PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 17-1213


ANDREW RICHARD SHAW,

                   Petitioner,

             v.

JEFFERSON B. SESSIONS III, Attorney General,

                   Respondent.


On Petition for Review of an Order of the Board of Immigration Appeals.


Argued: March 20, 2018                                       Decided: August 7, 2018


Before GREGORY, Chief Judge, and WILKINSON and AGEE, Circuit Judges.


Petition for review denied by published opinion. Judge Agee wrote an opinion, in which
Judge Wilkinson joined. Chief Judge Gregory wrote a dissenting opinion.


ARGUED: Lida Duke Angier, DEHGHANI & ASSOCIATES, LLC, New Haven,
Connecticut, for Petitioner. Anna Juarez, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Kevin E. Dehghani, Ross W.
Hakala, DEHGHANI & ASSOCIATES, LLC, New Haven, Connecticut, for Petitioner.
Chad A. Readler, Acting Assistant Attorney General, M. Jocelyn Lopez Wright, Senior
Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
AGEE, Circuit Judge:

       Petitioner Andrew Richard Shaw, a native and citizen of the United Kingdom and

a Lawful Permanent Resident, was convicted under New Jersey law of conspiracy in the

third degree and was sentenced to two years’ probation. Later, after returning from a trip

abroad, the Department of Homeland Security (“DHS”) determined that Shaw was

inadmissible under Section 212(a)(2)(A)(i)(II) (the “Controlled Substance Provision”) of

the Immigration and Nationality Act (the “INA”), denied him entry into the United States

and began removal proceedings. The Controlled Substance Provision states, “[A]ny alien

convicted of, or who admits having committed, or who admits committing acts which

constitute the essential elements of . . . a violation of (or a conspiracy or attempt to

violate) any law or regulation of a State . . . relating to a controlled substance (as defined

in section 802 of Title 21) . . . is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)(i)(II). An

immigration judge (“IJ”) agreed, concluded that Shaw was inadmissible, and ordered him

removed under 8 U.S.C. § 1227(a)(1)(A). 1 The Board of Immigration Appeals (the

“Board”) dismissed Shaw’s appeal.

       Shaw now petitions this Court for review. We find no error with the Board’s

decision and deny Shaw’s petition for review.



       1
           As a lawful permanent resident, Shaw’s re-entry into the United States from a trip
abroad usually would not be considered “seeking admission into the United States for purposes
of the immigration laws[.]” 8 U.S.C. § 1101(a)(13)(C). In other words, in the ordinary case,
lawful permanent residents are not removable under statutes governing aliens seeking admission.
Shaw’s case falls within an exception to this general rule. In particular, a lawful permanent
resident is regarded as seeking admission if he “has committed an offense identified in section
1182(a)(2)[.]” 

       In March 2007, Shaw was charged in New Jersey state court with, among other

things, possession of “twenty-five pounds or more” of marijuana with the intent to

distribute and conspiracy to commit that crime. A.R. 195. Shaw pleaded guilty to the

conspiracy offense and the state court sentenced him to two years’ probation. As relevant

to Shaw’s instant petition, the statute to which he pleaded guilty, N.J. Stat. Ann. § 2C:5-2

(the “Conspiracy Statute”), is a generic conspiracy statute: it forbids any agreement to

“engage in conduct which constitutes [a] crime.” N.J. Stat. Ann. § 2C:5-2(a). 2 In

exchange for his plea, the State dismissed the remaining charges in the indictment.

       Several years after Shaw’s conviction, he briefly left the United States for the

United Kingdom. In June 2014, Shaw returned to the United States through Raleigh–

Durham International Airport, in North Carolina. At the airport, Shaw applied for

admission to the United States as a lawful permanent resident. His application was

denied.



       2
          The Conspiracy Statute provides in full:
       A person is guilty of conspiracy with another person or persons to commit a crime
       if with the purpose of promoting or facilitating its commission he:

       (1) Agrees with such other person or persons that they or one or more of them
           will engage in conduct which constitutes such crime or an attempt or
           solicitation to commit such crime; or

        (2) Agrees to aid such other person or persons in the planning or commission of
            such crime or of an attempt or solicitation to commit such crime.
N.J. Stat. Ann. § 2C:5-2(a).




                                              3
      Following that denial of admission, DHS initiated removal proceedings by serving

Shaw with a Notice to Appear. The operative Notice to Appear alleged that Shaw was

subject to removal because his conviction under the Conspiracy Statute rendered him

inadmissible under the Controlled Substance Provision.

