PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2027
KHALID ABDEL WHAB MOHAMED,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 19, 2014 Decided: October 17, 2014
Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and DAVIS,
Senior Circuit Judge.
Petition for review granted; reversed and remanded with
instructions by published opinion. Judge Niemeyer wrote the
opinion, in which Chief Judge Traxler and Senior Judge Davis
joined.
ARGUED: Steven Harris Goldblatt, GEORGETOWN UNIVERSITY LAW
CENTER, Washington, D.C., for Petitioner. Bernard Arthur
Joseph, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. ON BRIEF: Rita K. Lomio, Supervising Attorney,
Lola A. Kingo, Supervising Attorney, Tiffany L. Ho, Student
Counsel, David A. Kronig, Student Counsel, Philip Young, Student
Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW
CENTER, Washington, D.C., for Petitioner. Stuart F. Delery,
Assistant Attorney General, Civil Division, Jamie M. Dowd,
Senior Litigation Counsel, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
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NIEMEYER, Circuit Judge:
Khalid Mohamed, a citizen of Sudan, was ordered removed by
the Board of Immigration Appeals (“BIA”) on the ground that he
had been convicted of two crimes “involving moral turpitude” --
a 2010 conviction for sexual battery, in violation of Va. Code
Ann. § 18.2-67.4, and a 2011 conviction for failing to register
as a sex offender, in violation of Va. Code Ann. § 18.2-472.1.
See 8 U.S.C. § 1227(a)(2)(A)(ii) (rendering deportable an alien
who is convicted of “two or more crimes involving moral
turpitude”). To conclude that the crime of failing to register
as a sex offender was a crime involving moral turpitude, the BIA
relied on its prior decision in Matter of Tobar-Lobo, 24 I. & N.
Dec. 143 (BIA 2007), which so held.
In his petition for review, Mohamed contends that his
failure to register as a sex offender was not a crime involving
moral turpitude and that Tobar-Lobo was an unreasonable
interpretation of § 1227(a)(2)(A)(ii). Because we agree, we
grant Mohamed’s petition for review, reverse the BIA’s ruling,
and remand with instructions to vacate the order of removal.
I
Mohamed, who was born in Sudan in 1980, entered the United
States as a lawful permanent resident in 2003. In 2010, while
living in Virginia, he pleaded guilty to sexual battery, having
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been charged with “sexually abusing . . . a female child
17 years of age . . . by force, threat, intimidation, [or]
ruse,” in violation of Va. Code Ann. § 18.2-67.4. In 2011, he
was convicted of failing to register as a sex offender, in
violation of Va. Code Ann. § 18.2-472.1.
Following Mohamed’s second conviction, the Department of
Homeland Security sought his removal, contending that Mohamed’s
two convictions were for crimes involving moral turpitude and
that Mohamed was therefore deportable under 8 U.S.C.
§ 1227(a)(2)(A)(ii). Before an immigration judge (“IJ”),
Mohamed conceded that his sexual battery conviction involved
moral turpitude, but he maintained that his conviction for
failure to register as a sex offender did not involve moral
turpitude and that therefore he was not removable. He also
applied for cancellation of removal under 8 U.S.C. § 1229b(a),
arguing that his sexual battery conviction was not for a “crime
of violence” and therefore was not an “aggravated felony” that
would have barred him from relief under § 1229b(a)(3).
Recognizing that Mohamed had the burden of supporting his
application for cancellation of removal and finding that the
record was “inconclusive as to whether [Mohamed’s sexual
battery] offense [was] a crime of violence and thus an
aggravated felony,” the IJ found that Mohamed had failed to
carry his burden and denied his application for cancellation.
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On appeal from the IJ’s decision, the BIA dismissed
Mohamed’s appeal and, by order dated July 19, 2013, ordered his
removal. The BIA concluded that Mohamed was removable for
having been convicted of two crimes involving moral turpitude,
expressly noting that Mohamed’s failure to register as a sex
offender was a crime involving moral turpitude, as held in
Tobar-Lobo, 24 I. & N. Dec. 143. The BIA also concluded that
Mohamed had failed to carry his burden of demonstrating that his
sexual battery conviction was not an “aggravated felony” for
purposes of his cancellation application.
Mohamed filed this petition for review of the BIA’s order,
challenging both rulings of the BIA.
By order dated September 29, 2014, we directed the
government to release Mohamed from custody immediately,
indicating that this opinion would provide the basis for our
order.
II
Mohamed’s order of removal is based on 8 U.S.C.
