     18-1007
     Wong v. Barr
                                                                                                   BIA
                                                                                             Loprest, IJ
                                                                                           A036 850 251
                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held
 2   at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 16th day of June, two thousand twenty.
 4
 5   PRESENT:
 6               BARRINGTON D. PARKER,
 7               RICHARD J. SULLIVAN,
 8                     Circuit Judges,
 9               KATHERINE POLK FAILLA, 1
10                     District Judge.
11   _____________________________________
12
13   KWOK SUM WONG,
14            Petitioner,
15
16                  v.                                                         18-1007
17
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20               Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                           Margaret W. Wong, Margaret Wong & Associates
24                                             LLC, Cleveland, OH.
25
26   FOR RESPONDENT:                           Joseph H. Hunt, Assistant Attorney General; Carl
27                                             McIntyre, Assistant Director; Andrew Oliveira, Trial
28                                             Attorney, Office of Immigration Litigation, United
29                                             States Department of Justice, Washington, DC.

     1
     Judge Katherine Polk Failla, of the United States District Court for the Southern District of New
     York, sitting by designation.
 1          UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

 2   Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the

 3   petition for review is GRANTED.

 4          Petitioner Kwok Sum Wong, a native of Hong Kong and citizen of the People’s Republic

 5   of China, seeks review of two decisions of the BIA. The BIA affirmed the April 24, 2015 and

 6   February 10, 2012 decisions of an Immigration Judge (“IJ”) ordering Wong’s removal as an alien

 7   convicted of two crimes of moral turpitude (“CIMT”) pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) and

 8   finding him ineligible for a waiver pursuant to 8 U.S.C. § 1182(h). In re Kwok Sum Wong, No.

 9   A036 850 251 (B.I.A. Mar. 20, 2018, May 15, 2012), aff’g No. A 036 850 251 (Immig. Ct. N.Y.

10   City Apr. 24, 2015, Feb. 10, 2012). We assume familiarity with the facts, procedural history and

11   the issues presented for review.

12          In 2005, Wong was convicted of theft by deception in violation of N.J. Stat. Ann. § 2C:20-4.

13   In 2006, he was convicted of forgery in the second degree in violation of New York Penal Law

14   (“NYPL”) § 170.10. In 2011, the Department of Homeland Security (“DHS”) charged Wong as

15   removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two CIMTs. On

16   appeal, Wong argues (1) that his theft by deception offense does not constitute a “conviction”

17   within the meaning of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(48)(A)

18   and, if it does, the offense is not a CIMT; (2) that his forgery conviction does not qualify as a

19   CIMT; and (3) that the agency erred in finding him ineligible for a § 1182(h) waiver. We grant the

20   petition for review and remand for proceedings consistent with this opinion.

21                                            DISCUSSION

22          Wong pleaded guilty to theft by deception in violation of N.J. Stat. § 2C:20-4 and was

23   ordered to pay a $200 fine. Wong argues to us that his plea did not count as a “conviction” under

                                                     2
 1   8 U.S.C. § 1227(a)(2)(A)(ii). Under New Jersey law, theft by deception is a disorderly persons

 2   offense. A disorderly persons theft is one that involves less than $200. N.J. Stat. Ann. § 2C:20-

 3   2(b)(4)(a). The offense is not a “crime” as defined in the New Jersey constitution. Id. §§ 2C:1-

 4   4(a)-(b); 2C:20-2(b)(4). New Jersey law also provides that “[t]here shall be no right to indictment

 5   by a grand jury nor any right to trial by jury on such offenses. Conviction of such offenses shall

 6   not give rise to any disability or legal disadvantage based on conviction of a crime.” Id. § 2C:1-

 7   4(b).

 8           The INA defines “conviction” as:

 9           a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt
10           has been withheld, where--
11           (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty
12               or nolo contendere or has admitted sufficient facts to warrant a finding of guilt,
13               and
14           (ii) the judge has ordered some form of punishment, penalty, or restraint on the
15                alien’s liberty to be imposed.
16
17   8 U.S.C. § 1101(a)(48)(A).

18           The BIA’s prior decisions about what constitutes a “conviction” leave us with uncertainty

19   as to whether and why disorderly persons theft satisfies this definition. In In re Eslamizar, the BIA

20   determined that by “judgment of guilt,” Congress meant a “judgment entered in a genuine criminal

21   proceeding”—a “proceeding that must, at minimum, be criminal in nature under the governing

22   laws of the prosecuting jurisdiction.” 23 I. & N. Dec. 684, 688 (B.I.A. 2004). In that case, the BIA

23   determined that a judgment of guilt as to third-degree theft, a violation under Oregon law, did not

24   qualify as a conviction under § 1101(a)(48)(A). In making that determination, the BIA considered

25   “the constitutional safeguards normally attendant upon a criminal adjudication” and the

26   consequences associated with the conviction under the laws of the prosecuting jurisdiction. Id. at


                                                        3
 1   687. Like New Jersey law, Oregon law provides that “conviction of a violation does not give rise

 2   to any disability or legal disadvantage based on conviction of a crime.” Id. (internal quotation

 3   marks and alterations omitted). Moreover, the BIA considered whether the offense must be proved

 4   beyond a reasonable doubt and its conclusion was influenced by the fact that the violation could

 5   be proved by a preponderance of the evidence. Id. at 687-88. Notably, the BIA did not hold that

 6   any one of these factors was dispositive or to be given lesser weight, nor did it explain how they

 7   did or did not fit together.

