Khalid Mohamed v. Eric Holder, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2027

KHALID ABDEL WHAB MOHAMED,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals.

Argued: September 19, 2014 Decided: October 17, 2014

Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and DAVIS,

Senior Circuit Judge.

Petition for review granted; reversed and remanded with

instructions by published opinion. Judge Niemeyer wrote the

opinion, in which Chief Judge Traxler and Senior Judge Davis

joined.

ARGUED: Steven Harris Goldblatt, GEORGETOWN UNIVERSITY LAW

CENTER, Washington, D.C., for Petitioner. Bernard Arthur

Joseph, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Respondent. ON BRIEF: Rita K. Lomio, Supervising Attorney,

Lola A. Kingo, Supervising Attorney, Tiffany L. Ho, Student

Counsel, David A. Kronig, Student Counsel, Philip Young, Student

Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW

CENTER, Washington, D.C., for Petitioner. Stuart F. Delery,

Assistant Attorney General, Civil Division, Jamie M. Dowd,

Senior Litigation Counsel, Office of Immigration Litigation,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

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NIEMEYER, Circuit Judge:

Khalid Mohamed, a citizen of Sudan, was ordered removed by

the Board of Immigration Appeals (“BIA”) on the ground that he

had been convicted of two crimes “involving moral turpitude” --

a 2010 conviction for sexual battery, in violation of Va. Code

Ann. § 18.2-67.4, and a 2011 conviction for failing to register

as a sex offender, in violation of Va. Code Ann. § 18.2-472.1.

See 8 U.S.C. § 1227(a)(2)(A)(ii) (rendering deportable an alien

who is convicted of “two or more crimes involving moral

turpitude”). To conclude that the crime of failing to register

as a sex offender was a crime involving moral turpitude, the BIA

relied on its prior decision in Matter of Tobar-Lobo, 24 I. & N.

Dec. 143 (BIA 2007), which so held.

In his petition for review, Mohamed contends that his

failure to register as a sex offender was not a crime involving

moral turpitude and that Tobar-Lobo was an unreasonable

interpretation of § 1227(a)(2)(A)(ii). Because we agree, we

grant Mohamed’s petition for review, reverse the BIA’s ruling,

and remand with instructions to vacate the order of removal.

I

Mohamed, who was born in Sudan in 1980, entered the United

States as a lawful permanent resident in 2003. In 2010, while

living in Virginia, he pleaded guilty to sexual battery, having

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been charged with “sexually abusing . . . a female child

17 years of age . . . by force, threat, intimidation, [or]

ruse,” in violation of Va. Code Ann. § 18.2-67.4. In 2011, he

was convicted of failing to register as a sex offender, in

violation of Va. Code Ann. § 18.2-472.1.

Following Mohamed’s second conviction, the Department of

Homeland Security sought his removal, contending that Mohamed’s

two convictions were for crimes involving moral turpitude and

that Mohamed was therefore deportable under 8 U.S.C.

§ 1227(a)(2)(A)(ii). Before an immigration judge (“IJ”),

Mohamed conceded that his sexual battery conviction involved

moral turpitude, but he maintained that his conviction for

failure to register as a sex offender did not involve moral

turpitude and that therefore he was not removable. He also

applied for cancellation of removal under 8 U.S.C. § 1229b(a),

arguing that his sexual battery conviction was not for a “crime

of violence” and therefore was not an “aggravated felony” that

would have barred him from relief under § 1229b(a)(3).

Recognizing that Mohamed had the burden of supporting his

application for cancellation of removal and finding that the

record was “inconclusive as to whether [Mohamed’s sexual

battery] offense [was] a crime of violence and thus an

aggravated felony,” the IJ found that Mohamed had failed to

carry his burden and denied his application for cancellation.

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On appeal from the IJ’s decision, the BIA dismissed

Mohamed’s appeal and, by order dated July 19, 2013, ordered his

removal. The BIA concluded that Mohamed was removable for

having been convicted of two crimes involving moral turpitude,

expressly noting that Mohamed’s failure to register as a sex

offender was a crime involving moral turpitude, as held in

Tobar-Lobo, 24 I. & N. Dec. 143. The BIA also concluded that

Mohamed had failed to carry his burden of demonstrating that his

sexual battery conviction was not an “aggravated felony” for

purposes of his cancellation application.

Mohamed filed this petition for review of the BIA’s order,

challenging both rulings of the BIA.

By order dated September 29, 2014, we directed the

government to release Mohamed from custody immediately,

indicating that this opinion would provide the basis for our

order.

II

Mohamed’s order of removal is based on 8 U.S.C.

