Efagene v. Holder

FILED
United States Court of Appeals
Tenth Circuit

April 29, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FRANCIS EFAGENE,

Petitioner,
v. No. 10-9546
ERIC H. HOLDER, JR., United States
Attorney General,

Respondent.

PETITION FOR REVIEW OF A DECISION FROM
THE BOARD OF IMMIGRATION APPEALS

Kevin E. McReynolds, Jin, Schauer & Saad, LLC, Denver, Colorado, 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

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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 (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 (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.

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§ 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

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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. 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 (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 (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.

1
For the same reason, the BIA’s decision is not entitled to Skidmore
deference, as a court only defers under Skidmore when the agency decision has
the “power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
2
Although the Attorney General has set forth a framework for the moral
turpitude analysis which departs in some respects from Taylor, that departure
concerns how to apply the modified categorical approach. In re Silva-Trevino, 24
I. & N. Dec. 687, 700 (Op. Att’y Gen. 2008). As described below, the modified
categorical approach, a step taken only if the categorical approach does not end
the inquiry, is not called for in this case. As to the categorical approach, the
Attorney General expressly adopted the analysis in Gonzales v. Duenas-Alvarez,
549 U.S. 183 (2007), in which the Supreme Court applied Taylor in the
immigration context. See Silva-Trevino, 24 I. & N. Dec. at 697-98. Accordingly,
Silva-Trevino does not alter the nature of the categorical analysis long employed
by the courts.

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 “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 (Op. Att’y Gen.

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

3
Although failure to register can be either a misdemeanor or a felony
offense under the Colorado statute, the relevant offense here is a misdemeanor
because Efagene’s prior sexual offense giving rise to a registration obligation is
itself a misdemeanor. See Colo. Rev. Stat. § 18-3-412.5(3).

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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.

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 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 longstanding precedent. “An agency interpretation of a relevant

provision which conflicts with the agency’s earlier interpretation is entitled to

considerably less deference than a consistently held agency view.” INS v.

Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987) (declining to defer to BIA’s

interpretation of “well-founded fear”). Failing to register as a sex offender is

analogous not to child and spousal abuse, but rather to other crimes of omission

concerning filing, reporting, and licensing requirements, which are regulatory

offenses. As the BIA has stated, “We have many times held that the violation of

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a regulatory, or licensing, or revenue provision of a statute is not a crime

involving moral turpitude.” In re Abreu-Semino, 12 I. & N. Dec. 775 (BIA 1968).

In In re L-V-C-, the BIA considered whether the federal crime of

structuring currency transactions to evade reporting requirements is a crime

involving moral turpitude. 22 I. & N. Dec. 594, 594 (BIA 1999). There, the BIA

relied heavily on United States v. Bajakajian, 524 U.S. 321 (1998), which

characterized the severity of similar financial reporting crimes as merely

depriving the government of information required by law but not involving a

concrete injury. L-V-C-, 22 I. & N. Dec. at 600-01. Recognizing the Bajakajian

characterization as persuasive, the BIA concluded the statute encompassed even

“benign nonreporting which would not impair Government functions” and could

not be categorically considered a crime involving moral turpitude. Id. at 603.

The principle that regulatory crimes do not involve moral turpitude is not

new to the BIA. As early as 1943, the BIA held a violation of a statute requiring

liquor retailers to pay a tax was “merely a revenue or licensing statute.” In re H-,

1 I. & N. Dec. 394, 395 (BIA 1943). “The fact that the thing may be done,

provided a tax is paid to the Government, indicates that the act itself does not

involve moral turpitude.” Id. In contrast, where a crime involves affirmative

actions taken with the intent to mislead the government, it may involve moral

turpitude. See In re Jurado-Delgado, 24 I. & N. Dec. 29, 35 (BIA 2006).

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 Courts of appeals likewise have declined to consider regulatory offenses of

omission concerning reporting and licensing as crimes involving moral turpitude.

In Cerezo v. Mukasey, the Ninth Circuit reasoned that the failure to provide a

vehicle registration number at the scene of an accident is not base, vile or

depraved. 512 F.3d 1163, 1167 (9th Cir. 2008). Even though the statute was

broadly intended to prevent an individual from escaping liability with respect to

the accident, the statute on its face employed a reporting requirement the

conviction for which did not require any attempt to evade liability. Id. at 1168-

69; cf. Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007) (holding

crime of failure to stop and render aid after being in an accident involves moral

turpitude because it is intrinsically wrong and inherently involves the attempt to

evade responsibility).