 8           The Government argues that New Jersey requires a showing of guilt beyond a reasonable

 9   doubt for conviction of a disorderly persons offense, which is sufficient to render Wong’s

10   adjudication a conviction under § 1101(a)(48)(A). The Third Circuit considered this issue in

11   Castillo v. Attorney General of the United States, 729 F.3d 296, 305-06 (3d Cir. 2013), where the

12   Government also argued that New Jersey’s disorderly persons offenses qualified as convictions

13   under § 1101(a)(48)(A) because the standard was “beyond a reasonable doubt.” The Third Circuit

14   rejected the Government’s contention that the standard of proof was dispositive. Id. at 306. Instead,

15   it concluded that In re Eslamizar requires a “more ‘open-ended’ inquiry” and “that there are several

16   other factors that may be relevant in deciding if the judgment was entered in a true or genuine

17   criminal proceeding, including how the prosecuting jurisdiction characterized the offense at issue,

18   the consequences of a finding of guilt, and the rights available to the accused as well as any other

19   characteristics of the proceeding itself.” Id. at 307. The Third Circuit then remanded to the agency

20   to reconsider In re Eslamizar or to apply the factors discussed. Id. at 311.

21           Subsequent BIA decisions have not definitively clarified whether the standard of proof is

22   the dispositive factor or how other factors enter into the mix. See, e.g., Matter of Rivera-Valencia,

23   24 I. & N. Dec. 484, 486-87 (B.I.A. 2008) (finding a conviction where reasonable doubt standard

                                                      4
 1   applied and “trial by court-martial d[id] not infringe on the constitutional rights of an accused . . . ,

 2   despite the absence of some protections afforded civilian defendants, such as the right to a trial by

 3   jury”). In Matter of Cuellar-Gomez, 25 I. & N. Dec. 850, 853 (B.I.A. 2012) (internal quotation

 4   marks omitted), the BIA, found that a municipal court conviction was a conviction under the INA,

 5   emphasizing the presence of a “beyond a reasonable doubt” standard. The BIA, however, also

 6   noted that the municipal court judge could impose fines and order incarceration, that the judgment

 7   was “a valid conviction for purposes of calculating the defendant’s criminal history” under the

 8   state’s sentencing laws, and there was right to trial de novo in state district court. Id. at 853-55.

 9   The BIA did not say whether the burden of proof was determinative or whether and how these

10   other factors mattered.

11           Furthermore, it is unclear if the BIA appropriately considered whether the disorderly

12   persons proceedings was “criminal in nature under the governing laws of the prosecuting

13   jurisdiction,” a key requirement in its In re Eslamizar analysis. The BIA acknowledged that

14   Wong’s offense was not considered a crime under New Jersey law but determined that Wong was

15   convicted in a criminal proceeding because his offense was a crime as “conventionally defined,”

16   Certified Administrative Record at 541, that guilt must be proven beyond a reasonable doubt, and

17   that he was indicted by a grand jury. The reasoning behind this conclusion is unclear to us. We are

18   uncertain about the analytical path the BIA walked to decide that Wong’s offense was a CIMT

19   when the offense was not a crime under New Jersey law but nonetheless was a crime as

20   “conventionally defined.”

21           Wong was indicted by a grand jury for theft by deception in the third degree, but he

22   eventually pleaded guilty to the much lower disorderly persons offense theft. A disorderly persons

23   offense does not require an indictment by a grand jury. N.J. Stat. Ann. § 2C:1-4. The BIA’s

                                                        5
 1   reliance on Wong’s indictment raises a number of questions. If Wong never pled to the offense for

2    which the grand jury indicted him but instead pled to the disorderly persons offense, why does the

3    indictment prove anything at all, much less an adjudication for a CIMT?

 4          Accordingly, we conclude that the BIA failed to analyze with sufficient precision the

 5   factors necessary to its determination of what constitutes a “conviction” or “a judgement of guilt”

 6   or a “criminal proceeding” and how the factors relate to each other. Nor has the BIA satisfactorily

 7   explained how an offense that is not a crime under the laws of the jurisdiction where it was

 8   committed can become a “crime” for purposes of the INA. We remand to afford the BIA the

 9   opportunity to clarify these matters. See Ying Zheng v. Gonzales, 497 F.3d 201, 203-04 (2d Cir.

10   2007) (remanding to the BIA where the BIA had not opined in a published, precedential opinion

11   what standards it used to review an issue and it appeared that the BIA’s non-precedential decisions

12   had taken contrary positions). 2

13          For the foregoing reasons, the petition for review is GRANTED and the case is

14   REMANDED for proceedings consistent with this opinion.

15                                         FOR THE COURT:
16                                         Catherine O’Hagan Wolfe, Clerk of Court




     2
       Because the agency ordered Wong removed under a provision that requires the government to
     establish two CIMT convictions, 8 U.S.C. § 1227(a)(2)(A)(ii), and we remand as to whether the theft
     by deception offense qualifies as a INA conviction, we do not reach the other issues raised by Wong.
                                                       6
