931 F.3d 830

FISHER, Circuit Judge, dissenting:
I agree with much of the majority opinion but disagree with the majority that the BIA adequately reconciled its decision in this case with its precedential decisions interpreting the term "formal judgment of guilt" in the Immigration and Nationality Act's definition of "conviction." 8 U.S.C. § 1101(a)(48)(A).
These decisions require that a conviction arise from a proceeding that is "criminal in nature under the governing laws of the prosecuting jurisdiction ." Matter of Eslamizar , 23 I. & N. Dec. 684, 688 (BIA 2004) (emphasis added). Under this standard, a proceeding such as Diaz-Quirazco's punitive contempt proceeding - which is not criminal under Oregon law and does not conform to state requirements for criminal proceedings - seemingly should not result in a "conviction" for immigration purposes. The decision under review here, however, does not address whether Diaz-Quirazco's proceeding was criminal in nature under the governing laws of Oregon and instead looks to a more uniform federal understanding of what is "criminal in nature"; it considers primarily whether the proceeding provided Diaz-Quirazco with procedural safeguards that the U.S. Constitution requires. Because the BIA decision does not reconcile this approach with published precedent, I would grant the petition for review and remand to the BIA for, at minimum, a better explanation of its reasoning. See Alphonsus v. Holder , 705 F.3d 1031, 1049 (9th Cir. 2013) ("[A]bsent an adequate explanation as to how the Board's ... rationale can be reconciled with the Board's precedents and with the statutory language, we cannot say that the Board's decision was the result of legally adequate decisionmaking."), abrogation on other grounds recognized by Guerrero v. Whitaker , 908 F.3d 541, 544 (9th Cir. 2018). I therefore respectfully dissent.
I
Under § 1101(a)(48)(A), "[t]he term 'conviction' means, with respect to an alien, a formal judgment of guilt of the alien entered by a court." In Matter of Eslamizar , the Board's major decision interpreting "formal judgment of guilt," the Board considered whether a third-degree theft judgment in Oregon - classified as a "violation" by the state - was a "formal judgment of guilt," and hence a "conviction." See 23 I. & N. Dec. at 685-86. The Board reasoned that "by 'judgment of guilt' Congress most likely intended to refer to 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 a criminal adjudication." Id. at 687. In discussing prosecutions brought by foreign jurisdictions, the Board further determined "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. at 688.
In the three cases applying this standard, Eslamizar , Matter of Rivera-Valencia , 24 I. & N. Dec. 484 (BIA 2008), and Matter of Cuellar-Gomez , 25 I. & N. Dec. 850 (BIA 2012), the Board has strongly suggested that, where the prosecuting jurisdiction is a state, a conviction can arise only from a proceeding that is "criminal in nature" under state law. This appears to mean that a proceeding that would give rise to a conviction in one state may not give rise to a conviction in another, depending on what makes a proceeding "criminal in nature" under the laws of the respective states. The Board has suggested this in three ways.
First, the Board has said so explicitly. It has repeatedly said that a "proceeding must, at a minimum , be criminal in nature under the governing laws of the prosecuting jurisdiction " if it is to give rise to a conviction. Eslamizar , 23 I. & N. Dec. at 688 (emphasis added); accord Cuellar-Gomez , 25 I. & N. Dec. at 852 ; Rivera-Valencia , 24 I. & N. Dec. at 486-87. It has clarified that, in the context of a state proceeding, this means the proceeding must be criminal in nature under state law. See Cuellar-Gomez , 25 I. & N. Dec. at 853 ("[I]t is evident that the respondent's Wichita judgment was entered in a 'genuine criminal proceeding' under the laws of the State of Kansas."); cf. Rivera-Valencia , 24 I. & N. Dec. at 487 ("Because the respondent's crime was adjudicated in a proceeding that was 'criminal in nature' under the laws of the prosecuting jurisdiction - i.e., the United States Armed Forces - we are satisfied that his 'guilt' was determined in a 'genuine criminal proceeding.' ").
Second, consistent with this clear language, the Board has looked to the prosecuting state's characterization of an offense to determine whether a proceeding was "criminal in nature." In Eslamizar , for instance, the BIA (1) emphasized that Oregon's statutory structure did not define the offense as a "crime"; (2) emphasized that Oregon law did not consider the offense in calculating criminal history; (3) considered whether the proceeding was "subject to the criminal procedure laws of Oregon"; and (4) viewed as "[s]ignificant[ ]" that Oregon courts did not consider the offense a crime or the proceeding a criminal prosecution. 23 I. & N. Dec. at 687. Similarly, in Cuellar-Gomez , the Board considered both (1) whether state criminal procedures applied and (2) whether the state would use the judgment at issue in calculating criminal history. 25 I. & N. Dec. at 853-54.
