BIA Holds That A “Conviction” Under INA §101(a)(48)(A) Requires 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 Are Incorporated Against The States Under The Fourteenth Amendment. Matter Of Eslamizar, 23 I&N Dec. 684 (BIA 2004), Clarified.
On March 30, 2022, the Board of Immigration Appeals (BIA or Board), on remand from the Second Circuit Court of Appeals, explained the circumstances under which a proceeding not labeled “criminal” under the laws of the jurisdiction where it occurred can nonetheless result in a “conviction” under INA §101(a)(48)(A). The BIA had previously held in Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004) and Matter of Cuellar, 25 I&N Dec. 850 (BIA 2012) that “the distinction between criminal and noncriminal proceedings turns on the rights provided to the defendant”; if a proceeding does not afford a defendant all of the constitutionally-required rights of criminal procedure, it does not result in a “conviction” for immigration purposes. Conversely, if it does afford those rights, then a judgment of guilt therein constitutes a “conviction” under the INA.
Respondent had been admitted to the U.S. as a lawful permanent resident but subsequently pled guilty to the disorderly persons offense of theft by deception per New Jersey Statutes §2C:20-4(a) and been convicted of forgery in the 2nd degree under New York Penal Law §170.10. DHS charged him with removability per INA §237(a)(2)(A)(ii) as one who has been convicted of 2 or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.
Initially, the Immigration Judge (IJ) found Respondent removable as charged, and the case went to the Board, which affirmed, then on a petition for review to the Second Circuit, which remanded to the BIA, which, in turn, remanded to the IJ. The court again found Respondent removable as charged, the BIA dismissed the second appeal, and the matter again went to the Court of Appeals. This time the Second Circuit remanded to the Board because it “was uncertain whether and why a New Jersey disorderly persons offense satisfied the definition of ‘conviction’ “per §101(a)(48)(A); the Court of Appeals asked for the BIA to explain what factors are necessary for a “conviction” 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 immigration law.
At the Board, Respondent contended that he was not removable as charged because a disorderly persons offense does not constitute a “conviction” under the INA, arguing that such a charge in New Jersey does not carry a right to a grand jury indictment or the right to a jury trial and that “this class of offenses does not give rise to any legal disability or legal disadvantage, as a conviction for a ‘crime’ under New Jersey law does.” He also claimed that disorderly persons offenses are not crimes under the New Jersey Constitution.
Begining its discussion, the opinion again concluded that Respondent’s disorderly persons offense was a “conviction” for immigration purposes. Respondent did not dispute that he had been found guilty nor that the New Jersey Superior Court is a “court” within the meaning of §101(a)(48)(A); the only question left was how to differentiate criminal adjudications under Matter of Eslamizar from lesser, noncriminal proceedings. The answer was found by looking “to the constitutional safeguards.”
In terms of Board precedent, Eslamizar’s holding had rested on the principle that proof beyond a reasonable doubt is a constitutional requirement for a criminal conviction. Matter of Cuellar had decided that a municipal court conviction constituted a “conviction” under the INA 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, municipal convictions there had been proven beyond a reasonable doubt. Cuellar held that the absence of a right to a jury trial in municipal court did not violate the constitutional right to a jury trial because a defendant had a right to a de novo jury trial on appeal and rejected the argument that municipal court proceedings were not criminal proceedings because they did not afford an absolute right to be represented by counsel. Finally, the BIA pointed out in Cuellar that there is no constitutional right to appointed counsel, even for indigent defendants, if no imprisonment may be imposed.
As to the conditions that make a State proceeding “criminal” under the INA, based on judicial precedent, the Board found that it must first refer “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.” The absence of any of them, concluded the decision, renders the proceeding noncriminal for Federal purposes, and a judgment of guilt in such a matter would not constitute a conviction under INA §101(a)(48)(A). Thus, concluded that BIA, the minimum constitutional safeguards for all criminal proceedings define whether a specific proceeding is criminal in nature and the application of these safeguards renders such a judgment a “conviction” for purposes of the immigration law. And, per Eslamizar, the absence of any such right renders the proceeding noncriminal in nature incapable of producing a conviction under the INA.
As applied to Respondent, this holding meant the rejection of his constitutional arguments, because the right to indictment by grand jury is not applicable to the States; its absence thus cannot render a State proceeding noncriminal. Similarly, stated the Board, the right to a jury trial is contingent on the seriousness of the offense; the penalty for a New Jersey disorderly persons crime is limited to 6 months imprisonment – not a serious offense. However, the lack of right to a jury trial for such an offense “does not resolve whether the proceeding results in a criminal conviction for immigration purposes.” Those constitutional rights that apply without limitation and that are made applicable to the States all apply to New Jersey disorderly persons offenses. As such, convictions for such offenses are “convictions” per §101(a)(48)(A).
Finally, regarding removability, the BIA once again found that Respondent’s convictions for theft by deception and forgery in the 2nd degree categorically involve moral turpitude. He argued that the theft offense was not a crime involving moral turpitude because a conviction did not require proof of permanent taking. His conviction for theft necessarily maintained an element of a knowing misrepresentation, stated the decision, made with the specific intent to cheat or defraud the victim; in determining whether an offense involves moral turpitude, the Second Circuit has held that the distinction between permanent and temporary takings is irrelevant where the offense involves fraud. The Board thus rejected Respondent’s contention.
He further claimed on appeal that the New York forgery conviction did not involve moral turpitude because the statute does not necessarily involve fraud; it may be violated with the intent to injure another in addition to defrauding him or her. This argument fared no better: intent to injure, found the BIA, is often indicative of moral turpitude. Additionally, one convicted under this statute “must intend to cause injury by falsely making, completing, or altering a written document, which itself involves fraud or deceit.” Respondent was found removable as charged under §237(a)(2)(A)(ii) and the appeal was dismissed. Matter of Wong, 28 I&N Dec. 518 (BIA 2022).
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