In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1664
P EDRO M ATA-G UERRERO ,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A042-909-636
____________
A RGUED S EPTEMBER 22, 2010—D ECIDED N OVEMBER 24, 2010
____________
Before M ANION, T INDER, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Petitioner Pedro Mata-
Guerrero is a native of Mexico and has been a legal perma-
nent resident of the United States since 1991. The Depart-
ment of Homeland Security seeks to remove Mata-
Guerrero from the United States under 8 U.S.C.
§ 1227(a)(2)(A)(iii) as an alien who has been convicted of
an aggravated felony after his admission to the United
2 No. 10-1664
States. Mata-Guerrero did not dispute the facts underlying
the government’s petition for removal, but he sought
adjustment of his status and a waiver of inadmissibility
under the former 8 U.S.C. § 1182(c) (a “212(c) waiver” in
shorthand), on the basis that he had been convicted of only
one crime of “moral turpitude.” The government would
have discretion not to remove him if he was convicted of
only one crime of moral turpitude, but a second conviction
for a crime of moral turpitude would bar him from the
prospect of discretionary relief from removal.
The government contends that Mata-Guerrero has been
convicted of a second crime of moral turpitude that bars
him from seeking a 212(c) waiver. The issue is whether
his conviction for failing to register as a sex offender as
required by Wisconsin law was a crime of moral turpitude.
Concluding that Mata-Guerrero’s failure to register was
a crime of moral turpitude, the Board of Immigra-
tion Appeals affirmed the immigration judge in denying
Mata-Guerrero’s application for a 212(c) waiver. However,
the Board’s conclusion was based entirely on an earlier
Board decision that analyzed whether a failure to
register was a crime of moral turpitude using the “categor-
ical approach.” In the meantime, the Attorney General
has abandoned that approach. Because the Attorney
General’s determination of the appropriate methodology
is controlling, and because the Board did not use that
methodology in Mata-Guerrero’s case, we grant the
petition for review and remand to the Board for fur-
ther proceedings under the proper methodology.
Before the repeal of section 212(c) in 1996, most
deportable aliens who had accrued seven years of lawful
No. 10-1664 3
permanent residence in the United States could request
discretionary relief from deportation by arguing that the
equities weighed in favor of allowing them to remain in the
United States. Even an alien convicted of an aggravated
felony (like Mata-Guerrero) was eligible for discretionary
relief if he served a prison term of less than five years.
Section 212(c) relief was unavailable, however, for an alien
who had committed two or more crimes of moral turpi-
tude. See 8 U.S.C. § 1182(c) (1994). Then, in 1996, the Illegal
Immigration Reform and Immigrant Responsibility Act
repealed section 212(c) relief and replaced it with a pro-
cedure called “cancellation of removal.” Cancellation
of removal is not available to an alien convicted of an
aggravated felony. See 8 U.S.C. § 1229b(a); see also 8 U.S.C.
§ 1182(h) (provision of the Antiterrorism and Effective
Death Penalty Act rendering aliens convicted of an aggra-
vated felony, regardless of the length of sentence, ineligible
for discretionary relief from deportation under former
section 212(c)). Despite the statutory change, the Supreme
Court has held that petitioners who pled guilty to their
underlying offenses before the 1996 repeal of section 212(c)
are still eligible to seek waiver under its terms.
See Immigration and Naturalization Service v. St. Cyr, 533
U.S. 289, 326 (2001).
Mata-Guerrero pled guilty to first degree sexual assault
of a child in violation of Wisconsin Statute § 948.02(1) in
1993. All agree that this crime was sufficient to justify
his removal and that it was a crime of moral turpitude.
Under the repealed section 212(c) and St. Cyr, the issue
is whether Mata-Guerrero has also been convicted of a
second crime of moral turpitude. Wisconsin has instituted
4 No. 10-1664
a sex offender registry. Because of his 1993 conviction,
Mata-Guerrero was required to register as a sex offender
with the Wisconsin Department of Corrections and to
provide certain information as set forth by statute. See
Wis. Stat. § 301.45. Mata-Guerrero failed to register, and
on October 19, 2005 he pled guilty to a misdemeanor
for having failed to register as a sex offender under Wis-
consin Statute § 301.45(2)(a).1 His sentence was two days
of time served. Whether he is now even legally eligible
for a discretionary section 212(c) waiver turns on
whether this second conviction, like his first, was a crime
of moral turpitude. If it was, no waiver is available.
Mata-Guerrero has argued before the Board of Immigra-
tion Appeals and on judicial review that his conviction for
failing to register was not a crime of moral turpitude
because the provision of Wisconsin law under which he
pled guilty, section 301.45(2)(a), is a strict liability, regula-
tory offense that does not require proof of criminal intent,
such as proof that Mata-Guerrero failed to register willfully
or knowingly. He has argued that the record does not
show that he had any criminal intent when he failed to
register, much less that his conduct rose to the level of
a crime of moral turpitude. A case from the Ninth Circuit
supported Mata-Guerrero’s position. See Plasencia-Ayala v.
