U.S. Fourth Circuit - The FindLaw 4th Circuit Court of Appeals Opinion Summaries Blog

Not Registering as Sex Offender Isn't 'Moral Turpitude': 4th Cir.

Being a sex offender is probably a crime of moral turpitude, right? What about the acting of failing to register as a sex offender? The U.S. government thought so; that's why it initiated deportation proceedings against Khalid Mohamed, a citizen of Sudan. Mohamed was convicted of sexual battery in 2010, and in 2011, he failed to register as a sex offender. Finding these to be a conviction for "two or more crimes involving moral turpitude," the government said he had to go, and the Board of Immigration Appeals agreed.

The Fourth Circuit Court of Appeals wasn't so convinced. It ordered Mohamed released on September 29, and provided the reasoning for its order in an opinion released October 17.

'Base, Vile, or Depraved'

The facts of the case are just as simple as they seem: Mohamed pleaded guilty to sexual battery of a 17-year-old girl and was required to register as a sex offender. He registered a day late and was found to be in violation of a Virginia statute requiring him to do so. The government then wanted him removed from the country.

But what is "moral turpitude"? Obviously, said the Fourth Circuit, it's got to be something more than just committing the offense itself, otherwise it would be unnecessary to make clear that only crimes of moral turpitude can get you kicked out of the United States. Crimes of moral turpitude involve "conduct that shocks the public conscience as being inherently base, vile, or depraved."

The Board of Immigration Appeals relied heavily -- indeed, almost exclusively -- on its 2007 decision, Matter of Tobar-Lobo. In that case, BIA said that failing to register as a sex offender in California was a crime of moral turpitude because the petitioner's failure to register was, like drunk driving, a "'despicable' ... breach of the duty owed to society."

How Do You Spell 'Turpitudinous'?

That's all well and good, said the Fourth Circuit, but when deciding moral turpitude, "a court must consider only the statutory elements, not the facts underlying the particular violation of the statute." Certainly the sexual battery was turpitudinous (the BIA's word, not mine). But failing to register? The reason behind sex offender registration is related to a crime of turpitude, but " failure to comply with the operative elements of the registration statute itself does not violate a recognized moral norm." So violating an administrative regulation, whatever that regulation might be, isn't "base, vile, or depraved."

The court didn't much care for Tobar-Lobo, which this opinion more or less overruled: "In short, [the BIA] 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."

Mohamed gets to stay in the country -- for now, anyway.

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