§ 1227(a)(2)(A)(ii), which provides that any alien “convicted of

two or more crimes involving moral turpitude . . . is

deportable.” While Mohamed acknowledges that the sexual battery

offense for which he was convicted was a crime involving moral

turpitude, he argues that his conviction for failing to register

as a sex offender does not similarly qualify. According to

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Mohamed, “[f]ailure to register under Virginia law is a non-

penal, regulatory offense, and a conviction may stand even if

the defendant simply forgot to register on time, and instead

registered a day late.” Without two convictions for crimes

involving moral turpitude, he asserts that he is not removable.

The government argues that the BIA’s interpretation of

§ 1227(a)(2)(A)(ii) -- that the crime of failing to register as

a sex offender is a crime involving moral turpitude -- is based

on a permissible construction of the statute and therefore is

entitled to deference. It emphasizes the “serious” and “grave”

risk to society posed by sex offenders, arguing on that basis

that the crime of failure to register is “inherently base or

vile” and therefore involves moral turpitude. It urges us to

defer to what it considers to be the BIA’s reasonable

interpretation of § 1227(a)(2)(A)(ii) made in Tobar-Lobo, which

held that failing to register as a sex offender is a crime

involving moral turpitude. In Tobar-Lobo, the BIA observed that

“moral turpitude” refers to “conduct that is inherently base,

vile, or depraved, and contrary to the accepted rules of

morality and the duties owed between persons or to society in

general,” 24 I. & N. Dec. at 144, and that a failure to register

as a sex offender satisfies that definition, “[g]iven the

serious risk involved in a violation of the duty owed by this

class of offenders to society,” id. at 146.

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The issue we must address, therefore, is whether a

violation of Va. Code Ann. § 18.2-472.1 is a crime involving

moral turpitude, as that term is used in 8 U.S.C.

§ 1227(a)(2)(A)(ii). In deciding that question, a court must

consider only the statutory elements, not the facts underlying

the particular violation of the statute. See Prudencio v.

Holder, 669 F.3d 472, 484 (4th Cir. 2012). And resolution of

the issue is a question of law that we review de novo. See

Salem v. Holder, 647 F.3d 111, 115 (4th Cir. 2011). A court

will, however, defer to the BIA’s statutory interpretation if

the statute is ambiguous and the BIA’s interpretation is

reasonable. See Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842-43 (1984); Yousefi v. U.S. INS,

260 F.3d 318, 325-26 (4th Cir. 2001); Am. Online, Inc. v. AT & T

Corp., 243 F.3d 812, 817 (4th Cir. 2001).

We begin by noting that, by using the phrase “involving

moral turpitude” to define a qualifying crime, Congress meant to

refer to more than simply the wrong inherent in violating the

statute. Otherwise, the requirement that moral turpitude be

involved would be superfluous. It follows, therefore, that a

crime involving moral turpitude must involve conduct that not

only violates a statute but also independently violates a moral

norm. See Tillinghast v. Edmead, 31 F.2d 81, 83 (1st Cir. 1929)

(defining “crime involving moral turpitude” as requiring “an act

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intrinsically and morally wrong and malum in se”). To identify

such a crime, we consider whether conduct that violates the

statutory proscription also violates a moral norm and thus gives

rise to “turpitude” -- meaning the debasement of the norm or the

value. See Merriam-Webster’s Collegiate Dictionary 1351 (11th

ed. 2007) (defining “turpitude”); id. at 101 (defining “base”).

Accordingly, we have noted that “moral turpitude” refers

generally to “conduct that shocks the public conscience as being

inherently base, vile, or depraved.” Medina v. United States,

259 F.3d 220, 227 (4th Cir. 2001) (quoting Matter of Danesh,

9 I. & N. Dec. 669, 670 (BIA 1988)); see also Tobar-Lobo,

24 I. & N. Dec. at 144 (defining moral turpitude to mean

“conduct that is inherently base, vile, or depraved”).

Thus, by way of example, a sexual battery not only violates

Virginia’s statutory proscription against such conduct but also

independently violates a moral norm that a person not commit

sexual battery on another person. It is undisputed by the

parties that engaging in such conduct would be morally wrong.

We thus can conclude that the statutory crime of sexual battery

involves moral turpitude separate and apart from the wrong

inherent in violating the statutory proscription.

To be sure, the contours of moral norms are not always

clear and may often be the subject of legitimate debate. See

Padilla v. Kentucky, 559 U.S. 356, 378 (2010) (Alito, J.,

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concurring in the judgment) (“[D]etermining whether a particular

crime is . . . a ‘crime involving moral turpitude’ is not an

easy task”). But that is not the case here.

