S. WONG
28 I. & N. Dec. 518
| BIA | 2022Background
- Respondent Kwok S. Wong, an LPR from Hong Kong/China, was convicted in 2005 (N.J. disorderly persons theft by deception) and 2006 (N.Y. second‑degree forgery).
- DHS charged removal under INA §237(a)(2)(A)(ii) for two or more crimes involving moral turpitude (CIMT).
- The Board and IJ found both convictions categorically involved moral turpitude and that the New Jersey disorderly persons conviction qualified as an INA “conviction.”
- The Second Circuit remanded for clarification whether and when a proceeding not labeled “criminal” by state law can nonetheless be an INA “conviction.”
- The central legal question: what makes a state adjudication a “criminal” proceeding for purposes of INA §101(a)(48)(A)?
- BIA held that a “conviction” requires a formal judgment of guilt entered after a proceeding that provides all constitutional criminal‑procedure rights that apply without limitation (the constitutional floor); applying that test, New Jersey disorderly persons prosecutions qualify, and both offenses are CIMTs, so Wong is removable.
Issues
| Issue | Wong's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether a judgment in a proceeding not labeled "criminal" is an INA "conviction" | NJ disorderly persons offenses are not "crimes" under state law, lack grand jury and jury trial rights, and impose no civil disabilities, so not an INA conviction | Federal law governs; a proceeding is a conviction if it is criminal in nature because it affords the constitutionally required criminal‑procedure rights | A finding of guilt is an INA "conviction" when entered after a proceeding that affords all constitutional criminal‑procedure rights that apply without limitation; absence of any such noncontingent right makes the proceeding noncriminal |
| Whether proof beyond a reasonable doubt is dispositive for defining a criminal proceeding | Preponderance or state labeling shows noncriminal character (implicit) | Constitutional requirement of proof beyond a reasonable doubt is necessary but not alone dispositive; must consider the full set of noncontingent constitutional protections | Proof beyond a reasonable doubt is necessary, but the operative test is whether all noncontingent constitutional rights applicable to criminal prosecutions are provided; those rights are the controlling floor |
| Whether Wong's NJ theft by deception and NY forgery are crimes involving moral turpitude (CIMTs) | Theft by deception lacks requirement of permanent taking; forgery statute may punish intent to injure, not fraud, so not categorically CIMTs | Theft by deception necessarily involves deceit/fraud; forgery involves deceit or malicious intent, both indicative of moral turpitude | Both convictions categorically involve moral turpitude (fraudulent/deceitful elements and malicious intent suffice); removability under INA §237(a)(2)(A)(ii) affirmed |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (discusses constitutional importance of proof beyond a reasonable doubt)
- In re Winship, 397 U.S. 358 (1970) (proof beyond a reasonable doubt is constitutionally required for criminal convictions)
- Lopez v. Gonzales, 549 U.S. 47 (2006) (federal construction of "crime" should not depend on state labels)
- Castillo v. Attorney Gen. U.S., 729 F.3d 296 (3d Cir. 2013) (remanded for BIA clarification whether NJ disorderly persons offense is an INA conviction)
- Rubio v. Sessions, 891 F.3d 344 (8th Cir. 2018) (treats proof beyond a reasonable doubt as central to criminal characterization)
- Batrez Gradiz v. Gonzales, 490 F.3d 1206 (10th Cir. 2007) (emphasizes reasonable‑doubt standard in defining criminal adjudications)
- Argersinger v. Hamlin, 407 U.S. 25 (1972) (right to counsel when imprisonment is possible)
- INS v. Orlando Ventura, 537 U.S. 12 (2002) (agencies generally should decide matters assigned to them; remand appropriate)