Efstathiadis v. Holder

• Decision Date: 20 May 2014
• Docket Number: No. 13–236–AG.,13–236–AG.
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Charalambos EFSTATHIADIS aka Harry Efstathiadis, Petitioner–Appellant, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent–Appellee.

752 F.3d 591

Charalambos EFSTATHIADIS aka Harry Efstathiadis, Petitioner–Appellant,

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

No. 13–236–AG.

United States Court of Appeals,Second Circuit.

Argued: Jan. 16, 2014.

Decided: May 20, 2014.

Robert C. Ross, Esq., West Haven, CT, for Appellant.

Jessica R.C. Malloy, Trial Attorney (Stuart F. Delery, Assistant Attorney General, on the brief, Douglas E. Ginsburg, Assistant Director, on the brief), United States Department of Justice, for Appellee.

Before: STRAUB, HALL and LIVINGSTON, Circuit Judges.

PER CURIAM:

Charalambos Efstathiadis is a citizen of Greece who emigrated to the United States on or about December 22, 1967, and is a legal permanent resident. On October 19, 2005, Efstathiadis pled guilty to four counts of sexual assault in the fourth degree under Connecticut General Statute § 53a–73a(a)(2). C.G.S. § 53a–73a(a)(2) criminalizes subjecting “another person to sexual contact without such other person's consent.” “Sexual contact” is further defined as contact “with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.” C.G.S. § 53a–65(3).

On January 7, 2009, the United States commenced removal proceedings against Efstathiadis pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), which provides that an alien who “is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, ... is deportable.” On April 8, 2009, Michael W. Straus, Immigration Judge, determined that C.G.S. § 53a–73a(a)(2) was not a crime involving moral turpitude (“CIMT”) because “the Connecticut statute does not appear to require that the actor know that his actions were not consented to by the victim.” Oral Decision of the Immigration Judge at 5, Joint App'x Vol. 1, at 173 (Dkt. No. 34). The Board of Immigration Appeals (“BIA”) reversed on October 22, 2010, on two alternate grounds. First, the BIA found that C.G.S. § 53a–73a(a)(2) was a CIMT because “the requirement of acting for the purpose of sexual gratification of the actor or an intention to degrade or humiliate the victim presents a realistic probability that the perpetrator had an evil intent.” Decision of the BIA, at 2, Joint App'x Vol. 1, at 128. Second, the BIA applied the Attorney General's decision in In re Silva–Trevino, 24 I. & N. Dec. 687 (Nov. 7, 2008), available at2008 WL 4946455, to go beyond the modified categorical approach and consider the underlying facts of Efstathiadis' conviction.¹ Decision of the BIA, at 2, Joint App'x Vol. 1, at 128. Because the BIA's decision was non-final, there was a second round of decisions in which, on December 26, 2012, the BIA ultimately applied its 2010 decision as the “law of the case.”

DISCUSSION

I. Jurisdiction & Standard of Review

We have jurisdiction over appeals from “a final order of removal.” 8 U.S.C. § 1252(a)(1), (a)(2)(D). Under the somewhat tortuous jurisdictional provisions of Title 8, however, we lack jurisdiction “to review any final order of removal against an alien who is removable by reason of having committed” certain criminal offenses, including criminal offenses that constitute CIMTs. 8 U.S.C. § 1252(a)(2)(C). Our jurisdiction is reinstated where we are called upon to “review ... constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Put another way, “[w]e retain jurisdiction ... to determine whether this jurisdictional bar applies.” James v. Mukasey, 522 F.3d 250, 253 (2d Cir.2008); see Alsol v. Mukasey, 548 F.3d 207, 210 (2d Cir.2008) (“Thus, we retain jurisdiction to decide the question of law regarding whether this jurisdictional bar applies....”). In sum, we have jurisdiction to determine whether C.G.S. § 53a–73a(a)(2) is a CIMT.

“While this Court gives substantial deference to the BIA's interpretation of the [Immigration and Nationality Act], a statute it is charged with administering, we review de novo its interpretation of state and federal criminal laws.” Santana v. Holder, 714 F.3d 140, 143 (2d Cir.2013); see Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009) (announcing the same standard of review). Specifically, “[b]ecause the BIA has expertise applying and construing immigration law, we afford Chevron deference to its construction of undefined statutory terms such as ‘moral turpitude.’ However, ... the BIA has no expertise in construing federal and state criminal statutes, and so we review de novo the BIA's finding that a petitioner's crime of conviction contains those elements which have been properly found to constitute a CIMT.” Gill v. I.N.S., 420 F.3d 82, 89 (2d Cir.2005) (internal citations omitted).

