S. WONG
FOR THE RESPONDENT: Margaret W. Wong, Esquire, Cleveland, Ohio
FOR THE DEPARTMENT OF HOMELAND SECURITY: Michael S. Lonoff, Assistant Chief Counsel
BEFORE: Board Panel: HUNSUCKER and PETTY, Appellate Immigration Judges; BROWN, Temporary Appellate Immigration Judge.
PETTY, Appellate Immigration Judge:
The United States Court of Appeals for the Second Circuit remanded this case to us to explain the circumstances under which a proceeding not denominated as “criminal” under the laws of the jurisdiction where it occurred can nonetheless result in a “conviction” within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act,
I. BACKGROUND
The respondent is a native of Hong Kong and a citizen of the People‘s Republic of China. He was admitted to the United States on or about April 19, 1979, as a lawful permanent resident. In 2005, the respondent pleaded guilty to the disorderly persons offense of theft by deception, in
In February 2012, the Immigration Judge found the respondent removable as charged. The respondent appealed, and we affirmed the Immigration Judge‘s determination. The respondent filed a petition for review with the Second Circuit, which remanded the case for us to further consider the respondent‘s removability. We subsequently remanded the record to the Immigration Judge for further proceedings.
In April 2015, the Immigration Judge again found the respondent removable as charged under section 237(a)(2)(A)(ii) of the Act because his two convictions were categorically crimes involving moral turpitude. The respondent filed a second appeal, which we dismissed in March 2018, again holding that both his 2005 and 2006 convictions categorically involved moral turpitude, and that the respondent‘s 2005 disorderly persons offense was a “conviction” under section 101(a)(48)(A) of the Act. The respondent again petitioned for review.
The Second Circuit granted the petition for review and remanded proceedings a second time, in part, because the court was uncertain whether and why a New Jersey disorderly persons offense satisfied the definition of “conviction” under section 101(a)(48)(A) of the Act. Kwok Sum Wong v. Barr, 818 F. App‘x 44, 47-48 (2d Cir. 2020). The Second Circuit requested that we explain “the factors necessary to [our] determination of what constitutes a ‘conviction’ for immigration purposes and ‘how an offense that is not a crime under the laws of the jurisdiction where it was committed can become a “crime” for purposes of the [Act].‘” Id.; see also INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (“Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.“).
The respondent argues that he is not removable as charged because a disorderly persons offense does not constitute a “conviction” under section 101(a)(48)(A) of the Act.2 He notes that a disorderly persons offense in New
II. DISCUSSION
We again conclude that the respondent‘s disorderly persons offense under section 2C:20-4(a) of the New Jersey Statutes constitutes a “conviction” within the meaning of section 101(a)(48)(A) of the Act. See
A. Board Precedent
In Matter of Eslamizar, we held that a “violation” under Oregon law was not a conviction for immigration purposes. 23 I&N Dec. at 687-88. While we made several observations concerning the legal consequences of a violation under State law, our holding in that case rested on the principle that proof beyond a reasonable doubt is a constitutional requirement for a criminal conviction. See id.; see also Apprendi v. New Jersey, 530 U.S. 466, 477-80 (2000); In re Winship, 397 U.S. 358, 361-64 (1970). Because the respondent in that case was found guilty “under the lesser standard of a preponderance of the evidence,” we concluded that his Oregon violation
We next addressed what constitutes a “conviction” in Matter of Rivera-Valencia, 24 I&N Dec. 484 (BIA 2008). There, we considered whether the conviction of a soldier entered by a general court-martial constituted a “conviction” for purposes of section 101(a)(48)(A). But rather than focusing on what types of proceedings can result in convictions, that case centered on whether a general court-martial qualified as a court. “There [was] no dispute that a general court-martial is a ‘criminal’ proceeding under the governing laws of the United States Armed Forces, and the respondent‘s general court-martial [in that case] unquestionably resulted in the entry of a formal judgment of his ‘guilt’ beyond a reasonable doubt.” Id. at 487 (citation omitted).