      Shaw contested his removability and filed a motion to terminate the removal

proceedings, contending that he was not inadmissible under the Controlled Substance

Provision. According to Shaw, the Conspiracy Statute did not categorically relate to a

controlled substance and, thus, that he was not inadmissible under the Controlled

Substance Provision. He also maintained that the Conspiracy Statute was not divisible

and, therefore, that the IJ should use the categorical rather than the modified categorical

approach adopted in Descamps v. United States, 

(2013). Under the

categorical approach, the Board would examine the fact of Shaw’s conviction, not its

circumstances, to determine whether the Conspiracy Statute as a whole necessarily

related to a controlled substance. See Omargharib v. Holder, 

, 196 (4th Cir.

2014). The “modified categorical approach applies only if a state crime consists of

multiple, alternative elements creating several different crimes, some of which would”

necessarily involve a controlled substance, and others that would not. 

marks omitted).

       The IJ rejected Shaw’s arguments. At the outset, the IJ determined that neither the

categorical nor the modified categorical approach was appropriate, but rather that the

Controlled Substance Provision required application of the “circumstance-specific”

approach. Under that approach, the IJ may review the “attendant circumstance[s] of the

                                            4
underlying conviction.” Hernandez-Zavala v. Lynch, 

, 263 (4th Cir. 2015).

To determine those attendant circumstances, the IJ consulted the indictment and criminal

judgment in Shaw’s New Jersey criminal case. Relying on those documents, the IJ

concluded that Shaw’s Conspiracy Statute conviction was founded on a conspiracy to

distribute more than twenty-five pounds of marijuana, a controlled substance. The IJ thus

held that Shaw was inadmissible, denied Shaw’s motion, and ordered him removed.

      Shaw appealed the IJ’s order to the Board. There, he principally contended that the

IJ “erred in holding that [he] was inadmissible because of a conspiracy conviction.” A.R.

47. In other words, Shaw stuck to his previously unsuccessful position and argued that his

conviction did not categorically relate to a controlled substance and that the Conspiracy

Statute was otherwise indivisible. Shaw also introduced a back-up position: even if the

Conspiracy Statute were divisible, the IJ improperly considered the indictment in

contravention of 8 C.F.R. § 1003.41, which, Shaw argued, prohibited the use of

indictments (and other non-certified court documents) as evidence in removal

proceedings.

      The Board dismissed Shaw’s appeal. Initially, it rejected the IJ’s use of the

circumstance-specific approach. Even so, the Board concluded that the IJ’s

methodology—reviewing the indictment—was permissible because the Conspiracy

Statute was divisible. Finally, reviewing the IJ’s conclusion, the Board agreed: Shaw’s

conviction under the Conspiracy Statute rendered him inadmissible.

      Shaw timely petitioned this Court for review of the Board’s adverse decision. We

have jurisdiction to consider Shaw’s petition for review under 8 U.S.C. § 1252.

                                            5
                                                II.

      We review the Board’s legal determinations de novo, but afford Chevron 3

deference to those determinations when the Board interprets or applies the INA. Turkson

v. Holder, 

, 527 (4th Cir. 2012). We have limited power to review

administrative findings of fact. Such “facts are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).



                                               III.

                                                A.

      In his petition for review, Shaw revisits his earlier-made arguments. First, he

contends that the Board improperly applied the modified categorical approach and should

have used the categorical approach. Consequently, Shaw argues that the Board should

have looked no further than the face of the Conspiracy Statute. He also asserts that, even

if the Conspiracy Statute were divisible, his indictment wasn’t proper evidence under the

INA. We address each of these arguments in turn.

                                                1.

      Shaw first contends that the Board must apply the categorical approach to a

generic conspiracy conviction like that at issue here; it cannot consider the conspiracy’s

object. Accepting Shaw’s argument would mean that the Board could not look beyond

the fact of his conviction to determine whether it involved a controlled substance. Shaw


      3
          Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 

(1984).


                                                6
gives two reasons to support his position: First, such statutes are not divisible because

they do not list alternative elements, but rather only one crime: conspiracy. Second,

generic conspiracy statutes do not categorically relate to any controlled substance

because they touch on any agreement to violate the law. We find Shaw’s contention

without merit.

      Shaw’s argument rests on the incorrect assumption that the Board must analyze

inchoate crimes—attempt, conspiracy, and solicitation—like any other: by looking only

to the elements of the statute criminalizing the inchoate conduct. 4 But Board precedent

recognizes that inchoate crimes are unique because they “presuppose[] a purpose to

commit another crime.” See Matter of Beltran, 20 I. & N. Dec. 521, 526–27 (B.I.A.

1992). That distinction, in turn, makes the underlying criminal purpose—the statute the

alien conspired to violate, for example—the focal point of the Board’s analysis.

      In Matter of Beltran, the Board held that if the object of an inchoate offense

“would constitute a ground of deportability under [the Controlled Substance Provision],”

it would “likewise consider a conviction for solicitation [or attempt or conspiracy] to

commit that crime to be a violation of a law ‘relating to a controlled substance.’” 

