By Hailey Konnath ·
Law360 (November 4, 2024, 10:27 PM EST) –The U.S. Supreme Court on Monday vacated a Second Circuit decision denying a Chinese national’s appeal of an immigration judge’s removal order, citing its recent Loper Bright decision overturning decades-old precedent instructing judges about when they could defer to federal agencies’ interpretations of law in rulemaking.
The high court granted the petition lodged by Kwok Sum Wong and remanded his case for further proceedings in light of its June ruling inLoper Bright Enterprises v. Raimondo , according to an entry on the case docket. The justices’ opinion wasn’t immediately available Monday.
In its Loper Bright decision, the Supreme Court axed the longstanding Chevron doctrine, which permitted courts to defer to a federal agency’s reasonable interpretation of a law when the statute is ambiguous.
Wong’s case centers on 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 the Immigration and Nationality Act. Wong had argued that a disorderly persons offense he pled guilty to doesn’t constitute a conviction under the law, however, that argument was rejected by the Board of Immigration Appeals as well as by the Second Circuit.
According to the underlying BIA decision, Wong is a Hong Kong native who became a lawful permanent resident of the United States in 1979. Decades later, in 2005, he pled guilty to the disorderly persons offense of theft by deception. A year later, he was also convicted of forgery. The U.S. Department of Homeland Security then charged him with removability under the Immigration and Nationality Act “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,” per the decision.
An immigration judge found Wong removable in February 2012. The case made its way to the Second Circuit twice, with a panel most recently remanding the proceedings in part because it was “uncertain whether and why a New Jersey disorderly persons offense satisfied the definition of ‘conviction’” under immigration law, according to the BIA.
On remand, the BIA again found that the disorderly persons offense under New Jersey law constitutes a “conviction.” Specifically, it said that the term “conviction” is defined as a “formal judgment of guilt … entered by a court.”
“The respondent does not dispute that he was found guilty, nor does he dispute that the New Jersey Superior Court is a ‘court’ within the meaning of section 101(a)(48)(A)” of the Immigration and Nationality Act, the BIA said at the time.
Rather, Wong argued that the disorderly conduct offense wasn’t a conviction under the immigration law because “defendants in New Jersey disorderly conduct proceedings are not entitled to an indictment by grand jury or to a jury trial,” per the decision. He also argued that New Jersey disorderly conduct offenses do not give rise to any legal disability or disadvantage, nor are they considered “crimes” under state law.
The BIA rejected all of his arguments, finding that how the state defines or labels an offense may be useful but isn’t dispositive.
“Instead, the analysis should focus on whether the judgment exposes the accused to criminal penalties and whether the procedure used to arrive at that judgment conforms to the minimum constitutional requirements for criminal prosecutions,” the BIA said.
New Jersey provides all the constitutionally mandated rights of criminal procedure in prosecutions of disorderly persons offenses, the BIA said. Thus, convictions for those offenses are indeed convictions as defined by the Immigration and Nationality Act, according to the decision.
The government and counsel for Wong didn’t immediately respond to requests for comment late Monday.
Wong is represented by Benjamin Hayes of Goodwin Procter LLP.
The government is represented by Imran R. Zaidi of the U.S. Department of Justice’s Civil Division.
The case is Kwok Sum Wong v. Merrick B. Garland, case number 24-92, in the U.S. Supreme Court.
–Additional reporting by Juan-Carlos Rodriguez and Madeline Lyskawa. Editing by Emily Kokoll.