Dalila Avila v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA On Petition for Review of a Final…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 22-1374
_____________
DALILA AVILA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
OF AMERICA
_______________
On Petition for Review of a Final Order of the
Board of Immigration Appeals
No. A047-832-804
Immigration Judge: Dinesh C. Verma
_______________
Argued: December 14, 2022
Before: RESTREPO, MCKEE, and SMITH, Circuit Judges.
(Opinion filed: September 14, 2023)

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Kaley J. Miller-Schaeffer [Argued]
Theodore J. Murphy
Murphy Law Firm
320 N High Street
West Chester, PA 19380
Counsel for Petitioner
Dana M. Camilleri [Argued]
Merrick B. Garland
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
McKEE, Circuit Judge.
Dalila Avila petitions for review of a decision of the
Board of Immigration finding her ineligible for cancellation of
removal pursuant to 8 U.S.C. § 1229b(a), and dismissing her
application for asylum. We will deny the petition for review as
to the BIA’s decision that Avila was ineligible for cancellation
of removal, and remand to the BIA on Avila’s asylum claim.
As to cancellation of removal, Avila challenges the
BIA’s conclusion that her conviction for a disorderly persons
offense under New Jersey law constitutes a conviction under 8
U.S.C. § 1101(a)(48)(A) and therefore constitutes a crime
under § 1227(a)(2)(A)(ii). While Avila’s petition for review
was pending with this Court, the BIA issued a precedential
decision in Matter of S. Wong,1 holding that disorderly persons
offenses under section 2C:20-4(a) of the New Jersey Statutes
constitute convictions of crimes for immigration purposes.
1 28 I. & N. Dec. 518, 525 (BIA 2022).

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Avila argues that this decision is not entitled to Chevron
deference. We must reject this argument.
As to Avila’s asylum claim, Avila argues that the BIA
failed to consider whether Avila’s particular social group
(PSG) was cognizable in light of the specific country
conditions in Honduras. We agree and will grant Avila’s
petition for reconsideration of her PSG.
I.
Dalila Avila is a native and citizen of Honduras.2 Her
life in Honduras was punctuated by sexual violence. At seven,
Avila was tied up and raped repeatedly at knifepoint by a
stranger, who left her bleeding in the street.3 When Avila was
a teenager, she was gang raped by eight of her cousins, one of
whom threatened to kill her father if she reported the rape.4 At
18, Avila was raped again.5 As a result of this rape, she became
pregnant with—and gave birth to—her oldest child.6 And as a
young adult, Avila was in a relationship with a man who beat
her, slapped her, kicked her, and threatened her with a gun.7
On one occasion, he beat her with a pistol so severely that she
miscarried.8 Believing “men only want[ed] to hurt her,” Avila
attempted suicide more than once.9
Avila fled Honduras. She became a lawful permanent
resident in 2001.10 Between 1990 and 2004, she was convicted
of misdemeanor shoplifting in violation of NJSA § 2C:10-11;
misdemeanor tampering with public records in violation of
NJSA § 2C:28- 7A(1); and petty theft in violation of CPSC §
02:484(A).11 On December 16, 2008, Avila re-entered the
United States where she requested admission as a returning
2 A.R. 335.
3 A.R. 115, 123.
4 A.R. 115.
5 A.R. 152.
6 A.R. 152.
7 A.R. 156.
8 A.R. 931.
9 A.R. 152, 156.
10 A.R. 1116.
11 A.R. 537, 577–85, 1116–17.

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lawful permanent resident.12 The Department of Homeland
Security served her with a Notice to Appear charging her with
removability under the Immigration and Nationality Act (INA)
§ 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), because
her convictions were for “Crimes Involving Moral
Turpitude.”13 Avila failed to attend her scheduled hearing and
on March 21, 2011, she was ordered removed in absentia.14 In
March 2015, her proceeding was reopened.15
On November 22, 2016, Avila filed a Motion to
Terminate her removal proceedings.16 Avila conceded that her
petty theft offense was a crime involving moral turpitude
(CIMT) but argued that she could avoid a finding of
inadmissibility because this conviction fell under the petty
offense exception in INA § 212(a)(2)(A)(ii), 8 U.S.C.
§1182(a)(2)(A)(ii).17 This exception applies to a noncitizen
“who committed only one crime,” where “the maximum
penalty possible for the crime . . . did not exceed imprisonment
for one year,” and the noncitizen “was not sentenced to a term.
. . in excess of 6 months.”18 Although Avila admitted that she
had two other convictions—misdemeanor shoplifting and
tampering with public records—she argued that pursuant to our
reasoning in Castillo v. Attorney General,19 those convictions
did not disqualify her from the petty offense exception because
they did not qualify as “crimes.”20 Rather, she contended that
they were merely disorderly persons offenses under New
Jersey law that did not rise to the level of “criminal
convictions” under the INA, and therefore, could not sustain
her charge of removability under INA § 212(a)(2)(A)(i)(I).21
12 A.R. 2, 1116.
13 A.R. 1116–17.
14 A.R. at 180–81, 1059.
15 A.R. 115, 624.
16 A.R. 115, 468–70.
17 A.R. 470.
18 INA § 212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii)
(emphasis added).
19 729 F.3d 296 (3d Cir. 2013).
20 A.R. 470.
21 Id., 473.