More specifically, the Board looked through the aliens’ conviction under Arizona’s

generic criminal solicitation statute and, instead, analyzed whether the solicited crime—

possession of narcotic drugs—was a ground for inadmissibility under the Controlled


      4
          An inchoate crime is “[a] step toward the commission of another crime, the step
itself being serious enough to merit punishment.” Offense, Black’s Law Dictionary (10th
ed. 2014).

                                            7
Substance Provision. See 

And, regardless of the term used by the Board, it

followed that same procedure here: faced with a generic conspiracy statute, it looked

through the statute and performed its categorical analysis on the object of Shaw’s

conspiracy: possession of a controlled substance with the intent to distribute it.

       With Board precedent solidly against his position, Shaw argues that the result

compelled by Matter of Beltran is contrary to law. See 8 U.S.C. § 1252(b)(4)(C) (“[A]

decision that an alien is not eligible for admission to the United States is conclusive

unless manifestly contrary to law.”). We disagree.

       Indeed, the procedure the Board used in Beltran mirrors our own precedent

applying the categorical approach to inchoate crimes. See United States v. Ward, 

(4th Cir. 1999). In Ward, we held that—when a sentencing court must

determine if a defendant’s conviction under a generic conspiracy statute is categorically

identical to a generic federal crime—it should look beyond the statute and, instead, apply

the categorical approach to the conspiracy’s object. 

The defendant in Ward

had been convicted under Virginia’s generic conspiracy statute for a conspiracy to

commit the underlying crime of robbery. 

We were asked to determine whether

that crime qualified as a “crime of violence” under United States Sentencing Guidelines

Manual § 4B1.2. To answer that question, we looked through the generic conspiracy

statute and analyzed the object of the conspiracy: Virginia’s robbery offense. The Court

explained:

       Before one may be convicted of a conspiracy charge, it must always be
       asked: “conspiracy to do what?” Though Virginia’s conspiracy statute does
       not explicitly include as an element “the use, attempted use, or threatened

                                              8
       use of physical force against the person of another,” that element logically
       must be proven to support a conviction for conspiracy to commit a violent
       felony. Simply because some conspiracy convictions will not be predicate
       offenses, Taylor’s categorical approach[5] does not require a finding that all
       conspiracy convictions are exempt from serving as predicate offenses. Such
       a rule would ignore the policy underlying Taylor’s categorical approach as
       one meant “to capture all offenses of a certain level of seriousness that
       involve violence or an inherent risk thereof, and that are likely to be
       committed by career offenders.” To give full effect to this policy, it is
       critical to determine the object of the conspiracy.

(internal citations omitted). The Court then looked to “the record of

conviction, the charging document, and the jury instructions” to learn the object of the

conspiracy. 

Just as the Board’s analysis was faithful to its decision in Matter of

Beltran, so, too, was it faithful to the procedure this Court applied in Ward.

       This analysis and outcome are consistent with the approach adopted by the other

circuit courts of appeals. See, e.g., Mizrahi v. Gonzales, 

(2d Cir. 2007);

Peters v. Ashcroft, 

, 306–07 (5th Cir. 2004) (upholding the Board’s

application of Matter of Beltran to an Arizona solicitation law); see also Coronado-

Durazo v. INS, 

, 1325 (9th Cir. 1997) (declining to apply similar language

in 8 U.S.C. § 1251(a)(2) to a solicitation conviction, but noting that “aliens who have

been convicted . . . of conspiracy or attempt to violate” a controlled substance law are

deportable). In Mizrahi, for example, the Second Circuit held that it was proper for the

Board to consider the indictment and other case-specific documents to determine whether

the inchoate offense of criminal solicitation qualified as a conviction relating to a

controlled 

–57. The court noted that inchoate offenses, like

       

. United States, 

(1990).

                                              9
solicitation or conspiracy, become criminal only if the defendant’s conduct is tied to “the

criminally proscribed object of another statute”: “a defendant is guilty not of generic

conspiracy, but of conspiracy to murder; not of generic attempt, but of attempt to kidnap;

not of generic solicitation, but of solicitation to sell drugs.” 

Thus, relying on

Matter of Beltran, and for reasons nearly identical to those articulated in Ward, the

Mizrahi court concluded that the Board could review the plea agreement to determine

whether the alien’s conviction for an inchoate offense rendered him inadmissible. 

       We thus conclude the Board correctly looked through the Conspiracy Statute to

review the criminal object of the conspiracy to which Shaw pleaded guilty—possession

of more than twenty-five pounds of marijuana with the intent to distribute. Shaw

necessarily conspired to do something. Without the power to consult the indictment, the

Board would have been unable to learn the object of that conspiracy. To remove that tool

from the Board’s reach, as Shaw requests, would inhibit its ability to enforce the INA.

That conclusion is especially true here, as the Controlled Substance Provision explicitly

contemplates the Board applying it to aliens convicted of conspiracy offenses. 8 U.S.C.

