Wong v. Garland

95 F.4th 82

Kwok Sum WONG, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.

No. 22-6185

August Term 2023

United States Court of Appeals, Second Circuit

Argued: November 6, 2023

Decided: March 11, 2024

On Petition for Review of a Final Decision Of the Board of Immigration Appeals

Benjamin Hayes, Goodwin Procter LLP, Washington, DC (David J. Zimmer, Goodwin Proctor LLP, Boston, MA; Marget W. Wong, Joseph C. Fungsang, Margaret Wong & Associates LLC, Cleveland, OH, on the brief), for Petitioner.

Imran R. Zaidi (Brian M. Boynton, Principal Deputy Assistant, Lindsay B. Glauner, Senior Litigation Counsel, Craig A. Newell, Jr., Senior Litigation Counsel, on the brief), Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.

Before: Walker, Raggi, Sullivan, Circuit Judges.

Richard J. Sullivan, Circuit Judge:

Kwok Sum Wong, a Hong Kong native and citizen of China, petitions for review of a decision of the Board of Immigration Appeals (the "BIA") affirming the decision of an Immigration Judge ("IJ") finding that Wong was removable under section 237 of the Immigration and Nationality Act (the "INA") because he was "convicted" for "two crimes involving moral turpitude." 8 U.S.C. § 1227(a)(2)(A)(ii). Wong's predicate offenses were theft by deception in violation of N.J. Stat. Ann. § 2C:20-4 and second-degree forgery in violation of N.Y. Penal Law § 170.10.

After multiple appeals to the BIA, petitions to this Court, and remands to the agency, the BIA ultimately issued the challenged precedential decision dismissing Wong's appeal of the IJ's removal order. See Matter of Wong, 28 I. & N. Dec. 518, 528 (B.I.A. 2022). In doing so, the BIA clarified that the meaning of "conviction" under 8 U.S.C. § 1101(a)(48)(A) turns on whether the predicate offenses were criminal proceedings with "minimum constitutional protections," including the requirement of "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 [not] being put in jeopardy twice for the same offense." Id. at 523-24. The agency then concluded that Wong's October 3, 2005 adjudication of guilt on a New Jersey disorderly persons offense was a "conviction" under 8 U.S.C. § 1101(a)(48)(A) and that both the New Jersey offense and the second-degree forgery offense for which he stood convicted in New York were crimes involving moral turpitude ("CIMTs") under 8 U.S.C. § 1227(a)(2)(A)(ii). Wong's petition followed.

Having reviewed the record and the law relevant to Wong's challenge, we hold that (1) the BIA's interpretation of "conviction" under 8 U.S.C. § 1101(a)(48)(A) was not arbitrary or capricious, (2) the "minimum constitutional protections" test to ascertain a "conviction" retroactively applies to Wong's case, (3) second-degree forgery in violation of N.Y. Penal Law § 170.10 is a CIMT, and (4) the statutory phrase "crime involving moral turpitude" is not unconstitutionally vague. Accordingly, we DENY the petition for review.

I. Background

Petitioner Kwok Sum Wong is a native of Hong Kong and citizen of the People's Republic of China. On or about April 19, 1979, he was admitted to the United States as a lawful permanent resident.

A. Federal Conviction and Initial Removal Proceeding

On April 11, 1988, Wong was convicted in the United States District Court for the Eastern District of New York of conspiracy to import heroin, in violation of 21 U.S.C. § 963, for which he received a sentence of imprisonment of one year and one day. In July of the same year, the government commenced deportation proceedings against him based on this federal drug conviction. On January 10, 1989, an IJ granted Wong a waiver of deportation under former section 212(c) of the INA, 8 U.S.C. § 1182(c) (1994) (repealed 1996).

B. State Convictions and Subsequent Removal Proceeding

Wong went on to commit two additional offenses under state law. First, on October 3, 2005, Wong pleaded guilty in New Jersey Superior Court to the disorderly persons offense of theft by deception, in violation of N.J. Stat. Ann. § 2C:20-4. He was ordered to pay a $200 fine for this offense. Second, on March 27, 2006, Wong pleaded guilty in New York Supreme Court to forgery in the second degree, in violation of N.Y. Penal Law § 170.10. For this offense, he was sentenced to five years' probation and ordered to pay a $1,000 fine.

On September 28, 2011, the Department of Homeland Security again charged Wong with being removable for "hav[ing] been convicted of two crimes involving moral turpitude" "not arising out of a single scheme of criminal misconduct." 8 U.S.C. § 1227(a)(2)(A)(ii).¹ Wong moved to terminate his removal proceedings, arguing that his New Jersey disorderly persons offense was not a "conviction" under 8 U.S.C. § 1101(a)(48)(A), for a "crime," as stated in 8 U.S.C. § 1227(a)(2)(A)(ii). He further argued that neither of his state offenses involved moral turpitude.