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On November 14, 2018, the IJ determined that Avila
was not eligible for cancellation of removal as a lawful
permanent resident.22 The IJ relied upon our decision in
Castillo to conclude that the disorderly persons offenses were
convictions of crimes for immigration purposes.23 Castillo
relied in part upon the Board’s construction of §
1101(a)(48)(A) in In re Eslamizar,24 which required the
decision-maker to conduct an “open-ended inquiry.” That
inquiry must consider various factors to determine if the
disputed judgment of guilt “was entered in a true or genuine
criminal proceeding.”25 Having concluded that Avila’s
disorderly persons offenses were entered in a “genuine
criminal proceeding,” and thus were criminal convictions, the
IJ determined that each offense was a CIMT.26 Accordingly,
the IJ held that because Avila had more than one CIMT, her
California petty theft offense did not qualify for the petty theft
exception, and she was not eligible for cancellation of
removal.27
22 A.R. 147–174. Pursuant to 8 U. S. C. § 1229b(a), the
Attorney General may cancel the removal of a noncitizen who
has “resided in the United States continuously for 7 years
after having been admitted in any status.” Continuous
residence, however, ends when the noncitizen “has committed
an offense referred to in section 1182(a)(2) [i.e., a crime
involving moral turpitude] that renders the [noncitizen] . . .
removable from the United States under section 1227(a)(2) . .
. of this title.” 8 U.S.C. § 1229b(d)(1). This is referred to as
the “stop-time rule” because a noncitizen’s commission of a
crime involving moral turpitude stops their period of
continuous residence for purposes of cancellation of removal.
Khan v. Att’y Gen., 979 F.3d 193, 196 (3d Cir. 2020).
The IJ also determined that Avila was not eligible for a
waiver of inadmissibility under INA § 212(h), withholding of
removal, or CAT protection. A.R. 135–42.
23 A.R. 115, 128–31.
24 23 I. & N. Dec. 684 (BIA 2004) (en banc).
25 Castillo, 729 F.3d at 307.
26 A.R. 131.
27 A.R. 133. The IJ concluded that because Avila’s petty theft
offense did not qualify for the petty theft exception, it

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With respect to Avila’s asylum application, the IJ found
Avila’s testimony credible, explaining that her testimony was
“candid[]” and “consistent[].”28 The IJ also found that the
“rapes and beatings” Avila suffered in her “domestic and
familial relationships” were “grievous harms” that rose to the
level of past persecution.”29 Nonetheless, the IJ concluded that
“despite [Avila’s] lifetime of abuse and victimization,” she had
not established that any such persecution was on account of a
protected ground. The IJ concluded that “Honduran women in
a domestic relationship where the male believes that women
are to live under male domination” was not a cognizable
particular social group.30 In reaching this conclusion, the IJ
relied on the Attorney General’s decision in Matter of A-B- (A-
B-I),31 which overruled Matter of A-R-C-G-,32 a decision
holding that “married women in Guatemala who are unable to
leave their relationship” constituted a particular social group.33
Because Avila contended that her social group was “essentially
the same” as that recognized in Matter of A-R-C-G-, which had
been rejected in A-B-I, the IJ determined that Avila was
ineligible for asylum.34
The BIA dismissed Avila’s appeal, largely for the
reasons set forth by the IJ.35 The BIA affirmed the IJ’s
determination that Avila’s tampering with public records was
a conviction under INA § 101(a)(48)(A), 8 U.S.C. §
l101(a)(48)(A). Since this meant that Avila had “sustained
triggered the “stop time” rule under INA § 240A(d)(l) and
terminated her period of continuous residence. Id.
28 A.R. 136. Prior to the IJ’s decision as to Avila’s asylum
claim, the IJ determined that Avila’s felony conviction out of
Delaware, for which she had received a gubernatorial pardon,
was not an aggravated felony and therefore, she could pursue
her asylum claim. A.R. 395-402.
29 A.R. 137.
30 A.R. 137.
31 27 I. & N. Dec. 316 (A.G. 2018).
32 26 I. & N. Dec. 388 (BIA 2014).
33 A.R. 137.
34 Id.
35 App. 34.