Because the BIA's 2012 decision adopted the reasoning of the BIA's non-final 2010 decision, we effectively review the BIA's 2010 decision. See Chupina v. Holder, 570 F.3d 99, 105 (2d Cir.2009) (per curiam) (dismissing appeal from non-final order of removal, but noting that exhausted claims would be preserved in a proper appeal when a final order is issued); Weng, 562 F.3d at 513 (“Because the BIA adopted and affirmed the IJ's decision, we review the two decisions in tandem.”); Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (stating the same principle).

II. Merits

Whether a prior conviction constitutes a CIMT turns on whether the crime is “inherently base, vile, or depraved.” Mendez v. Mukasey, 547 F.3d 345, 347 (2d Cir.2008). Because “[i]t is in the intent that moral turpitude inheres,” the focus of the analysis is generally “on the mental state reflected” in the statute. Gill, 420 F.3d at 89;see Mendez, 547 F.3d at 347 (“Whether a crime is one involving moral turpitude depends on the offender's evil intent or corruption of the mind.” (internal quotation marks omitted)).

In making this determination, we apply a categorical approach that “look[s] not to the facts of” the particular case, “but instead to whether [the offense] categorically fits within” the definition of a CIMT. See Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). Where the state statute “contain[s] several different crimes, each described separately, ... a court may determine which particular offense the noncitizen was convicted of by examining the charging document[,] ... plea agreement[, and] plea colloquy,” among other documents in the judicial record. Id.; see Wala v. Mukasey, 511 F.3d 102, 107–08 (2d Cir.2007) (applying the same standard in a CIMT case). We refer to this as the “modified categorical approach.” See United States v. Beardsley, 691 F.3d 252, 258 (2d Cir.2012); Akinsade v. Holder, 678 F.3d 138, 144 (2d Cir.2012).

Here, there is no dispute that although the statute under which Efstathiadis was convicted—C.G.S. § 53a–73a—contains several subparts, the record clearly establishes his conviction for sub-part (a)(2). C.G.S. § 53a–73a(a)(2), in turn, is informed by the statutory definition of “sexual contact,” which contains two alternate intent elements: acting “for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.” SeeC.G.S. § 53a–65(3).

The parties do not address which of these two possible intentions underlie Efstathiadis' conviction. We do not decide the issue because the differences between the categorical and modified categorical approaches have no impact on our determination to certify. Pursuant to either approach, our focus is on the question of whether or not “the minimum conduct criminalized by the statute” would support classification of a crime as a CIMT. Moncrieffe, 133 S.Ct. at 1684;see Gill, 420 F.3d at 89 (“[T]o constitute a CIMT, a criminal category must by definition, and in all instances, contain each of those elements that constitute a CIMT.”). For the reasons we discuss below, we are left uncertain whether the “minimum conduct” necessary to sustain a conviction involving either possible intention supports the classification of C.G.S. § 53a–73a(a)(2) as a CIMT.

C.G.S. § 53a–73a(a)(2) outlines three elements-sexual contact, for a prohibited purpose, and without consent. Connecticut courts have not added a complicating judicial gloss but have applied the statute as written. See, e.g., State v. McGee, 124 Conn.App. 261, 4 A.3d 837, 843 (2010) (reciting the statutory definitions given above); State v. Montoya, 110 Conn.App. 97, 954 A.2d 193, 198 (2008) (same). The Connecticut Criminal Jury Instructions ²also identify three elements-sexual contact, “specific intent” either to obtain sexual gratification or to degrade or humiliate the complainant, and “the complainant did not consent to the sexual contact.” Crim. Jury Instructions § 7.1–12. Neither the statute, nor the cases applying the statute, nor the model jury instructions requires any jury finding of mens rea with regard to the lack of consent element.

Generally speaking, mens rea refers to the degree of mental culpability with which a defendant committed the acts underlying a conviction and comes in four basic types (intent, knowledge, recklessness, negligence), with a crime in which mens rea is not required being referred to as a “strict liability” offense. See United States v. Figueroa, 165 F.3d 111, 114 n. 3 (2d Cir.1998) (“The types of mental states required for criminal convictions range from purposefulness (or intention) to knowledge, recklessness or negligence. In some limited circumstances, when the penalties attached to a violation are low and the reputational effects of a conviction are minimal, Congress may also create true ‘strict liability’ crimes, which have no mens rea requirement at all.” (internal citation omitted)).

The level of mens rea attributable to a given act is of vital importance to the culpability we assign to that act. For example, under Connecticut law, to be convicted of either murder or manslaughter a defendant must actually “cause the death” of the victim, but for a...