§ 1182(a)(2)(A)(i)(II).

       Assured that the Board applied the proper procedure, we briefly address its

conclusion: that Shaw’s conspiracy conviction relates to a controlled substance. The

administrative record shows that the object of Shaw’s conspiracy was the possession of a

significant amount of marijuana with the intent to distribute it. Marijuana is a controlled

substance, listed in Schedule I of the Controlled Substances Act. See 21 U.S.C. § 802(6)

                                             10
(“The term ‘controlled substance’ means a drug or other substance, or immediate

precursor, included in [any] schedule . . . [found in] part B[.]”); 

sch. I (listing

“marihuana” as a Schedule I controlled substance). Accordingly, any crime involving

marijuana—like the one to which Shaw pleaded guilty—is a crime relating to a

controlled substance.

       In sum, the Board correctly determined that Shaw was convicted of a conspiracy

related to the distribution of a controlled substance. That conviction, in turn, rendered

Shaw inadmissible under the Controlled Substance Provision and, therefore, subject to

removal under § 1227(a)(1)(A).

                                             2.

       We next consider whether DHS may use an indictment as evidence of a conviction

in a removal proceeding. The INA, specifically 8 U.S.C. § 1229a, provides extensive

detail about the conduct of such proceedings. DHS “has the burden of establishing by

clear and convincing evidence” that an alien is deportable. See 8 U.S.C.

§ 1229a(c)(3)(A). When the alien’s criminal history is at issue, § 1229a lists items that

“shall constitute proof of a criminal conviction,” which include:

          • An official record of judgment and conviction.

          • An official record of plea, verdict, and sentence.

          • A docket entry from court records that indicates the existence of the
            conviction.

          • Official minutes of a court proceeding or a transcript of a court
            hearing in which the court takes notice of the existence of the
            conviction.

                                             11
          • An abstract of a record of conviction prepared by the court in which
            the conviction was entered, or by a State official associated with the
            State's repository of criminal justice records, that indicates the
            charge or section of law violated, the disposition of the case, the
            existence and date of conviction, and the sentence.

          • Any document or record prepared by, or under the direction of, the
            court in which the conviction was entered that indicates the
            existence of a conviction.

          • Any document or record attesting to the conviction that is
            maintained by an official of a State or Federal penal institution,
            which is the basis for that institution’s authority to assume custody
            of the individual named in the record.

A similarly worded regulation indicates that the same documents

“shall be admissible as evidence in proving a criminal conviction.” 8 C.F.R.

§ 1003.41(a). The regulation further makes clear that “[a]ny other evidence that

reasonably indicates the existence of a criminal conviction may be admissible as evidence

thereof.” 

       According to Shaw, the Board could not rely on his indictment because

§ 1229a(c)(3)(B) exclusively defines the universe of evidence DHS may use to prove the

fact of a conviction. Because an indictment is not listed, Shaw contends that its use by the

Board is categorically foreclosed. Shaw further argues that, because the list of evidence

included in the INA is exclusive, the associated regulation, which permits reliance on

additional evidence, conflicts with the plain language of § 1229a and is therefore invalid.

Again, we disagree with Shaw.

       We interpret statutes by examining their plain language. See Markovski v.

Gonzales, 

, 110 (4th Cir. 2007). Section 1229a(c)(3)(B) provides that the


                                            12
certified court documents listed therein “shall constitute proof of a criminal conviction.”

The “shall constitute proof” language is clear: if DHS introduces one of those items, the

IJ and Board must treat such an item as conclusive proof of a conviction. But, the list in §

1229a(c)(3)(B) only sets out what evidence must be treated as conclusive; it contains no

language excluding other types of reliable evidence. The statute does not require the IJ or

the Board to ignore other persuasive evidence from DHS. To the contrary, the fact a

document is not included in § 1229a(c)(3)(B)’s list of records “does not render [it] per se

inadmissible.” See Fraser v. Lynch, 

, 863–64 (8th Cir. 2015). That’s where

the regulations governing removal proceedings come into play. When DHS chooses to

rely on documents outside of the § 1229a(c)(3)(B) list, the regulation, 8 C.F.R.

§ 1003.41(d), provides that DHS may do so—and that the IJ and the Board may consider

those documents—so long as such documents “reasonably indicate[] the existence of a

criminal conviction.” 8 C.F.R. § 1003.41(d). Here, the indictment was proper evidence

under 8 C.F.R. § 1003.41(d). Significantly, Shaw does not contest that the indictment,

when considered alongside the criminal judgment, reasonably indicates the existence of

his criminal conviction.

       We thus conclude that § 1229a(c)(3)(B) did not prohibit the Board from

considering Shaw’s indictment.

                                            B.