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more than one CIMT,” the petty offense exception was
unavailable to her.36
The BIA also affirmed the IJ’s determination that Avila
was ineligible for asylum.37 In reaching this conclusion, the
Board reasoned that Avila’s “particular social group” lacked
“particularity” because it was “impermissibly defined with
amorphous and overbroad terms.”38 The BIA also concluded
that the proposed social group did not “exist independently” of
the harm alleged, as required under Matter of M-E-V-G-39 and
Matter of W-G-R-.40 The BIA explained that it did not base its
decision to deny Avila’s asylum claim on the Attorney
General’s decision in Matter of A-B-I, because it had been
vacated in 2021.41
Avila filed a petition for review with this Court on
March 1, 2022.42
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252. This
Court reviews the BIA’s legal determinations de novo, “subject
to the principles of deference articulated in” Chevron U.S.A.,
Inc. v. NRDC.43 Under this doctrine, the Court, as well as the
36 App. 37 (citing Matter of Garcia, 25 I & N Dec. 332, 335–
36 (BIA 2010); Matter of Jurado-Delgado, 24 I & N Dec. 29,
34 (BIA 2006)). The BIA declined to reach the issue of
whether Avila’s shoplifting conviction was a conviction of a
crime for immigration purposes because it concluded that her
conviction for tampering with public records was a conviction
for immigration purposes. See App. 35 n. 5.
37 A.R. 7–8.
38 A.R. 7 (citing Matter of M-E-V-G-, 26 I. & N. Dec. 227,
239-40 (BIA 2014); Matter of W-G-R-, 26 I. & N. Dec. 208,
213-14 (BIA 2014); Chavez-Chillel v. Att’y Gen., 20 F. 4th
138, 146 (3d Cir. 2021).
39 Matter of M-E-V-G-, 26 I. & N. Dec. at 237 n. 11.
40 Matter of W-G-R-, 26 I. & N. Dec. at 215.
41 A.R. 7–8 n. 10. Matter of A-B-, 28 I. & N. Dec. 307, 308
(A.G. 2021) (A-B-III) (quoting A-B-II, 28 I. & N. Dec. at
200).
42 ECF 1.
43 467 U.S. 837 (1984).

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agency, must give effect to the unambiguously expressed
intent of Congress.44 “On the other hand, ‘if the statute is silent
or ambiguous with respect to the specific issue, the question
for the court is whether the agency’s answer is based on a
permissible construction of the statute.’”45 When interpreting
the INA, “the BIA should be afforded Chevron deference as it
gives ambiguous statutory terms ‘concrete meaning through a
process of case-by-case adjudication.”’46 “The reasonableness
of an agency’s statutory interpretation is dependent in part on
the consistency with which the interpretation is advanced.”47
Whether a petitioner's proffered particular social group
“is cognizable ‘presents a mixed question of law and fact, since
the ultimate legal question of cognizability depends on
underlying factual questions concerning the group and the
society of which it is a part.’”48 Therefore, we “review de novo
the ultimate legal conclusion as to the existence of a [PSG]”
but “review the underlying factual findings for substantial
evidence.”49
A. Cancellation of Removal
Avila challenges the BIA’s determination that a New
Jersey disorderly persons offense is a conviction for
immigration purposes. While Avila’s petition for review was
pending, the BIA issued its precedential decision in Matter of
S. Wong,50 which held that a New Jersey disorderly persons
offense was a conviction of a crime for immigration purposes.
We must now determine the amount of deference, if any, owed
to that decision. If Wong controls our analysis, Avila has more
than one conviction for crimes involving moral turpitude, and
is statutorily ineligible for relief from removal. If it is not a
44 See Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir. 2003).
45 Id. (quoting Chevron, 467 U.S. at 843).
46 Id. (quoting INS v. Aguirre–Aguirre, 526 U.S. 415, 425
(1999)).
47 Castillo, 729 F.3d at 302 (citing Valdiviezo–Galdamez v.
Att’y Gen., 663 F.3d 582, 604 (3d Cir. 2011)).
48 Chavez-Chillel. 20 F. 4th at 146 (quoting S.E.R.L. v. Att'y
Gen., 894 F.3d 535, 543 (3d Cir. 2018)).
49 S.E.R.L., 894 F.3d at 543.
50 28 I. & N. Dec. 518, 525 (BIA 2022).

