By Lauren Durr Emery

In Khalid Mohamed v. Eric Holder, Jr., the Fourth Circuit reversed a Board of Immigration Appeals (“BIA”) decision which ordered Mohamed’s removal from the country.  The BIA decision was based on Mohamed’s 2010 conviction for sexual battery and his 2011 conviction for failing to register as a sex offender. Under  U.S.C. § 1227(a)(2)(A)(ii), an alien is deportable if they have been convicted of two or more crimes of moral turpitude.

In defense of its position, the BIA cited its previous decision in Matter of Tobar-Lobo–which held that failure to register as a sex offender is a crime of moral turpitude.  It argued that sex offenders pose a serious risk to society and that their failure to register is “inherently base or vile” and therefore should be considered a crime of moral turpitude. The BIA asked the Fourth Circuit to defer to its reasonable interpretation of the statute. Mohamed conceded that his conviction for sexual battery was a crime of moral turpitude, but contended that failure to register as a sex offender was not.  Instead, Mohamed argued that failure to register was a “non-penal, regulatory offense.”

In its decision, the Fourth Circuit explained that committing a crime of moral turpitude means more than simply violating a written statute; otherwise, such a requirement would be superfluous.  A crime of moral turpitude violates moral norms.  Citing its previous decisions, the Court defined a crime of moral turpitude as, “conduct that shocks the public conscience as being inherently base, vile, or depraved.”

Though the BIA focused on the purpose behind the statute–reducing the risk of repeated sex offenses–the statute itself does not prohibit the repetition of a sex offense.  It is a regulatory or administrative provision which merely requires the registration of a particular class of people.  Such regulatory offenses implicate no moral value other than the duty to obey the law.  Therefore, the Court declared that failure to register as a sex offender is “categorically not a crime involving moral turpitude” and that the BIA’s contrary interpretation was unreasonable and undeserving of deference.

Because Mohamed’s failure to register was not a crime involving moral turpitude, the BIA erred in its order to remove him from the country.  The Fourth Circuit reversed the BIA’s decision and remanded the case with instructions to vacate Mohamed’s order for removal.

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