       In the usual case, rejecting the arguments presented in the petition for review ends

the analysis. We note that Shaw raised a new theory for the first time at oral argument:

that DHS could not carry its burden to demonstrate his removability because the

                                            13
indictment in the administrative record—and, consequently, the indictment used by the

Board to ascertain the object of Shaw’s conspiracy—was not the indictment to which he

pleaded guilty.

       Regardless of what, if any, merit this tardy argument has, we lack jurisdiction to

consider it. Under § 1252(d)(1), we may review a “final order of removal only if . . . the

alien has exhausted all administrative remedies available to the alien as of right.” We

apply this exhaustion requirement not only to “final order[s] of removal” globally, but

also to particular claims specifically. See Ramirez v. Sessions, 

, 700 (4th Cir.

2018) (Gregory, C.J.) (“When an alien has an opportunity to raise a claim in

administrative proceedings but does not do so, he fails to exhaust his administrative

remedies as to that claim.”). Thus, if an alien could have raised an argument before the

Board, but didn’t, we do not have the authority to consider the argument in the first

instance.

       Here, we have little difficulty concluding that Shaw failed to exhaust his

administrative remedies as to his claim that the record relied on by DHS was incomplete.

Shaw’s counsel admitted at oral argument that this argument was not presented to the

Board. Oral Arg. at 34:15–34:40 (indicating that this issue “was not articulated” before

the Board); see also 

(counsel for the Government agreeing). Shaw

never argued before the IJ, the Board, or on brief to this Court that there was any defect

in the conspiracy indictment, but only that all indictments were impermissible evidence.

       To fail to raise a legal theory before the Board is to abandon that theory. See, e.g.,

Tang v. Lynch, 

, 183 (4th Cir. 2016) (holding failure to raise claim under

                                            14
Convention Against Torture with the Board prohibited consideration of that claim in a

petition for review); Massis v. Mukasey, 

, 638–40 (4th Cir. 2008) (rejecting

argument, raised for the first time on appeal, that a state law did not constitute a “crime of

violence” under the INA). In his notice of appeal to the Board, Shaw raised only two

contentions. First, that the IJ “erred in holding that [he] was inadmissible because of a

conspiracy conviction.” A.R. 47. And second, that the IJ “erred in admitting records

related to [his] conviction that were beyond the certified record of conviction.” A.R. 47

(emphasis added). Only one of Shaw’s arguments—the second—addressed the evidence

of record. And that argument was solely whether or not an IJ can ever consider an

indictment, any indictment, under the INA and its associated regulations.

       Shaw’s new argument has no nexus to the arguments he previously made.

Contrary to all his previous arguments, he now posits that indictments may be proper

evidence of a conviction, but maintains that this indictment suffers a different, more

significant problem: the indictment in the record wasn’t the one to which he pleaded

guilty. This argument was never raised before the IJ, the Board, or on brief before this

Court. No party obtains relief for an argument first raised in oral argument to which

neither the other party nor the Court was previously apprised. See 

(noting that this Court does not have the authority to consider “bases for relief that

were not raised below”).

       In sum, in earlier proceedings Shaw challenged the admissibility of a particular

piece of evidence on statutory grounds, not that there was any insufficiency in the

indictment itself. At oral argument, he raised a completely new argument to challenge the

                                             15
overall sufficiency of the evidence. He had not raised that contention anywhere before

oral argument. Accordingly, we are without jurisdiction to address it. See 8 U.S.C. §

1252(d)(1) (giving the courts of appeals jurisdiction over only those claims the alien has

fully exhausted).



                                           IV.

       For those reasons, we find no error in the Board’s conclusion that Shaw was

inadmissible under the Controlled Substance Provision and therefore is subject to

removal under 8 U.S.C. § 1227(a)(1)(A). Shaw’s petition for review accordingly is

                                                                                DENIED.




                                           16
GREGORY, Chief Judge, dissenting:

       The majority endorses the Board’s decision to ban a lawful permanent resident

from the country based on a conviction that never occurred. Rather than grappling with

this fact, the majority misconstrues the exhaustion doctrine to hold that we lack

jurisdiction to consider it. Because I believe that we have jurisdiction to consider Shaw’s

argument regarding the reliability of the government’s evidence, and that it has merit, I

would grant the petition for review, vacate the order of removal, and remand to the Board

for further proceedings.



                                            I.

       Andrew Richard Shaw has been a lawful permanent resident in the United States

since 1988. In June 2007, he pleaded guilty under New Jersey’s generic conspiracy

statute to agreeing with another person to commit or aid in “a crime.” N.J. Stat. Ann.

