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New Deportation Ground: Federal Conviction Of Failure To Register As A Sex Offender

by Norton Tooby and Joseph Justin Rollin

Effective July 27, 2006, Congress passed a law which adds a new deportation ground to the INA making deportable '[a]ny alien who is convicted under [18 U.S.C. § 2250] . . . .' [1] The law also renumbers former INA § 237(a)(2)(A)(v) (pardons) as (vi). This new law also precludes United States citizens or lawful permanent residents who have been convicted of a specific list of offenses committed against minors from petitioning to obtain lawful permanent resident status for their family members.[2] While a federal conviction of violating 18 U.S.C. § 2250 triggers deportation and disqualification from eligibility for cancellation of removal for non-lawful permanent residents, it does not appear to trigger any other major adverse immigration consequences:

It is not a ground of inadmissibility, because it is not listed in INA § 212(a)(2) and does not constitute a crime involving moral turpitude.
It is not an aggravated felony, since it is not listed as such.[3]
Therefore, this conviction does not disqualify a Lawful Permanent Resident from eligibility for cancellation of removal. Moreover, this conviction does not stop the clock for cancellation of removal.[4]
It does not trigger mandatory detention.[5]
A lawful permanent resident with this conviction is not 'seeking admission' when returning to the United States.[6]
This conviction does not create a bar to showing Good Moral Character.[7]
It has no effect on eligibility for political asylum. [8]
It does not disqualify a person from eligibility for voluntary departure, either prior to the issuance of a removal order,[9] or after issuance of the order.[10]

This conviction therefore does not trigger any of the listed adverse immigration consequences except for deportation and disqualification from eligibility for cancellation of removal for non-lawful permanent residents.

The federal criminal offense conviction of which constitutes this new ground of deportation was recently enacted and codified in 18 U.S.C. § 2250. It requires persons who have been convicted in any jurisdiction of any of a large number of specific sex offenses to register in the jurisdictions of their conviction, incarceration, residence, or school within three business days after sentence or prior to release from custody. Any noncitizens who violate this new registration requirement may be convicted in federal court, and, once convicted, are deportable and disqualified from cancellation for non-LPRs. It is therefore very important to educate the immigration and criminal defense bars immediately on this situation, so as to prevent these deportable convictions by ensuring that our clients comply with this new requirement.

A more detailed treatment of this new ground of deportation may be found at www.CriminalAndImmigrationLaw.com. Because a noncitizen must first have been convicted of a listed 'sex offense,' and then have failed to register, and then have been convicted under federal law of failure to register, few noncitizens will be subjected to this ground of deportation. Moreover, they will suffer the immigration consequences of their prior conviction for a 'sex offense,' regardless of this new deportation ground. Finally, this conviction triggers only deportation and disqualification from cancellation of removal for non-LPRs, while leaving open the possibility of all sorts of other forms of relief in immigration court. Once again, this legislation appears to be little more than a public relations stunt, insofar as the great majority of noncitizens is concerned. Nonetheless, it provides three important ways the government can attack noncitizens convicted of sex offenses, and in effect nationalizes the machinery of sex offender registration, and affected clients should be warned of the importance of complying with this new legislation.

Recent Developments

UNITED STATES SUPREME COURT GRANTS CERTIORARI TO DECIDE WHETHER AN AGGRAVATED FELONY THEFT OFFENSE INCLUDES AIDING AND ABETTING

In granting certiorari in Gonzales v. Duenas-Alvarez (No. 05-1629), the United States Supreme Court indicated the question presented was as follows: 'Whether a 'theft offense,' which is an 'aggravated felony' under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(G), includes aiding and abetting.' The cases at issue are: Penuliar v. Ashcroft, 435 F.3d 961 (9th Cir. 2005), amended, 435 F.3d 961 (9th Cir. 2006); Martinez-Perez v. Ashcroft, 393 F.3d 1018, 1028 (9th Cir. 2004); United States v. Hathaway, 949 F.2d 609 (2d Cir. 1991) (per curiam), cert. denied, 502 U.S. 1119 (1992);

United States v. Groce, 999 F.2d 1189 (7th Cir. 1993); United States v. Mitchell, 23 F.3d 1 (1st Cir. 1994) (per curiam); United States v. Baca-Valenzuela, 118 F.3d 1223 (8th Cir. 1997).

