Efagene v. Holder

• Decision Date: 29 April 2011
• Docket Number: No. 10–9546.,10–9546.
• Citation: 642 F.3d 918
• Parties: Francis EFAGENE, Petitioner,v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

642 F.3d 918

Francis EFAGENE, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 10–9546.

United States Court of Appeals, Tenth Circuit.

April 29, 2011.

Kevin E. McReynolds, Jin, Schauer & Saad, LLC, Denver, CO, for Petitioner.Lauren E. Fascett, Trial Attorney (Anthony C. Payne, Senior Litigation Counsel, with her on the brief), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.Before MURPHY, HARTZ, and O'BRIEN, Circuit Judges.MURPHY, Circuit Judge.I. Introduction

Francis Efagene petitions for review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). Efagene argues the BIA erred in concluding that the Colorado misdemeanor offense of failure to register as a sex offender constitutes a crime involving moral turpitude under the Immigration and Nationality Act (“INA”). Exercising jurisdiction under 8 U.S.C. § 1252, this court GRANTS the petition for review, REVERSES the decision of the BIA, and VACATES the order of removal.

II. Background

Efagene, a citizen of Nigeria, was admitted to the United States as a lawful permanent resident in 1991. In 2005, Efagene pleaded guilty to a Colorado state misdemeanor offense of sexual conduct-no consent, in violation of Colo.Rev.Stat. § 18–3–404. He was sentenced to 364 days' imprisonment, which was satisfied with time served, and ordered to register as a sex offender for the next ten years. In 2007, Efagene failed to meet a registration deadline and was arrested. He pleaded guilty to a misdemeanor failure-to-register offense, in violation of Colo.Rev.Stat. § 18–3–412.5(1)(a), (3), and was sentenced to thirty days' imprisonment and a $100 fine.

The U.S. Department of Homeland Security (“DHS”) served upon Efagene a Notice to Appear charging him as removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two crimes involving moral turpitude. The two convictions on which DHS based Efagene's removability were the sexual conduct-no consent and failure-to-register offenses described above. Efagene challenged his removability before an Immigration Judge (“IJ”), arguing failure to register does not constitute a crime involving moral turpitude. The IJ disagreed and ordered Efagene removed. In an unpublished order, the BIA affirmed the IJ's decision and dismissed the appeal. Efagene then petitioned for review and this court stayed his removal order pending resolution of the petition.

III. Discussion

The parties first dispute whether this court must defer to the BIA decision in this case according to the principles announced in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, a court gives deference to an agency's interpretation of a statute Congress charged it with administering if the statute is silent or ambiguous on the question at hand and the agency's interpretation is not arbitrary, capricious, or manifestly contrary to the statute. Carpio v. Holder, 592 F.3d 1091, 1096 (10th Cir.2010).

An agency interpretation only qualifies for deference, however, when the agency acted in its “lawmaking pretense.” United States v. Mead Corp., 533 U.S. 218, 233, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). When the interpretation occurs in an adjudication, the agency acts in a lawmaking capacity if the decision is binding precedent within the agency. Carpio, 592 F.3d at 1097. It is undisputed that the BIA's unpublished decision in this case is not precedential within the agency. See 8 C.F.R. § 1003.1(g) (outlining the procedure for creating published BIA precedent). Nonetheless, Chevron deference may apply to a nonprecedential BIA decision if it relies on prior BIA precedent addressing the same question. Carpio, 592 F.3d at 1097.

The BIA argues its decision here is eligible for Chevron deference because the decision relies on a prior published decision, In re Tobar–Lobo, 24 I. & N. Dec. 143, 146 (BIA 2007), in which the BIA concluded an offense under the California failure-to-register statute constitutes a crime involving moral turpitude. The BIA further contends the decision in this case is entitled to deference under the Chevron standard because it is a reasonable interpretation of moral turpitude under the INA, a statute it is charged to administer.