§ 2C:5-2.   Seven years later, when Shaw was returning from a trip abroad, the

Department of Homeland Security (DHS) deemed him inadmissible based on his 2007

conspiracy conviction. Six months after that, DHS initiated removal proceedings, again

based solely on the 2007 conspiracy conviction. DHS charged in relevant part that the

conviction qualified as a violation of a law relating to a controlled substance under the

INA, 8 U.S.C. § 1182(a)(2)(A)(i)(II), and therefore rendered Shaw inadmissible. 1



       1
       Because DHS seeks to remove Shaw on inadmissibility grounds, I use the terms
“inadmissible” and “removable” interchangeably. See also ante note 1.
       To substantiate this charge, DHS produced two documents: an indictment and the

judgment of conviction. The indictment alleges that Shaw and two other individuals “did

conspire with each other to dispense or distribute a controlled dangerous substance, that

is, marijuana, in a quantity of twenty-five pounds or more, in violation of N.J.S. 2C:35-

5a(1) and 2C:35-5b((10)(a)), contrary to the provisions of N.J.S. 2C:5-2.” A.R. 146. 2

The judgment shows that Shaw pleaded guilty to one count of conspiracy in the third

degree. Based on these documents, the immigration judge (IJ) found that Shaw had been

convicted of conspiracy to distribute twenty-five pounds or more of marijuana, agreed

with DHS that Shaw was inadmissible to the United States under 8 U.S.C.

§ 1182(a)(2)(A)(i)(II), and ordered him removed.       Shaw appealed to the Board of

Immigration Appeals (Board) without success. Like the IJ, the Board determined that

Shaw’s conviction was for the conspiracy crime charged in the indictment. Shaw now

seeks review in this Court.



                                           II.

       Under New Jersey law, the conspiracy-to-distribute-drugs charge listed in the

indictment DHS presented cannot be the conspiracy crime listed in the judgment. The

record contains no conclusive evidence that Shaw admitted to or was convicted of a


       2
         The indictment contains two other charges, both of which were dropped: one for
possession with intent to distribute twenty-five pounds or more of marijuana, in violation
of N.J. Stat. Ann. § 2C:35-5a(1), b(10)(a), and one for the same crime “within 1,000 feet
of school property used for school purposes,” in violation of N.J. Stat. Ann. § 2C:35-7.
A.R. 146.

                                           18
controlled-substance offense. Thus, DHS has failed to meet its burden of proving that

Shaw is inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II), and the IJ and the Board

erred by relying on the indictment DHS presented.

                                            A.

       New Jersey grades conspiracy offenses according to the seriousness of the

underlying object of the conspiracy: “[C]onspiracy to commit a crime of the first degree

is a crime of the second degree,” and in all other cases, “conspiracy is a crime of the same

degree as the most serious crime which is the object of the conspiracy.” N.J. Stat. Ann.

§ 2C:5-4. In other words, second-degree conspiracy is conspiracy to commit a crime of

either the first or second degree; third-degree conspiracy is conspiracy to commit a crime

of the third degree; and fourth-degree conspiracy is conspiracy to commit a crime of the

fourth degree. See 

was convicted of third-degree conspiracy, we know

that he was convicted of conspiring to commit a crime of the third degree. See 

conspiracy crime listed in the indictment is not a crime of the third degree.

The indictment alleges that Shaw conspired to dispense or distribute twenty-five pounds

or more of marijuana in violation of N.J. Stat. Ann. §§ 2C:35-5a(1) and 2C:35-5b(10)(a).

Per those statutes, dispensation or distribution of twenty-five pounds or more of

marijuana is a crime of the first degree.        

b(10)(a).    Thus, the

conspiracy crime in the indictment is a crime of the second degree. See 

       Simply put, Shaw did not admit to and was not convicted of conspiracy to

dispense or distribute twenty-five pounds or more of marijuana. He admitted to and was

convicted of conspiracy to commit a lesser crime not listed in the indictment.

                                            19
                                             B.

       This discrepancy is significant not only because DHS has misrepresented Shaw’s

conviction but because DHS has the burden of proving that Shaw in fact committed an

act that renders him removable under the INA. In removal proceedings against a lawful

permanent resident, DHS must “establish[] by clear and convincing evidence” that the

lawful permanent resident is removable.         See 8 U.S.C. § 1229a(c)(3)(A); Salem v.

Holder, 

, 114 (4th Cir. 2011). The clear-and-convincing standard is “a

heavy burden, requiring ‘evidence of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations

sought to be established,’ or ‘evidence that proves the facts at issue to be highly

probable.’” United States v. Watson, 

, 420 (4th Cir. 2015) (quoting United

States v. Heyer, 

, 292 (4th Cir. 2014)).

       DHS charged that Shaw was removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II).