The Supreme Court agreed to hear the issue of whether a vehicular theft conviction under California law is categorically a 'theft offense' under the aggravated felony definition. The Ninth Circuit's unpublished decision in the case below relied on case law holding that a theft statute that includes a conviction for a substantive offense based solely on aiding and abetting liability is not categorically a theft offense for purposes of the aggravated felony definition. See, e.g., Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005), amended 435 F.3d 961, 970 n.6 (2006); Martinez-Perez v. Ashcroft, 393 F.3d 1018, 1028 (9th Cir. 2004). The Court put the case on an expedited briefing schedule, with the government's brief due 10/26; Duenas-Alvarez' brief due 11/20; and the government's reply due on 11/27. Argument will be on 12/5. The eventual decision in the case may have broad implications for many pending criminal and immigration cases. Thanks to Dan Kesselbrenner.

UNITED STATES SUPREME COURT HEARD ARGUMENT ON OCTOBER 3, 2006 IN CASE TO DECIDE WHETHER SIMPLE POSSESSION CAN CONSTITUTE A DRUG TRAFFICKING AGGRAVATED FELONY

In the consolidated cases of Lopez v. Gonzales (05-547) and Toledo-Flores v. United States (05-7664), the Supreme Court will consider whether drug crimes that are felonies under state law but misdemeanors under federal law qualify as 'aggravated felonies' for immigration purposes. Appearing as amicus, NLADA argued that treating such crimes as aggravated felonies causes unequal punishments across jurisdictions and can result in punishments that are grossly disproportionate to crimes.

FIRST CIRCUIT -- AGGRAVATED FELONY - DRUG TRAFFICKING - STATE CONVICTION OF SECOND POSSESSION OF CONTROLLED SUBSTANCES DID NOT CONSTITUTE AN AGGRAVATED FELONY BECAUSE STATE PROSECUTOR DID NOT PLEAD AND PROVE THE PRIOR IN THE SECOND CASE

Berhe v. Gonzales, ___ F.3d ___, 2006 WL 2729689 (1st Cir. Sept. 26, 2006)(Massachusetts 1996 conviction of misdemeanor simple possession of crack cocaine under Mass. Gen. Laws ch. 94C, § 34, and Massachusetts 2003 misdemeanor conviction of simple possession of crack cocaine, were not aggravated felony drug trafficking convictions under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), not because they were classified as misdemeanors under state law, but because they were simple possession offenses and the prosecution, in the second case, did not plead and prove the prior possession conviction, and the record of conviction in the second case does not contain facts that would convert it from a misdemeanor to a felony conviction if it had been prosecuted in federal court).

FIFTH CIRCUIT -- AGGRAVATED FELONY - CRIME OF VIOLENCE - STATUTORY RAPE

United States v. Alvarado-Hernandez, ___ F.3d ___, 2006 WL 2621650 (5th Cir. Sept. 14, 2006)(Texas conviction for consensual sexual intercourse with a 14-year-old victim in violation of Penal Code § 22.011(a)(2), met the common-sense definition of crime of violence, for purposes of imposing a sixteen-level upward adjustment for an illegal-reentry conviction under U.S.S.G. § 2L1.2(b)(1)(A)(ii) since it fell within the generic, contemporary definition of 'statutory rape' which is specifically listed as a 'crime of violence' for this purpose).

FIFTH CIRCUIT -- AGGRAVATED FELONY - FRAUD OFFENSES - DEFINITION OF 'INVOLVES'

James v. Gonzales, ___ F.3d ___, 2006 WL 2536614 (5th Cir. Sept. 5, 2006)(concerning definition of aggravated felony offenses involving fraud or deceit, court stated: 'Involves' requires that the offense 'necessarily entails the 'involved' behavior.' We recognize that '[w]hether an offense 'involves' fraud is a broader question than whether it constitutes fraud.')(footnote omitted).

