13‐236‐ag
Efstathiadis v. Holder
13‐236‐ag
Efstathiadis v. Holder
In the
United States Court of Appeals
For the Second Circuit
August Term, 2013
No. 13‐236‐ag
CHARALAMBOS EFSTATHIADIS AKA Harry Efstathiadis,
Petitioner‐Appellant,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent‐Appellee.
Petition for review of a final decision
of the Board of Immigration Appeals.
ARGUED: JANUARY 16, 2014
DECIDED: MAY 20, 2014
Before: STRAUB, HALL and LIVINGSTON, Circuit Judges.
The Board of Immigration Appeals held that Appellant was
removable due to prior convictions for crimes involving moral
EFSTATHIADIS V. HOLDER
turpitude. We determine that whether or not Appellant’s prior
crimes involved moral turpitude implicates an unsettled issue of
Connecticut law and that we are unable to predict how the
Connecticut courts would resolve the issue. Specifically, we are
unable to determine what level of mens rea applies to the lack of
consent element of a conviction for sexual assault in the fourth
degree pursuant to Connecticut General Statute § 53a‐73a(a)(2).
Accordingly, we certify questions resolving this issue to the
Connecticut Supreme Court.
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.
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
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EFSTATHIADIS V. HOLDER
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
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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 at 2008 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.”
1 We do not reach the validity of In re Silva‐Trevino because we certify
questions to the Connecticut Supreme Court that may, depending on the
answers, resolve this case.
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EFSTATHIADIS V. HOLDER
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.
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EFSTATHIADIS V. HOLDER
“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
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EFSTATHIADIS V. HOLDER
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)).
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EFSTATHIADIS V. HOLDER
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, 133 S. Ct. 1678, 1684
(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
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EFSTATHIADIS V. HOLDER
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.”
See C.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
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EFSTATHIADIS V. HOLDER
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, 4 A.3d 837, 843 (Conn.
App. Ct. 2010) (reciting the statutory definitions given above); State
v. Montoya, 954 A.2d 193, 198 (Conn. App. Ct. 2008) (same). The
Connecticut Criminal Jury Instructions2 also identify three
elements—sexual contact, “specific intent” either to obtain sexual
gratification or to degrade or humiliate the complainant, and “the
2 These model instructions are published on the Connecticut Judiciary’s
official website and appear to be produced by a committee of judges “as a
guide for judges and attorneys in constructing charges and requests to
charge and as a general reference to criminal offenses and their elements.
The use of these instructions is entirely discretionary and their publication
by the Judicial Branch is not a guarantee of their legal sufficiency.”
Criminal Jury Instructions Home,
http://www.jud.ct.gov/JI/criminal/default.htm (last visited May 19, 2014).
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EFSTATHIADIS V. HOLDER
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
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EFSTATHIADIS V. HOLDER
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 murder conviction this act must be undertaken with
“the intent to cause the death,” whereas for manslaughter, the
“intent to cause serious physical injury” will suffice. Compare C.G.S.
§ 53a‐54a(a) (murder) with C.G.S. § 53a‐55(a)(1) (manslaughter).
Thus, the mens rea attributable to an act answers the fundamental
question of whether the act was intentional, a reasonable mistake, or
a mistake that should have been avoided.
Each element of a crime may require a different level of mens
rea or none at all. Here, C.G.S. § 53a‐73a(a)(2) unambiguously
provides for a mens rea component with respect to the sexual contact
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EFSTATHIADIS V. HOLDER
element by requiring that the contact be with one of two prohibited
purposes (intentions). What is unclear, by contrast, is what level of
mens rea, if any, applies to the lack of consent element. For example,
if the requisite mens rea were knowledge, then the prosecution
would be required to prove that a defendant knew that the victim
did not consent. If the requisite mens rea were negligence, then the
prosecution would need to prove that a reasonable person in the
defendant’s position would have known that the victim did not
consent, even if the defendant did not actually know. Alternatively,
C.G.S. § 53a‐73a(a)(2) may not have a mens rea component with
regards to lack of consent, i.e., strict liability may attach to that
element. In this circumstance, the “minimum conduct” required to
sustain a conviction would be sexual contact with the intent to
receive sexual gratification, or to humiliate, under circumstances
where the victim did not consent, even if the perpetrator reasonably
believed that consent were present.
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EFSTATHIADIS V. HOLDER
The BIA applied the familiar test that, to qualify as a CIMT,
the elements of the crime must demonstrate “an evil intent, or
depraved or vicious motive.” Decision of the BIA, at 2, Joint App’x
Vol. 1, at 128. Our precedents have also emphasized the importance
of an evil intent, variously describing the requirement as “a vicious
motive or corrupt mind,” or “[a]n evil or malicious intent,” and
noting that “corrupt scienter is the touchstone of moral turpitude”
and that “it is in the intent that moral turpitude inheres.” Michel v.