Thus, DHS had to prove by clear and convincing evidence that Shaw was “convicted of,

or [] admit[ted to] having committed, or [] admit[ted to] committing acts which constitute

the essential elements of . . . a violation of (or a conspiracy or attempt to violate) any law

or regulation of a State, the United States, or a foreign country relating to a controlled

substance.” See 

to meet its burden. Given that the indictment DHS presented does not

list the crime to which Shaw pleaded guilty, that document offers no evidence of either

Shaw’s conviction or what Shaw admitted to doing. Without the indictment, the only

evidence of Shaw’s conviction is the judgment. And the judgment shows only that Shaw

                                             20
was convicted of conspiracy to commit “a crime” of the third degree. See N.J. Stat. Ann.

§§ 2C:5-2, 4; A.R. 143. This is not enough to give rise to “a firm belief or conviction,

without hesitancy,” that Shaw was convicted of conspiracy to violate a law relating to a

controlled substance. See 

; cf. Valansi v. Ashcroft, 

,

217 (3d Cir. 2002) (declining to speculate that noncitizen pleaded guilty to offense that

would render her removable because “alien defendants considering whether to enter into

a plea agreement are acutely aware of the immigration consequences of their convictions”

(quoting I.N.S. v. St. Cyr, 

, 322 (2001))).

       The record suggests that DHS had doubts about the sufficiency of its evidence too.

During the removal proceedings, DHS requested a continuance and an extension of

time—after it had submitted the judgment and indictment described here—so that it could

obtain additional records of Shaw’s conviction.           A.R. 152 (“DHS has requested

additional documents from the New Jersey Superior Court, Law Division Hudson

County. DHS has not yet received a response to that request. . . . DHS would respectfully

request more time to allow the New Jersey state court to respond to the request for

additional documents. . . .[] Once DHS receives a response, DHS will be able to fully

respond to the respondent’s motion to terminate.”). Indeed, multiple documents could

have revealed the actual object crime underlying Shaw’s conspiracy conviction—the




                                            21
transcript of the plea colloquy, the plea agreement, a superseding indictment. But DHS

never submitted any of these additional documents. 3

       There is a reason that 8 U.S.C. § 1229a(c)(3)(B)—the INA provision listing

documents that “shall constitute proof of a criminal conviction”—does not include

indictments or other charging documents. An indictment states what the government “set

out to prove,” not what the government in fact proved or what the defendant admitted.

United States v. Velasco-Medina, 

, 852 (9th Cir. 2002). To be sure, the list

in § 1229a and the accompanying regulation in 8 C.F.R. § 1003.41 permit the use of

“other evidence that reasonably indicates the existence of a criminal conviction.” 8

C.F.R. § 1003.41(d). But, unless the defendant was convicted of a crime listed in the

indictment, that indictment cannot “reasonably indicate[]” either a conviction or the facts

underlying it.



                                           III.

       Contrary to the majority’s assertions, Shaw’s previous challenge to the reliability

of the indictment as evidence of his conviction gives us jurisdiction to consider that


       3
          Even assuming that the object crime was a lesser (third-degree) controlled-
substance offense, and therefore Shaw is inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), he may be eligible for relief from removal—relief that the IJ and
the Board determined was not available based on the indictment DHS presented. See 8
U.S.C. § 1182(h) (providing for waiver of 8 U.S.C. § 1182(a)(2)(A)(i)(II) “insofar as it
relates to a single offense of simple possession of 30 grams or less of marijuana”); 

1229b(a) (providing for cancellation of removal for certain permanent
residents convicted of drug crimes so long as crimes do not involve drug trafficking or
another aggravated felony).

                                            22
challenge now. The majority correctly notes that our jurisdiction is limited to claims that

Shaw, the noncitizen petitioner, raised in his administrative proceedings before the

Board. See ante 14 (citing 8 U.S.C. § 1252(d)(1) and Ramirez v. Sessions, 

,

700 (4th Cir. 2018)). But this rule “only prohibits the consideration of bases for relief

that were not raised below, and of general issues that were not raised below.” 

(internal quotation marks and citation omitted). We still may consider

“more specific and nuanced points,” “subsidiary legal arguments, or arguments by

extension, that were not made below” but that “demonstrate how and why” the petitioner

is entitled to relief on a previously articulated basis. 

       Here, Shaw has repeatedly pressed the same basis for relief: failure of proof. As

the IJ noted, Shaw contended that the judgment reveals only a “conspiracy” conviction

and “that the record is unclear as to the nature of the underlying crime to which [he]

pleaded guilty.” A.R. 52. He also submitted to the Board that DHS “failed to meet its

burden of proof . . . because the certified record of conviction [i.e., the judgment 4], which

is the only document that should have been considered by the IJ, is devoid of any

reference to [Shaw] being convicted of a drug trafficking offense.” A.R. 27. And, he

argued, “the records of arrests and charges which were ultimately dismissed do not rise to

       4
         Although we have used the term “record of conviction” to refer to “the charging
document, a plea agreement, a verdict or judgment of conviction, a record of the
sentence, or a plea colloquy transcript,” Bejarano-Urrutia v. Gonzales, 

, 450
(4th Cir. 2005) (citation omitted), Shaw’s counsel used the term to refer to the judgment
of conviction. E.g., A.R. 19 (arguing that the immigration judge went “beyond the record
of conviction in this case by looking at other ancillary documents such as the indictment
record”); A.R. 122 (noting that “the record of conviction for [Shaw] simply shows that he
was convicted of a conspiracy offense, which is not a drug trafficking offense”).