Finally, in Matter of Cuellar, 25 I&N Dec. at 855, we held that a Kansas municipal court conviction was a “conviction” within the meaning of the Act. As here, the respondent in that case did not contest that a formal judgment of guilt had been entered against him or that it had been entered by a court. Additionally, we noted that Kansas municipal convictions must be proven beyond a reasonable doubt. The respondent, however, claimed that he was not afforded all of the constitutional rights to which criminal defendants are entitled, and as a result, the conviction was not entered in a genuine criminal proceeding.
We began our analysis with the principle that “a formal judgment of guilt entered by a court qualifies as a conviction under section 101(a)(48)(A) so long as it was entered in a ‘genuine criminal proceeding,’ that is, a proceeding that was ‘criminal in nature under the governing laws of the prosecuting jurisdiction.‘” Id. at 852 (quoting Matter of Rivera-Valencia, 24 I&N Dec. at 486-87); accord Matter of Eslamizar, 23 I&N Dec. at 688. Addressing the respondent‘s constitutional arguments, we held that the absence of a right to a jury trial in Kansas municipal court proceedings did not violate the constitutional right to a jury trial because a defendant had a right to a de novo jury trial on appeal. See Matter of Cuellar, 25 I&N Dec. at 854; see also Ludwig v. Massachusetts, 427 U.S. 618, 625-28 (1976) (affirming the constitutionality of a two-tier system where, after a conviction is entered in a bench trial, a de novo jury trial is available as of right); cf. Lewis v. United States, 518 U.S. 322, 325-26 (1996) (holding that there is no constitutional right to a jury trial for petty offenses). We also rejected the respondent‘s argument that the Kansas municipal proceedings were not criminal proceedings because they did not afford him an absolute right to be represented by counsel. Matter of Cuellar, 25 I&N Dec. at 853-54.
B. Judicial Precedent
Courts have taken divergent approaches to Matter of Eslamizar and its progeny. As noted above, the Second Circuit has requested we clarify that decision, and the Third Circuit has done likewise. The Eighth and Tenth Circuits, in contrast, have focused on the constitutional aspects of criminal procedure and in particular whether proof beyond a reasonable doubt is required.
Just as in this case, the Third Circuit‘s decision in Castillo considered whether a New Jersey disorderly persons offense constitutes a conviction for a crime under section 237(a)(2)(A)(ii) of the Act. 729 F.3d at 298, 302. The Third Circuit remanded, in part, for us to clarify “what considerations or factors may be relevant in deciding whether a finding of guilt constitutes a conviction under Eslamizar and [section 101(a)(48)(A)].” Id. at 305. In particular, the Third Circuit instructed the Board to clarify whether proof beyond a reasonable doubt was the dispositive factor and to explain what role the other procedural rights play in the analysis. Id. at 307-11.
This case has followed a similar path. The Second Circuit noted that after reviewing our prior decisions, it was left with “uncertainty as to whether and why disorderly persons theft satisfies” section 101(a)(48)(A). Kwok Sum Wong, 818 F. App‘x at 46. The Second Circuit further noted that although Matter of Eslamizar and its progeny identify various factors in determining whether an offense is a conviction for a crime, these cases do not explain whether “any one of these factors was dispositive or to be given lesser weight.” Id. at 48. Accordingly, the Court remanded to afford us “the opportunity to clarify these matters.” Id.
The Eighth and Tenth Circuits, however, have read Matter of Eslamizar more narrowly, as merely highlighting that proof beyond a reasonable doubt is necessary for a proceeding to be of a criminal nature. See Rubio v. Sessions, 891 F.3d 344, 350 (8th Cir. 2018); Batrez Gradiz v. Gonzales, 490 F.3d 1206, 1208 (10th Cir. 2007). The Eighth Circuit expressly declined to follow Castillo, reasoning that “[i]n determining whether a state law adjudication resulted in a judgment that the alien was guilty of a crime, the
C. Necessary and Sufficient Conditions
We have long held “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.” Matter of Ozkok, 19 I&N Dec. 546, 551 n.6 (BIA 1988). As the Eighth Circuit noted, “it would be wrong to ‘render the law of alien removal dependent on varying state criminal classifications.‘” Rubio, 891 F.3d at 350 (quoting Lopez v. Gonzales, 549 U.S. 47, 58 (2006)). As such, 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. See Saleh v. Gonzales, 495 F.3d 17, 23 (2d Cir. 2007) (observing that undue deference to State definitions of convictions “frustrate[s] congressional intent“). To ensure that the definition of a “conviction” turns on Federal law, we must examine the substance of the proceeding, not the label the State assigns to it. Rubio, 891 F.3d at 351 (noting the importance “of substance, not form“). As we said before, “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.” Matter of Eslamizar, 23 I&N Dec. at 688.
