Cite as 28 I&N Dec. 518 (BIA 2022) Interim Decision #4041 Matter of Kwok S. WONG, Respondent Decided March 30, 2022 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals 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 is a “conviction” for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2018). Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004), clarified. 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, 8 U.S.C. § 1101(a)(48)(A) (2018). As we previously held in Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004), and Matter of Cuellar, 25 I&N Dec. 850 (BIA 2012), the distinction between criminal and noncriminal proceedings turns on the rights provided to the defendant. If a proceeding does not afford defendants all of the constitutionally required rights of criminal procedure, it cannot produce a conviction for immigration purposes. If the proceeding does afford defendants those rights, then a judgment of guilt in that proceeding constitutes a conviction under the 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 518 Cite as 28 I&N Dec. 518 (BIA 2022) Interim Decision #4041 violation of section 2C:20-4(a) of the New Jersey Statutes. In 2006, he was convicted of forgery in the second degree, in violation of section 170.10 of the New York Penal Law. 1 Based on these convictions, the Department of Homeland Security charged the respondent with removability under section 237(a)(2)(A)(ii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2006), 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. 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 …
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