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conviction for immigration purposes, Avila could avoid a
finding of inadmissibility under the petty offense exception
contained in INA § 212(a)(2)(A)(ii), 8 U.S.C.
§1182(a)(2)(A)(ii).
Section 1101(a)(48)(A) of the INA defines the
“conviction” as follows:
The term “conviction” means, with respect to a
[noncitizen,] a formal judgment of guilt of the
[noncitizen] entered by a court or, if adjudication
of guilt has been withheld, where—
(i) a judge or jury has found the [noncitizen]
guilty or the [non-citizen] has entered a plea of
guilty or nolo contendere or has admitted
sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of
punishment, penalty, or restraint on the
[noncitizen’s] liberty to be imposed.
Both our court and the BIA have acknowledged that §
1101(a)(48)(A) is ambiguous at step one of Chevron’s two-
step analysis.51 Accordingly, we move to Chevron’s second
step and ask whether the BIA’s construction of §
1101(a)(48)(A) in Wong is permissible.52 Avila argues that the
agency’s interpretation of that statute is impermissible because
it “significant[ly] depart[ed]” from the Board’s precedent in
51 See Matter of Eslamizar, 23 I & N Dec. at 686–87;
Castillo, 729 F.3d at 306. At step one of the Chevron
analysis, we ask whether “Congress has directly spoken to the
precise question at issue.” Egan v. Del. River Port. Auth., 851
F.3d 263, 269 (3d Cir. 2017) (citing Chevron, 467 U.S. at
842). If we “determine that Congress has not addressed ‘the
precise question at issue,’ whether by being ‘silent or
ambiguous with respect to the specific issue’ or by leaving ‘a
gap for the agency to fill,’ then we must proceed to the
second step and determine whether the agency’s construction
of the statute is reasonable.” Helen Mining Co. v. Elliott, 859
F.3d 226, 234 (3d Cir. 2017) (citing Chevron, 467 U.S. at
843–44).
52 Helen Mining Co., 859 F.3d at 236-37.

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Eslamizar and our precedent in Castillo “while failing to
announce a principled reason for such departures.”53
In Eslamizar, the BIA concluded that the definition of
“conviction” under § 1101(a)(48)(A) is unclear. It attempted to
resolve the ambiguity by adopting what it considered “a far
more sensible reading of the statute.”54 The BIA 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.”55
The BIA determined in Eslamizar that a judgment of guilt of
third-degree theft under Oregon law did not qualify as a
conviction under § 1101(a)(48)(A).56 In reaching that
conclusion, the BIA considered—among other factors—that
the respondent was convicted under a lower standard than
proof beyond a reasonable doubt.57 The BIA also considered
that the Oregon law did not classify the offense as criminal.58
We subsequently examined that reasoning in Castillo.59
There, we rejected the BIA’s argument that Eslamizar
established that “a finding of guilt constitute[s] a conviction
under § 1101(a)(48)(A)” so long as each element of the offense
was proven beyond a reasonable doubt.60 Instead, we agreed
with Castillo’s contention that the “more persuasive
interpretation of Eslamizar and § 1101(a)(48)(A)” was that the
decision-maker should conduct an “open-ended inquiry.”61
53 Pet’r Br. at 13.
54 See Matter of Eslamizar, 23 I & N Dec. at 687.
55 Id.
56 Id. at 689.
57 Id. at 687–88.
58 Id. at 688.
59 Castillo, 729 F.3d at 304–5.
60 Id. at 300-01, 305. “As we noted in Castillo, that each
element must be proven beyond a reasonable doubt is a
necessary but not sufficient condition for a proceeding to
qualify as a ‘genuine criminal proceeding.’” Gourzong v.
Att’y Gen., 826 F.3d 132, 139 n.4 (3d Cir. 2016) (citing
Castillo, 729 F.3d at 307).
61 Castillo, 729 F.3d at 306–7.

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That inquiry was necessary to determine if the judgment of
guilt was “entered in a true or genuine criminal proceeding—
and therefore [constituted] a conviction pursuant to §
1101(a)(48)(A).”62 We explained that the open-ended inquiry
must also consider “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.”63 We
examined some of the BIA’s post-Eslamizar decisions which
considered multiple factors in determining whether a judgment
of guilt was “entered in a true or genuine criminal
proceeding.”64 In doing so, we noted that “two unpublished
single-member decisions addressing shoplifting offenses under
New Jersey law” conflicted with a “general ‘criminal
proceeding’ approach” and simply concluded that offenses
were convictions pursuant to § 1101(a)(48)(A) because the
noncitizens were found guilty beyond a reasonable doubt.65
Given the BIA’s “erratic” and “irreconcilable” interpretations,
we refused to accord Chevron deference to the Board’s
construction of “conviction” as articulated in Eslamizar.66
We then remanded Castillo back to the agency and
directed it to try “to clarify Eslamizar and the agency’s
reading” of § 1101(a)(48)(A).”67 We explained that the
62 Id. at 307. See Gourzong, 826 F.3d at 138–39 (quoting
Castillo, 729 F.3d at 307) (“[W]e rejected a narrow approach
that looked only to a single factor. . .and instead adopted an
‘open-ended inquiry’ as to whether the judgment of guilt was
‘entered in a. . . genuine criminal proceeding.’”).
63 Id. at 307.
64 Id. at 307-09 (discussing In re Bajric, 2010 WL 5173974
(BIA Nov. 30, 2010); In re Rivera-Valencia, 24 I. & N. Dec.
484 (BIA 2008); and In re Cuellar-Gomez, 25 I. & N. Dec.
850 (BIA 2012)).
65 Castillo, 729 F.3d at 309–310 (citing 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 Fed. Appx. 809 (3d
Cir. 2009) (per curiam); In re Dilone, A44 476 837, 2007 WL
2463936 (BIA Aug. 6, 2007) (unpublished decision).
66 Castillo, 729 F.3d at 309–11.
67 Id. at 311.