The statute in question here simply makes it a crime for a

person convicted of a sex offense “knowingly [to] fail[] to

register” as a sex offender. Va. Code Ann. § 18.2-472.1(A).

The registration procedure requires every sex offender to

provide the Virginia State Police with specific information

about himself and his offenses; to present himself to be

photographed; and to submit a DNA sample. See id. § 9.1-903.

The information thus provided is made accessible to the public

and is intended to reduce the risk of recidivism.

The government focuses mostly on the stated purpose of the

registration statute, which is to reduce the risk to society of

repeated sex offenses. But the statute’s language does not

prohibit the repetition of a sex offense. Rather, the statute

is a regulatory or administrative provision requiring only

registration -- the presentation of information -- by a specific

class of persons. Thus, apart from the fact that it is

statutorily mandated, we find no moral norm requiring sex

offenders to register or to provide information to the

community. Moreover, no party has suggested that such a

requirement is imposed by any moral norm. While it is true that

the purpose of the statute is aimed at reducing the risk of

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future immoral conduct, failure to comply with the operative

elements of the registration statute itself does not violate a

recognized moral norm.

The government nonetheless urges us to defer to the BIA’s

decision in Tobar-Lobo, which held that a violation of a sex-

offender registration statute similar to the one in Virginia was

a crime involving moral turpitude. And it notes that we have

previously concluded that the term “crime involving moral

turpitude” is ambiguous. See Yousefi, 260 F.3d at 325-26. Even

so, it recognizes that we should defer to a BIA decision only if

we also find it reasonable.

In Tobar-Lobo, the BIA held that a violation of

California’s failure-to-register statute -- a provision similar

to Virginia’s statute in this case -- was a crime involving

moral turpitude. It reasoned that the “serious risk involved in

a violation of the duty owed by [sex] offenders to society”

rendered a violation of the sex-offender registration statute

“inherently base or vile” and therefore that such a violation

met “the criteria for a crime involving moral turpitude.”

Tobar-Lobo, 24 I. & N. Dec. at 146. As the BIA explained:

Some obligations . . . are simply too important not to

heed. . . . [E]ven if “forgotten,” an offense based on

a failure to fulfill the offender’s duty to register

contravenes social mores to such an extent that it is

appropriately deemed turpitudinous.

Id.

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While the BIA in Tobar-Lobo rightly recognized the

importance of sex-offender registration statutes to the public

policy of reducing the rate of recidivism among sex offenders,

it failed to focus on the nature of the registration statute

itself to determine whether the proscribed conduct involved

moral turpitude. In short, it based its conclusion on the

statute’s purpose and not on the nature of a conviction under

the statute. A conviction under the registration statute

involves only administrative conduct, not the violation of a

moral norm. See In re Alva, 92 P.3d 311, 313 (Cal. 2004)

(describing California’s sex-offender registration statute as a

“regulatory measure[]” that is “designed to assist law

enforcement and to protect the public”).

The failure to register as a sex offender is much like the

failure to register for the military draft, neither of which

constitutes a malum in se offense. Laws of this nature simply

do not implicate any moral value beyond the duty to obey the

law. At bottom, violating a registration law -- particularly

Va. Code Ann. § 18.2-472.1 -- is categorically not a crime

involving moral turpitude, and the BIA’s contrary conclusion,

which was based on the statute’s purpose, is an unreasonable

construction of the statutory language. For this reason, we do

not defer to Tobar-Lobo. Accord Totimeh v. Att’y Gen., 666 F.3d

109, 116 (3d Cir. 2012) (“[T]he BIA’s determination that

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Minnesota’s predatory offender registration statute is a crime

involving moral turpitude . . . is wrong as a matter of law and

is not entitled to Chevron deference”); Efagene v. Holder, 642

F.3d 918, 921 (10th Cir. 2011) (“[T]he BIA’s interpretation of

moral turpitude to . . . encompass the Colorado misdemeanor

offense of failure to register is not a ‘reasonable policy

choice for the agency to make’” (quoting Chevron, 467 U.S.

at 845)).

Because Mohamed’s 2011 conviction for failure to register

as a sex offender, in violation of Va. Code Ann. § 18.2-472.1,

was not a crime involving moral turpitude, the BIA erred as a

matter of law in relying on that conviction as a basis to order

Mohamed’s removal under 8 U.S.C. § 1227(a)(2)(A)(ii). In view

of this holding, we do not reach Mohamed’s request to review the

ruling on his application for cancellation of removal under

8 U.S.C. § 1229b(a).

Accordingly, we grant Mohamed’s petition for review;

reverse the BIA’s decision; and remand with instructions to

vacate Mohamed’s order of removal.

IT IS SO ORDERED

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