In this country, a “genuine” or “true” criminal proceeding must provide certain minimum constitutional protections, without which criminal penalties cannot constitutionally be imposed.3 Id. at 688-89 (discussing required constitutional protections); cf. Matter of Cuellar, 25 I&N Dec. at 853-54 (discussing contingent constitutional protections). These minimum protections include: proof beyond a reasonable doubt; and the rights to confront one‘s accuser, a speedy and public trial, notice of the accusations,
In short, we determine whether a proceeding is “criminal” by reference to those rights of criminal procedure guaranteed by the Constitution—as incorporated against the States by virtue of the Fourteenth Amendment—and which are applicable without limitation in all criminal prosecutions. See generally Argersinger, 407 U.S. at 27-28 (noting the entirety of the Sixth Amendment has been made applicable to the States through the Fourteenth Amendment). Because the rights listed above represent the constitutional floor of criminal procedure, and State law must conform to the Constitution, see
However, not all constitutional rights of criminal procedure are required in every criminal proceeding. Some rights are contingent. See Matter of Cuellar, 25 I&N Dec. at 853-54. For example, 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 loss of liberty. See, e.g., Lewis, 518 U.S. at 325 (noting that the right to jury trial applies only to “serious” offenses); Duncan v. Louisiana, 391 U.S. 145, 157-59 (1968) (same); Shelton, 535 U.S. at 661 (holding that there is no right to counsel if there is no possibility of loss of liberty); Scott, 440 U.S. at 373-74 (same). Because contingent rights are not required in every criminal proceeding, their absence cannot be dispositive with respect to whether a particular proceeding is criminal in nature. Similarly, the absence of a right to indictment by grand jury is immaterial, because that right has not been made applicable to the States through the Fourteenth Amendment. See Albright v. Oliver, 510 U.S. 266, 272 (1994); Hurtado v. California, 110 U.S. 516, 538 (1884).
Focusing on whether the State adjudication is a substantively constitutional criminal proceeding avoids improper reliance on State definitions and categories. See Matter of Ozkok, 19 I&N Dec. at 551 n.6. 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
Because the constitutional considerations outlined above are sufficient to establish what is and is not a criminal judgment, we need not consider other aspects of State law. For example, to determine whether a judgment is criminal in nature, we need not consider whether the judgment can be used for impeachment purposes under the State‘s rules of evidence, whether it constitutes a prior conviction for sentencing purposes under State law, or whether it results in disqualification from State public office or other civil disabilities.
We conclude that the minimum constitutional safeguards for all criminal proceedings define whether a proceeding is criminal in nature, and a jurisdiction‘s application of these safeguards will render such a judgment a “conviction” under section 101(a)(48)(A) of the Act.5 Conversely, the absence of any constitutionally required right of criminal procedure renders a proceeding noncriminal in nature and thus not a “conviction” for immigration purposes. See, e.g., Matter of Eslamizar, 23 I&N Dec. at 688.