Third, both Eslamizar and Rivera-Valencia said that the procedural safeguards required for a judgment to constitute a "formal judgment of guilt" may vary by jurisdiction. In some jurisdictions, the constitutional safeguards afforded criminal defendants in U.S. civilian courts may not be required. See Rivera-Valencia , 24 I. & N. Dec. at 487 (discussing U.S. military jurisdiction); Eslamizar , 23 I. & N. Dec. at 688 (discussing foreign jurisdictions). These statements suggest that whether a "formal judgment of guilt" has been entered depends on the prosecuting jurisdiction's understanding of "criminal in nature." They also suggest that, where a prosecuting jurisdiction requires additional safeguards above those required by the U.S. Constitution, these safeguards may be required for a proceeding to give rise to a "formal judgment of guilt."
On balance, the BIA's treatment of this issue in Eslamizar , Rivera-Valencia and Cuellar-Gomez suggests that a state proceeding may give rise to a conviction only if it is "criminal in nature" under state law.
II
It is difficult to argue that Diaz-Quirazco's proceeding was "criminal in nature" under Oregon law. To be sure, in Oregon punitive contempt proceedings are similar to Oregon criminal proceedings in significant respects. See, e.g. , Or. Rev. Stat. § 33.065(5) - (6). On balance, however, it seems highly doubtful that punitive contempt proceedings could be characterized as "criminal in nature" under the governing laws of Oregon.
First, Oregon does not classify punitive contempt proceedings as criminal. See Bachman v. Bachman , 171 Or.App. 665, 16 P.3d 1185, 1189 (2000) (holding that state constitutional rights afforded "[i]n all criminal prosecutions," Or. Const. art. I, § 11, do not apply to a punitive contempt proceeding in Oregon "because contempt is not a criminal prosecution"). Second, because Oregon does not classify punitive contempt as a crime, the "purpose [of punitive contempt proceedings in Oregon] is [not] to determine whether the accused committed a crime." Eslamizar , 23 I. & N. Dec. at 687 ; see State v. Campbell , 246 Or.App. 683, 267 P.3d 205, 205 (2011) (explaining that, under Oregon law, "contempt is not a crime" and a judgment should not "characterize contempt of court as a criminal conviction"). Third, although the Oregon Supreme Court has said that the state constitutional right to trial by jury extends to all offenses having "the character of criminal prosecutions," Brown v. Multnomah Cty. Dist. Court , 280 Or. 95, 570 P.2d 52, 55, 57 (1977) (emphasis added), this right does not extend to punitive contempt proceedings, see Or. Rev. Stat. § 33-065(6); State ex rel. Dwyer v. Dwyer , 299 Or. 108, 698 P.2d 957, 958-61, 962 (1985) ; see also State ex rel. Hathaway v. Hart , 300 Or. 231, 708 P.2d 1137, 1142 (1985). Indeed, the Oregon courts have held on several occasions that punitive contempt is not a "criminal prosecution" for purposes of Article I, section 11 of the Oregon Constitution generally. See, e.g. , Dwyer , 698 P.2d at 962 (holding that "a criminal contempt proceeding ... is not a 'criminal prosecution' within the meaning of Article I, section 11"); State ex rel. Or. State Bar v. Lenske , 243 Or. 477, 407 P.2d 250, 253 (1965) ("Though this is a criminal contempt, it is not a criminal prosecution within the meaning of the constitution." (citation omitted)), disapproved of on other grounds by Or. State Bar v. Wright , 309 Or. 37, 785 P.2d 340 (1990) ; Bachman , 16 P.3d at 1189.
Thus, under Oregon law, Diaz-Quirazco's offense was not a crime, his proceeding was not a criminal proceeding and he was not afforded the state constitutional safeguards that he would have been afforded had he been accused of committing a crime.