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“agency [wa]s free to reconsider the problematic opinion [in
Eslamizar], provided that it state[d] a reasoned explanation for
doing so.”68 Otherwise, we directed the BIA to apply an open-
ended inquiry guided by the factors we had identified.69
This “open-ended inquiry” remained the governing
standard until the BIA issued its decision in Wong. There, the
BIA reexamined “the circumstances under which a proceeding
not denominated as ‘criminal’ under the laws of the
[prosecuting] jurisdiction . . .can nonetheless result in a
‘conviction’” under § 1101(a)(48)(A).70 In Wong, the BIA
observed that Courts of Appeals had “taken divergent
approaches to Matter of Eslamizar and its progeny[.]” The
Eighth Circuit had declined to follow our decision in Castillo.71
The Eighth and Tenth Circuits interpreted Eslamizar “more
narrowly” than the Second Circuit or our court.72 Accordingly,
in Wong, the BIA sought to “clarify the conditions that make a
State proceeding criminal in nature for purposes of” §
1101(a)(48)(A).73
Wong began by explaining that “whether a conviction
exists for purposes of a federal statute is a question of federal
law and should not depend on the vagaries of state law.”74
Although a State’s classification “of offenses as ‘crimes’” may
be helpful “in identifying substantive rights and disabilities
that flow from that categorization ,. . . [that] categorization
68 Id.
69 Id.
70 Wong, 28 I. & N. Dec. at 518.
71 Rubio v. Sessions, 891 F.3d 344, 349 (8th Cir. 2018) (“we
decline to follow [Castillo, 729 F.3d at 302-11].”).
72 Wong, 28 I. & N. Dec. at 523. See Rubio, 891 F.3d at 350
(“the most fundamental aspect of a ‘criminal proceeding’ in
this country is whether ‘guilt’ was proved beyond a
reasonable doubt”); Batrez Gradiz v. Gonzales, 490 F.3d
1206, 1208 (10th Cir. 2007) (“Eslamizar does nothing more
than reaffirm our traditional standard that findings of guilt
must be beyond a reasonable doubt.”).
73 Wong, 28 I. & N. Dec. at 523.
74 Id. at 523 (citing Matter of Ozkok, 19 I. & N. Dec. 546, 551
n.6 (BIA 1988)).

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itself is not dispositive.”75 In other words, it is “the substance
of the proceeding, not the label the State assigns to it” that is
relevant to whether a “proceeding results in a criminal
conviction for immigration purposes.”76
Wong instructs that the critical inquiry in determining
the substance of the proceeding is whether it requires
“minimum constitutional safeguards.”77 A proceeding is only
“criminal in nature,” and thus can only constitute a conviction
under § 1101(a)(48)(A), where the individual was afforded the
“rights of criminal procedure guaranteed by the Constitution—
as incorporated against the States by virtue of the Fourteenth
Amendment.”78 Such constitutional protections include “proof
beyond a reasonable doubt; and the rights to confront one’s
accuser, a speedy and public trial, notice of the accusations,
compulsory process for obtaining witnesses in one’s favor, and
against being put in jeopardy twice for the same offense.”79
The absence of these protections “renders the proceeding
noncriminal for Federal purposes.”80
Although the relevant inquiry is whether a proceeding
requires “minimum constitutional safeguards,” the BIA
explained that because “[s]ome rights are contingent,” the
absence of those rights will not determine whether a
proceeding is criminal in nature.81 For instance, because the
“right to a jury trial applies only if the charged offense is
deemed ‘serious,’ and the right to counsel applies only if a
conviction can result in the loss of liberty,” the conclusion that
a proceeding is criminal will not turn on those rights.82
75 Id. at 523.
76 Id. (citing Rubio, 891 F.3d at 351), 526.
77 Id. at 525.
78 Id. at 524.
79 Id. at 523–24.
80 Id. at 524.
81 Id.
82 Id. (citing Lewis v. United States, 518 U.S. 322, 325
(1996); Duncan v. Louisiana, 391 U.S. 145, 157-59 (1968);
Alabama v. Shelton, 535 U.S. 654, 661 (2002); Scott v.
Illinois, 440 U.S. 367, 374 (1979)).