Similarly, the Seventh Circuit concluded the unlicensed sale of firearms

was in the category of acts considered wrong only because they are statutorily

proscribed for regulatory purposes rather than intrinsically wrong. Ali v.

Mukasey, 521 F.3d 737, 741 (7th Cir. 2008). The court explained there is

“nothing inevitable about the current [firearm licensing] rules,” firearms licensing

requirements are relatively new, and even though firearms and their misuse are

dangerous, the failure to follow firearm-licensing requirements does not pose an

inherently high risk to society. Id. Although the Seventh Circuit concluded the

conviction at issue in that case was a crime involving moral turpitude on the

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alternate grounds of involving fraud, it rejected the BIA’s contention that the

licensing violation involved inherently depraved conduct. Id. at 740-41, 743.

Colorado’s own courts have described the sex offender registry statute at

issue here as regulatory in nature. In Jamison v. People, the Colorado Court of

Appeals considered a convicted sex offender’s ex post facto challenge to the sex

offender registry requirements as applied to offenders convicted prior to

enactment. 988 P.2d 177 (Colo. App. 1999). The court explained a law

withstands ex post facto challenge if the legislative intent in enactment is

regulatory rather than penal. Id. at 180. Concluding the legislature “did not

intend the registration requirement to inflict additional punishment on a person”

but instead is “remedial” and designed to aid in law enforcement, the court

rejected the ex post facto challenge. Id.; see also Smith v. Doe, 538 U.S. 84, 96

(2003) (rejecting ex post facto challenge to Alaska’s sex offender registry statute

and describing the registry statute as a civil “regulatory scheme” enforced by

criminal penalties).

An examination of the statute’s requirements also confirms its regulatory

nature. While there is no question a sex offense itself often involves serious harm

to the victim and constitutes a depraved act, an individual can be convicted of

failure to register if he, for example, changes residences and notifies law

enforcement six rather than five business days later. This type of conduct is not

conduct society deems inherently base, vile, or depraved, but rather is wrong only

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because a statute requires the action be taken within five business days. Indeed,

changing residences without notifying law enforcement creates risk only in the

most generalized fashion. Similar to the failure to obtain a license to sell

firearms at issue in Ali, the failure to meet sex offender registration requirements

is not an omission that carries an inherently high risk. See 521 F.3d at 740. Also

akin to the licensing requirements in Ali, there is nothing “inevitable” about the

sex offender registry laws as they exist today. See id. The relatively recent

emergence of sex offender registry statutes further underscores that these statutes

proscribe acts not considered by society as malum in se. See Smith, 538 U.S. at

97 (explaining that a survey of state laws reveals that sex offender registry

statutes are of fairly recent origin). In short, as the Ninth Circuit explained, “it is

the sexual offense that is reprehensible, not the failure to register.” Plasencia-

Ayala, 516 F.3d at 748.

The BIA’s comparison of failure to register as a sex offender to driving

under the influence does not support its position. Tobar-Lobo, 24 I. & N. Dec. at

147. First, the BIA’s contention that driving under the influence is a crime

involving moral turpitude is based on Ninth Circuit dicta stating only that the act

of drunk driving is despicable. See Hernandez-Martinez v. Ashcroft, 329 F.3d

1117, 1119 (9th Cir. 2003). The BIA’s own precedential decision in In re Lopez-

Meza notes that “[t]he absence of [relevant case law] suggests a long historical

acceptance that a simple DUI offense does not inherently involve moral turpitude,

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and we are not persuaded to conclude otherwise.” 22 I. & N. Dec. 1188, 1194

(BIA 1999). Moreover, the reason driving under the influence is not a crime

involving moral turpitude is not that it lacks reprehensibility, but because it lacks

any mens rea requirement. Marmolejo-Campos, 558 F.3d at 913 (describing

drunk driving offenses as strict liability crimes and holding only that aggravated

offenses under an Arizona statute, which have additional scienter requirements,

can constitute crimes involving moral turpitude). In short, driving while under

the influence has neither been deemed a crime involving moral turpitude nor is

aptly compared to failure to register as a sex offender and therefore cannot

provide a principled rationale for the BIA’s decision in Tobar-Lobo.

