Second Circuit Defers to BIA's Definition of Conviction

The Second Circuit has deferred to the BIA’s decision in Matter of Wong addressing what minimal constitutional protections must be accorded to a defendant for the proceeding to result in a conviction for immigration purposes. The court further determined that the “minimum constitutional protections” test espoused in Wong could be applied retroactively. Finally, the court concluded that a second-degree forgery conviction in New York categorically matches the definition of a crime involving moral turpitude. The court rejected the petitioner’s void-for-vagueness challenge to the term “crime involving moral turpitude.”

The full text of Wong v. Garland can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/dcca81a9-a8f1-4254-bef7-5aee7c442985/23/doc/22-6185_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/dcca81a9-a8f1-4254-bef7-5aee7c442985/23/hilite/

BIA Finds that Disorderly Persons Offense in NJ Constitutes Conviction

The Board of Immigration Appeals has determined that a disorderly persons offense in New Jersey constitutes a conviction for immigration purposes. In so doing, the BIA analyzed which rights a defendant had in a disorderly persons proceeding. The BIA noted the following protections must be in place for a proceeding to result in a conviction: oof beyond a reasonable doubt; and the rights to confront one’s accuser, a speedy and public trial, notice of the accusations, 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 against being put in jeopardy twice for the same offense. “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.”

“However, not all constitutional rights of criminal procedure are required in every criminal proceeding. Some rights are contingent. 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. 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.”

The full text of Matter of S. Wong can be found here:

https://www.justice.gov/eoir/page/file/1488596/download

Second Circuit Rejects BIA Definition of Conviction

The Second Circuit has determined the Board of Immigration Appeals’ decision in Matter of JM Acosta - which addresses the finality of a conviction on direct appeal - is not entitled to deference. The Court agreed that the definition of conviction in the INA is ambiguous with respect to whether it applies to convictions on appeal. However, it disagreed with the burden-shifting framework laid out in JM Acosta.

“We need not here decide whether some limits on the finality requirement may appropriately be read into the IIRIRA, because we conclude that the specific burden-shifting regime and evidentiary standard demanded by the BIA to show a merits-based appeal is not reasonable. Specifically, the BIA requires a non-citizen to make a merits-based showing at the notice stage, often before he is able to review the record or identify his arguments on appeal. The BIA points to nothing in the statutory text or legislative history indicating that this requirement reflects Congressional intent. Moreover, the requirement ignores the realities of appellate practice.”

The full text of Braithwaite v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/eb96ed83-0767-49a4-9c47-cceb74705746/1/doc/20-27_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/eb96ed83-0767-49a4-9c47-cceb74705746/1/hilite/

BIA Clarifies Finality of Conviction

The Board of Immigration Appeals has determined that a conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived. Once the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes, which the respondent can rebut with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court, and that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings. Appeals, including direct appeals, and collateral attacks that do not relate to the underlying merits of a conviction will not be given effect to eliminate the finality of the conviction.

The full text of Matter of J.M. Acosta can be found here:

https://www.justice.gov/eoir/page/file/1090686/download

Fourth Circuit Finds that Court Costs are not Punishment

The Fourth Circuit has determined that a "prayer for judgment" in North Carolina, when accompanied only by an order to pay court costs, does not constitute a conviction for immigration purposes because these court costs do not constitute a punishment or penalty.  "Because a punishment or penalty must be proportionate to a defendant’s wrongdoing, courts generally refuse to treat a monetary assessment as a punishment or penalty when the assessment solely reflects the costs of compensating a private party or the government for losses resulting from the wrongdoing."  Congress intended the words "penalty" and "punishment" in the definition of a conviction to refer to "discretionary acts of judgment as opposed to the broader set of ministerial or administrative decrees or assessments a court may impose."  "This requires a judge to order a punitive sanction—i.e., one that is intended to discipline or deter and is proportionate to the underlying offense conduct."

The full text of Guzman Gonzalez v. Sessions can be found here:

http://www.ca4.uscourts.gov/Opinions/171519.P.pdf

BIA Finds that Texas Pre-trial Intervention Program Constitutes a Conviction

The Board of Immigration Appeals (BIA) has determined that participation in a Texas pre-trial intervention program constitutes a conviction where the participant stipulated that he committed each charged offense.  The BIA determined that the participant had admitted sufficient facts to sustain a finding of guilt, and that the probation terms imposed as part of the intervention program were a restraint on the participant's liberty.  As such, participation in the program constituted a conviction.  

The full text of Matter of Mohamed can be found here:
https://www.justice.gov/eoir/page/file/994641/download