In re Tobar-Lobo
| Decision Date | 23 April 2007 |
| Docket Number | Interim Decision No. 3562.,File A45 917 226. |
| Citation | 24 I&N Dec. 143 |
| Parties | In re Hugo Yahir TOBAR-LOBO, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated June 2, 2006, an Immigration Judge terminated removal proceedings against the respondent. The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be sustained and the record will be remanded to the Immigration Judge for further proceedings.
The respondent is a native and citizen of El Salvador who was admitted to the United States as an immigrant in September 1997. On Apri1 20, 2006, he was served with a Notice to Appear (Form I-862) charging him with removability under section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2000), as an alien convicted of two or more crimes involving moral turpitude. This charge was based on the respondent's February 5, 1998, conviction for failure to register as a sex offender in violation of section 290(g)(1) of the California Penal Code and his subsequent conviction on May 1, 2003, for grand theft in violation of sections 484 and 487 of the California Penal Code.1 In terminating proceedings, the Immigration Judge concluded that the level of evil intent needed to find that a crime involves moral turpitude was not required to convict the respondent of failure to register as a sex offender under section 290(g)(1) of the California Penal Code. On appeal, the DHS argues that the statute at issue requires a "willful" failure to register, which implies the convicted sex offender's knowing or intentional disregard of his duty to notify law enforcement authorities of his whereabouts. The DHS therefore contends that the respondent's offense is a crime involving moral turpitude and that he is removable as charged.
The DHS bears the burden of proving, by clear and convincing evidence, that the respondent's failure to register as a sex offender constitutes a crime involving moral turpitude. Woodby v. INS, 385 U.S. 276 (1966). We have observed that the definition of a crime involving moral turpitude is nebulous. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999); Matter of Ajami, 22 I&N Dec. 949 (BIA 1999). Moral turpitude refers generally 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. See Matter of Lopez-Meza, supra, at 1192; see also Rodriquez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995); Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994), aff'd, 72 F.3d 571 (8th Cir. 1995); Matter of Short, 20 I&N Dec. 136, 139 (BIA 1989); Matter of Danesh, 19 I&N Dec. 669, 670 (BIA 1988); Matter of Flores, 17 I&N Dec. 225, 227 (BIA 1980). Under this standard, the nature of a crime is measured against contemporary moral standards and may be susceptible to change based on the prevailing views in society. See Matter of Lopez-Meza, supra, at 1192.
In deciding whether a crime involves moral turpitude, we must examine the statute itself to determine whether the inherent nature of the crime involves moral turpitude. See Matter of Short, supra; see also Rodriguez-Herrera v. INS, supra; Matter of Esfandiary, 16 I&N Dec. 659 (BIA 1979). Under the "categorical approach," which we will utilize here, we look not to whether the "`actual conduct constitutes a crime involving moral turpitude, but rather, whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude.'" Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir. 2006) (quoting Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005)); see also Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007).2
Section 290(g)(1) of the California Penal Code provides that a person is guilty of a misdemeanor if he or she "is required to register" as a sex offender and "willfully violates" that requirement.3 In order to be convicted under the statute, a defendant must have had actual knowledge of the registration requirement and willfully failed to register. People v. Poslof, 24 Cal. Rptr. 3d 262 (Cal. Ct. App. 2005). However, the statute is broad and has been interpreted by the California courts to include instances in which an individual has failed to register as a result of forgetfulness. See People v. Barker, 96 P.3d 507 (Cal. 2004) (); People v. Cox, 115 Cal. Rptr. 2d 123 (Cal. Ct. App. 2002).4 The respondent argues that forgetful or dilatory conduct does not evidence the type of "evil intent" usually considered to be turpitudinous. He therefore contends that the breadth of the statutory language requires a finding that his conviction is not for a crime involving moral turpitude under our precedent and that of the controlling circuit, the United States Court of Appeals for the Ninth Circuit.
Although the term crime involving moral turpitude has "`without exception been construed to embrace fraudulent conduct,'" acts of baseness or depravity may qualify as crimes involving moral turpitude in the absence of an element of fraud. Cuevas-Gaspar v. Gonzales, supra, at 1018 (quoting Jordan v. DeGeorge, 341 U.S. 223, 232 (1951)). The Ninth Circuit has found that criminal activity involving the "willful commission of a base or depraved act," is turpitudinous "whether or not the statute requires proof of evil intent." Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (incest). Offenses such as statutory rape, child abuse, and spousal abuse have been considered to be categorically turpitudinous crimes. See id. at 246 (). For the following reasons, we conclude that the instant offense falls into this category.
As noted, contemporary moral standards play a significant role in determining, at a given time, what crimes involve moral turpitude. In recent years, outrage over sexual crimes-particularly those targeting children-has led to the enactment of some form of sex offender registration statute in every state and at the Federal level.5 It is therefore somewhat surprising that no reported decision of a state or Federal court appears to have addressed the question whether failure to register as a sex offender is a crime involving moral turpitude.
A principal purpose of the statute is to safeguard children and other citizens from exposure to danger from convicted sex offenders, a high percentage of whom are recidivists. 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. See Barrows v. Municipal Court, 464 P.2d 483, 486 (Cal. 1970) ().
The dissenting opinion, in line with the finding of the Immigration Judge, concludes that notwithstanding the statute's requirement that the failure to register be "willful," and despite the recognition that some acts of willful failure to register may be turpitudinous, the statutory offense is not categorically a crime involving moral turpitude because it includes instances in which an individual, having been earlier advised of the duty to register, forgets to register. Cf. Fernandez-Ruiz v. Gonzales, supra. We disagree. Some obligations, once imparted by proper notification, are simply too important not to heed. That is, even 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.6 In our view, a willful failure to register by a sex offender who has been previously apprised of his obligation to register implicitly involves evil intent, even if the obligation may have been "forgotten."7 See Gonzalez-Alvarado v. INS, supra.
We further note that regulatory offenses, of which the instant crime is one, are not generally considered turpitudinous. See, e.g., Matter of L-V-C-, 22 I&N Dec. 594 (BIA 1999) (). However, the regulatory nature of this offense does not foreclose its status as a crime involving moral turpitude. The Ninth Circuit has implicitly found, for example, that the regulatory offense of driving while under the influence is a crime involving moral turpitude. The court deemed such conduct, which similarly creates a danger to others and may not involve a consciously evil intent because of the offender's drunkenness, to be "despicable." Hernandez-Martinez v. Ashcroft, 329 F.3d 1117, 1119 (9th Cir. 2003). A convicted sex offender's failure to obey the lawful requirement to register with appropriate authorities so that others may become aware of the potential danger posed by such an offender is also "despicable" and an equal or greater breach of the duty owed to...
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Bushra v. Holder, 12-4393
...as a sex offender to be a crime involving moral turpitude because it contained an element of willfulness. See Matter of Tobar-Lobo, 24 I. & N. Dec. 143, 144-47 (BIA 2007). Similarly, crimes involving fraud have generally been considered to involve moral turpitude because they include the el......