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The BIA then assessed a New Jersey disorderly persons
offense using this standard. It concluded that, because “New
Jersey provides all of the constitutionally-mandated rights of
criminal procedure” including “proof beyond a reasonable
doubt,. . . the “right[] to confront one’s accuser, a speedy and
public trial, notice of the accusations, compulsory process for
obtaining witnesses in one’s favor, and against being put in
jeopardy twice for the same offense,” New Jersey disorderly
persons offenses are criminal convictions for immigration
purposes.83
In deferring to the BIA’s assessment of this New Jersey
statute and § 1101(a)(48)(A), we need not conclude that the
BIA’s construction “was the only one it permissibly could have
adopted.”84 Nor do we ask “whether it is the best possible
interpretation of Congress’s ambiguous language. Instead, we.
. .only inquire whether the BIA made ‘a reasonable policy
choice’ in reaching its interpretation.”85 Because the Board’s
interpretation of § 1101(a)(48)(A) is “a reasonable reading of
the text and a reasonable policy choice,” we conclude that
Wong is entitled to Chevron deference.86
Although Wong departed from the BIA’s prior decisions
requiring that the offense be “criminal in nature under the
governing laws of the prosecuting jurisdiction,”87 it
“display[ed] awareness” that it was changing its position88 and
83 Wong, 28 I. & N. Dec. at 523–24, 527–28.
84 Chevron, 467 U.S. 843. n.11.
85 Mejia-Castanon v. Att’y Gen., 931 F.3d 224, 235–6 (3d Cir.
2019) (citing Am. Farm Bureau Fed’n v. E.P.A. 792 F.3d 281,
295 (3d Cir. 2015) (internal quotations omitted).
86 Id. at 236.
87 Eslamizar, 23 I. & N. Dec. at 688.
88 S.E.R.L., 894 F.3d at 551 n. 16 (citing F.C.C. v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009) (the
Supreme Court has acknowledged that, where an agency must
change its policy, it must ‘display[] awareness that it is
changing position’ and ‘provide a reasoned explanation’ for
the change.’”)).

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“announc[ed] a principled reason for this departure.89 It
explained that a focus on:
whether the State adjudication is a substantively
constitutional criminal proceeding [using the
guarantees provided in the Constitution] avoids
improper reliance on State definitions and
categories. It also avoids the potential for
tautological reasoning that a particular
proceeding is criminal in nature because it is
labeled as such under the laws of the prosecuting
jurisdiction, without establishing what
conditions make a procedure “criminal” in the
first place. See Castillo, 729 F.3d at 302 (“[O]ne
must still ask ‘conviction’ of what.”).90
That analysis is reasonable. We have long held that a state
legislature cannot “dictate how the term ‘conviction’ is to be
construed under federal law.”91 Moreover, a focus on
constitutional protections establishes a clear test that promotes
uniformity. The test ensures that non-citizens will be treated
uniformly regardless of the state of their conviction because
“substantive constitutionality will not vary from State to
State.”92 The resulting uniformity “enabl[es] agencies to avoid
the difficulty of enforcing different rules depending on the
jurisdiction.”93 Moreover, since the new test for determining
what constitutes a “conviction” under § 1101(a)(48)(A) is
tethered to the procedural safeguards mandated by the U.S.
Constitution, it is not arbitrary or capricious.
Avila’s argument that the Board failed to adhere to our
holding in Castillo is unavailing. Castillo did not require the
Board to conduct an “open-ended inquiry,” as Petitioner
89 Valdiviezo-Galdamez, 663 F.3d at 608 (citing Johnson v.
Ashcroft, 286 F.3d 696, 700 (3d Cir. 2002)).
90 Wong, 28 I. & N. Dec. at 524–25 (internal citations
omitted).
91 See Acosta, 341 F.3d at 223.
92 See Wong, 28 I. & N. at 525.
93 Hagans v. Comm’r of Soc. Sec. 694 F.3d 287, 294 (3d Cir.
2012). See also U. S. v. Mead Corp., 533 U.S. 218, 220
(2001) (discussing “the value of uniformity
in…administrative and judicial understandings of what a
national law requires.”).