The government’s citation to Colorado’s statutory provision concerning

“extraordinary risk crimes,” which includes the failure-to-register offense at issue

here, does not bear on the matter. Colo. Rev. Stat. § 18-1.3-501(3)(b)(V). The

extraordinary risk designation serves merely as a six-month sentencing

enhancement for a certain group of listed misdemeanors. See id. It is well-

established that whether a crime involves moral turpitude does not turn on the

severity of the sentence imposed. In re Tran, 21 I. & N. Dec. 291, 293 (BIA

1996). Similarly unhelpful is the government’s reliance on People v. Lopez, in

which the Colorado Court of Appeals concluded that the felony failure-to-register

offense under Colorado law included a mental state of “knowingly.” 140 P.3d

106, 113 (Colo. App. 2005). Even assuming the holding in Lopez applies equally

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to the misdemeanor failure-to-register offense, 4 merely having knowledge as an

element of the offense does not convert a regulatory crime into a crime involving

moral turpitude under the BIA’s own precedent because even if there were the

requisite intent, it is not an intent to commit a reprehensible act. For instance, in

In re H-, despite the knowing requirement in the statute governing the regulatory

offense, the BIA concluded the offense did not involve moral turpitude. 1 I. & N.

Dec. at 394-96. Thus, a knowing violation of a regulatory statute not involving

an inherently despicable act is still insufficient to constitute a crime involving

moral turpitude.

The BIA’s interpretation of moral turpitude in Tobar-Lobo is unreasonable

for the additional reason that the rationale for the decision could apply to any and

every criminal infraction. Any obligation on which society has placed a threat of

imprisonment for failure to comply can be characterized as “too important not to

heed,” as the BIA said of the obligation to register as a sex offender. 24 I. & N.

Dec. at 146. Moreover, as the dissent in Tobar-Lobo correctly pointed out, “the

breach of any and every law can be said to violate the duties owed between

persons or to society in general.” Id. at 149 (Filppu, Bd. Member, dissenting).

4
As a basis for concluding the statute, although silent as to any mens rea
requirement, has an implied mental state requirement of “knowingly,” the court
relied heavily on the seriousness of the felony failure-to-register offense and the
severity of the associated penalties. See People v. Lopez, 140 P.3d 106, 111-12
(Colo. App. 2005). Because that rationale does not apply with equal force to a
misdemeanor failure-to-register offense, there is reason to question whether the
holding in Lopez applies to misdemeanor offenses under the registry statute.

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The BIA’s construction of moral turpitude in this regard is not a permissible

reading of the INA, which renders removable a noncitizen who is “convicted of

two or more crimes involving moral turpitude.” 8 U.S.C. § 1227(a)(2)(A)(ii).

Were moral turpitude to reach any breach of duty to society, or the failure to meet

any obligation “too important not to heed,” the words “moral turpitude” would be

rendered superfluous and a noncitizen would be removable if convicted of “two or

more crimes” of any kind. See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1071

(9th Cir. 2007) (en banc) (“It is apparent that the [Immigration Judge’s] definition

of moral turpitude is overbroad because under his definition, all crimes would be

crimes of moral turpitude.”). The decision in Tobar-Lobo accordingly fails to

give meaning to the words “moral turpitude” and conflicts with longstanding

decisions of the BIA itself and of the circuit courts. Colorado’s misdemeanor

failure-to-register offense is not a crime involving moral turpitude as a categorical

matter.

The government urges that if Colorado’s misdemeanor failure-to-register

offense is not categorically a crime involving moral turpitude, we must remand

the matter to the BIA for consideration of Efagene’s crime under the modified

categorical approach. Such a remand, however, is not called for in this case. The

modified categorical approach is employed when some conduct encompassed

within the statute is morally turpitudinous and other conduct is not. See Vargas v.

Dep’t of Homeland Sec., 451 F.3d 1105, 1109 (10th Cir. 2006). In those

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instances, a court may look to charging documents and other evidence to

determine whether the individual was convicted of violating the statute in a

manner involving moral turpitude. See id.

Here, although there are various ways of violating the statute, none of them

involve an inherently base, vile, or depraved act. For instance, an individual can

violate the statute by failing to register on or within one business day of his

birthday. Colo. Rev. Stat. § 16-22-108(1)(b). Alternatively, an individual can be

convicted of failure to register if he changes residences and does not notify law

enforcement within five business days. Id. § 16-22-108(1)(c). An individual may

also be found guilty of failure to register if he does not complete his initial

registration within five business days of being released from imprisonment. Id.

