IMMIGRATION LAW - EXPANDING CRIMES INVOLVING MORAL TURPITUDE: NIGERIAN REFUGEE DEPORTED FOR FAILING TO REGISTER AS SEX OFFENDER - BAKOR V. BARR.

• Author: Paris, Molly

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The Immigration Act of 1891 was the first federal statute to expressly exclude aliens who committed a crime involving moral turpitude (CIMT). (1)Under the Immigration and Nationality Act [*210] (INA), the federal government is entrusted with broad powers to exclude aliens from entering the United States, as well as deport those aliens within the United States who have been convicted of at least one CIMT. (2)In Bakor v. Barr, (3)the Eighth [*211] Circuit Court of Appeals considered whether an alien's conviction of two state crimes were grounds for removal from the United States by the Department of Homeland Security (DHS) pursuant to 8 U.S.C. [section] 1227(a)(2)(A)(ii). (4)The Court ultimately [*212] held that Tua Mene Lebie Bakor (Petitioner) was removable under 8 U.S.C. [section] 1227(a)(2)(A)(ii) because he was convicted of two CIMT. (5) [*213] The Petitioner, a Nigerian national and citizen, arrived in the United States as a refugee on September 20, 1999. (6) Approximately [*214] two years later, on September 24, 2001, Petitioner was convicted under Minnesota law of criminal sexual misconduct in the fifth degree. (7)Although Petitioner was required to register [*215] as a sex offender under Minnesota law following his conviction in 2001, he failed to comply and was subsequently convicted for knowingly failing to registeron May 6, 2016. (8)

In 2017, the DHS initiated removal proceedings against the Petitioner, alleging that he committed two CIMT, in violation of [*216] 8 U.S.C. [section] 1227(a)(2)(A)(ii). (9)The Immigration Judge sustained the charges brought by the DHS and ruled that Petitioner was deportable pursuant to 8 U.S.C. [section] 1227(a)(2)(A)(ii). (10)Petitioner [*217] then appealed the Immigration Judge's removal order to the Board of Immigration Appeals (BIA), but the BIA dismissed his appeal and issued a final removal order. (11)On September 19, 2018, Petitioner appealed the BIA's final removal order to the Eighth Circuit Court of Appeals, which ultimately denied his petition for review. (12)

[*218] Historically, immigration law sought to exclude certain types of aliens from entering the U.S. (13)In 1952, Congress [*219] passed the INA, which provides in relevant part that an alien can face deportation if they are convicted of a CIMT. (14)The federal government, which has plenary power over immigration matters, intended to further strengthen and broaden the scope of excludable aliens. (15)Although Congress initially delegated [*220] [*221] immigration enforcement functions within the INA to the Attorney General (AG), the DHS currently manages most immigration functions. (16)

Aliens are entitled to due process protections similar to those afforded to U.S. citizens. (17)By virtue of being within U.S. [*222] borders, aliens are also required to abide by U.S. laws. (18)Under the INA, however, an alien convicted of a criminal offense can face severe punishment. (19)In cases where an alien is convicted [*223] of a CIMT, deportation under the INA depends on how a given jurisdiction defines "moral turpitude!" (20) [*224] Based on BIA precedent, certain types of crime qualify as a CIMT. (21)When reviewing a decision rendered by the BIA, fed [*225] [*226] eral courts are highly deferential to BIA's interpretation of a CIMT. (22)If the BIA determines that a conviction qualifies as a [*227] [*228] CIMT, federal courts apply the categorical approach. (23)Under the categorical approach, a court will first look at the statutory language that gave rise to the conviction, and determine what type of conduct it criminalizes. (24)Then, the court will determine [*229] whether the minimum amount of conduct punished by the statute of conviction satisfies the BIA's definition of CIMT. (25)Although the BIA has attempted to clarify the meaning of CIMT to help ensure more consistent application of the categorical approach, it has not resolved the patchwork of different CIMT interpretation across the federal circuits. (26)

[*230] [*231] In Bakor v. Barr, the Eighth Circuit Court of Appeals held that the BIA correctly ordered Petitioner's removal pursuant to 8 U.S.C. [section] 1227(a)(2)(A)(ii). (27)The Court began its opinion by discussing how the BIA defines CIMT within the context of the INA. (28)In reviewing the BIA's determination that the Petitioner's [*232] two convictions constituted CIMT, the Court agreed that categorically, both convictions qualified aas CIMT. (29)Al [*233] [*234] [*235] though the Petitioner raised additional arguments as to why his convictions did not qualify aas CIMT, the Court declined to address new arguments that were not previously raised before the BIA. (30)Ultimately, in denying Petitioner's petition for review and agreeing with the BIA's reasoning justifying Petitioner's removal, the Court was highly deferential to the BIA. (31)

