95 F.4th 82
2d Cir.2024Background
- Petitioner Kwok Sum Wong, a native of Hong Kong and citizen of China, was admitted to the U.S. as a lawful permanent resident in 1979.
- Wong previously received a waiver of deportation for a 1988 federal drug conviction but later pleaded guilty to two state offenses: theft by deception in New Jersey (a disorderly persons offense) and second-degree forgery in New York.
- The Department of Homeland Security charged Wong as removable under INA § 237 for being convicted of "two crimes involving moral turpitude" (CIMTs) not arising from a single scheme.
- After multiple BIA and judicial appeals and remands, the BIA clarified the federal definition of "conviction" for immigration purposes using a "minimum constitutional protections" test.
- The BIA found both state offenses to be CIMTs and treated the New Jersey disorderly persons offense as a "conviction" for immigration removal.
- Wong petitioned the Second Circuit for review, challenging the BIA's legal standards and their application to his case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA’s interpretation of "conviction" under 8 U.S.C. § 1101(a)(48)(A) was arbitrary or capricious | BIA's test ignores relevant state-law classifications and consequences | Test is reasonable, promotes uniformity, and is tied to federal constitutional minimums | Not arbitrary or capricious; BIA’s interpretation is entitled to deference |
| Whether the "minimum constitutional protections" test applies retroactively | Should not retroactively apply because it was a new, burdensome rule | Test merely clarifies an unsettled area; reliance interests were minimal | Test is not an abrupt change and applies retroactively |
| Whether second-degree forgery under N.Y. law is a CIMT | Statute could be violated without intent to obtain benefit or cause harm | Offense inherently involves deceit and intent sufficient for CIMT | Second-degree forgery categorically a CIMT |
| Whether "crime involving moral turpitude" is unconstitutionally vague | Statutory phrase is too vague for due process | Supreme Court precedent upholds this phrase | Not unconstitutionally vague |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (Chevron framework for agency deference)
- Jordan v. De George, 341 U.S. 223 (phrase "crime involving moral turpitude" is not unconstitutionally vague)
- United States v. Ward, 448 U.S. 242 (distinction between criminal and civil penalties)
- Saleh v. Gonzales, 495 F.3d 17 (uniformity goal in immigration law interpretation)