As an initial matter, the BIA is owed no deference to its interpretation of the substance of the state-law offense at issue, as Congress has not charged it with the task of interpreting a state criminal code. See Marmolejo–Campos v. Holder, 558 F.3d 903, 907 (9th Cir.2009) (en banc). Any deference due would apply only to the BIA's interpretation of the INA provision concerning crimes involving moral turpitude as applied to the state substantive offense. Nonetheless, even if the BIA's decision here were eligible for Chevron deference because it applied prior BIA precedent, Chevron cannot help the BIA in this case. For the reasons described below, the BIA's interpretation of moral turpitude to reach so far as to encompass the Colorado misdemeanor offense of failure to register is not a “reasonable policy choice for the agency to make.” Chevron, 467 U.S. at 845, 104 S.Ct. 2778.¹

To determine if a particular conviction under state law meets the definition of an offense for which a noncitizen may be removed under the INA, the elements of the state-law offense are first analyzed using the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Marmolejo–Campos, 558 F.3d at 912 (applying Taylor to analyze whether a conviction qualifies as a crime involving moral turpitude under the INA); see also Gonzales v. Duenas–Alvarez, 549 U.S. 183, 186–87, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (same for theft offense). ² Under the categorical approach, this court looks only to the statutory definition of the offense and not to the underlying facts of the conviction to determine whether the offense involves moral turpitude. See Taylor, 495 U.S. at 600, 110 S.Ct. 2143.

“Moral turpitude refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and duties owed between man and man, either one's fellow man or society in general.” Wittgenstein v. INS, 124 F.3d 1244, 1246 (10th Cir.1997) (quotation omitted). As the BIA has held, for an offense to involve moral turpitude, it must require a reprehensible or despicable act. In re Silva–Trevino, 24 I. & N. Dec. 687, 706 (BIA 2008). Moral turpitude reaches conduct that is inherently wrong, or malum in se, rather than conduct deemed wrong only because of a statutory proscription, malum prohibitum. Plasencia–Ayala v. Mukasey, 516 F.3d 738, 747 (9th Cir.2008), overruled on other grounds by Marmolejo–Campos, 558 F.3d at 911; see also In re Flores, 17 I. & N. Dec. 225, 227 (BIA 1980). A crime of moral turpitude, moreover, necessarily involves an evil intent or maliciousness in carrying out the reprehensible act. Flores, 17 I. & N. Dec. at 227.

The Colorado statute under which Efagene was convicted defines the offense as “failure to register pursuant to article 22 of title 16, C.R.S.” ³ Colo.Rev.Stat. § 18–3–412.5(1)(a). In turn, article 22 enumerates the requirements of registration, including that individuals convicted of a qualifying sex offense register with local law enforcement in each jurisdiction where they reside, that they complete their initial registration within five business days of being released from incarceration, that they reregister annually on or within one business day of their birthdays, and that they register within five business days of establishing any new residence. See id. § 16–22–108.

Here, the BIA concluded Colorado's failure-to-register statute defined an offense categorically constituting a crime involving moral turpitude by relying on the BIA's prior precedential decision in Tobar–Lobo. In Tobar–Lobo, the BIA considered a conviction under California's similar statute. 24 I. & N. Dec. at 143–44. In concluding the California failure-to-register offense is a crime involving moral turpitude, the BIA relied heavily on the principal purpose of the statute, which it described as “safeguard[ing] children and other citizens from exposure to danger from convicted sex offenders.” Id. at 146. It reasoned, “Given the serious risk involved in a violation of the duty owed by this class of offenders to society, we find that the crime is inherently base or vile and therefore meets the criteria for a crime involving moral turpitude.” Id. Although the BIA recognized regulatory offenses typically do not involve moral turpitude, the BIA concluded failure to register as a sex offender fell within an exception to that rule because “some obligations ... are simply too important not to heed” and failing to register as a sex offender breached a duty to society that rendered it a “despicable” act. Id. at 146–47.

The conclusion that failing to register is one of the exceptional regulatory offenses classified as crimes involving moral turpitude is not supported by the cases cited by the BIA in Tobar–Lobo. As noted by the BIA, the crimes of statutory rape, child abuse, and spousal abuse are considered crimes involving moral turpitude. Id. at 145. Those crimes, however, are inherently different from failing to register because in each of those instances, the crime necessarily involves an actual injured victim. Child abuse, for instance, is a crime involving conduct society deems to be wrong independent of any statutory prohibition precisely because of the harm it causes. Here, as the Ninth Circuit has stated, failing to register as a sex offender does not, as a categorical matter, involve an identifiable victim, any actual harm, or any intent to cause harm. Plasencia–Ayala, 516 F.3d at 748.

The Tobar–Lobo interpretation of moral turpitude is, moreover, at odds with the BIA's own...