§ 1227(a)(2)(A)(ii), which provides that any alien “convicted of
two or more crimes involving moral turpitude . . . is
deportable.” While Mohamed acknowledges that the sexual battery
offense for which he was convicted was a crime involving moral
turpitude, he argues that his conviction for failing to register
as a sex offender does not similarly qualify. According to
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Mohamed, “[f]ailure to register under Virginia law is a non-
penal, regulatory offense, and a conviction may stand even if
the defendant simply forgot to register on time, and instead
registered a day late.” Without two convictions for crimes
involving moral turpitude, he asserts that he is not removable.
The government argues that the BIA’s interpretation of
§ 1227(a)(2)(A)(ii) -- that the crime of failing to register as
a sex offender is a crime involving moral turpitude -- is based
on a permissible construction of the statute and therefore is
entitled to deference. It emphasizes the “serious” and “grave”
risk to society posed by sex offenders, arguing on that basis
that the crime of failure to register is “inherently base or
vile” and therefore involves moral turpitude. It urges us to
defer to what it considers to be the BIA’s reasonable
interpretation of § 1227(a)(2)(A)(ii) made in Tobar-Lobo, which
held that failing to register as a sex offender is a crime
involving moral turpitude. In Tobar-Lobo, the BIA observed that
“moral turpitude” refers 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,” 24 I. & N. Dec. at 144, and that a failure to register
as a sex offender satisfies that definition, “[g]iven the
serious risk involved in a violation of the duty owed by this
class of offenders to society,” id. at 146.
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The issue we must address, therefore, is whether a
violation of Va. Code Ann. § 18.2-472.1 is a crime involving
moral turpitude, as that term is used in 8 U.S.C.
§ 1227(a)(2)(A)(ii). In deciding that question, a court must
consider only the statutory elements, not the facts underlying
the particular violation of the statute. See Prudencio v.
Holder, 669 F.3d 472, 484 (4th Cir. 2012). And resolution of
the issue is a question of law that we review de novo. See
Salem v. Holder, 647 F.3d 111, 115 (4th Cir. 2011). A court
will, however, defer to the BIA’s statutory interpretation if
the statute is ambiguous and the BIA’s interpretation is
reasonable. See Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842-43 (1984); Yousefi v. U.S. INS,
260 F.3d 318, 325-26 (4th Cir. 2001); Am. Online, Inc. v. AT & T
Corp., 243 F.3d 812, 817 (4th Cir. 2001).
We begin by noting that, by using the phrase “involving
moral turpitude” to define a qualifying crime, Congress meant to
refer to more than simply the wrong inherent in violating the
statute. Otherwise, the requirement that moral turpitude be
involved would be superfluous. It follows, therefore, that a
crime involving moral turpitude must involve conduct that not
only violates a statute but also independently violates a moral
norm. See Tillinghast v. Edmead, 31 F.2d 81, 83 (1st Cir. 1929)
(defining “crime involving moral turpitude” as requiring “an act
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intrinsically and morally wrong and malum in se”). To identify
such a crime, we consider whether conduct that violates the
statutory proscription also violates a moral norm and thus gives
rise to “turpitude” -- meaning the debasement of the norm or the
value. See Merriam-Webster’s Collegiate Dictionary 1351 (11th
ed. 2007) (defining “turpitude”); id. at 101 (defining “base”).
Accordingly, we have noted that “moral turpitude” refers
generally to “conduct that shocks the public conscience as being
inherently base, vile, or depraved.” Medina v. United States,
259 F.3d 220, 227 (4th Cir. 2001) (quoting Matter of Danesh,
9 I. & N. Dec. 669, 670 (BIA 1988)); see also Tobar-Lobo,
24 I. & N. Dec. at 144 (defining moral turpitude to mean
“conduct that is inherently base, vile, or depraved”).
Thus, by way of example, a sexual battery not only violates
Virginia’s statutory proscription against such conduct but also
independently violates a moral norm that a person not commit
sexual battery on another person. It is undisputed by the
parties that engaging in such conduct would be morally wrong.
We thus can conclude that the statutory crime of sexual battery
involves moral turpitude separate and apart from the wrong
inherent in violating the statutory proscription.
To be sure, the contours of moral norms are not always
clear and may often be the subject of legitimate debate. See
Padilla v. Kentucky, 559 U.S. 356, 378 (2010) (Alito, J.,
8
concurring in the judgment) (“[D]etermining whether a particular
crime is . . . a ‘crime involving moral turpitude’ is not an
easy task”). But that is not the case here.