On February 10, 2012, the IJ sustained Wong's removability. Wong subsequently appealed, and the BIA issued its first decision, dated May 15, 2012, affirming the IJ's determination that Wong was removable under section 1227(a)(2)(A)(ii) because (1) the New Jersey disorderly persons offense resulted in a "conviction" under 8 U.S.C. § 1101(a)(48)(A) and (2) both of his state offenses were crimes involving moral turpitude. See generally In re Kwok Sum Wong, No. A036 850 251 (B.I.A. May 15, 2012).

Subsequently, Wong petitioned this Court for review of the BIA's decision. Upon the parties' stipulation, this Court remanded the case to the BIA for further consideration of whether New York's second-degree forgery offense was categorically a CIMT. Thereafter, the BIA remanded the proceedings to the IJ, who answered in the affirmative. Wong then appealed that decision to the BIA, which, on March 20, 2018, dismissed the appeal for the same reasons set forth in its May 2012 decision. See generally In re Kwok Sum Wong, A036 850 251 (B.I.A. Mar. 20, 2018). Wong petitioned this Court for review.

C. This Court's Prior Decision

On June 16, 2020, this Court granted Wong's petition, identifying several concerns with the BIA's analysis of Wong's New Jersey disorderly persons offense. First, we noted the lack of explanation as to how the BIA balanced the factors it applied to determine what constituted a "conviction" under section 1101(a)(48)(A). See Kwok Sum Wong v. Barr, 818 F. App'x 44, 46-47 (2d Cir. 2020). Second, we observed that it was unclear "if the BIA . . . considered whether the disorderly persons proceeding[ ] was criminal in nature under the governing laws of the prosecuting jurisdiction," which was a "key requirement" under In re Eslamizar, 23 I. & N. Dec. 684 (B.I.A. 2004). Id. at 47 (internal quotation marks omitted). Finally, we were "uncertain" how the BIA decided that "Wong's offense was a CIMT when the offense was not a crime under New Jersey law." Id.; see also N.J. Stat. Ann. §§ 2C:1-4(b)(1), 2C:20-2(b)(4)(a). Accordingly, we remanded the case to the BIA for it to "clarify these matters." Kwok, 818 F. App'x at 48.

D. The BIA's Decision on Remand

On March 30, 2022, the BIA issued the challenged precedential decision, which again dismissed Wong's appeal of the IJ's removal order. To begin, the BIA explained that "[t]he term 'conviction' is defined, in pertinent part, as a 'formal judgment of guilt . . . entered by a court.' " Matter of Wong, 28 I. & N. Dec. at 520 (quoting 8 U.S.C. § 1101(a)(48)(A)). It then reiterated that "the phrase 'judgment of guilt' refers to 'a judgment in a criminal proceeding.' " Id. (quoting Eslamizar, 23 I. & N. Dec. at 687). Acknowledging that courts had adopted "differing interpretations" of its precedents concerning what constitutes such a proceeding, the BIA sought to "clarify the conditions that make a [s]tate proceeding criminal in nature for purposes of section [1]101(a)(48)(A)." Id. at 523.

The BIA held that a "genuine" criminal proceeding is one in which the accused is afforded "minimum constitutional protections" - "which are applicable without limitation in all criminal prosecutions" and "without which criminal penalties cannot constitutionally be imposed." Id. at 523-24. It identified these minimum constitutional protections as the requirement of "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 [not to be] put in jeopardy twice for the same offense." Id. The BIA further clarified that state labels as to whether an offense is a "crime" "may be useful[,] but [are] not dispositive." Id. at 525 (internal quotation marks omitted). Finally, the BIA also explained that whether "an accused" is "expose[d]" to "criminal penalties" - as opposed to "civil disabilities" or "disadvantage[s]" - is another "focus" of the section 1101(a)(48)(A) inquiry. Id. at 525-26 (emphasis added).

Applying this test to Wong's case, the BIA observed that Wong's disorderly persons offense exposed him to criminal penalties, including up to six months' imprisonment. See N.J. Stat. Ann. § 2C:43-8. The BIA also determined that, before Wong was subjected to any such penalty, the state of New Jersey had provided him with the specified "minimum constitutional protections" and, thus, he had been "convicted" for purposes of sections 1101(a)(48)(A) and 1227(a)(2)(A)(ii). See Matter of Wong, 28 I. & N. Dec. at 526-27. The BIA then concluded that Wong's convictions for theft by deception under New Jersey law and for second-degree forgery under New York law were both CIMTs. Id. at 527-28. For these reasons, the BIA dismissed Wong's appeal. Id. at 528.

This timely petition followed. We have jurisdiction under 8 U.S.C. § 1252.

II. Discussion

Wong argues that the BIA's adoption of the "minimum constitutional protections" test was arbitrary and...