§ 16-22-108(1)(a). For the reasons explained above, none of these ways of

violating the statute involve a reprehensible act as is necessary for classification

as a crime involving moral turpitude. Accordingly, the categorical approach here

ends the inquiry. 5

5
This ruling is consistent with the Attorney General’s decision in Silva-
Trevino, which recognized that the modified categorical approach is necessary
only when “the categorical analysis does not end the moral turpitude inquiry.” 24
I. & N. Dec. at 698. Silva-Trevino further explained there is no reason to proceed
to this second stage where, as here, “none of the circumstances in which there is a
realistic probability of conviction involves moral turpitude.” Id. at 698 n.2.
Accordingly, this court need not address whether the framework established by
the Attorney General in Silva-Trevino as to the modified categorical approach is a
reasonable interpretation of the INA. See Jean-Louis v. Attorney General, 582
F.3d 462 (3d Cir. 2009) (rejecting Silva-Trevino as an unreasonable agency
(continued...)

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IV. Conclusion

For the forgoing reasons, the petition for review is GRANTED, the

decision of the BIA is REVERSED, and the final order of removal is

VACATED.

5
(...continued)
interpretation of the INA); see also Guardado-Garcia v. Holder, 615 F.3d 900,
902 (8th Cir 2010) (refusing to follow Silva-Trevino to the extent inconsistent
with circuit precedent).

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10-9546, Efagene v. Holder
O’BRIEN, J, concurring in the result.

Moral turpitude? Sexual abuse, particularly child sexual abuse, is universally

condemned by Americans of conscience,1 not merely because it is wrong but because its

evil tendrils are detrimental to society.2

Accountability. Attempts to commit a crime are often themselves criminal3 and

sometimes subject to punishments nearly as harsh as those permitted for the principal

crime. While perhaps not, by themselves, punishable as attempts, grooming and stalking

behaviors are incipient attempts, as inherently vile as actionable ones.

Grooming – patient, calculated, surreptitious and applied behavior modification

leading a child to accept, or not report, inappropriate sexual contact. It usually consists of

cultivating a child’s trust and gradually, perhaps imperceptibly, conditioning the child to

abandon lessons learned at the knee of a caring adult.

1
NAMBLA and its ilk notwithstanding; “The North American Man/Boy Love
Association (NAMBLA) is a pedophile and pederasty advocacy organization in the
United States that works to abolish age of consent laws criminalizing adult sexual contact
with minors.”
http://en.wikipedia.org/wiki/North_American_Man/Boy_Love_Association. Last visited
April 13, 2011.
2
This case does not involve a child (see Addendum I). I speak to a worst case
scenario because any suggestion that sex offender registration laws cannot, by definition,
be crimes of moral turpitude impacts registration requirements for child sexual abusers.
In my view, all such registration laws can be crimes of moral turpitude if they contain a
necessary and appropriate element of intent.
3
See Addendum II for examples.
 Stalking. Like all predators the pedophile generally stalks prey in likely locations

– schools, playgrounds, libraries, malls, even churches. But the predator is always alert

to targets of opportunity wherever they might be found. The victim, while not always

pre-identified, is always identifiable as vulnerable, particularly to one with carefully

honed skills.

Sex offender registration drives predators from the tangles and tall grasses into the

open. Doing so empowers the guardians and protectors of the naïve and fragile – the

most vulnerable of our kind. Sex offender registration is unlike vehicle registration; the

difference is one of kind, not merely degree. The BIA is correct “some obligations . . .

are simply too important not to heed.” In re Tobar-Lobo, 24 I & N Dec 143, 146-147

(BIA 2007).

A sex offender who fails or refuses to register, with intent to avoid the

prophylactic purposes of the registration statutes, commits an act akin to grooming or

stalking. Because the ultimate purpose is to facilitate the exploitation of another child, it

is not merely wrong and possibly illegal, but inherently corrupt; insidious and wicked.

Moral turpitude!

I join in the result reached by the majority because the Colorado sex offender

registration statute, Colo. Rev. Stat. § 18-3-412.5, treats as alike conduct ranging from

merely negligent to intentional to malicious. And because of the constraints (the

categorical approach) imposed upon our ability to consider the facts of prior convictions.

Had the Colorado statute singled out conduct (failure to register) accompanied by

malignant intent my vote would be different.

2
 Addendum I

Efagene was originally charged in Arapahoe County, Colorado, with four counts:
(1) Sexual penetration [apparently of an adult] with submission caused by use of a
handgun or an item credibly presented to be a handgun. See Colo. Rev. Stat. §18-3-
402(1)(a), (5)(a)(III); (2) Unlawful Sexual Contact with submission caused by the
application of physical force or violence. See Colo. Rev. Stat. §§ 18-3-404 (1)(a), (2) and
18-3-402(4)(a); (3) Menacing by the use of a handgun or an item credibly presented to be
a handgun. See Colo. Rev. Stat. § 18-3-206; and (4) Crime of Violence - the use of a
handgun in connection with a sexual assault. See Colo. Rev. Stat. § 18-1.3-
406(2)(a)(I)(A). Pursuant to a plea agreement he pled to one count of Unlawful Sexual
Contact in violation of Colo. Rev. Stat. § 18-3-404(1)(a) and was sentenced to time
served, 364 days.