1
Wisconsin Statute § 301.45(2)(a) requires the department to
maintain the sex offender registry, and it sets forth the informa-
tion the registry must contain. A separate provision of the
Wisconsin Statute makes it a crime to fail knowingly to provide
the information required, see Wis. Stat. § 301.45(6)(a), but Mata-
Guerrero was not convicted under that section.
No. 10-1664 5
Mukasey, 516 F.3d 738 (9th Cir. 2008).2 The Board refused
to give Plasencia-Ayala controlling weight in a matter
arising in this circuit. Instead, the Board looked to one
of its earlier decisions that found a “willful” failure to
register as a sex offender under California law to be a
crime of moral turpitude. See Matter of Tobar-Lobo, 24 I. &
N. Dec. 143 (2007). Relying on that case, the Board con-
cluded that Mata-Guerrero’s conviction for failure to
register was a crime of moral turpitude and therefore that
Mata-Guerrero was ineligible for a section 212(c) waiver,
even though Wisconsin Statute § 301.45(2)(a) contains no
element of intent or even knowledge.
Because the classification of a crime as one of moral
turpitude is a question of law, we have jurisdiction. See
8 U.S.C. § 1252(a)(2)(D). Our review of an agency’s deter-
mination of whether a particular crime should be classified
as a crime of moral turpitude ordinarily is deferential
under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 843-44 (1984) (where Congress
has left an administrative agency with discretion to resolve
a statutory ambiguity, judicial review is deferential);
accord, Immigration and Naturalization Service v. Aguirre-
Aguirre, 526 U.S. 415, 424-25 (1999) (applying Chevron
principles to statutory interpretation by the Attorney
General and the Board of Immigration Appeals); Ali v.
2
Plasencia-Ayala was overruled by Marmolejo-Campos v. Holder,
558 F.3d 903, 911 (9th Cir. 2009), for its failure to give Chevron
deference to the Board’s interpretation of whether failure to
register was a crime involving moral turpitude in Matter of
Tobar-Lobo, 24 I. & N. Dec. 143 (2007).
6 No. 10-1664
Mukasey, 521 F.3d 737, 739 (7th Cir. 2008) (applying
Chevron deference to Board of Immigration Appeals
decision regarding whether gun trafficking was a crime of
moral turpitude for purposes of a waiver of inadmissibil-
ity).
The government urges us to defer to the Board’s decision
in this case. Chevron deference, however, assumes that an
agency has taken a careful look at the general legal issue
and has adopted a reasonably consistent approach to it.
See Chen v. Holder, 607 F.3d 511, 514 (7th Cir. 2010)
(Board’s decision was not precedential and therefore
“did not count” for Chevron purposes, which required
a formal resolution of the question by rulemaking
or adjudication); Ghani v. Holder, 557 F.3d 836, 840 (7th
Cir. 2009) (Chevron deference applied to the crime of
moral turpitude question so long as it was clear
that the Board engaged in substantive analysis and was
not affirming without providing reasoning of its own).
In Mata-Guerrero’s case, that simply has not happened.
The Board relied on Matter of Tobar-Lobo without any
independent analysis, and only in the absence of Seventh
Circuit authority on the issue.3 How can we defer to the
3
In his opinion on the matter, the immigration judge stated:
This Court believes itself to be bound by the decision of the
Board of Immigration Appeals absent a contrary decision by
a superior court. Therefore, the Court does not believe that
it is at liberty to second guess or review or reach a decision
which is contrary to the Board’s decision. The respondent
(continued...)
No. 10-1664 7
Board’s decision in Mata-Guerrero’s case when the Board
did not actually adjudicate the issue and expressed that
it would defer to this Court on the same question? Mata-
Guerrero would be the victim of a procedural Catch-22.
Nor can we give deference to Tobar-Lobo. In Tobar-Lobo,
the Board examined the California registry statute under
which Tobar-Lobo had been convicted by using the
“categorical approach” used for other recidivist statutes
that require classification of prior crimes. See generally
Taylor v. United States, 495 U.S. 575, 600-02 (1990), and
its progeny. In other words, the Board looked not
to whether the “actual conduct constitute[d] a crime
involving moral turpitude, but rather, whether the full
range of conduct encompassed by the statute constitute[d]
a crime of moral turpitude.” 24 I. & N. Dec. at 144, quoting
Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir.
2006). Equating failing to register with the crimes
of statutory rape, child abuse, and spousal abuse, the Board
in Tobar-Lobo found that failure to register as a sex offender
under the California statute, even as a result of forgetful-
3
(...continued)
has presented his argument and has preserved it for appeal
and that argument might conceivably be found persuasive
in the Seventh Circuit. However, it is not persuasive in this
Court. Therefore, the Court concludes that the respondent
is not able to establish eligibility for adjustment of status
and therefore that relief will be denied.
This reasoning was adopted and affirmed by the Board.