I.N.S., 206 F.3d 253, 263 (2d Cir. 2000) (internal quotation marks
omitted) (collecting cases); 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)).
But the intent to receive sexual gratification, standing alone, is
not evil. The requisite mens rea, if any, applicable to the lack of
consent element is thus relevant to our determination whether
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EFSTATHIADIS V. HOLDER
C.G.S. § 53a‐73a(a)(2) is a CIMT. So, too, might be a circumstance
such as the age of the alleged victim.
Nothing in this opinion should be taken to imply that we are
holding that negligence as to lack of consent combined with the
intent to receive sexual gratification renders C.G.S. § 53a‐73a(a)(2) a
CIMT. Similarly, nothing should be understood to imply that
knowledge of lack of consent is the minimum mens rea required for a
CIMT. We expressly decline to reach these questions. We conclude
only that in the context of a conviction arising under C.G.S. § 53a‐
73a(a)(2), where the only factors affecting the moral character of the
crime are the intention to receive sexual gratification (or to
humiliate) and the mens rea associated with lack of consent, strict
liability as to lack of consent would not lend support to
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EFSTATHIADIS V. HOLDER
categorization as a CIMT, even if we might, on further analysis and
other bases, conclude that such categorization were appropriate.3
The Government argues that Connecticut provides for a
mistake‐of‐fact defense that would protect a defendant who
reasonably believed he or she had consent. Indeed, sexual assault
statutes sometimes do not specify a mens rea as to consent when, in
operation, a recognized mistake of fact defense acts as a proxy for
mens rea in this context. See Robin Charlow, Bad Acts in Search of a
Mens Rea: Anatomy of a Rape, 71 Fordham L. Rev. 263, 276 (2002);
see also Peter Westen, The Logic of Consent 147 (2004) (“A lack of
3 By way of example as to factors that, if relevant, would affect our
analysis, we note that Efstathiadis was not charged with fourth degree
sexual assault involving a minor. See C.G.S. § 53a(a)(1)(A)‐(B). We
therefore express no opinion as to whether a conviction under that
subpart, or a different sexual assault statute involving a minor victim,
would constitute a CIMT even in the absence of a mental component as to
lack of consent. Cf. Mehboob v. AG of the United States, 549 F.3d 272, 278 (3d
Cir. 2008) (observing “the consensus that moral turpitude inheres in strict
liability sex offenses” involving minors or children (citing cases));
Marinelli v. Ryan, 285 F.2d 474, 475‐76 (2d Cir. 1961) (“We have no doubt
that” C.G.S. § 53‐216, the indecent touching of a minor under the age of
sixteen, “involves moral turpitude.”).
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‘wrongful intent’ regarding a victim’s non‐consent is a defense of
mens rea, and it obtains when a victim’s conduct is such as to cause a
defendant reasonably ‘to assume’ that she is voluntarily acquiescing
to sexual intercourse in her mind even if she is not.”). We are
uncertain, however, as to whether this is the rule in Connecticut. As
relevant here, a mistake‐of‐fact defense applies where a “factual
mistake negated the mental state required for the commission of an
offense.” C.G.S. § 53a‐6(a)(1). So mistake of fact as to consent is a
defense if and only if Connecticut requires the prosecution to prove
a mental state related to lack of consent—the very question we are
unable to answer.
The Government also relies on the Connecticut Supreme
Court’s decision in State v. Smith, 554 A.2d 713 (Conn. 1989). In that
case, the Connecticut Supreme Court appeared to speak generally
about the nature of consent:
While the word “consent” is commonly regarded as
referring to the state of mind of the complainant in a
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sexual assault case, it cannot be viewed as a wholly
subjective concept. Although the actual state of mind of
the actor in a criminal case may in many instances be
the issue upon which culpability depends, a defendant
is not chargeable with knowledge of the internal
workings of the minds of others except to the extent that
he should reasonably have gained such knowledge
from his observations of their conduct. . . . [W]hether a
complainant has consented to intercourse depends
upon her manifestations of such consent as reasonably
construed. If the conduct of the complainant under all
the circumstances should reasonably be viewed as
indicating consent to the act of intercourse, a defendant
should not be found guilty because of some undisclosed
mental reservation on the part of the complainant.
Id. at 717.