III
Under these circumstances, it would be a challenge to reach the conclusion that a punitive contempt judgment in Oregon is a "judgment of guilt" under Eslamizar without ignoring - or at least marginalizing - Eslamizar 's holding that the proceeding must be criminal in nature "under the governing laws of the prosecuting jurisdiction." That appears to be what the BIA did here. Even though every relevant published BIA decision has asked whether the proceeding at issue was "criminal in nature under the governing laws of the prosecuting jurisdiction ," the BIA decision under review did not include the italicized portion of that phrase or explain how it can be applied to the circumstances of this case. Although it is within the BIA's power to reframe its test in this way, it may not do so without explanation. See Israel v. INS , 785 F.2d 738, 740 (9th Cir. 1986) ("The BIA acts arbitrarily when it disregards its own precedents and policies without giving a reasonable explanation for doing so.").
The BIA's failure to apply Eslamizar in a comprehensible fashion is nothing new. In Castillo v. Attorney General , 729 F.3d 296, 298 (3d Cir. 2013), the Third Circuit considered whether a New Jersey "disorderly persons" shoplifting offense was a conviction for immigration purposes. In the unpublished decision under review, the Board had concluded that disorderly persons offenses were distinguished from crimes under New Jersey law. See id. at 299. The Board nevertheless determined that the offense gave rise to a conviction, focusing almost exclusively on whether each element of the offense needed to be proven beyond a reasonable doubt. See id. at 301.
The Third Circuit remanded to the Board for clarification. In surveying the three published decisions discussed above and their application in unpublished BIA opinions, the court could not determine whether the requirement that each element be proved beyond a reasonable doubt, when paired with some criminal penalty, was a sufficient condition for a "conviction." See id. at 305-10. It urged the BIA to "attempt to clarify Eslamizar ," which it characterized as a "problematic opinion." Id. at 311.
The problems presented here and in Castillo are evident in other unpublished BIA decisions as well. Without any persuasive attempt to reconcile its position with Eslamizar , the BIA has repeatedly said that state classifications are irrelevant to the "formal judgment of guilt" inquiry. See, e.g. , Matter of Delgado , 2008 WL 762624, at *1 (BIA Mar. 11, 2008), pet. for review denied sub nom. Delgado v. Attorney General , 349 F. App'x 809 (3d Cir. 2009) ; Matter of Dilone , 2007 WL 2463936, at *1 (BIA Aug. 6, 2007) ; cf. Matter of Rubio , 2017 WL 1951523, at *4 (BIA Apr. 11, 2017) ("The decisive issue is not how the prosecuting jurisdiction labels the judgment (or the proceedings in which it was entered) ...."), pet. for review denied sub nom. Rubio v. Sessions , 891 F.3d 344 (8th Cir. 2018). It has also reached inconsistent conclusions regarding the importance of procedural safeguards other than proof beyond a reasonable doubt. See Castillo , 729 F.3d at 309-10 (discussing various BIA decisions).
I would grant the petition for review and remand this case to the BIA with instructions to explain why Diaz-Quirazco's contempt proceeding was "criminal in nature under the governing laws of the prosecuting jurisdiction," or to reconsider its precedent setting forth that rule. Accordingly, I respectfully dissent.
Oregon referred to punitive contempt as "criminal contempt" until a statutory revision in 1991. See Matter of Marriage of Dahlem , 117 Or.App. 343, 844 P.2d 208, 208 (1992) (citing 1991 Or. Laws 1404-18).
The majority opinion relies on Matter of Mohamed , 27 I. & N. Dec. 92 (BIA 2017), but that decision does not alter Eslamizar 's holding that, to give rise to a "formal judgment of guilt," a proceeding must be criminal in nature under the governing laws of the prosecuting jurisdiction. To be sure, Mohamed held that "whether or not a conviction exists for immigration purposes is a question of federal law and is not dependent on the vagaries of state law," Mohamed , 27 I. & N. Dec. at 96 (quoting Matter of Roldan , 22 I. & N. Dec. 512, 516 (BIA 1999) ), and that a conviction does not "depend upon the operation of State law," id. As the majority opinion recognizes, however, the issue in Mohamed was whether the federal or state definition of "conviction" applied. See id. Mohamed did not consider how to interpret "formal judgment of guilt" under the federal definition. Mohamed , therefore, did not overrule Eslamizar , Rivera-Valencia and Cuellar-Gomez . Regardless, to the extent Mohamed may have affected a change in the law, it is for the BIA, not this court, to consider the nature of that change and explain its basis in the first instance. See Pannu v. Holder , 639 F.3d 1225, 1226 (9th Cir. 2011) (remanding to the BIA where the law impacting a case had changed since the BIA's decision); Israel , 785 F.2d at 740 ; see also INS v. Ventura , 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).

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