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contends.94 Instead, Castillo provided the Board with an
option—either conduct an “open-ended inquiry” or reconsider
its “problematic opinion” in Eslamizar. Petitioner argues that
although the Board could reinterpret § 1101(a)(48)(A), we
stated in Castillo that “at the very least” the following factors
should be considered when determining whether a person
committed a crime for immigration purposes: (1) “how the
prosecuting jurisdiction characterized the offense at issue”; (2)
“the consequences of a finding of guilt”; (3) “the rights
available to the accused”; and (4) “any other characteristics of
the proceeding itself.”95 However, Petitioner misunderstands
our holding in Castillo. We reasoned in Castillo that if the
Board was applying an “open-ended multi-factor analysis,” as
we interpreted the test set forth in Eslamizar, these factors
“appeared to be relevant.”96 Nowhere did we state the Board
must cling to those factors if it established a new test. Because
the Board has redefined the test for determining if or when a
person is convicted of a crime for immigration purposes, Wong
does not conflict with our reasoning in Castillo.
We realize that, although Wong warned against “improper
reliance on State definitions and categories,” the Board did not
hold that State categorizations were irrelevant.97 Instead, the
Board reasoned that “whether and in what contexts a State
classifies offenses as ‘crimes’ may assist Immigration Judges
in identifying substantive rights and disabilities that flow from
that categorization, but the categorization itself is not
dispositive.”98 However, we interpret this as nothing more than
stating that a decision-maker may look to a jurisdiction’s
classification of a given offense as an aid to determining the
constitutional protections that flow from it. Thus, in the final
analysis, the Board’s decision in Wong is neither unreasonable
nor in conflict with our precedent. Accordingly, it controls our
94 Pet’r Br. at 7.
95 Castillo, 729 F.3d at 306–7 (citing Eslamizar, 23 I&N Dec.
at 687). Pet’r Br. at 16–17.
96 Id. at 307.
97 Wong, 28 I. & N. Dec. at 524.
98 Id. at 523.

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analysis here, and we must deny the petition for review on this
claim.
A. Asylum Claim
Asylum may be granted to a removable noncitizen if she
demonstrates that she is “unable or unwilling to return to, and
is unable or unwilling to avail [herself] . . . of the protection of,
[the country to which she would be removed] because of
persecution or a well-founded fear of persecution on account
of . . . membership in a particular social group.”99
A particular social group (PSG) must be: “(1) composed
of members who share a common immutable characteristic, (2)
defined with particularity, and (3) socially distinct within the
society in question.”100 At the time that the BIA issued its
decision denying Avila’s asylum claim, Matter of A-R-C-G-
was binding law and the most instructive case on whether
Avila’s PSG was cognizable. That decision had previously
been overruled in A-B-I which held that claims by noncitizens
“pertaining to domestic violence. . . perpetrated by a non-
governmental actor will not qualify for asylum.”101 However,
99 8 U.S.C. § 1101(a)(42)(A); see also id. § 1158(b)(1)(B)(i).
The government argues that Avila is barred from asylum
because of the “criminal alien bar,” but provides no citations
to support that assertion. Respondent Br. at 3. A non-citizen is
barred from asylum if she is convicted of a “particularly
serious crime,” including aggravated felonies. 8 U.S.C. §
1158(b)(2)(A)(ii), Id. § 1158(b)(2)(B)(i). Given that Avila
received a gubernatorial pardon for her Delaware felony
conviction, A.R. 403-54, and the IJ found that this conviction
was not categorically an aggravated felony, and thus that she
could pursue her asylum application, A.R. 395-402, there is
nothing in the record indicating that Avila’s criminal
convictions are for a “particularly serious crime.”
100 Matter of M-E-V-G-, 26 I. & N. Dec. at 237.
101 27 I. & N. Dec. at 320. Following that decision, the
Attorney General issued Matter of A-B-, 28 I. & N. Dec. 199
(A.G. 2021) (A-B-II), in which the Board “reviewed a
subsequent Board decision in the same case ‘to provide
additional guidance’ on recurring issues in asylum cases
involving ‘applicants who claim persecution by non-

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in A-B-III, issued in 2021 before the BIA issued its decision
denying Avila’s appeal, the Attorney General held that “A-B-I
and A-B-II should be vacated in their entirety” and
“immigration judges and the Board should follow pre-A-B-I
precedent, including Matter of A-R-C-G-.”102
In Matter of A-R-C-G-, the BIA held that “married
women in Guatemala who are unable to leave their
relationship” can constitute a cognizable PSG that forms the
basis for asylum.103 In its decision, the BIA held that “any
claim regarding the existence of a particular social group in a
country must be evaluated in the context of the evidence
presented regarding the particular circumstances in the country
in question.”104 The BIA noted that terms such as “married,”
“women,” and “unable to leave the relationship” “can combine
to create a group with discrete and definable boundaries”
depending on societal expectations about gender and
subordination, as well as “religious, cultural, or legal
constraints” about “divorce and separation.”105 In evaluating
“social distinction,” the BIA again looked to country-specific
evidence including whether “Guatemalan society . . .
recognizes the need to offer protection to victims of domestic
violence, . . . has criminal laws designed to protect domestic
abuse, whether those laws are effectively enforced, and other
sociopolitical factors.”106 The BIA then pointed to evidence in
the record about Guatemala’s “culture of ‘machismo and
family violence’” and the country’s failure “to prosecute
domestic violence crimes,” or to “respond to requests for
assistance” from domestic violence survivors.107 That evidence
in the record, the BIA concluded, “support[ed] the existence of
social distinction.”108
governmental actors on account of the applicant's
membership in a particular social group.’” A-B-III, 28 I. & N.
Dec. at 308 (quoting A-B-II, 28 I. & N. Dec. at 200).
102 A-B-III, 28 I. & N. Dec. at 309.
103 26 I. & N. Dec. at 390.
104 Id. at 392.
105 Id. at 393 (citations omitted).
106 Id. at 394.
107 Id. at 394 (internal citation omitted).
108 Id.