8 No. 10-1664
ness, was a crime of moral turpitude. Id. at 145-47. Even
if we could overlook the clear distinction between that
case and this one (the California statute considered by the
Board in Tobar-Lobo required willfulness, while the Wiscon-
sin statute under which Mata-Guerrero was convicted
required no intent whatsoever), we cannot overlook that
the Board in Tobar-Lobo applied the categorical approach.
That methodology is no longer valid in determining
whether a particular offense arises to a “crime of moral
turpitude” under immigration law.
In Ali v. Mukasey, we held that, “when deciding how to
classify convictions under criteria that go beyond the
criminal charge—such as . . . whether the crime is one of
‘moral turpitude,’ the agency has the discretion to consider
evidence beyond the charging papers and judgment of
conviction.” Ali, 521 F.3d at 743. Ali was decided based on
deference to the Board’s decision in Matter of Babaisakov, 24
I. & N. Dec. 306 (2007), in which the Board abandoned
the categorical approach and decided that additional
evidence could be taken by the immigration judge
when necessary. That approach was recently reaffirmed by
the Attorney General in Matter of Silva-Trevino, 24 I. & N.
Dec. 687, 701-03 (2008) (discussing Ali and Babaisakov with
approval). Pursuant to 8 U.S.C. § 1103(a)(1), the
Attorney General’s determination on this question of law
is controlling, and there is no longer any question regard-
ing which methodology should be used to determine
whether a crime is or is not a crime of moral turpitude. We
defer to the Attorney General’s decision in Silva-Trevino.
Because the Board in Mata-Guerrero’s case did not use
No. 10-1664 9
this methodology or rely on a case that did, we grant Mata-
Guerrero’s petition for review and remand to the Board.
In Silva-Trevino, the Attorney General established a three-
step inquiry to be used to decide whether particular
criminal offenses amount to crimes of moral turpitude.
First, the immigration judge should focus on the statute’s
actual scope and application and ask whether, at the time
of the alien’s removal proceeding, any actual (not hypo-
thetical) case existed in which the statute was applied
to conduct that did not involve moral turpitude, including
the alien’s own conviction. See 24 I. & N. Dec. at 697,
704, citing Gonzales v. Duenas-Alvarez, 549 U.S. 183,
193 (2007). If that evaluation of a “realistic probability”
does not resolve the question, the judge should proceed to
a “modified categorical” approach, examining the record
of conviction, including documents such as the indictment,
the judgment of conviction, jury instructions, a signed
guilty plea, or a guilty plea transcript. See id. at 699,
704. Then, where those records of conviction also fail to
shed light on the question, the Attorney General instructs
that the immigration judge should consider any evidence
beyond those records “if doing so is necessary and appro-
priate to ensure proper application of the Act’s moral
turpitude provisions.” Id. at 699. The Attorney General
explained:
Allowing for inquiry beyond the record of conviction
would result in more accurate determinations of who
falls within the scope of the statute, and would better
accord with the statute’s demands for individualized
adjudications. It would also produce more uniform
10 No. 10-1664
results nationwide, because the answer to whether an
alien’s prior conviction was for a crime involving
moral turpitude would be less likely to turn on the
drafting of a particular criminal statute or a jurisdic-
tion’s record-keeping practices.
Id. at 702. The Attorney General found that to do otherwise
and to impose evidentiary limitations would be in tension
with the goals of the immigration act and would
also unfairly apply immigration penalties to aliens whose
individual crimes did not, in actuality, involve moral
turpitude. See id. at 700. In other words, the ultimate
purpose of this analysis is to look at the actual crime
committed by the individual alien.
Mata-Guerrero’s case must be remanded so that this
individualized inquiry can be made. The Board of Immi-
gration Appeals defines “crimes of moral turpitude” as
“conduct that shocks the public conscience as being ‘inher-
ently base, vile, or depraved, and contrary to the accepted
rules of morality and the duties owned between persons or
to society in general.’ ” Garcia-Meza v. Mukasey, 516 F.3d
535, 536 (7th Cir. 2008), quoting In re Solon, 24 I. & N.
Dec. 239, 240 (2007). The Attorney General has instructed:
“A finding of moral turpitude under the Act requires that a
perpetrator have committed the reprehensible act
with some form of scienter.” Silva-Trevino, 24 I. & N. Dec.
at 706. Nothing in the record before this court suggests
that the requisite intent was present in Mata-Guerrero’s
crime. Wisconsin Statute § 301.45(2)(a) does not have
an element of intent, and Mata-Guerreo’s record of con-
viction under that provision of Wisconsin law does not
No. 10-1664 11
disclose that he had any criminal intent when he failed to
comply with its requirements. Remand is appropriate so
further inquiry may be made. We therefore grant Mata-
Guerrero’s petition for review and remand to the Board
so it may determine whether his conviction under Wis-
consin Statute § 301.45(2)(a) was a crime of moral
turpitude using the individualized inquiry required by
the Attorney General in Silva-Trevino. If it was not, then
Mata-Guerrero is entitled to have the government
exercise its sound discretion based on his individual
circumstances in deciding whether to grant him a
section 212(c) waiver.
P ETITION G RANTED .
11-24-10