Colo. Rev. Stat. § 18-3-404, Unlawful Sexual Contact, relates to both adults and
children. It provides:

(1) Any actor who knowingly subjects a victim to any sexual contact
commits unlawful sexual contact if:

(a) The actor knows that the victim does not consent; or

(b) The actor knows that the victim is incapable of appraising the nature of the
victim's conduct; or

(c) The victim is physically helpless and the actor knows that the victim is
physically helpless and the victim has not consented; or

(d) The actor has substantially impaired the victim's power to appraise or
control the victim's conduct by employing, without the victim's consent,
any drug, intoxicant, or other means for the purpose of causing submission;
or

(e) Repealed by Laws 1990, H.B.90-1133, § 25, eff. July 1, 1990.

(f) The victim is in custody of law or detained in a hospital or other institution
and the actor has supervisory or disciplinary authority over the victim and
uses this position of authority, unless incident to a lawful search, to coerce
the victim to submit; or

(g) The actor engages in treatment or examination of a victim for other than
bona fide medical purposes or in a manner substantially inconsistent with
reasonable medical practices.

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(1.5) Any person who knowingly, with or without sexual contact, induces
or coerces a child by any of the means set forth in section 18-3-402
to expose intimate parts or to engage in any sexual contact, intrusion,
or penetration with another person, for the purpose of the actor's own
sexual gratification, commits unlawful sexual contact. For the
purposes of this subsection (1.5), the term "child" means any person
under the age of eighteen years.

(1.7)(a) Any person who knowingly observes or takes a photograph of
another person's intimate parts without that person's consent, in a
situation where the person observed has a reasonable expectation of
privacy, for the purpose of the observer's own sexual gratification,
commits unlawful sexual contact. For purposes of this subsection
(1.7), "photograph" includes any photograph, motion picture,
videotape, print, negative, slide, or other mechanically,
electronically, or chemically reproduced visual material.

(b) This subsection (1.7) is repealed, effective July 1, 2012.

(2)(a) Unlawful sexual contact is a class 1 misdemeanor and is an
extraordinary risk crime that is subject to the modified sentencing
range specified in section 18-1.3-501(3).

(b) Notwithstanding the provisions of paragraph (a) of this subsection (2),
unlawful sexual contact is a class 4 felony if the actor compels the victim to
submit by use of such force, intimidation, or threat as specified in section
18-3-402(4)(a), (4)(b), or (4)(c) or if the actor engages in the conduct
described in paragraph (g) of subsection (1) of this section or subsection
(1.5) of this section.

(3) If a defendant is convicted of the class 4 felony of unlawful sexual
contact pursuant to paragraph (b) of subsection (2) of this section, the court
shall sentence the defendant in accordance with the provisions of section
18-1.3-406; except that this subsection (3) shall not apply if the actor
engages in the conduct described in paragraph (g) of subsection (1) of this
section.

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 Addendum II

18 U.S.C. § 1201(d) (“Whoever attempts to violate [§1201] (a) [kidnapping] shall
be punished by imprisonment for not more than twenty years.”).

Colo. Rev. Stat. § 18-2-101(1) (“A person commits criminal attempt if, acting with
the kind of culpability otherwise required for commission of an offense, he engages in
conduct constituting a substantial step toward the commission of the offense. A
substantial step is any conduct, whether act, omission, or possession, which is strongly
corroborative of the firmness of the actor's purpose to complete the commission of the
offense.”)

Kan. Stat. Ann. § 21-5301(a) (“An attempt is any overt act toward the perpetration
of a crime done by a person who intends to commit such crime but fails in the
perpetration thereof or is prevented or intercepted in executing such crime.”)

Wyo. Stat. Ann. § 6-1-301(a) (“A person is guilty of an attempt to commit a crime
if: (i) With the intent to commit the crime, he does any act which is a substantial step
towards commission of the crime. A ‘substantial step’ is conduct which is strongly
corroborative of the firmness of the person's intention to complete the commission of the
crime; or (ii) He intentionally engages in conduct which would constitute the crime had
the attendant circumstances been as the person believes them to be.”)

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