Smith, however, considered a prosecution for sexual assault in
the first degree, id. at 714, not the fourth, and we are aware of no
instances in which Smith has been applied to sexual assault in the
fourth degree.4 Moreover, the court’s holding in Smith relied upon
4 We note that the Government does argue that none of the reported cases
involving application of C.G.S. § 53a‐73a(a)(2) appears to have imposed
liability on a defendant who reasonably believed he had consent. But
even assuming, arguendo, that the Government is correct, these cases do
not discuss whether Smith is applicable in this context.
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features of sexual assault in the first degree that are not applicable to
sexual assault in the fourth degree. At the time Smith was decided,
sexual assault in the first degree applied “to a person who compels
another person to engage in sexual intercourse by the use of force or
by the threat of use of force which reasonably causes such person to
fear physical injury.” Id. at 716 (internal quotation marks and
ellipses omitted). The Connecticut Supreme Court reasoned that
“[a] finding that a complainant had consented would implicitly
negate a claim that the actor had compelled the complainant by
force or threat to engage in sexual intercourse.” Id. at 717; see Crim.
Jury Instructions § 7.1 (characterizing Smith by stating that
“[c]onsent, often raised as a defense, is more exactly a denial of the
element of compulsion”). Sexual assault in the fourth degree
requires no analogous force or threat through which a reasonable
belief of consent defense could be imputed.
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In sum, we are left uncertain about the likelihood that the
Connecticut courts would permit a defendant to be convicted under
C.G.S. § 53a‐73a(a)(2) where the defendant reasonably believed that
consent was present. On the one hand, the statute, elements as
recited in the cases, and jury instructions suggest strict liability. On
the other hand, we are unable to find a case where we are confident
strict liability was imposed and the Connecticut Supreme Court has
spoken generally to the issue of consent in a manner that suggests
strict liability is inappropriate. Even if Connecticut would not apply
strict liability to the lack of consent element, we are unable to
discern what level of mens rea would be applied.
We have the authority to certify an open question of law to the
Connecticut Supreme Court. C.G.S. § 51‐199b(d) (“The Supreme
Court may answer a question of law certified to it by a court of the
United States . . . .”); Second Cir. Local R. 27.2(a) (“If state law
permits, the court may certify a question of state law to that state’s
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EFSTATHIADIS V. HOLDER
highest court.”). “Where a question of statutory interpretation
implicates the weighing of policy concerns, principles of comity and
federalism strongly support certification.” Parrot v. The Guardian Life
Ins. Co. of Am., 338 F.3d 140, 144 (2d Cir. 2003) (internal quotation
marks omitted). Whether or not Connecticut imposes strict liability
for intentional sexual touching without consent implicates important
policy concerns, as is clear from the Connecticut Supreme Court’s
decision in Smith. Certification, therefore, is appropriate in this
case.5
5 While a petition is pending in this Court, the Government’s forbearance
policy assures that the filing of a motion to stay removal, as has been done
here, will suffice to prevent removal. Of course, our decision to certify
questions of law to the Connecticut Supreme Court does not alter in any
way the fact that Efstathiadis’ petition is pending before this Court.
Should the Government disagree, we expect it to inform us promptly so
that we might decide the pending motion to stay removal. Cf. In re
Immigration Petitions for Review Pending in the U.S. Court of Appeals for the
Second Circuit, 702 F.3d 160, 162 (2d Cir. 2012).
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CONCLUSION
Under federal immigration law, Efstathiadis’ removal turns
on whether the crime he was convicted of—C.G.S. § 53a‐73a(a)(2)—
is a CIMT. The answer to that question, in turn, implicates the level
of mens rea applicable to C.G.S. § 53a‐73a(a)(2)’s lack of consent
element. Because we are unable to predict what level of mens rea the
Connecticut courts would require, and because the issue involves
the weighing of important policy considerations, we respectfully
certify the following questions to the Connecticut Supreme Court:
(1) Is C.G.S. § 53a‐73a(a)(2) a strict liability offense with respect to
the lack of consent element?
(2) If C.G.S. § 53a‐73a(a)(2) is not a strict liability offense with
respect to the lack of consent element, what level of mens rea
vis‐à‐vis that element is required to support a conviction?
Accordingly, it is hereby ORDERED that the Clerk of this
Court transmit to the Connecticut Supreme Court a Certificate, as set
forth below, together with a complete set of the briefs, appendices,
and record filed by the parties in this Court. The parties are further
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ORDERED to bear equally such costs and fees, if any, as may be
required by the Connecticut Supreme Court.
CERTIFICATE
The foregoing is hereby certified to the Connecticut Supreme
Court pursuant to Second Circuit Local Rule 27.2(a) and Connecticut
General Statute § 51‐199b(d), as ordered by the United States Court
of Appeals for the Second Circuit.
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