D. Application to the Respondent
The respondent maintains that his New Jersey disorderly conduct offense was not a conviction within the meaning of the Act because defendants in New Jersey disorderly conduct proceedings are not entitled to an indictment by grand jury or to a jury trial; New Jersey disorderly conduct offenses do not give rise to any legal disability or disadvantage; and disorderly conduct offenses are not “crimes” as defined by State law. We reject the respondent‘s arguments. How the State defines or labels the offense may be useful but is not dispositive. Instead, the analysis should focus on whether the judgment exposes the accused to criminal penalties and whether the procedure used to arrive at that judgment conforms to the minimum constitutional requirements
The respondent‘s constitutional arguments must be rejected as well. As noted above, the right to indictment by grand jury has not been made applicable to the States, so its absence cannot conclusively render a State proceeding noncriminal. See Albright, 510 U.S. at 272; Hurtado, 110 U.S. at 538. Similarly, the right to a jury trial is contingent on the seriousness of the offense. Lewis, 518 U.S. at 325; Duncan, 391 U.S. at 157-59. The penalty for a New Jersey disorderly persons offense is limited to 6 months’ imprisonment, see
With respect to those constitutional rights that apply without limitation and have been made applicable to the States, all of them apply to New Jersey disorderly persons offenses. Proof beyond a reasonable doubt is required by statute. See
E. Removability
Having determined that the respondent‘s conviction under section 2C:20-4(a) is a “conviction” for a crime under the Act, we turn to whether the respondent has been convicted of two more crimes involving moral turpitude that render him removable under section 237(a)(2)(A)(ii) of the Act. We again conclude that the respondent‘s convictions for theft by deception in violation of section 2C:20-4(a) under the New Jersey Statutes and forgery in the second degree in violation of section 170.10 of the New York Penal Law categorically involve moral turpitude.
The respondent argues that a conviction for theft by deception in violation of section 2C:20-4(a) does not require proof of a permanent taking, and the offense cannot involve moral turpitude without an intent to permanently deprive the owner of possession. But the respondent was not merely convicted of a theft offense, but of theft by deception, an element of which is a knowing misrepresentation made with the specific intent to cheat or defraud the victim. See Selective Ins. Co. v. McAllister, 742 A.2d 1007, 1011 (N.J. Super. Ct. App. Div. 2000). In determining whether a crime involves moral turpitude, the Second Circuit has held that “the distinction between permanent and temporary takings is not relevant” where the offense involves fraud. Mendez v. Mukasey, 547 F.3d 345, 351 (2d Cir. 2008). Because the respondent‘s conviction involves fraud, we reject his contention that it cannot be for a crime involving moral turpitude because it does not require proof of a permanent taking.
The respondent further asserts that a conviction for forgery in the second degree in violation of section 170.10 of the New York Penal Law is not categorically a crime involving moral turpitude because the statute does not necessarily involve fraud; it may be violated with the intent to injure another in addition to defrauding or deceiving another. We reject this argument as well. Intent to injure is often indicative of moral turpitude. See Escobar v. Lynch, 846 F.3d 1019, 1024 (9th Cir. 2017); Villatoro v. Holder, 760 F.3d 872, 878 (8th Cir. 2014); cf. Efstathiadis v. Holder, 752 F.3d 591, 597 (2d Cir. 2014) (per curiam) (noting that to qualify as a crime involving moral turpitude, an offense must involve an “evil or malicious intent“). Furthermore, a defendant convicted under section 170.10 must intend to cause injury by falsely making, completing, or altering a written document, which itself involves fraud or deceit. See Mendez, 547 F.3d at 347; see also Rodriguez v. Gonzales, 451 F.3d 60, 64 (2d Cir. 2006) (per curiam) (holding that an offense that “involves deceit and an intent to impair the efficiency and lawful functioning of the government” necessarily involves moral turpitude). Accordingly, we agree with the Immigration Judge‘s determination that the respondent is removable as charged under section 237(a)(2)(A)(ii) the Act, as a noncitizen who has been convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.6
III. CONCLUSION
A finding of guilt in a proceeding that affords defendants all of the constitutional rights of criminal procedure that are applicable without limitation and that have been made applicable to the States through the Fourteenth Amendment is a “conviction” for immigration purposes under section 101(a)(48)(A) of the Act. Because New Jersey law mandates that such rights be afforded to defendants charged with disorderly persons offenses, the respondent‘s conviction for a disorderly persons offense qualifies as a conviction for immigration purposes. This conviction, along with the respondent‘s New York conviction for forgery, are crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, rendering him removable as charged. Accordingly, the respondent‘s appeal will again be dismissed.
ORDER: The respondent‘s appeal is dismissed.