[*236] The Eighth Circuit's imprecise application of the categorical approach to Petitioner's conviction for failing to register as a predatory offender creates a dangerous precedent for future deportation cases involving regulatory offenses. (32)The Court incorrectly [*237] held that failing to register was categorically a CIMT because the Minnesota statute imposed additional regulatory requirements on individuals, which could trigger a conviction. (33)In addition, the statute requiring predatory offenders to register [*238] also applies to individuals who did not commit sex crimes. (34)By deferring to the BIA's interpretation, that failing to register constitutes a CIMT, the Court willingly accepted that minor regulatory infractions punished by the same statute are also within the scope of CIMT. (35)

[*239] Given that the BIA has historically held that regulatory offenses are not CIMT, the BIA's interpretation of the registration statute as a CIMT was unreasonable and not entitled to deference. (36)The Court's deference to the BIA's statutory interpretation was misplaced because the registration statute is considered a regulatory, rather than punitive, offense in Minnesota, and because the BIA relied exclusively on Tobar-Lobo. (37)In [*240] holding that Petitioner's failure to register conviction qualified as a CIMT, the Court created an unnecessary split on this issue with the Third, Fourth, Ninth, and Tenth Circuits. (38)

[*241] Although the Court incorrectly applied the categorical approach to Petitioner's failure to register conviction, it did correctly apply the categorical approach to Petitioner's conviction for nonconsensual sexual conduct in the fifth degree. (39)The [*242] Court's determination that nonconsensual sexual conduct qualified as a CIMT was correct because its characterization of this crime aligned with accepted societal expectations of morally reprehensible conduct. (40)Had the Court, however, correctly applied the categorical approach to Petitioner's conviction for failing to register, the Petitioner would not have faced deportation under 8 U.S.C. [section] 1227(a)(2)(A)(ii). (41)

[*243] In Bakor v. Barr, the Eighth Circuit incorrectly denied the Petitioner's petition for review, and in doing so, affirmed the BIA's decision ordering Petitioner's removal pursuant to 8 U.S.C. [section] 1227(a)(2)(A)(ii). Although the Court correctly determined that Petitioner's conviction for sexual misconduct constituted a CIMT, the Petitioner would not have faced deportation under 8 U.S.C. [section] 1227(a)(2)(A)(ii) had the Court properly rejected the BIA's interpretation of the registration statute. By deferring to the BIA's statutory interpretation, that failing to register constitutes a CIMT, the Court split from four other federal circuit courts who addressed this same issue. Given that the BIA's interpretation of what crimes qualify as a CIMT has drastically expanded in recent years, the Court should have evaluated whether the registration statute constituted a CIMT solely on de novoreview. The Court's willingness to afford deference to the BIA's unreasonable interpretation of the statute will likely set precedent for future cases where regulatory statutes qualifying aas CIMT could trigger immigration consequences under the INA and empower DHS to more aggressively initiate deportation proceedings.

Reporter

44 Suffolk Transnat'l L. Rev. 209 *

Length: 48830 words

Author: Molly Paris

(1) See Immigration Act of 1891, ch. 551, [section] 1, 26 Stat. 1084, 1084 (1891) (providing basis for exclusion). The Immigration Act of 1891 required the exclusion of "persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude..." Id. See also Immigration Act of 1917, Pub. L. No. 64-301, [section] 19, 39 Stat. 874, 889-90 (1917) (repealed 1952) (expanding on Immigration Act of 1891). In 1917, Congress broadened the scope of the Immigration Act of 1891 by giving the federal government discretion to deport any immigrant convicted of a crime involving moral turpitude (CIMT). Id. See also Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 (1952); 8 U.S.C. [section] 1101-1537 (reinforcing deportation for CIMT). Although the Immigration and Nationality Act (INA) of 1952 replaced the Immigration Act of 1917, the INA retained similar language regarding alien admission and deportation in connection with crimes involving moral turpitude. Id. The only distinction between the Immigration Act of 1917 and the IN A of 1952, with respect to an alien's deportation for CIMT is that in the latter, deportation for CIMT is separated into two sections, as opposed to one. Id[section][section]212(a)(9)-(10), 241(a)(4), 66 Stat. at 182, 204. See also Brian C. Harms, Redefining "Crimes of Moral Turpitude:" A Proposal to Congress, 15 GEO. IMMIGR. L.J. 259, 262 (2001) (citing H.R. REP. NO. 51-3807, at 8 (1891)) (explaining historical events leading up to enactment). Congress initially passed the Immigration Act of 1981 in response to a House and Senate joint investigation on foreign immigration...