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Here, on the other hand, the BIA did not adhere to
Matter of A-R-C-G-’s requirement to examine Avila’s PSG
within the context of the specific country conditions in
Honduras. The BIA rejected Avila’s PSG for lack of
particularity without considering evidence in the record about
“widespread and systemic violence” against Honduran women,
“inconsistent legislation implementation, gender
discrimination within the justice system, and lack of access to
services.”109 Evidence in the record, including that “[l]ess than
one in five cases of femicide are investigated,… and the
average rate of impunity for sexual violence and femicide is
approximately 95%,” may have been relevant in examining
whether Avila’s proposed PSG was cognizable.110 Just as the
cultural attitudes toward gender were relevant in Matter of A-
R-C-G-, evidence in the record as to the “machismo culture” in
Honduras may be relevant to assessing whether Avila has a
cognizable PSG.111
Moreover, in Matter of A-R-C-G-, DHS conceded that
the proposed group “married women in Guatemala who are
unable to leave their relationship” was sufficient for a PSG
asylum claim.112 Given the similarity between that social group
and “Honduran women in a domestic relationship where the
male believes that women are to live under male domination,”
we must remand for the BIA to provide clarification as to its
application of Matter of A-R-C-G-, and to determine whether
Avila’s proposed PSG is cognizable in light of the specific
country conditions.
We must also remand for the BIA to consider whether
Avila demonstrated a well-founded fear of persecution on
account of her PSG. The BIA determined that Avila’s PSG did
not “exist independently” of the harm alleged, as required
under Matter of M-E-V-G-113 and Matter of W-G-R-.114 Matter
of M-E-V-G- cites to this Court’s prior precedent in Lukwago
109 A.R. 157, 158.
110 A.R. 158.
111 A.R. 157 (internal citation omitted).
112 Matter of A-R-C-G-, 26 I. & N. Dec. at 392, 393, 395.
113 26 I. & N. Dec. at 237 n. 11.
114 26 I. & N. Dec. at 215.

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v. Ashcroft,115 which states that a PSG “must exist
independently of the persecution suffered by the applicant for
asylum.”116 However, Lukwago makes clear that in
determining whether a PSG exists independently of the
persecution suffered, the BIA must consider the PSG in the
context both of “past persecution” and a “well-founded fear of
persecution.”117 Here, the BIA did not consider whether Avila
had demonstrated that she had a well-founded fear of
persecution based on her past experiences of abuse and sexual
violence. Accordingly, we will remand for the BIA to consider,
in addition to whether Avila has suffered past persecution on
account of her PSG, whether she has demonstrated a well-
founded fear of future persecution.
In conclusion, on remand, the BIA should (1) clarify,
given the Government’s concession in Matter of A-R-C-G- that
the proposed group was sufficient for a PSG asylum claim, its
application of Matter of A-R-C-G- to the present case, and
consider Avila’s PSG in the context of evidence presented
about the country conditions in Honduras and (2) provide
guidance in applying both Matter of A-R-C-G- and Matter of
M-E-V-G- with respect to past persecution and a well-founded
fear of future persecution on account of membership in a PSG.
III.
Because we must defer to Wong’s interpretation of
§1101(a)(48)(A), we conclude that Avila’s disorderly persons
offense constitutes a criminal conviction for immigration
purposes. Accordingly, we must deny Avila’s petition for
review on that claim. However, as to Avila’s asylum claim, we
will grant her petition for review, vacate the BIA’s order and
115 329 F.3d 157 (3d Cir. 2003).
116 Id. at 172.
117 Id. at 174; see also 8 U.S.C. § 1101(a)(42)(A). As our
Court explained in Lukwago, even if Avila “fails to
demonstrate past persecution[, she] may still qualify for
asylum by showing that s/he has a well-founded fear of
persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion
if returned to. . . her native country.” Id. at 174.

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remand to the BIA for further proceedings consistent with this
opinion.

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