NINTH CIRCUIT -- AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CONVICTION DID NOT CATEGORICALLY CONSTITUTE SEXUAL ABUSE OF A MINOR BECAUSE THE ELEMENTS DID NOT REQUIRE PSYCHOLOGICAL OR PHYSICAL ABUSE

United States v. Baza-Martinez, ___ F.3d ___, 2006 WL 2729691 (9th Cir. Sept. 26, 2006)(North Carolina conviction of taking indecent liberties with a child, in violation of N.C.G.S. § 14-202.1 [take or attempt an immoral, improper, or indecent liberty with a child under 16 by defendant more than five years older, for purpose of arousing or gratifying sexual desire, which can be committed by mere words], was not categorically sexual abuse of a minor, because the statute did not require as an element the infliction of psychological or physical harm to the minor, and therefore did not constitute a crime of violence under USSG § 2L1.2(b)(1)(A)(ii) for purposes of imposing a 16-level enhancement of sentence for illegal reentry), disagreeing with United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005); Bahar v. Ashcroft, 264 F.3d 1309 (11th Cir. 2001)(interpreting same statute of conviction but reaching opposite conclusion).

This decision defines 'abuse' for purposes of defining 'sexual abuse of a minor,' in the context of a federal sentencing decision, as requiring an element of the infliction of psychological or physical harm to the minor. There is no reason, however, why this definition should not also apply to the task of defining 'sexual abuse of a minor' aggravated felonies. In addition, it could be argued in defining 'abuse' for purposes of the child abuse domestic violence deportation ground.

TENTH CIRCUIT JOINS THOSE FINDING TRIAL DOES NOT DISQUALIFY NONCITIZEN FROM ELIGIBILITY FOR WAIVER OF DEPORTABILITY UNDER FORMER INA § 212(C)

Hem v. Maurer, ___ F.3d ___, 2006 WL 2383281 (10th Cir. Aug. 18, 2006)(noncitizen remains eligible for relief under former INA § 212(c) who went to trial but forwent appeal when 212(c) relief still potentially available).

After knowing, as the Supreme Court has informed us, that Congress did not expressly indicate a desire to disturb settled expectations of those entering guilty pleas when relief under former INA § 212(c) was available by retroactively abolishing relief for them, it is absurd to conclude that the same Congress did express with sufficient clarity a desire to disturb the settled expectations of the availability of 212(c) relief of those who went to trial believing that 212(c) relief would be available if they lost. Nonetheless, far too many circuits have adopted this silly reasoning. It is reassuring that despite the larger chorus of silly decisions, the Tenth Circuit has applied some clear thinking to the issue.

BIA -- CRIME OF MORAL TURPITUDE - MISPRISION OF FELONY

Matter of Robles, 24 I. & N. Dec. 22 (BIA Sept. 27, 2006)(federal conviction of misprison of a felony, in violation of 18 U.S.C. § 4, constitutes crime of moral turpitude, since mere failure to report an offense is insufficient, offense requires affirmative conduct of concealment, contrary to the duties owed to society; 'evil intent' is implict in statutory requirement that offender take affirmative step to conceal a felony from the proper authorities).

This decision is very badly reasoned, for the reasons given in the dissent in Navarro-Lopez v. Gonzales, 455 F.3d 1055 (9th Cir. July 31, 2006) (California conviction for accessory after the fact, in violation of Penal Code § 32 ['Every person who, after a felony has been committed, harbors, conceals, or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.'], was a conviction involving a crime of moral turpitude, rendering respondent inadmissible and ineligible for cancellation of removal). The BIA mistakenly concluded that mere violation of the duties owed to society - which is present in every single criminal offense - is sufficient to make the offense a CMT. This would mean that all offenses by definition are CMTs, and none are not. It proves too much, and completely abolishes the meaning of the concept of crimes of moral turpitude, and renders the 'moral turpitude' language surplusage. This interpretation thus violates the statute. The law is clear that regulatory offenses, that are wrong merely because they are illegal or unauthorized, are not CMTs.

BIA -- DETENTION - CUSTODY REDETERMINATION - EVIDENCE - PENDING CHARGES AND UNDERLYING EVIDENCE

Matter of Guerra, 24 I. & N. Dec. 37 (BIA Sept. 28, 2006) (no error for immigration judge to consider a pending criminal charge, and the evidence underlying it, in deciding whether a noncitizen would be a danger to the community if released from immigration custody).

BIA -- RELIEF - CANCELLATION - STOP-TIME RULE TRIGGERED BY CRIMINAL CONDUCT THAT CONSTITUTES GROUND OF INADMISSIBILITY OR DEPORTABILITY EVEN THOUGH NOT CHARGED OR FOUND AS GROUND OF REMOVAL

Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept. 28, 2006)(commission of offense stops the clock for cancellation of removal, by terminating a period of continuous residence in the United States pursuant to INA § 240A(d)(1)(B), even though the offense was not charged as nor found to be a ground of inadmissibility or deportability), distinguishing Matter of Fortiz, 21 I. & N. Dec. 1199 (BIA 1998); see also Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. 2006)(rejecting due process challenge to use of uncharged conviction to find a noncitizen ineligible for relief).