                                               23
the level of clear, unequivocal and convincing [evidence] that the Government is

obligated to meet,” A.R. 29. Shaw further questioned “why the Government did not

obtain a more acceptable form of document, such as a plea colloquy to present in this

case.” A.R. 26. Finally, Shaw stated, “the IJ’s acceptance of the records that the

Government produced is also a violation of 8 CFR § 1003.41 in that a record of

indictment is not listed as one of the documents that could be presented to prove

conviction.” A.R. 26 (emphasis added).

       The “more specific and nuanced” arguments that Shaw articulated at oral

argument are simply additional reasons “why” the indictment is not clear and convincing

evidence that he was convicted of a removable offense. See 

.

At oral argument, counsel explained that the indictment did not match the judgment of

conviction—that the indictment charged conspiracy to commit a first-degree offense and

the judgment reflected that Shaw pleaded guilty to conspiracy to commit a third-degree

offense. See, e.g., Oral Arg. at 05:06‒34, 09:56‒10:33. This explanation is not a new

basis for relief. It is an extension of the same “general issue” that Shaw had been raising

all along, a failure of proof. See 

. To use the majority’s term,

Shaw’s previous argument—that the indictment did “not rise to the level of clear,

unequivocal and convincing,” A.R. 29—has a clear “nexus” (ante 15) to the more




                                            24
specific argument made at oral argument—that “the indictment does not include” “the

factual basis for [his] conviction,” Oral Arg. at 05:06‒24. 5

       The cases the majority cites to support its conclusion otherwise are

distinguishable. In Tang v. Lynch, we lacked jurisdiction to consider a Convention

Against Torture (CAT) claim because the noncitizen petitioner had never argued to the

Board that he was entitled to relief under CAT; he had argued only that he qualified for

asylum and withholding of removal. 

, 180‒83 (4th Cir. 2016). In Massis v.

Mukasey, we lacked jurisdiction to consider a new claim that the noncitizen petitioner’s

reckless endangerment conviction was not a crime of violence, and thus not a crime

subjecting him to removal. 

, 638 (4th Cir. 2008). The noncitizen petitioner

had not raised this argument with either the IJ or the Board; in fact, he had conceded

removability and argued only that he was eligible for a waiver of deportation. 

Both the CAT claim in Tang and the crime-of-violence challenge in Massis

were new bases for relief, independent of those the noncitizen had presented to the Board.

In contrast, the reliability-of-the-indictment argument that Shaw articulates now rests on

the same basis for relief that he has asserted in the past—DHS’s failure to provide

sufficient evidence of his removability.



       5
         The majority emphasizes that “Shaw’s counsel admitted at oral argument that
[the reliability-of-the-indictment] argument was not presented to the Board.” Ante 14
(citing Oral Arg. at 34:15‒34:40). But Shaw’s counsel also explained that this argument
was an extension of the one Shaw had asserted below: “That [argument] was a nuance
that was not articulated earlier; however, [] it is part of the argument that the evidence is
not sufficient here.” Oral Arg. at 34:27‒36.

                                             25
                                           IV.

       The ties that longtime lawful permanent residents, such as Shaw, “develop to the

American communities in which they live and work, should not be lightly severed.”

Hernandez-Guadarrama v. Ashcroft, 

, 682‒83 (9th Cir. 2005). Indeed,

“drastic deprivations [] may follow when a resident of this country is compelled by our

Government to forsake all the bonds formed here and go to a foreign land where he often

has no contemporary identification.” Woodby v. I.N.S., 

, 285 (1966). For

this reason, Congress and the Supreme Court have set a high bar for DHS to remove legal

residents: “no deportation order may be entered unless it is found by clear, unequivocal,

and convincing evidence that the facts alleged as grounds for deportation are true.” 

see 8 U.S.C. § 1229a(c)(3)(A). DHS has plainly failed to clear that bar here.

       Of course, Shaw may have been convicted of conspiracy to commit a lesser (third-

degree) controlled-substance offense. But, under the INA and Supreme Court precedent,

we cannot simply assume that is the case. 8 U.S.C. § 1229a(c)(3)(A); 

.   Such speculation would require us to “draw inferences against” Shaw and

“effectively carry the government’s burden for it.” See Boggala v. Sessions, 

, 573 (4th Cir. 2017) (Diaz, J., dissenting). And this Court is neither equipped nor

permitted to do so.

       I respectfully dissent.




                                            26