The statute in question here simply makes it a crime for a
person convicted of a sex offense “knowingly [to] fail[] to
register” as a sex offender. Va. Code Ann. § 18.2-472.1(A).
The registration procedure requires every sex offender to
provide the Virginia State Police with specific information
about himself and his offenses; to present himself to be
photographed; and to submit a DNA sample. See id. § 9.1-903.
The information thus provided is made accessible to the public
and is intended to reduce the risk of recidivism.
The government focuses mostly on the stated purpose of the
registration statute, which is to reduce the risk to society of
repeated sex offenses. But the statute’s language does not
prohibit the repetition of a sex offense. Rather, the statute
is a regulatory or administrative provision requiring only
registration -- the presentation of information -- by a specific
class of persons. Thus, apart from the fact that it is
statutorily mandated, we find no moral norm requiring sex
offenders to register or to provide information to the
community. Moreover, no party has suggested that such a
requirement is imposed by any moral norm. While it is true that
the purpose of the statute is aimed at reducing the risk of
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future immoral conduct, failure to comply with the operative
elements of the registration statute itself does not violate a
recognized moral norm.
The government nonetheless urges us to defer to the BIA’s
decision in Tobar-Lobo, which held that a violation of a sex-
offender registration statute similar to the one in Virginia was
a crime involving moral turpitude. And it notes that we have
previously concluded that the term “crime involving moral
turpitude” is ambiguous. See Yousefi, 260 F.3d at 325-26. Even
so, it recognizes that we should defer to a BIA decision only if
we also find it reasonable.
In Tobar-Lobo, the BIA held that a violation of
California’s failure-to-register statute -- a provision similar
to Virginia’s statute in this case -- was a crime involving
moral turpitude. It reasoned that the “serious risk involved in
a violation of the duty owed by [sex] offenders to society”
rendered a violation of the sex-offender registration statute
“inherently base or vile” and therefore that such a violation
met “the criteria for a crime involving moral turpitude.”
Tobar-Lobo, 24 I. & N. Dec. at 146. As the BIA explained:
Some obligations . . . are simply too important not to
heed. . . . [E]ven 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.
Id.
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While the BIA in Tobar-Lobo rightly recognized the
importance of sex-offender registration statutes to the public
policy of reducing the rate of recidivism among sex offenders,
it failed to focus on the nature of the registration statute
itself to determine whether the proscribed conduct involved
moral turpitude. In short, it based its conclusion on the
statute’s purpose and not on the nature of a conviction under
the statute. A conviction under the registration statute
involves only administrative conduct, not the violation of a
moral norm. See In re Alva, 92 P.3d 311, 313 (Cal. 2004)
(describing California’s sex-offender registration statute as a
“regulatory measure[]” that is “designed to assist law
enforcement and to protect the public”).
The failure to register as a sex offender is much like the
failure to register for the military draft, neither of which
constitutes a malum in se offense. Laws of this nature simply
do not implicate any moral value beyond the duty to obey the
law. At bottom, violating a registration law -- particularly
Va. Code Ann. § 18.2-472.1 -- is categorically not a crime
involving moral turpitude, and the BIA’s contrary conclusion,
which was based on the statute’s purpose, is an unreasonable
construction of the statutory language. For this reason, we do
not defer to Tobar-Lobo. Accord Totimeh v. Att’y Gen., 666 F.3d
109, 116 (3d Cir. 2012) (“[T]he BIA’s determination that
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Minnesota’s predatory offender registration statute is a crime
involving moral turpitude . . . is wrong as a matter of law and
is not entitled to Chevron deference”); Efagene v. Holder, 642
F.3d 918, 921 (10th Cir. 2011) (“[T]he BIA’s interpretation of
moral turpitude to . . . encompass the Colorado misdemeanor
offense of failure to register is not a ‘reasonable policy
choice for the agency to make’” (quoting Chevron, 467 U.S.
at 845)).
Because Mohamed’s 2011 conviction for failure to register
as a sex offender, in violation of Va. Code Ann. § 18.2-472.1,
was not a crime involving moral turpitude, the BIA erred as a
matter of law in relying on that conviction as a basis to order
Mohamed’s removal under 8 U.S.C. § 1227(a)(2)(A)(ii). In view
of this holding, we do not reach Mohamed’s request to review the
ruling on his application for cancellation of removal under
8 U.S.C. § 1229b(a).
Accordingly, we grant Mohamed’s petition for review;
reverse the BIA’s decision; and remand with instructions to
vacate Mohamed’s order of removal.
IT IS SO ORDERED
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