BIA -- CRIME OF MORAL TURPITUDE - RETAIL THEFT

Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept. 28, 2006)(Pennsylvania conviction of retail theft in violation of title 18, § 3929(a)(1) of the Pennsylvania Consolidated

Statutes, is a crime involving moral turpitude, even though there is no element requiring specific intent permanently to deprive the owner of the property, because the BIA found it reasonable to assume that the taking is with the intent to retain the merchandise permanently where the elements of the conviction require taking merchandise offered for sale by a store without paying for it and with the intention of depriving the owner of the goods).

This decision is erroneous, since this statute is not divisible, as it does not contain more than one set of elements, and therefore the BIA should follow the minimum conduct rule. It did not do so in this case. Because the statute of conviction allows conviction even if the intent is only temporarily to deprive the owner of the property, minimum conduct required to sustain a conviction does not involve moral turpitude. Therefore, under the proper analysis, a conviction of violating this statute is not a CMT.

BIA -- CRIME OF MORAL TURPITUDE - FALSE STATEMENT TO GOVERNMENT AGENT

Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept. 28, 2006)(Pennsylvania conviction of unsworn falsification to authorities in violation of title 18, section 4904(a) of the Pennsylvania Consolidated Statutes [with intent to mislead a public servant in performing his official function, either (a) makes any written false statement he does not believe true, or submits any writing he knows to be forged, altered, or inauthentic] is a crime involving moral turpitude, even through materiality is not an element of the offense, because the statute requires as an element the intent to disrupt the performance of a public servant's official duties and this impairs and obstructs governmental functions by impairing efficiency, which involves moral turpitude).


Footnotes

1 INA § 237(a)(2)(A)(v), added by Adam Walsh Child Protection and Safety Act of 2006, HR 4472, PL 109-248, § 401 (July 27, 2006).

2 See Adam Walsh Child Protection and Safety Act of 2006, HR 4472, PL 109-248, § 402 (July 27, 2006).

3 INA § 101(a)(43)

4 INA § 240A(d)(1)(B)(a noncitizen with a conviction for violating 18 U.S.C. § 2250 has not 'committed an offense referred to in section 212(a)(2) . . . .').

5 INA § 236(c)(1).

6 INA § 101(a)(13)(C)(v)(a noncitizen with a conviction of violating 18 U.S.C. § 2250 has not 'committed an offense referred to in section 212(a)(2) . . . .').

7 INA § 101(f)(3).

8 INA § 208(b)(2)(B)(i), 8 U.S.C. § 1158(b)(2)(B)(i).

9 INA § 240B(a)(1), 8 U.S.C. § 1229c(a)(1).

10 INA § 237(a)(4), 8 U.S.C. § 1227(a)(4).

Copyright (c) 2006 by Norton Tooby. All rights reserved.


About The Author

Norton Tooby practices in Oakland, California, and received his B.A. from Harvard College in 1967, and his J.D. from Stanford Law School in 1970, where he served as President of the Stanford Law Review during 1969-1970. He specializes in consulting concerning the immigration consequences of criminal cases, and in obtaining post-conviction relief for immigrants, and publishes practice manuals for immigration and criminal lawyers, such as CRIMINAL DEFENSE OF IMMIGRANTS (2003) and POST-CONVICTION RELIEF FOR IMMIGRANTS (2004). This article was first published as a Newsletter on www.CriminalAndImmigrationLaw.com, which is maintained by the Law Offices of Norton Tooby.

Joseph Justin Rollin B.A., University of Washington, 1997, J.D., University of Washington School of Law, 2001, worked for two years as an Attorney Advisor for the Executive Office of Immigration Review before joining the Law Offices of Norton Tooty as an Associate Attorney in 2003. He has since co-authored CRIMES OF MORAL TURPITUDE (2d ed. 2005), AGGRAVATED FELONIES (3d ed. 2006), and SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005) with Mr. Tooby.

For more information about Norton Tooby's Practice Manuals and CD's, see here. For information about upcoming seminars, see here.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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