The U.S. Court of Appeals for the Ninth Circuit recently threw a wrench into the BIA’s 2007 ruling that failure to register as a sex offender constitutes a crime involving moral turpitude. In Pannu v. Holder, No. 07-71988, slip op. 6235 (9th Cir. May 11, 2011) (Reinhardt, Hawkins, and Gould), the Ninth Circuit suggested that failure to register as a sex offender under California law might not be a crime involving moral turpitude because it is a strict liability offense. Judge Hawkins wrote the panel’s decision.
Some background is appropriate. In a 2007 decision, Matter of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007), the Board held that California’s failure to register as a sex offender offense, Cal. Penal Code § 290(g)(1), categorically constitutes a CIMT. Pannu was convicted under the same provision. At the time of Pannu’s conviction, § 290(g)(1) provided: “Any person who is required to register under this section based on a misdemeanor conviction or juvenile adjudication who willfully violates any requirement of this section is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding on year.” Cal. Penal Code § 290(g)(1) (2002) (quoted in Pannu, No. 07-71988, slip op. at 6239).
To determine whether a § 290(g)(1) conviction necessarily requires moral turpitude, the Ninth Circuit turned to Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008). In particular, the court explained that Silva-Treviño requires “that the IJ or BIA must determine whether there is a ‘realistic probability, not a theoretical possibility’ that the underlying criminal statute would be applied to reach conduct that does not involve moral turpitude” and “most important here, [Silva-Treviño] addressed the proper definition of moral turpitude, explaining that ‘[a] finding of moral turpitude under the Act requires that a perpetrator have committed the reprehensible act with some form of scienter.’” Pannu, No. 07-71988, slip op. at 6241.
Turning then to California’s failure to register offense, the court noted that despite the “willfulness” requirement, “the BIA acknowledged that it had been applied by California courts to include even mere forgetfulness.” Pannu, No. 07-71988, slip op. at 6242. “The result is, in effect, a strict liability crime.” Pannu, No. 07-71988, slip op. at 6242.
Importantly, the court added that it previously held that a similar failure to register offense was a strict liability offense that lacked moral turpitude. In Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. 2008), involving Nevada’s failure to register as a sex offender offense, “we rejected the BIA’s reasoning that the failure to register was a breach of a duty owed to society, noting that commission of any crime, by definition, runs contrary to some duty owed to society, but does not necessarily demonstrate moral depravity.” Pannu, No. 07-71988, slip op. at 6240. “‘[I]t is the sexual offense that is reprehensible, not the failure to register.’” Pannu, No. 07-71988, slip op. at 6240 (quoting Plasencia-Ayala, 516 F.3d at 748-49).
The en banc Ninth Circuit subsequently cast doubt on Plasencia-Ayala, the court noted, because it “held that we should afford Chevron deference to the BIA’s unpublished determinations of whether a crime constitutes a CIMT, if those decisions rely on prior precedential decisions of the BIA that are dispositive of the interpretive issue in the case.” Pannu, No. 07-71988, slip op. at 6240 (citing Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009)). Plasencia-Ayala’s holding, however, is not completely demolished. Though Marmolejo-Campos “expressly overturned Plasencia-Ayala” on deference, it “did not otherwise address the merits of Plasencia-Ayala’s analysis of the sex offender registration CIMT issue.” Pannu, No. 07-71988, slip op. at 6241.
As such, the court remanded Pannu to the BIA to determine whether California’s failure to register as a sex offender statute constitutes a CIMT under Silva-Treviño’s realistic probability and scienter requirements. Pannu, No. 07-71988, slip op. at 6242. Interestingly, in a footnote the court suggested that the BIA also consider the Tenth Circuit’s recent decision in Efagene v. Holder, No. 10-9546, 2011 WL 1614299 (10th Cir. Apr. 29, 2011), in which that court held that Colorado’s failure to register as a sex offender statute categorically does not constitute a CIMT. Pannu, No. 07-71988, slip op. at 6242 n.5.
In reviving its Plasencia-Ayala analysis, the Ninth Circuit seems to be pushing back on the BIA’s broad interpretation of moral turpitude all the while holding it to the Attorney General’s Silva-Treviño framework for determining what constitutes a CIMT. Strict liability offenses, the court suggests but does not hold, are not CIMTs. Though the court tilts in this direction by resting on Silva-Treviño’s scienter requirement, it hints at a more fundamental discomfort with the BIA’s broad interpretation of moral turpitude: if a strict liability offense constitutes a CIMT, what doesn’t?