United States Court of Appeals For the Second Circuit

August Term 2023

Argued: November 6, 2023 Decided: March 11, 2024

No. 22-6185

KWOK SUM WONG,

Petitioner,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

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

Before: WALKER, RAGGI, SULLIVAN, Circuit Judges.

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.

DENIED.

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.,

2 Senior Litigation Counsel, on the brief), Civil Division, U.S. Department o