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3 Cir: MN sex offender registration not CIMT; adjustment doesn’t reset admission date

The U.S. Court of Appeals for the Third Circuit recently held that Minnesota’s predatory offender registration crime does not involve moral turpitude. Totimeh v. Attorney General, Nos. 10-3939 & 11-1998, slip op. (3d Cir. Jan. 12, 2012) (McKee, Rendell, and Ambro, JJ.). The court also followed the BIA’s 2011 decision in which the Board held that the applicable date of admission for removability is the date on which the noncitizen was in the country when the crime was committed as opposed to a later adjustment of status date. Judge Ambro wrote the panel’s decision.

This case involves an individual who was admitted as a non-immigrant visitor in July 1980. In May 1983 he adjusted his status to permanent resident. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 3. Less than five years later, in January 1988, he pleaded guilty to criminal sexual conduct and in April 1998 he pleaded guilty to failing to comply with the state’s sex offender registration requirement. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 3-4.

DHS initiated removal proceedings based on the 1988 conviction alleging that Totimeh is removable for having been convicted of a CIMT within 5 years of admission. INA § 237(a)(2)(A)(i). In an amended NTA it also alleged that he is removable for having been convicted of two CIMTs at any time after admission.  INA § 237(a)(2)(A)(ii).

Hoping to obtain relief under former INA § 212(c), Totimeh conceded that the 1988 conviction involves moral turpitude. When DHS amended the NTA to add the 1998 conviction and the multiple CIMT ground of removal, Totimeh denied that the failure to register conviction constitutes a CIMT. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 4. The immigration judge determined that the failure to register conviction involves moral turpitude. In reaching this conclusion, the IJ “relied on the BIA’s decision in In re Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007), whereby it concluded that failure to register as a sex offender in violation of California’s sex offender registration act was a crime involving moral turpitude.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 5.

Totimeh subsequently claimed that he was actually admitted in July 1980 when he came to the USA as a non-immigrant rather than May 1983 when he adjusted. It is unclear from the decision whether he asserted this before the IJ or BIA. Regardless, he made this assertion without supporting it in the record. The BIA affirmed the IJ’s CIMT conclusion and determined that Totimeh’s adjustment date was the relevant date of admission thus the 1988 criminal sexual conduct conviction was a CIMT committed within 5 years of admission. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 5.

Totimeh later moved to reopen his case before the BIA to supplement it with documents retrieved through a FOIA request. The BIA denied this motion. The Third Circuit expressed dismay that Totimeh was forced to obtain this information through a FOIA request rather than having the government simply turn it over when he asserted that he had been admitted in 1980.

“It is strange,” the court explained in a footnote, “that the Government did not provide this information to Totimeh or the IJ at the time the former asserted his correct admission date, and instead forced him to seek out the documents through a FOIA request. This resulted in unnecessary delay, an additional written decision by the BIA, and an additional appeal to us. We expect that the Government will respond (and quickly) in the future with such information in similar circumstances.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 6 n.3.

While I agree that this is “unnecessary delay,” it’s not “strange”—at least not if by strange the court means unusual. On the contrary, it’s routine practice. The Third Circuit’s expectation that the government “will respond (and quickly)” in the future is commendable, but without the threat of some kind of sanction I’m skeptical that such comments will make a difference.

Given the BIA’s decision, the Third Circuit was faced with deciding, first, whether Minnesota’s predatory offender registration statute is a CIMT and, second, if it is not a CIMT, what date is the proper date of admission for determining whether Totimeh was convicted of a CIMT within 5 years of admission (the 1980 date on which he was admitted as a non-immigrant or the 1983 date of his adjustment of status). Totimeh, Nos. 10-3939 & 11-1998, slip op. at 7.

At the time of Totimeh’s 1998 conviction, the Minnesota predatory offender registration statute, Minn. Stat. § 243.166.5, “defined the offense as ‘knowingly violat[ing] any of [the statute’s] provisions or intentionally provid[ing] false information.’” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 9. Among other things, the statute “required registered offenders to provide a written notice of a change in residence at least five days before changing residence.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 10.

To decide whether this offense involves moral turpitude, the Third Circuit turned to the Tenth Circuit’s decision in Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011), in which the Tenth Circuit held that Colorado’s sex offender registration statute is not a CIMT. (I previously mentioned Efagene in a post about a Ninth Circuit decision.) Following Efagene’s reasoning, the Third Circuit concluded that the Minnesota predatory offender registration statute “can be committed without intent,” is a regulatory offense designed to assist law enforcement, and “does not regulate a crime that of itself is inherently vile or intentionally malicious.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 12-13.

In addition, the BIA’s interpretation of the Minnesota offense conflicts with the BIA’s prior interpretation of the CIMT provision as not including regulatory or licensing crimes, thus it “is not entitled to Chevron deference,” referring to Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), which normally requires courts to defer to an agency’s reasonable interpretation of statutes within its area of expertise. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 13.

Accordingly, the Third Circuit held that Minnesota’s predatory offender registration offense does not necessarily involve moral turpitude. As such, Totimeh is not removable for having been convicted of two or more CIMTs. INA § 237(a (2)(A)(ii).

The court then turned to deciding whether Totimeh was removable for having been convicted of one CIMT within five years of admission. INA § 237(a)(2)(A)(i). Because there is no question that the 1988 criminal sexual conduct conviction constitutes a CIMT, whether Totimeh is removable for having been convicted of a CIMT within five years of admission depends on the date on which Totimeh was admitted.

Here the court quickly concluded that the BIA incorrectly applied its own precedential decision and DHS erroneously argued in support of the BIA’s position. Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011), the court explained, held that the “date of admission” for purposes of INA § 237(a)(2)(A)(i), “refers to the single ‘date of admission by virtue of which the alien was present in the United States when he [or she] committed [the] crime.’” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 7 (quoting Matter of Alyazji, 25 I&N Dec. at 406). (The Immigration Law Profs blog has more information about Alyazji.)

It does not matter that Totimeh later adjusted his status because at the time of the 1988 conviction he was in the USA as a result of the 1980 admission. The 1983 adjustment merely extended the stay that began with the 1980 admission. “[O]nce an alien is in the United States legally, the five-year clock starts. Later adjustment of the reason that the alien may stay does not restart a clock that never stopped.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 15.

Many thanks and congratulations to Wayne P. Sachs of the Sachs Law Group, LLC, in Philadelphia who argued on behalf of Totimeh and alerted me to this wonderful decision.

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