 837, 
2007 WL 2463936 
(BIA Aug. 6, 2007) (unpublished
decision). The BIA, to date, has offered no attempt to
reconcile, reject, or otherwise explain its inconsistent
decisions. In fact, it has not even recognized that there may
be a problem with its own decisions in the present context.
We therefore are confronted here with a clear case of “erratic,
irreconcilable interpretations.’”4 
Valdiviezo-Galdamez, 663
F.3d at 604 
(citation omitted).

      4
         The BIA and the government have also turned for
support to non-precedential case law from this Court. In
Hussein v. Attorney General, 413 F. App’x 431 (3d Cir.
2010), the alien pled guilty before a New Jersey court of
possession of drug paraphernalia, a disorderly persons offense
under New Jersey law, 
id. at 432. We 
concluded that it was
not unreasonable for the BIA to determine that this offense
qualified as a conviction under § 1101(a)(48)(A) because the
government had the burden of proving every element beyond
a reasonable doubt, the alien willingly pled guilty, and the
judge sentenced him to serve forty-two days in jail. 
Id. at
434. In 
response to the alien’s attempt to compare his offense
to the offense at issue in Eslamizar, we offered the following

                              31
interpretation of the BIA’s holding:

              Unlike the right to have each element of
       a crime proven “beyond a reasonable doubt,”
       the Constitution does not entitle a person facing
       up to six months in jail the rights to indictment
       by a grand jury or to a trial by jury. Blanton v.
       N. Las Vegas, [
489 U.S. 538 
(1989)]; Hurtado
       v. California, [
110 U.S. 516 
(1884)]. Thus,
       while the BIA referred to a number of
       procedural deficiencies in Eslamizar, it was the
       inadequate burden of proof that alone formed
       the basis for its holding.

Id. This Court in 
Burrell v. Attorney General, 347 F. App’x
805 (3d Cir. 2005) (per curiam), likewise rejected the alien’s
contention that his convictions could not be crimes involving
moral turpitude because they were all disorderly persons
offenses under New Jersey law, 
id. at 807. Noting 
the
irrelevance of New Jersey’s own characterizations, we stated
that the “proper inquiry is whether the offense was ‘a formal
judgment of guilty of the alien entered by a court,’ and
whether it therefore constitutes a conviction pursuant to [§
1101(a)(48)(A)].” 
Id. The alien’s convictions 
for unlawful
taking of the means of conveyance, receipt of stolen property,
and shoplifting all constituted formal judgments of guilt. 
Id.


                              32
       It is 
well established that we are not bound by our own
non-precedential opinions. See, e.g., 3d Cir. I.O.P. 5.7 (“The
court by tradition does not cite to its not precedential opinions
as authority. Such opinions are not regarded as precedents
that bind the court because they do not circulate to the full
court before filing.”). We further note that the decisions did
not include a full analysis of either § 1101(a)(48)(A),
Eslamizar, or the subsequent BIA decisions. In fact, the
Court in Burrell did not even cite to Eslamizar itself.
Furthermore, we believe that the statement in Hussein that the
“inadequate burden of proof . . . alone formed the basis” of
the holding in Eslamizar, 413 F. App’x at 434, is best read as
a statement that, given the arguments made by the parties, the
burden of proof appeared to be the determinative factor (and
not as a general observation about the relative importance of
the various factors in Eslamizar or as a definitive holding
about the BIA’s interpretation of § 1101(a)(48)(A)).


                               33
        We will grant Castillo’s petition for review and
remand for further proceedings consistent with this opinion.
As we have noted, “‘an agency can change or adopt its
policies.’” 
Id. at 608 (quoting 
Johnson v. Ashcroft, 
286 F.3d
696
, 700 (3d Cir. 2002)). “However, an agency ‘acts
arbitrarily if it departs from its established precedents without
announcing a principled reason for its decision,’” id. (quoting
Johnson, 286 F.3d at 700
), and, in any case, “any announced
changes must be based on a permissible construction of the
statute,’” 
id. at 608 n.19. 
On remand, the BIA should
consider the broader question we initially asked it to address
in our prior opinion, i.e., whether Castillo was “‘convicted of
[a] crime [ ]’” under § 1227(a)(2)(A)(ii).” Castillo, 411 F.
App’x at 503; see also, e.g., 
id. (“While the statutory

        We reach a somewhat similar conclusion with respect
to a Tenth Circuit opinion that briefly addressed Eslamizar
(and actually represents the only precedential circuit court
decision to have done so before our opinion). In Gradiz v.
Gonzales, 
490 F.3d 1206 
(10th Cir. 2007), the court observed
that the BIA “found that a state-labeled ‘violation’ was not a
conviction for purposes of § 1101(a)(48)(a) when it was
adjudicated using a preponderance-of-the-evidence standard
rather than the standard of proof beyond a reasonable doubt,”
id. at 1208. According 
to the Tenth Circuit, “Eslamizar does
nothing more than reaffirm our traditional standard that
findings of guilt must be beyond a reasonable doubt.” 
Id.
However, the Gradiz 
court made these statements in the
specific context of deciding that a no contest plea, probation,
and deferred sentence qualified as a conviction under §
1101(a)(48)(A), 
id. at 1207-08.

                               34
definition of ‘conviction’ may be found to assist in the
analysis, even given that definition, one must still ask
‘conviction’ of what.”). In doing so, it should endeavor to
provide an explicit justification for its answer to our question.
In turn, the BIA should attempt to clarify Eslamizar and the
agency’s reading of § 1101(a)(48)(A). The agency is free to
reconsider that problematic opinion, provided that it states a
reasoned explanation for doing so and any announced
changes are based on a permissible construction of the federal
immigration statute. Otherwise, the BIA should then
determine whether—given New Jersey’s then-operative
characterization of the shoplifting offense, the consequences
of any finding of guilt under New Jersey state law, and the
rights available to the accused as well as the other
characteristics of the proceeding before the East Brunswick
Municipal Court—the finding that Castillo was guilty of
shoplifting was entered in a “criminal proceeding, that is, a
trial or proceeding whose purpose is to determine whether the
accused committed a crime and which provides the
constitutional safeguards normally attendant upon a criminal
adjudication,” Eslamizar, 23 I. & N. Dec. at 687.5

       5
            We have also considered Castillo’s due process
argument and find it to be without merit. See, e.g., Castro v.
Attorney General, 
671 F.3d 356
, 365 (3d Cir. 2012) (“In the
removal context, due process requires that ‘an alien be
provided with a full and fair hearing and a reasonable
opportunity to present evidence.’” (quoting Romanishyn v.
Attorney General, 
455 F.3d 175
, 185 (3d Cir. 2006))); Jean-
Louis, 582 F.3d at 466 
n.4 (concluding that alien seeking
discretionary relief from removal has no cognizable liberty or

                               35
                             IV.

       For the foregoing reasons, we will grant the petition
for review and remand for further proceedings consistent with
this opinion.




property interest subject to protection of Due Process Clause).

                              36